Another case where police walk into the path of a car and shoot at it when the driver tries to drive away
Case: Cass v. City of Dayton, Court of Appeals, 6th Circuit 2014
What happened: If you are interested in this kind of case, then read the linked opinion — it is short.
Critiicism: The opinion is indulgent of police shooting at the moving vehicle, as it drove away because of concerns about “the lives and safety of both officers and members of the public ‘in the area.'” However, I don’t think it is reasonable to believe that firing bullet(s) at the vehicle would decrease, rather than increase, the danger. It is a lot easier for someone to get out of the way of a fleeing car than it is for that person to get out of the way of an errant bullet — and that should have been especially clear in this case where the driver was not hit, but a presumably innocent passenger was hit and killed by a police bullet. Even beyond the huge danger of stray bullets in these cases, there is the additional fact that a driver who is hit is pretty likely to drive even more erratically after being wounded, which, again, increases, rather than decreases danger to members of the police force and members of the public.
Case: Bacon v. McKeithen, Dist. Court, ND Florida 2014
Officer Chad Vidrine, a defendant, pulled over Derrick Bacon, the plaintiff, as part of a routine traffic stop on September 7, 2012. . . . Unbeknownst to Officer Vidrine, Bacon recorded the stop on his cell phone. . . . On November 7, Bacon revealed in open traffic court that he made the recording. . . . Officer Robbins, another defendant, and Vidrine then handcuffed Bacon despite his protest that his actions were constitutionally protected and placed him in the back of their car. . . . They accused Bacon of illegal wiretapping in violation of Fla. Stat. § 934.03. They later removed the handcuffs and allowed Bacon to leave. . . . However, they kept his cell phone as evidence, which they submitted to the State Attorney to determine whether they had probable cause to search the phone. . . . The State Attorney later found that there was insufficient evidence and declined to move forward with the prosecution. . . .
On May 29, 2014, Bacon’s attorney received an email from a representative in the Sheriff’s office, seemingly in response to the allegations in this action, which stated that, until ambiguities regarding “the statute in question” are resolved, “the Sheriff’s Office willenforce [sic] state statutes to the letter of the law.”
Decision: No qualified immunity for the police officers because they should have known that Florida law cannot be interpreted in such a way that makes it illegal to record police. Also, the “municipality” may be on the hook because the email from the Bay County Sheriff’s Office make it appear that the Sheriff’s Office supported the seizure of the cell phone.
Positive Comment: I think the right to record the police has become much clearer over the past five to ten years, and this case shows that.
Negative Comment: The opinion does not address the fact that the cell phone was snatched by law enforcement without a warrant. Rather, the opinion focuses on the lack of “probable cause” to support seizing the cell phone. I fear that this could be taken as tacit approval of police snatching of a cell phone without a warrant (or a specific and factually-established exception to the warrant requirement). It seems to me that the snatching of the cell phone in open traffic court should presumptively be regarded as a 4A violation, on warrant requirement grounds, even in cases where there is probable cause to support the phone’s seizure.
Negative Comment: Looks like the traffic court judge did a bad job controlling his courtroom. If it were my courtroom, then those police officers would have been locked up for contempt of court. Not clear why that didn’t happen.
I reported (and criticized) the previous 5C opinion in this case here: http://police4aqi.wordpress.com/2014/05/11/fifth-circuit-once-again-misapplies-the-summary-judgement-standard-in-favor-of-the-police/
Despite my criticism, 5C has refused to rehear the case en banc. However, there is a nice dissent from this 10-5 refusal here.
Prelim: “Brady” basically means that the prosecution has to turn over certain unfavorable evidence to the defense side in a criminal trial.
Case: Aguilera v. Wright County, Dist. Court, ND Iowa 2014
Interesting footnote by Judge Mark W. Bennett:
I find this case very disturbing. Were I writing on a clean slate, I would only extend absolute immunity in circumstances where a Brady violation by a prosecutor was both harmless and unintentional—that is, negligent or grossly negligent. On policy grounds, however, I would find absolute immunity inapplicable where a prosecutor’s conduct was intentional and so egregious that a court was compelled to reverse the defendant’s conviction and order a new trial. There should be consequences for such conduct, including both disciplinary action and civil liability. I recognize, however, that the law is well settled that a Brady violation is protected by absolute immunity. I also recognize that, in this case, there are genuine issues of material fact as to who, specifically, failed to disclose the DCI file to Aguilera after the trial court ordered the prosecution to do so and whether that failure was intentional. Aguilera argues that the prosecutors have never been disciplined for the Brady violation found by the Iowa Supreme Court, and the record does not show whether or not they have been. Thus, it appears that, even if the egregious Brady violation in this case was by the prosecutors and was intentional, the prosecutors have, at least thus far, escaped either liability or censure.
I recently reported on Martinez v. Mares here.
After their loss on their summary judgement (sj) motion, the policemen tried to do an interlocutory appeal. The District Court not only denied appeal, but went further and found the motion for appeal “frivolous,” noting the age of the plaintiffs:
Accordingly, the Court finds that Plaintiffs’ motion to certify Defendants’ appeal as frivolous has merit. Plaintiff and his wife are 77 and 80 years old, respectively, have significant health concerns not untypical for individuals of their age and, therefore, should not be subjected to further delay in the litigation of this case in district court. As the old adage goes, “justice delayed is justice denied.”
New opinion is here.