Case: Brown v. Blanchard, Dist. Court, ED Wisconsin 2014
However, even if Blanchard establishes that he reasonably thought Brown was advancing on the deputies with an upraised knife, a question would remain as to whether Blanchard unreasonably seized Brown. In assessing whether a police shooting is reasonable, the totality of the circumstances is not “limited to the precise moment when [the officer] discharged his weapon.” Deering v. Reich, 183 F.3d 645, 649 (7th Cir.1999). Rather, a court must assess “all of the events that occurred around the time of the shooting.” Id. at 652. The actions of the police officer that led to the shooting are relevant. Estate of Starks v. Enyart, 5 F.3d 230, 233-34 (7th Cir.1993). An officer who shoots a suspect in an effort to protect himself cannot escape liability if the danger he faced was created by his own unreasonable conduct. Id. at 234; accord Catlin v. City of Wheaton, 574 F.3d 361, 369 n.7 (7th Cir. 2009); Sledd v. Lindsay, 102 F.3d 282, 287-88 (7th Cir. 1996); Alexander v. City and County of San Francisco, 29 F.3d 1355, 1366 (9th Cir. 1994); see also Allen v. Muskogee, 119 F.3d 837, 840 (10th Cir. 1997) (holding that officer is liable for excessive force if his or her own “reckless or deliberate conduct during the seizure unreasonably created the need to use such force”); Sevier v. City of Lawrence, 60 F.3d 695, 699 (10th Cir. 1995) (same).
Here, a reasonable jury could conclude that Blanchard “unreasonably created the encounter that led to the use of force.” Sledd, 102 F.3d at 288. Blanchard knew that Brown was suicidal and bipolar, that he had been drinking, and that he had a knife. He also knew that, if left alone, Brown could not have harmed anyone other than himself, as Brown was the only person in the bedroom. Thus, Blanchard’s only legitimate ground for initiating a seizure of Brown was to prevent him from harming himself. Yet, it is hard to see how Blanchard’s actions—kicking in the door, ordering Brown to show his hands and drop the knife, and pointing his gun at Brown—were reasonably calculated to achieve this end. Since Brown was contemplating suicide, he was unlikely to obey the deputy’s commands to surrender. Moreover, a reasonable officer would have known that there is a high likelihood that a suicidal person will respond to an officer’s show of force with an action that is likely to provoke the officer to use deadly force, as the person may wish to commit “suicide by cop.” See Wis. DOJ Law Enforcement Standards Board, Crisis Management: A Training Guide for Law Enforcement Officers 66 (2007); ECF No. 29-1 (hereinafter “Crisis Management Guidelines”). In light of these risks, Blanchard needed to have a compelling reason to enter Brown’s bedroom with his gun drawn. Yet, in his affidavit, Blanchard never explains why he decided to “force entry into Mr. Brown’s bedroom.” Blanchard Aff. ¶ 24, ECF No. 26. To be sure, he explains why he decided to kick the door open rather than unlock it, but he does not explain why he decided to enter the bedroom in the first place. He never explains what he hoped to accomplish once he was inside. Did he plan on ordering Brown to surrender and hoping that he would comply, or did he have a more reasonable goal in mind? Why didn’t Blanchard simply continue to allow Such to monitor Brown through the window and either continue talking to Brown through the door or wait for him to calm down? If Such saw that Brown was using the knife to commit suicide, then at that point Blanchard could have broken into the room and tried to help him. At the time Blanchard decided to enter, however, there was no indication that Brown had the knife hovering over his wrists or was otherwise on the verge of committing suicide. Rather, Such had just informed Blanchard that Brown “was sitting at his computer desk with his back towards the bedroom door, and that he was smoking a cigarette and drinking a beer.” Such Aff. ¶ 19. In short, absent some reasonable explanation for Blanchard’s entering the bedroom almost immediately after arriving on the scene and creating a situation in which the need to use deadly force would be likely, it is impossible to conclude that Blanchard’s conduct during the seizure was reasonable. Accordingly, Blanchard may have violated the Fourth Amendment even if, at the time he fired the shots, Brown was threatening to seriously harm the deputies.
Case: Massey v. OJANIIT, Court of Appeals, 4th Circuit 2014
Decision: QI for the policemen involved, so no police liability.
As the complaint, the 1999 trial transcript, and other exhibits reflect, Emerald Bay Apartments resident Samantha Wood contacted the Charlotte-Mecklenburg Police Department on May 22, 1998, and reported that she and her two young children had arrived home at about 10:00 a.m. to find an armed man at the doorway of their apartment. The man held a gun to Wood’s eighteen-month-old daughter’s head, pushed the family inside the apartment, and attempted to rape Wood. Because Wood was menstruating, the man ceased that pursuit and proceeded to search for money, inducing Wood to hand over sixty dollars from her purse. On then exiting the apartment, the man warned Wood that if she called the police, he would kill her and her family. The man spent approximately thirty minutes in the apartment.
Despite her assailant’s threat, Wood called the police, and Officers Ojaniit and Esposito were promptly dispatched to the crime scene. Ojaniit documented Wood’s description of the culprit as a . . . 180-pound black man who wore “his hair pulled back from his face and (4) small braids on the back of his head.” J.A. 73 (May 22, 1998 report of Ojaniit attached as exhibit to officers’ answers). The report further reflects that Wood described the man as wearing a red shirt and blue denim shorts.
The following day, the two officers returned to the 250-unit apartment complex in search of witnesses. The property manager, Theresa Savall, reported that she had encountered a black man in his twenties, approximately 5’11” and at least 165 pounds, as she was walking around the complex between 10:00 and 11:00 a.m. the previous day. Because Savall stated that the man approached her after exiting from the rear patio area of Unit 5038-C, Officer Esposito sought to interview the resident of that apartment, April Pride. After Esposito misinformed Pride that he was investigating a noise complaint, Pride advised Esposito that her friend Shawn Massey had spent the previous night in her apartment. According to Esposito’s report, Pride described Massey as being twenty-five years old and “wear[ing] his hair pulled back with 4 or 5 braids.” J.A. 75 (May 23, 1998 report of Esposito attached as exhibit to officers’ answers). That description was “almost verbatim the same description that Ms. Wood had given of her assailant’s hairstyle.” Compl. ¶ 19.
Officer Ojaniit thereafter transported Wood to the police station to review a six-photograph array that had been prepared by Officer Ledford and that included a mug shot of Massey taken at the time of a previous arrest. See J.A. 76 (photographic lineup attached as exhibit to officers’ answers). Ojaniit showed Wood the lineup, and Wood selected Massey’s photo as “looking the most like” her assailant. Compl. ¶ 20 (emphasis added). Ojaniit wrote in his report, however, that Wood said that Massey’s photo “looked like the suspect except that the suspect had longer hair with braids and he did not have a beard.” J.A. 77 (emphasis added) (May 23, 1998 report of Ojaniit attached as exhibit to officers’ answers). Three days later, on May 26, 1998, Ledford presented the same array of photos to Savall, who identified Massey as the person who had spoken to her at the apartment complex on the morning of May 22, 1998.
Based on the witnesses’ photo identifications of Massey and Pride’s statements placing him near the crime scene, Officer Ledford secured arrest warrants on July 7, 1998, charging Massey with one count each of robbery with a dangerous weapon and felonious breaking and entering, plus three counts of second-degree kidnapping. See J.A. 78-85 (arrest warrants attached as exhibit to answers of Officers Ojaniit and Esposito). On September 8, 1998, a grand jury in Mecklenburg County returned five indictments against Massey. See id. at 86-90 (indictments attached as exhibit to answers of Ojaniit and Esposito). Massey was tried on the consolidated indictments about a year thereafter, beginning on September 13, 1999.
During the trial, the prosecution’s witnesses included Wood, Savall, Pride, and Officers Ojaniit and Esposito. Wood detailed the events of May 22, 1998, and described her assailant as having “braids in his hair, with five hanging down.” J.A. 136. Prompted by the prosecutor to specify whether “the braids [went] all through his hair or were . . . just on the back or just on the sides,” Wood testified that the braids “went through.” Id. at 137. In other words, Wood indicated that her assailant’s hair was braided in what are commonly known as “cornrows.” See Compl. ¶ 2. She also stated that her assailant wore a red, jersey-like shirt with hurricane symbols on it. Wood then made a positive in-court identification of Massey as her assailant. According to Wood, although Massey now had short hair, she recognized him from his facial features, height, and voice.
Savall described to the jury the man who had approached her at the Emerald Bay Apartments on the morning of May 22, 1998, explaining that “he was acting kind of hyper” and made comments to her such as, “`Could we go out,'” and “`Baby, you look good.'” J.A. 166-67. Savall testified that the man was wearing an orange-and-white jersey with long pants similar to jeans — not the red jersey and denim shorts that Wood said her attacker wore. Savall did not notice the man’s hair during their three-to-four-minute encounter because he was wearing a hat. More specifically, she did not “recall any braids.” Id. at 176. Savall was “fairly certain” that she had accurately recognized the man in the photo lineup, id. at 172, and she made a positive in-court identification of Massey.
Pride testified next for the prosecution, confirming that Massey, her friend of about ten years, had stayed in her apartment on the night of May 21, 1998, and was still there when she left for work the next day, at approximately 6:45 a.m. While being cross-examined by the defense, Pride could not recall Massey ever having braids and stated that Massey wore a “low,” or short, haircut, including on May 22, 1998. See J.A. 190-91. Pride’s evidence thus conflicted with Officer Esposito’s report of his May 23, 1998 interview with Pride, insofar as the report indicated that Pride described Massey as having hair in four or five braids. On redirect examination by the prosecutor, Pride testified that she did not recall having so advised Esposito when he interviewed her. For his part, Esposito testified that he would not have recorded Pride as describing Massey with braids if Pride had not said that in her interview. The trial court gave a limiting instruction with respect to Esposito’s report: the jury could consider it for the purpose of corroborating Pride’s testimony, “if indeed . . . it does corroborate her testimony,” but not “for other purposes.” Id. at 206.
Later, during his direct and cross-examinations, Officer Ojaniit was questioned about Wood’s identification of Massey in the photographic lineup of May 23, 1998. Ojaniit acknowledged that, although his report reflected that Wood chose Massey’s photo as looking “like” the suspect, Wood had actually said that the photo looked “the most like” her assailant. See J.A. 297-98, 304-05. The defense challenged the notion that “looking the most like someone is . . . a positive I.D.,” prompting Ojaniit to respond that “that’s a question you have to ask [Wood].” Id. at 305.
After the prosecution rested, the defense recalled Pride to the witness stand. She testified that she was “positive” that Massey did not have braids in his hair on May 22, 1998, and she reiterated that she had not made any contrary statement to Officer Esposito. See J.A. 377-78. In addition to Pride, the defense called four of Massey’s friends and family members to testify that Massey never wore braids. Another defense witness was Brady Dorsey, the bookkeeper for Massey’s employer, Dorsey Concrete. Dorsey, who had known Massey since Massey was a small child, also testified that Massey had never had braids or long hair.
Additionally, relevant to the alibi that Massey sought to establish, Dorsey produced a payroll journal showing that Massey worked eight hours on May 22, 1998, beginning at around 7:00 a.m. Dorsey elaborated that he had transported Massey from Graymont Road (where Dorsey and Massey separately resided) to the job site. According to Dorsey, he and Massey departed Graymont sometime between 6:40 and 6:55 a.m. Dorsey’s evidence was thus inconsistent with Pride’s testimony, which placed Massey in her apartment several miles from Graymont at about 6:45 a.m.
On September 17, 1999, the jury convicted Massey on all five charges. The trial court thereafter sentenced Massey to 103 to 133 months in prison for robbery with a dangerous weapon, plus a consecutive term of 34 to 50 months for the remaining four offenses. Massey’s convictions and sentences were later affirmed by the Court of Appeals of North Carolina. See State v. Massey, No. COA99-557 (N.C. Ct. App. Feb. 20, 2001) (attached as exhibit to Rule 12(c) motions of Officers Ojaniit and Ledford).
In the mid-2000s, the Wrongful Conviction Clinic at Duke University (the “Clinic”) began investigating Massey’s case. See Compl. ¶¶ 32-33. The Clinic obtained a series of mug shots of Massey taken on seven occasions between April 18, 1991, and May 29, 1998. Each of the photos — including one taken on March 9, 1998 — showed Massey with short hair. After examining the photos, two professional barbers made affidavits that Massey could not have grown his hair long enough to have it braided in cornrows between March 9, 1998, and the date of the crimes against Wood and her children, May 22, 1998. Furthermore, according to the barbers, if Massey had cornrows on May 22, 1998, the lines in his scalp left by the braiding would have been visible in his May 29, 1998 photo, but no such lines were apparent. The Clinic also interviewed Wood and discovered that, despite her unequivocal identification of Massey during the trial, she had expressed doubt to the prosecutor that Massey was her assailant after she first saw him in court, before hearing him speak and further observing him at a pretrial hearing. Wood’s initial reservations were not conveyed to defense counsel.
The Clinic presented its investigation to the District Attorney of Mecklenburg County. As a result, on May 5, 2010, the prosecutor moved in state court to set aside the jury’s verdicts against Massey and have him released from custody. The motion explained that the evidence uncovered by the Clinic made “it likely that a jury would conclude that although there is substantial evidence placing [Massey] in the area and identifying him as the perpetrator, there is reasonable doubt about whether he committed the offense.” J.A. 65 (motion attached as exhibit to officers’ answers). In granting the prosecutor’s motion, the court concluded that, “[g]iven the totality of the circumstances that now exist in this case, if the jury had all the facts that are now available, it cannot be said with certainty that the jury would have reached the same conclusion.” State v. Massey, No. 98-CRS-033738(L), slip op. at 4 (N.C. Super. Ct. May 6, 2010) (attached as exhibit to officers’ answers). The court therefore struck the five verdicts against Massey and ordered that he be released immediately from custody. Massey was freed that same day.
A recent police4aqi case dealt with a situation that happened one night when a habitual drunkard (now deceased) was apparently only slightly intoxicated at a restaurant and had nowhere to go. The restaurant called the police. The police effectively gave the unfortunate man a choice between being arrested, or being driven to the county line. He chose county line. Although it is not known exactly what happened after he was dropped off, it appears that the man drank more whiskey (he had a bottle on him) and then perished of hypothermia in the 25-35 degree Fahrenheit night. The survivors sued and have now lost on appeal:
Comment: This is the kind of case that (understandably) makes policemen too eager to arrest everyone and confiscate their alcohol. There may have been better options for the policemen here, but, realistically, the mere bringing of this kind of case incentivizes police to arrest the homeless more than they already do.
The 2006 SCOTUS case called Brigham City has left exigency exception / emergency exception 4a jurisprudence in a bit of a mess. While there was clearly probable cause under the facts of Brigham City, some commentators and lower courts have used the case to remove the probable cause requirement from of the exigency exception and/or the emergency exception.
Case: Sandoval v. LAS VEGAS METROPOLITAN POLICE DEPARTMENT, Court of Appeals, 9th Circuit 2014
Good Ninth Circuit decision clarifies that probable cause is required to invoke the exigent circumstances exception, at least in 9C. The opinion goes on to state that even if the emergency exception does not require probable cause, the emergency aid exception does require “particularized or imminent threats of violence.” In this case: (i) there was no probable cause, meaning that the policemen could not use the exigent circumstances exception to 4A; and (ii) there were no imminent threats of violence, meaning that the policemen could not invoke the emergency aid exception.
By the way, once the police got inside the home, they shot the family’s pet dog to death, so the denial of qi here may mean that the police might end up being liable for killing the dog.
Case: Vazquez v. City of Atlantic City, Dist. Court, D. New Jersey 2014
Plaintiff disputes the accuracy of Sydnor’s version of events. Plaintiff maintains the surveillance video shows he never touched Weiss prior to Sydnor grabbing him. (Pl.’s SUMF ¶ 20). Further, he alleges he never pushed Sydnor, grabbed Sydnor around the waist, or kicked, punched, or struck him. (Id. at ¶¶ 26-29). Plaintiff maintains the surveillance footage shows Sydnor grabbing and throwing Plaintiff to the ground, not the other way around. (Id. at ¶ 30). According to Plaintiff, he continually asked Sydnor “what are you doing?” when he was grabbed. (Id. at ¶ 22). Sydnor did not tell him that he was under arrest until after he was on the ground and handcuffed. After being handcuffed, Plaintiff states Sydnor said “you’re a firefighter tough guy? I’m going to make sure that you lose your pension. I’m going to make sure you lose your job.” (Id. at ¶ 23). Sydnor denies saying this to Plaintiff. (Sydnor’s Response to Plaintiff’s Facts (“Sydnor’s Resp. Pl.”), Dkt. Ent. 62, ¶ 23).