SHG hanging up his “Simple Justice” criminal defense blog
This saddens me. Will have to get it off the blog rolls eventually. A fairly idiosyncratic blog, I thought. I strongly agreed more often than I strongly disagreed, but some of my strongest positive, and negative, blog-entry reactions of the past few years have been reactions to Simple Justice blog entries and/or comments. I think this reflects the uneasy relationship that the criminal defense bar has with the police4aqi bar. Lot of ambivalence there.
On balance, Simple Justice was one of the best blogs (or blawgs as SHG liked to call them) ever because it made you think! “Simple” as that. Packrat, over at Injustice Everywhere, mentioned that Simple Justice inspired him to start blogging, and I would say the same thing as far as my Police4aqi blog is concerned.
If you have never checked out Simple Justice, then please click the link to it on the blog roll over to your right. Because SHG has, on occasion, professed a fondness for the music of Phil Ochs, let’s conclude with some of that:
Uh Huh
You would be amazed at how often police officers say that they are dragged by cars with their arms caught in the window. In the latest story of this type, the police officer managed to kill the “regcit.”
Professor Moskos On Ramarley
Professor Moskos writes in his Cop In The Hood blog about NYPD police officer Richard Haste’s killing of Ramarley Graham:
Sure, the Drug War was a but-for cause of Ramarley’s death, and is one message, I’d say the most obvious one, to be taken from the tragedy. But, it is easy to get carried away and forget about other messages. Trigger happiness (or recklessness as the penal codes generally call it), in and of itself, also appears somewhat likely to have been a but-for cause, and, if so, would be a more proximate and direct cause at that. Another problem is that Officer Haste may not have been making a “mistake” at all, as the above-quoted passage seems to assume. For all we know at this point in time, Officer Haste may have waited his entire career to get alone in a room with a suspect, gun justifiably drawn, situation properly tense, so that he could play Dirty Harry Callahan. I know of nothing to suggest Haste has this attitude problem, but there are certainly people out there who do, and he could be one of them. If Haste was born in late 1985, he could be the reincarnation of Dan White for all we know right now.
Assuming no facts favorable to Officer Haste that we haven’t heard about yet, some serious jail time for Officer Haste would make these kinds of reckless murders and manslaughters go down in frequency, which hopefully is a high priority for police departments and police educational institutions around the country.
ON EDIT:
Professor O’Donnell has this comment about the increased freedom to shoot that recent NYPD police-related policy changes are going to provide:
They already know that deadly force is a last resort. They get that already. They know that they can’t tie the suspect’s corpse to a bridge and burn it. They knew better than to dunk Ramarley’s head in the toilet after they shot him down next to it. When Haste chose to lay waste, he knew it was the last resort and that there would be no further resorts after his bullet was done doing the talking. People are not complaining that Officer Haste tried additional “last resorts” after Ramarley died. The problem is explaining the degree of personal risk that police officers are expected to take on and paid by society to take on. Police seem to have forgotten this, generally speaking. Call it “sacrifice.” Call it “duty.” Call it “bravery.” Whatever you call it, it needs to start happening again.
Chemerinsky on recent 4aqi Supreme Court case Ryburn v. Huff
Law professor and scholar Edwin Chemerinsky on the recent per curium Supreme Court decision in Ryburn v. Huff:
[I]n the recent Ryburn ruling, the court found qualified immunity based on the absence of a case on point. A rumor circulated in a high school that a student there had threatened violence. The police went to the boy’s home to investigate. The boy and his mother came out of the house and answered the police questions. The officer asked permission to enter the home, and the mother refused. When the mother entered the home, the police officer followed without permission and against her wishes. The officer said that his experience was that parents usually allow officers in their home when asked for consent. The police found no weapons or other contraband and ultimately concluded that the rumors about the boy were unfounded.
The 9th Circuit rejected qualified immunity. The Supreme Court, in a per curiam opinion, reversed. Once more, the court stressed the absence of decisions on point and said: “No decision of this court has found a Fourth Amendment violation on facts even roughly comparable to those present in this case.” The court said that its precedents had allowed police to enter a home when there was a fear of violence.
But those decisions had allowed police to enter when there was reason to believe that there might be violence in the home; here it was a only a rumor and there was no basis for suspicion other than the occupant of the home not wanting the police to enter.
The court, of course, has not overruled Pelzer. But it is notable that in neither of these cases is it cited; nor does the court focus on, what should be the central inquiry underPelzer: Did the officer have fair notice that the conduct violated the Constitution? Requiring that the plaintiff have a case on point to overcome qualified immunity will create an obstacle for civil rights plaintiffs in many cases.
http://www.abajournal.com/news/article/chemerinsky_new_hurdles_for_civil_rights_cases/
Fresno high school girl cries as she recounts arrest (with video)
http://abclocal.go.com/kfsn/story?section=news/local&id=8539299&rss=rss-kfsn-article-8539299
What happened: He/said she said case of alleged false arrest and alleged brutality. Arrestee, a high school girl, plans a civil suit against the police.
Criticism: Soon-to-be plaintiff’s video performance, recounting her pain and injuries, seems to me as a bit much and a bit scripted.
The Matthew Stewart Case
Matthew Stewart is a young man who seemingly has grown some pot plants at some time at his tiny house and home in the city of Ogden in the state of Utah. Some police officers got wind of this and some days, or perhaps months, later raided his modest home. The police found some growing equipment, although it is unclear at this point whether they found any pot. During the raid, police put a couple bullets in Stewart, Stewart’s doctors won’t tell him how many. If this is all one knew about the Stewart case, one would probably suspect that a civil suit against the police, along with its inevitable qi claim by police, was imminent.
However, things on the civil suit front are not very clear at all in the Stewart case because he used a handgun to shoot at the police officers during the raid. About this part, the police say that they made announcements and knocked prior to entering Stewart’s house and that Stewart responded by going into a hiding place with his gun, later springing out at the police officers and shooting at them even as they slowly retreated from Stewart’s house. Police claim that 6 police officers made the initial entry, 6 additional police officers were called in to participate after the shooting started and that of these involved officers, 5 were injured (presumably all shot), 1 fatal. In an interesting, if macabre, twist, the police officer who died, Jared Francom, had helped video record an earlier raid, which video recording became something of a YouTube hit because it showed the police raid team shooting a groggy man with a golf club to death. The police have not said how many of the police officers that they believe to have been shot by Stewart versus how many were shot friendly fire (if any).
Now, about a month after the raid, Stewart has spoken to the media, as is described in a Salt Lake City Tribune interview and article:
Matthew David Stewart, 37, said he never heard officers identify themselves or announce they were at his home to serve a search warrant. Stewart, in an interview Friday at the Weber County Jail, said his alarm clock woke him, then he heard a crash that sounded like glass breaking. “Some parts I remember vividly . . . Other parts it was like I was running on instinct . . . When you’re convinced that you are getting robbed and most likely killed by a group of armed men, your instincts kick in.” Stewart declined to answer some questions, including whether he was growing marijuana in his home on Jackson Avenue, as the strike force was investigating. Stewart did say he believes marijuana should be legal. Stewart said he “had no idea” he was under investigation by the strike force. He worked a night shift at the Walmart in Riverdale and was asleep as the strike force arrived between 8 and 8:30 p.m. Although Stewart said he didn’t hear officers announce themselves, he didn’t answer whether he had some indication police officers had entered his home.
“I didn’t know,” he said. “All I knew for sure is they were there to rob and kill me.” Stewart served in the U.S. Army. He saw no combat but said the training was meant to be “like the real thing.” On Friday, he said he also worked nine years as armed security for the Internal Revenue Service. Stewart said he has not been diagnosed with any disorders as a result of his service, though on Friday he said he felt the Army and security stints changed him. He did not elaborate.
When asked whether he applied his military and security training the night of the shooting, Stewart replied: “It makes sense.” As for Francom and the injured officers, Stewart said: “I’m totally devastated that anybody had to suffer over any of this. This never should have happened.” Stewart thinks two bullets struck him during the shootout, but he isn’t sure. He said he can’t tell what are entrance and exit wounds and he had difficulty getting answers from his doctors and nurses at the hospital where he remained until Monday. . . “I’m still having a lot of trouble dealing with the colostomy,” Stewart said. “It’s a big psychological blow, but it’s also real difficult in here.” . . . Another bullet struck Stewart in his left leg and damaged nerves there. Stewart said he can’t stand in one place long without “blinding pain” in the leg. “I’ve always been a big fan of the truth,” Stewart said. “It’s tough for me to stay silent on some issues.”
Matthew Stewart throwing in the details about the alarm clock and the breaking glass was telling to me. That kind of detail has the sound of someone telling the truth. The fact that they won’t give him a straight answer about how many bullets went into his own body is also sympathetic. Lawyers can debate whether Mr. Stewart should be talking at all, but, in my opinion, Stewart did an impressive job laying out his case. It contrasts starkly with the police evasions (won’t release search warrant), failure to address obvious issues (like friendly fire) and nonsense (like blowing up Stewart’s closet for no apparent good reason).
Maybe there will be a civil suit after all.
Jury Awards $5K Against Police Sergeant Who Did Bad Wiretap Arrest On Citizen Recording Him
In a somewhat complicated, but encouraging, case, an Oregon federal jury verdict held the police liable for arresting a protester who was recording the officer with his camera. The arrest was made under the wiretap law, but Oregon’s wiretap law apparently doesn’t forbid the recording that was done in this case. Story here:
Also of interest in this case was a ruling from the bench granting qualified immunity on the claim that the warrantless police search of the camera was unConstitutional. What made this ruling interesting was the forcefulness of the court’s finding that searching a modern digital camera incident to arrest is presumptively a 4a violation — the judge was clearly trying to provide qi-cognizable notice of what the law is in anticipation of future claims of qi by police in future similar cases. Court’s opinion here:
http://www.leagle.com/xmlResult.aspx?xmldoc=In%20FDCO%2020120119F56.xml&docbase=CSLWAR3-2007-CURR
Parody, not legal advice
Memo to police:
How to use the new Supreme Court decision in Jones (the GPS case):
1. Start putting remote kill switches in regular citizen cars. It is better for police to have an available kill switch and not need it than it is to need a kill swith and not have it. Four justices don’t seem to think this implicates 4a at all (prior to use of the kill switch to stop the vehicle anyway), and it only takes one more who believes that these remote switches are so minor that they don’t require a warrant. Even Justice Scalia’s majority opinion states that there has to be both trespass and monitoring to make a 4a violation. But kill switches don’t “monitor,” so go for it! Start with your impounds and then work your way thru the high crime neighborhoods. If people try to stop an officer from installing the kill switch then arrest and charge the perp with interference. The prosecutor’s office can always drop the charge if the perp consents to always have a kill switch as part of his plea agreement.
2. Keep doing unwarranted GPS. You might wonder why the police should keep doing this, post-Jones. The reason is simple: none of the evidence collected by the GPS needs to be admitted in court. The information might be less useful because of the inadmissibility, but it is still good stuff. AND: it gets even better! After the police officers collect up all the GPS evidence, then the prosecutor can always isolate the brief relevant segments and admit ONLY those into evidence when the court case rolls around. Even Justice Alito’s concurring opinion that addressed the monitoring aspect (rather than the “trespass” aspect) conceded that short term monitoring (in and of itself) might not be a “search.” This works out perfectly because in most cases it is only a tiny, tiny sliver of the monitoring that is needed in court to make the case. This tiny sliver will always be “short term” so you basically get in everything you want to get in on a going forward basis.
3. If the perp wants to see all the collected data then make sure the extraneous monitoring has ceased to exist before his court appointed lawyer asks for it. So far as the perp needs to know, the only monitoring that was performed was that little tiny sliver that will be shown to the jury in court. Any other monitoring simply didn’t happen, absent the perp providing some good evidence indicating otherwise.
4. A policeman’s best friend is good faith error — and until they invent a tiny person who can get inside a policeman’s skull, they are all good faith errors when the policeman makes them (because he says so!). This is a powerful perk. As courts try to draw some kind of legal line between permissible short term surveillance and impermissible long term surveillance, then the policeman simply needs to say that the legal standard is confusing and constantly evolving and the policeman got mixed up and thought his monitoring did qualify as short term even though it turned out that it did not (shucks!). I mean it is not like the policeman put the GPS device into the perp’s pet dinosaur!
Qualified immunity for policeman who did unConstitutional smart phone type search
Fourth Amendment.com reports on this recent federal district court opinion here:
http://fourthamendment.com/blog/index.php?blog=1&title=d_ore_cell_phones_shouldn_t_be_subject_t&more=1&c=1&tb=1&pb=1
Basically, two policeman looked at a drunk driving suspect’s device and found sex images of plaintiff and his girlfriend. According to Fourth Amendment.com, the court held that if the drunk driving arrest was proper (this is contested) then the fact that the policemen looked at the private sex pictures is: (i) unConstitutional; but (ii) properly subject to qualified immunity for lack of previous cases on point. OTOH, if the drunk driving arrest was improper then there will be no qualified immunity because there is established case law (and hence no qi) vis-a-vis improper drunk driving arrests.
Poor quality court opinion regarding police killing of a family pet
Case: POWELL v. JOHNSON (D.Minn. 1-17-2012)
What happened: A policeman went into a plaintiff’s garage because plaintiff’s garage door was open and the policeman wanted to investigate. The plaintiff’s pit bull dog ran, or jogged (depending upon whom you believe), at the policeman, so the policeman shot the pet in the head and killed it.
Decision: No liability for the police because of qualified immunity. Decision seems to say that a police officer can shoot a dog even if the dog is on its own property.
Criticisms: The opinion does not actually specify whether the dog was on its owner’s property or not when it was shot. This is a flaw in the opinion. Even if this fact of the dog’s location were somehow legally irrelevant, then that should have been explained at least because there is a popular perception that a dog is allowed to run around in its own yard without being shot. In a similar vein, the decision does not actually specify whether the policeman was on plaintiff’s property* at the time he decided to shoot. This is another flaw. Again, even if this fact of the policeman’s location were somehow legally irrelevant, then that should have been explained at least because there is a popular perception that people are not allowed to trespass, and then shoot the property owner’s dog if the dog becomes agitated by the trespasser. Finally, and most egregiously, the opinion utterly fails to deal with the issue of whether the policeman had a right to be in plaintiff’s garage in the first place. It is true that the police officer was on an investigation, but, based on the opinion’s selective recitation of facts, it does not seem like there would have been “probable cause” to believe that any of the suspects were in the garage. Assuming no probable cause and no warrant, it is difficult to understand how the policeman could have believed that he had a right to be in the plaintiff’s garage, without a warrant or probable cause or exigent circumstances. As I see it, it was almost certainly the trespassing that was the proximate cause of the pet/guard dog’s death — meaning that the policeman should be liable. His decision to shoot the pet may have been a “split second decision,” but the decision to go into the garage was not a split second decision by any means and should not be treated like one. If there is some theory excusing the policeman’s apparent trespass into the garage then the opinion should have explained that. As it is, the opinion simply seems wrong for failing to consider the Constitutionality of the entry, and instead improperly focusing exclusively on what happened after the dog started his approach.
FOOTNOTE(S):
* As I best understand the recitation of facts in the opinion, both the policeman and the dog were in the garage when the dog was shot to death by the policeman.
Have Police K9 Officers Yet Been Trained To Detect Synthetic Marijunana?
As states are rushing to make synthetic marijuana illegal, one wonders how soon the police dogs will be asserted to have been trained on detection of this newly-illegal substance. Here is an article that suggests that the local police dogs can already detect Spice / Hayze / whatever-you-want-to-call-it:
http://magicvalley.com/news/local/west-end/filer-schools-tackle-spread-of-spice/article_401dc80e-d353-5900-a267-e174d4da15cd.html
Supreme Court To Decide Franky The Drug-Sniffing Dog Case
Under what circumstances may the police bring a drug-sniffing dog around a person’s home?
The Supreme Court will take up at least a piece of that question this term as it has taken up the Florida v. Jardines case, in which K9 Officer Franky was brought around to someone’s doorstep and allegedly responded with a response that allegedly reliably indicated the presence of contraband. Some are predicting that this case will be limited to the issue of whether a police dog sniff at someone’s home is a Constitutionally cognizable “search.” Then again, it seems to me that there is wide consensus that it is not a search. Where the large dispute seems to enter is on the issue of whether an alleged K9 indication is probable cause for a search on the indicated-upon home.
More at:
http://www.abajournal.com/news/article/supreme_court_grants_cert_in_cases_of_drug-sniffing_dog_indian_tribes_repay/
Just because you are paranoid doesn’t mean that they are not after you
Case: EZE v. CITY UNIV. OF NEW YORK AT BROOKLYN COLLEGE (E.D.N.Y. 12-27-2011)
What happened: Plaintiff, a college student, went to campus security to complain that her landlord had set up secret cameras in her apartment and that her roommates were saying bad things about her on the internet. Instead of investigating the complaint as though it might be true, security decided to have the complainant psychologically analyzed at a mental hospital. Plaintiff was held at the mental hospital for a couple of weeks. It turned out that the student did not have any psychological problems, and that her landlord had placed a hidden camera in her bedroom. It was not established whether or not her roommates had said bad things about her on the internet, although this part of plaintiff’s story seems plausible, at least in 20-20 hindsight. Plaintiff was thrown out of college, ostensibly for missing tests when she was held against her will during her involuntary committement.
Decision: Security officers may end up being liable here for forcing plaintiff to go to the mental hospital, but not for her relatively long stay.
Comment: The security officers (and others) who were defendants in this case were not police officers, although, police officers can and do require a subject to go get a psychiatric evaluations sometimes, even if the subject has not committed any crime.
Injustice Everywhere’s Annual Police Misconduct Videos Poll
The poll. All internet polls are silly, of course, and, in a way, Packratt‘s annual poll is sillier than most because it compares videos showing misconduct that is reprehensible (at least in most cases) for fundamentally different reasons. Consider the two biggest police misconduct videos of the year: (i) Lt. Pike peppersprays the UC Davis Occupy protestors; and (ii) the Kelly Thomas (fatal) beating video. How can one compare these things to each other? One can’t — at least I don’t think so. Nevertheless, every year I do cast my vote because it is good to reflect upon these videos as a group because, poll silliness notwithstanding, a clearer holistic picture of police misconduct emerges. It is this cumulative effect that really shows police attitudes — this cumulative effect is the only way to show something cultural, like an institutional attitude. These institutional attitudes, understanding them, whether for the purpose accommodating, encouraging or curbing the attitude, are key to good and wise police rules and practice reform.
I voted for the Todd Blair shooting and the Jose Guerena* shooting videos. Both of these videos show examples of bad police announcements that are not designed to make people in the dwelling aware that policemen are outside, trying to get in. In both of these videos, it is not merely that announcement efforts are weak or lacking. Rather, it seems that the “announcements” in both cases are designed to confuse, that is, designed to make people in the dwelling think that it is not police trying to break in. In the Blair case, the police are shouting over each other so that it is difficult to make out anything anybody is saying.** Where is the bullhorn? Even if it was at the bullhorn cleaning shop, is it really that difficult to shout a five word message in unison? In Jose Guerena, the police touted the fact that a siren was used. Then the video dropped. Sure, they used a siren.*** Sadly, it was a siren that sounded exactly like a car alarm, and, to make matters worse, it appears that the car alarm was not even sounded in any particular proximity to the Guerena residence. The “siren” didn’t make things clearer — it made them more confusing — and, again, police had to know that ahead of time. I think these announcement problems are egregious, at least from what we can see on video,**** and are under-reported, even by websites generally unafraid to criticize police.
FOOTNOTE(S):
* The Jose Guerena shooting video was a write-in vote because it was not in the poll options. [ON EDIT: JG shooting video has been added to the poll now.]
** What is being huskily shouted is difficult to understand as captured by a camera that was right in the room with the shouting officers — one also has to consider (as the police in Utah surely did) that the garbled babble is going to be even more impossible to decipher inside of Blair’s apartment.
*** Let’s be clear: sirens and flashing lights should be used generously at forced entry raids because they give the strongest and most unmistakeable indication of police presence. In the context of a forced entry raid (especially a forced entry raid designed to give as little notice as possible), the siren is a very good thing, not a bad thing. However, the police who shot Jose Guerena were trying to subvert the siren by using it, but using it in a way inconsistent with giving notice of police presence.
**** The best video showing how police do not announce came out a couple years ago via Barry Kooper (sp?):
Unlike the Guerena and Blair videos of 2011, the police in the Odessa empty house video aren’t putting on a show for the camera.
If the police have to come and get you, they’re bringing an asskicking with them!
Case: MONTGOMERY v. WARREN COUNTY (S.D.Miss. 12-27-2011)
What happened: Plaintiff fled car accident (which was a crime). Police caught up with him later and arrested him roughly. Plaintiff sues for excessive force.
Decision: Police may end up being liable here. While the opinion suggests that the police might have been privileged to be allowed to beat up the suspect while he was fleeing, there was no evidence that plaintiff resisted arrest when police found him at a substantially later time. Defendant’s Heck defense was also denied because the alleged excessive force cast no doubt on plaintiffs’ criminal convictions.
Comment: Heck doesn’t usually seem to help the police too much in excessive force cases — and this one is a good example of that.
Headline Credit: Chris Rock (natch!).
Police officer makes bad application for warrant, bad arrest ensues
Case: SMITH v. BESELER (M.D.Fla. 12-28-2011)
Quote:
Matos omitted two categories of key facts from his affidavit. First, although the only evidence provided in the affidavit of Smith’s involvement [in a robbery] is Matos’s interview with Palmer, the affidavit omits a number of facts that would have seriously undermined Palmer’s credibility. Palmer was interviewed while in custody following his arrest for an automobile burglary which occurred in the vicinity of the later robbery under investigation. Although Palmer was not given a formal deal with law enforcement, he thus had an incentive to cooperate with the police. Moreover, Palmer fit the description given by Maynard of his assailants, and, as any reasonable officer would, Matos suspected that Palmer may have been involved in the robbery. Palmer also stated that he had been under the influence of illegal narcotics while the robbery took place, possibly impairing his recollection of the incident. None of these facts, however, were communicated to the state judge.
Lesson: This case shows one valuable aspect of the warrant requirement of 4a, specifically, the informational value of a warrant. Valuable information from the civil case was gleaned based on what the warrant said (and failed to say) here.
Magistrate Judge Lowe on punching a fleeing, non-violent suspect
Case: MCMAHON v. FURA (N.D.N.Y. 12-23-2011)
Decision: Seems to indicate that Syracuse, New York’s “disorderly crowds” statute is unConstitutional, specifically void for vagueness. Police may end up being liable for excessive force.
Quote:
[T]he Court is unable to conclude as a matter of law that a reasonable officer would believe that punching a fleeing, non-violent suspect in the jaw would be lawful. Therefore, the excessive force claim against Defendant Fura will proceed to trial.
Comment: Fleeing suspects are usually a bit outside the intended zone of focus for this here blog. However, the line about punching the suspect in the jaw was too good to pass up.
Man arrested, allegedly for calling 911 to see whether policemen accosting him were for real
H/t: Injustice Everywhere:
http://www.komonews.com/news/local/Lawyer-Seattles-top-cop-should-resign-after-new-video-surfaces-136288418.html
Comment: There is no mention in this media account (or the others I read today) of a civil lawsuit against the police by the arrestee. Right now the arrestee seems to want relief from the executive and/or legislative branches rather than the judicial branch. Maybe they get him to refrain from filing the civil lawsuit (potentially costly to taxpayers) by firing the police chief or by having him resign.
Nick Christie peppersprayed to death by police
Although this in-custody death happened in 2009, the deadly chain of events is now being publicized because a photo of the detainee, the late Nick Christie, has been released:
Professional videographer planning a lawsuit over arrest and terrorism charges
Professional videographer acquitted and plans to sue.
http://www.pixiq.com/article/videographer-arrested-for-terrorist-plot-in-miami-acquitted
This is a he-said-she-said case involving a terroristic threat (to blow up a building) that either was, or was not, uttered by the videographer. A witness told police that the videographer made the threat, but is that really enough to support probable cause for arrest (much less the criminal charges that were pursued all the way through to the recent not-guilty verdict)?
Judge Dlott considers police dog training issues
Case: CAMPBELL v. CITY OF SPRINGBORO, OHIO, 788 F. Supp.2d 637 (S.D.Ohio 4-26-2011)
What allegedly happened: A police K9 officer bit two plaintiffs, who were not criminals and who were not fleeing, in two separate incidents. The K9 officer’s handler was accused of excessive force, largely on the theory that he wanted his dog to bite suspects, whether or not they were fleeing or otherwise posed a safety risk.
Decision: Police may end up being liable here.
Quote:
particularly given the questions of fact that exist regarding the adequacy of Spike’s training, the ability of Officer Clark to effectively control Spike during tracks even while Spike was on a lead, and the fact that Officer Clark knew that when he deployed Spike on a track, the likely result would be a bite. Accordingly, the Court denies Officer Clark’s motion for summary judgment as to Plaintiffs’ § 1983 excessive force claims.
Judge Posner rejects “kettling” of protestors
Case: VODAK v. CITY OF CHICAGO, 639 F.3d 738 (7th Cir. 2011)
What happened: Chicago police allowed an anti-war protest march (which normally would have required a permit). After the protest march started, there were some public order problems, mostly traffic problems. Consequently, police decide to send the marchers back to the origin point of the march. However, several marchers (and probably many non-marchers) went off on a side street which was different than the route the police wanted protestors to take back to the origin point of the march. Police trapped (or “kettled” as they say in Canada) all the people who happened to be on the wrong side street and made a mass arrest.
Decision: Police may end up being liable here because there is no evidence that they gave clear instructions that could be heard by the people who happened to be on the wrong side street and ended up being arrest for that. Probable cause to make the arrests may have been lacking (at least on the plaintiffs’ version of the facts). Judge Posner writing for the majority, including also Judge Wood.
Quote:
No precedent should be necessary, moreover, to establish that the Fourth Amendment does not permit the police to say to a person go ahead and march and then, five minutes later, having revoked the permission for the march without notice to anyone, arrest the person for having marched without police permission. This would be an indefensible sort of entrapment by the State — convicting a citizen for exercising a privilege which the State had clearly told him was available to him. So this is one of those cases in which a defense of immunity would fail even in the absence of a precedent that had established the illegality of the defendants’ conduct. The absence of a reported case with similar facts may demonstrate nothing more than widespread compliance with well-recognized constitutional principles. (internal quote omitted)
Quotable Quote: Family Seaside Town Edition
Case: COUDEN v. DUFFEY (D.Del. 12-12-2011) (quoting Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir. 1997)).
Quote:
While the language and method used to effect the arrests appear to be more akin to the Rambo-like behavior associated with police in overdramatized B movies or TV shows than police conduct ordinarily expected in a quiet, family seaside town, we are reluctant to establish a precedent that would subject every police arrest of a group of possible violent offenders to compliance with the Marquis of Queensberry Rules of fair play. Although these police officers came close to the line, these circumstances, in totality, do not rise to a Fourth Amendment violation.
Grand Valley State University (GVSU) student police shooting case settled.
Back in 2009 the police shot a college student in the chest, for no apparent good reason, during a marijuana raid. The case has settled, but the amount paid to the shooting victim remains confidential. Interesting thought in the reader comments section of the linked media account:
Details of the settlement SHOULD NOT be confidential! It’s the public’s money!
Police flashbang grenade incinerates innocent woman’s calf muscle
Police* had to pay a million dollars to settle.
Russell was never suspected of criminal activity, nor charged in connection with the incident. She had been visiting the apartment at the time of the raid.
“Bringing these lawsuits stops it from happening to you, to your family,” attorney Bennett said during an interview in his downtown Minneapolis office.
FOOTNOTE(S):
* Technically the City of Minneapolis makes the payment, rather than the police department itself, as is typical in these cases.
Police take $500, but have to give it back to suspect
Case: COURTNEY v. CITY OF CHICAGO, No. 11-1760 (7th Cir., December 2, 2011)
What happened: Police conducted a drug raid on a woman’s house and took ownership of $500 in cash from the home under asset forfeiture law. Woman filed a claim to get the $500 back, and she got the $500 back. She then sued anyway.
Decision: The decision is limited to municipal liability issues — that is, issues of whether the police department and/or city are liable for any wrongdoing that some of its individual police officers may have done. Municipal liability was denied here, as it so often is.
Quote:
Finally, {plaintiff] argues that the district court erred in granting summary judgment on her failure-to-train claim because some of the officers who searched her apartment are involved in other lawsuits alleging constitutional violations. But as the district court noted, the mere fact that an officer has been sued is not evidence of misconduct, much less a pattern of misconduct. And, in any event, [Plaintiff] failed to produce evidence showing that the seizure of her cash was unreasonable, as she must in order to recover on a theory of municipal liability. Officers acting within the scope of a valid warrant do not engage in official misconduct, and [Plaintiff] cites no authority for her assertion that the officers could not seize money without finding other evidence of a crime.
Comment: “[X] failed to produce evidence showing that [y] was unreasonable.” This statement of the opinion bugs me, and this is a type of statement I hear all the time. My issue here is that “reasonableness” or “unreasonableness” doesn’t seem to me to be properly characterizable as a “fact” supportable by what is properly thought of as “evidence.” I would propose that it would have been better if the opinion had instead said: “[Plaintiff] failed to produce evidence showing facts sufficient to support a legal conclusion that the seizure of her cash was unreasonable.” Assuming that that is what the opinion really intended to convey, of course.
Johannes Mehserle, 4 other BART officers cleared
Johannes Mehserle, 4 other BART officers cleared.
Carrethers’ attorney, Christopher Dolan, said Thursday that a crucial difference between the two cases was video evidence – jurors in the Grant case saw other passengers’ cell-phone videos of the shooting, but neither side in Carrethers’ case offered any evidence from bystanders, and BART did not preserve videos from a camera at the station.
“Had a video been there (for Carrethers), justice would have been served,” Dolan told reporters.
Mehserle testified that he saw no need to obtain videos or contact passers-by because the officers and two station agents all agreed on what had happened. BART now requires its officers to get videos from station cameras after such incidents, said Dale Allen, the lawyer for BART and the five officers.
Comment: Because the issue on BART is often allegations of police misconduct (which might be true or not), it is difficult to understand why BART would have the police be the ones to retrieve the videos. It flies in the face of preservation of evidence imperatives. Fox guarding the hen house.
Police can’t arrest for re-sale of tickets in NV — not a crime to do that there
Case: Rosenbaum v. Washoe County, 10-15637 (9th Cir, 30 Nov 2011)
What happened: Suspect won free tickets to the fair from a radio station. Suspect took his tickets to the fair and sold the tickets. Police officer arrested man, thinking that “scalping” tickets is illegal in Nevada. The police ended up booking the suspect for felony child abuse and felony “obtaining money by false pretenses.” The prosecutor ended up finally dropping all charges against the suspect, who then sued to become the plaintiff in this case. The police officer argued that he could reasonably have believed that there were grounds to arrest under a couple of Nevada “false pretenses” type statutes, including one about pretending to collect for charity.
Decision: Police may end up being liable here. No qi for the police on the false-arrest-based 4a claim under section 1983. It was not reasonable to believe that the suspect/plaintiff had committed any crime, specifically any false pretenses type crimes, by scalping tickets in Nevada.
Comment: I wonder how much the original charge of felony child abuse may have swayed the court. That was a pretty cruel maneuver by the police, and it is not the type of thing that makes one want to trust police with a lot of discretion in general, including the margin of discretion that a relatively liberal qi policy would afford the police.
Court rules no taser for minor crime plus mere non-compliance with police orders
Case: DOPORTO v. KIM (D.N.M. 11-23-2011)
Thus, when an officer’s violation of the Fourth Amendment is particularly clear from [Graham v. Connor, 490 U.S. 386 (1989) (seminal Supreme Court case on excessive force law] itself, the Tenth Circuit does not require a second decision with greater specificity to clearly establish the law. That is the case here. The limited admissible evidence presented on summary judgment is that Defendants Baker and Honigmann deployed their taser against a man who at that time was offering no resistance and posed no threat. It cannot be disputed that on February 22, 2008, it was clearly established that use of a taser against a person suspected of a relatively minor crime, who posed no threat to officer or others, and who was following directives issued by police, constitutes excessive force. Accordingly, the Defendants’ motion for summary judgment on the excessive force claims on the grounds of qualified immunity will be denied.
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About half the practice of a decent lawyer consists of telling would-be clients that they are damned fools and should stop. Elihu Root, quoted in Philip C. Jessup, Elihu Root (Hamden, Conn.: Archon Books, 1964), vol. 1, p. 133, as cited by Lloyd B. Snyder, "Is attorney-client confidentiality necessary?", Georgetown Journal of Legal Ethics, Spring 2002, p. 33
Radley Balko on police, dogs, violence and children
Typically excellent Agitator blog post.
Ninth Circuit statement of the law of the emergency exception
Case: SIDHU v. GARCIA (9th Cir. 2011, not for publication)
In this case, the district court correctly determined that the plaintiffs’ constitutional rights were not violated. The warrantless search was justified by the emergency exception to the Fourth Amendment. The emergency exception is an extension of “police officers’ community caretaking function” because it allows officers to respond to “emergency situations that threaten life or limb” in a timely manner. Hopkins v. Bonvicino, 573 F.3d 752, 763 (9th Cir. 2009). To determine if the emergency exception applies, this court makes a fact-specific inquiry as to whether: “(1) considering the totality of the circumstances, law enforcement had an objectively reasonable basis for concluding that there was an immediate need to protect others or themselves from serious harm; and (2) the search’s scope and manner were reasonable to meet the need.” United States v. Snipe, 515 F.3d 947, 952 (9th Cir. 2008).
Gay man targeted for sting because he patronized porn shop
According to the Gay City News:
On November 18, the Second Circuit panel . . . reversed District Judge Shira A. Scheindlin’s denial of summary judgment [of qualified immunity in favor of police]for false arrest and malicious prosecution, but upheld her decision to let Pinter’s claims of abuse of process, sexual orientation discrimination, and denial of the right of free association proceed.
Pinter, whose arrest and claims against the city were first reported in Gay City News, visited the Blue Door video store in October 2008, where a young man stared at him, flirted, and initiated conversation, asking, “What do you like to do?” Pinter responded that the man was “good looking” and said he liked oral sex. The young man responded in kind, voiced hesitancy about doing anything in the store, and suggested his car was parked nearby. Pinter walked to the exit, followed by the young man, who in fact was an undercover police officer . . .
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Arch of triumph, or otherwise? The Water Tower in the distance looms fantastical -- a ghost from the time of when stuff looked cool.
Family wins appeal on VSP negligence – Brattleboro Reformer
Family wins appeal on VSP negligence – Brattleboro Reformer.
What happened: Police officers went to wrong address for a welfare check. The intended recipient of the welfare check died of hypothermia, but would have been saved by a welfare check.
Police rescue kitten in El Cajon, CA
From KCTV via PoliceOne News Site:
A kitten is grateful to be safe after spending most of Thanksgiving trapped in a pipe in California.The persistent and piercing cries for help began at about 4 a.m. Thursday, when the terrified kitten managed to tumble several feet down an exposed plastic utility pipe. Initially, a crew from emergency animal rescue attempted to save it, but had to call El Cajon Police Department and Heartland Fire Department for help.
Burgers Allday
