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.
Case: Singletary v. Ludwig, Dist. Court, MD Florida 2014
Recently, the Eleventh Circuit affirmed the denial of summary judgment in an excessive force case with facts similar to those in the instant case. In Ayers v. Harrison, 2:10-CV-32-RWS, 2012 WL 529946 (N.D. Ga. Feb. 17, 2012) aff’d in part, 506 F. App’x 883 (11th Cir. 2013). In that case a group of undercover police officers saw Jonathan Ayers give $20 to a known prostitute and drug dealer and then drive away. Sometime thereafter, the officers found themselves in traffic behind Ayers. The officers were in plain clothes and were driving an unmarked Cadillac Escalade.
When Ayers pulled into a gas station, the officers pulled in behind him. Officer Harrison jumped out of the car and then, without identifying himself, drew his gun and approached Ayers’ passenger window. Once there, he either waived [sic] the gun at Ayers or tapped on the glass while telling Ayers to get out of the car.
According to a statement Ayers made in the hospital after his arrest, when he saw the gun, he thought he was being robbed and tried to escape. He reversed his vehicle around the unmarked police car. As he did so, a second plain-clothed officer, Oxner, jumped into his path. Oxner, who was close enough to slap Ayers’ car, had to jump out of the way to avoid being hit.
Harrison followed the vehicle and fired a shot, hitting the passenger side door. Ayers put the car in drive, turning the wheels away from Harrison and toward the roadway. Harrison then fired a second shot, which hit Ayers. Ayers crashed his vehicle and was taken to the hospital, where he died shortly thereafter from the gunshot wound. Ayers’ estate filed a Section 1983 claim alleging, inter alia, that Harrison used excessive force. In denying Harrison’s motion for summary judgment on qualified immunity grounds, the district court stated:
At the time Harrison shot and killed Ayers, Harrison had no probable cause to believe that Ayers had committed a crime. Further, Harrison did not announce that he was a police officer, was in plain clothes, and came out of an unmarked Escalade—which had quickly approached—with his gun drawn. In fact, even though the Defendants called a uniformed officer to the scene, Harrison did not wait on him and proceeded to confront Ayers anyway.
Moreover, Harrison elected to confront Ayers in such a fashion even though he had already obtained his vehicle tag number and could have, instead, followed Ayers until the uniformed officer could catch up, or he could have simply waited to question him at his home. Defendants cannot claim the protection of qualified immunity when their own objectively unreasonable actions created the very risk that generated the eventual use of deadly force. Taking the facts most favorable to the Plaintiff, the Court cannot say as a matter of law that a reasonable officer would have shot Ayers.
This analysis does not change because Ayers was trying to flee the scene in a motor vehicle and almost ran over Oxner. First, the Court cannot say that Oxner did not run behind the clear trajectory of the moving vehicle, putting himself in harm’s way. Nor can the Court say based upon the video that Ayers even saw Oxner or would have been able to stop to prevent the encounter. But, from the video, it appears that Harrison could have seen Oxner after Oxner hit Ayers’ vehicle and before shots were fired. Thus, self-defense of others would have been improper. Moreover, as Plaintiff’s expert noted, Ayers’ tires were turned away from Harrison when he fired the second fatal shot; Harrison was not in danger. All of this is exacerbated by the fact that Harrison and Oxner continued to pursue Ayers when he was attempting to flee the scene and was not known to be dangerous.
Ayers, 2:10-CV-32-RWS, 2012 WL 529946 at *6-7 (citations and quotations omitted).
The parallels to the instant case are obvious. The officers had not seen any weapons in or threatening gestures from the occupants of the vehicle. Although the officers did have probable cause to believe that at least one occupant of the Toyota intended to commit a crime, that crime was a minor, non-violent drug offense — one for which no pursuit was planned if the suspects fled. And taking Singletary’s and Lechner’s testimony as true, the officers did not clearly identify themselves or wait for the nearby marked police units to arrive before confronting the suspects.
In reviewing the excessive force claim in Ayers, the Eleventh Circuit stated:
At the time Officer Harrison fired the fatal shot, under the facts most favorable to Plaintiff, neither Officer Harrison nor anyone else present at the scene faced an immediate threat of harm from Ayers, and there was no indication that Ayers posed a danger to others if allowed to drive away.. . .
The same holds true here. Under the facts most favorable to Singletary, Vargas was alongside the Toyota when he fired, and the Toyota had stopped. Therefore there was no immediate threat of harm to him or anyone else at the scene.
Comment: I wonder whether any of the judges realize that they are discussing the second time that Chance Oxner was “hit” by a “fleeing” vehicle:
It appears that the first time he pulled his little stunt, no one scrutinized it very much. I wonder what the 11th Circuit panel would have made of this news item last year when hearing the appeal in the Jonathan Ayers case.
This is a question that has long interested me, but I have never seen a case on it before now.
Case: Chavez v. City of Albuquerque, Dist. Court, D. New Mexico 2014
[One] issue is whether a plaintiff in a civil rights action against a police officer can compel the officer to provide information about a confidential informant, including the informant’s identity, where the informant’s confidences provided the basis for the allegedly unlawful search of the plaintiff’s business. After carefully balancing the Plaintiff’s interest in making a fair presentation of his case against the Defendants’ interest in protecting investigative sources and preserving the safety of cooperating individuals, I will grant the Motion in part and order an in camera examination of the Defendants and the confidential informant.
. . .
In searching for a just solution to the discovery dispute herein presented, the Court finds the in camera procedure [where the Confidential Informant is questioned by the judge, but not by the lawyer for the party that wants to question the Confidential Informant], . . . instructive. Therefore, similar to the procedure espoused by Rodriguez, the parties will adhere to the following in camera examination schedule and procedure:
(1) No later than October 10, 2014, Defendants will deliver the confidential informant(s)’ file(s) to the Court for in camera review. . . .
(2) The Court will issue an ex parte order to Defendants’ counsel only, requiring counsel to produce Defendants Ficke and Lopez, along with the informant(s) whose information was used in drafting the probable cause affidavits and in securing the search warrants for the searches of Plaintiff’s place of business, for an in camera examination by the Court at a place and time to be disclosed in the order. Neither Plaintiff nor his counsel will be permitted to attend this examination.
. . .
(4) . . . Plaintiff’s counsel will file, in writing, a brief list of suggested questions to be asked by the Court to Defendants Ficke and Lopez regarding the informant’s identity and background, or to the informant himself. The Court will ask the questions it deems appropriate. If the Court decides not to ask a question, it will explain its reasoning on the record. Defense counsel will not be allowed to object to questions or to question the witnesses herself. This will be an examination by the Court, not a deposition.
(5) A transcript will be made of the in camera examination and sealed.
(6) Counsel for either party may request a redacted copy of the transcript form the court reporter. The informant’s name and address, and any other identifying information of persons not parties to this litigation will be redacted from any copies provided to the parties. Nothing in this procedure will limit Plaintiff’s right to depose Defendants Ficke and Lopez, except that no questions may be asked of them tending to disclose the identity of the informant.
The Court recognizes the potential burden placed on each party by the above procedure; however, balancing the interests of the parties necessitates such action. With respect to Defendants’ interests, this procedural compromise will ensure that the identity of the confidential informant remains undisclosed. Conversely, the procedure will ensure that Plaintiff has the opportunity to pose his questions to the confidential informant and test his credibility and that of Defendants Ficke and Lopez.
On the blogs and boards of the internet, I have often seen people assume that police will pay for new doors when they are needed after a wrong address raid by the police. I have also heard, at least anecdotally, that police sometimes do actually pay for new doors in these situations. However, the legal question is: are the police legally required to pay for the doors? As the following case illustrates, as a Constitutional matter, the answer is “no,” police do not have to pay for new doors as long as they hit the wrong address through carelessness, rather than purposely hitting the wrong house under the influence of ill-will.
Case: DETTLE v. Richfield City, Dist. Court, D. Utah 2014
What happened: The facts are surprisingly simple. A policeman directed that a raid be conducted at a wrong address, under facts where it is reasonably clear that the raid would have been proper at the correct address, and where the policeman who got the address wrong simply made an inadvertent mistake, and was not motivated by ill-will against those at the wrong house. During the wrong house raid, doors were smashed, the occupants were quite frightened and one of the occupants cut his hand in getting to the floor upon command. The police were quick to realize their mistake, and quick to get out of the house. However, the police refused to pay for the smashed doors, so the occupants of the wrong address house sued under federal law and under Utah law to try to make the police pay for the doors, and other damages.
Decision: Under federal law (specifically 28 U.S.C. section 1983), the police win and there is no requirement for the police to pay for the doors. Under Utah law, the police win and there is no requirement for the police to pay for the doors. Plaintiffs come away empty handed.
It is undisputed that is was unfortunate that the mistake occurred. As in Rogers, the court is sympathetic to the Dettles [that is, te plaintiffs] for what must have been an intensely frightening event in the safety of their own home. However, the qualified immunity doctrine balances the constitutional violation and an officer’s ability to effectively perform his or her work. The Garrison court held that there was no constitutional violation in the case of an honest mistake. In addition, “qualified immunity leaves `ample room for mistaken judgments,” and protects `all but the plainly incompetent or those who knowingly violate the law.'” Harman, 446 F.3d at 1077.
It is undisputed that none of the officers knowingly violated the law. Moreover, this is not a situation where the officers tried to take advantage of their mistake or delayed in admitting the mistake. They immediately holstered their weapons, most left the residence within less than two minutes, and one stayed an extra two minutes to explain the situation and apologize. The officers were quick to leave and get to the real emergency. Given the court’s analysis of the factual situation, it cannot conclude that the officers were plainly incompetent. Accordingly, the court concludes that the officers are entitled to qualified immunity on the Dettles’ Section 1983 claims.
Comment: It is nice that the court expresses empathy for plaintiffs’ fear. It would have been better if the court had chosen to further empathize with the plaintiffs’ financial losses. It would have been even better if the court had found “plainly incompetent” actions by the police in this case — I personally think that the mistake in the address was “plainly incompetent.” I wonder if the Dettles are sufficiently dissatisfied to try to get this thing reversed on appeal (although that is probably a “long shot”).
Case: Saunders v. Duke, Court of Appeals, 11th Circuit 2014
Instead, they “slammed” his head against the pavement with “extreme force,” and, not surprisingly, this resulted in significant injuries to Mr. Saunders. The human skull is a relatively hearty vessel for the brain, but it will generally not fare well in a contest with hardened cement. . . .
 The alleged collision between Mr. Saunders’ head and the pavement brings to mind one of Sancho Panza’s many proverbs: “Whether the pitcher hits the stone, or the stone hits the pitcher, it is bad for the pitcher[.]” MIGUEL DE CERVANTES SAAVEDRA, THE LIFE AND EXPLOITS OF THE INGENIOUS GENTLEMAN DON QUIXOTE OF LA MANCHA, Vol. II, Chapter XLIII, at 356 (Charles Jarvis trans., W. Lewis for S. A. and H. Oddy, Oxford 1809) .
O’Brien also contends that no “clearly established” principle of law prevents an officer from using all the force necessary to obtain “unquestioned command over the situation” (his phrase). If that were right, however, an officer could shoot in the back an unarmed suspect fleeing on foot to avoid arrest for a non-violent misdemeanor, such as failure to pay parking tickets. The Supreme Court held otherwise in Tennessee v. Garner, 471 U.S. 1 (1985). It has long been clearly established that an officer’s use of force is limited to what is reasonable under the circumstances; that forecloses O’Brien’s contention that the officer can use as much force as he deems necessary to obtain “unquestioned command over the situation.” On Chriswell’s allegations, which we must accept for current purposes, no physical force at all was reasonable (O’Brien had not even asked her to get out of the car) and O’Brien’s acts violated clearly established rules.