The Supreme Court has now reversed, holding that the police incursion on the yard and patio was not clearly unConstitutional. Interestingly, the opinion fails to mention the “Girl Scouts and Trick-Or-Treaters” test. And I see that as a problem because I think it is a famous and relatively easy-to-apply test for the police officer in the field.
Case: Harris v. O’HARE, Court of Appeals, 2nd Circuit 2014
Police had a report of stolen guns. Based on an (non-confidential) informant’s tip, they entered fenced in property and an officer ended up killing a pet dog in front of a child with shots from his gun. No stolen guns were found. Police argued that “exigent circumstances” justified their entry into the fenced in area. Jury agreed, but the appellate court has now disagreed, holding that there were no exigent circumstances because the possibility of stolen guns was not urgent enough to excuse the warrant requirement on exigent circumstances grounds. I recommend reading the entire case as it is chock full of good quotes and good legal analysis. In my book, Seven died a hero by making it marginally less likely that police officers will come into fenced in yards on relatively weak cause in the future.
This case got a fair amount of national media coverage when it happened in 2013. Long story short, a man with Down’s Syndrome refused to leave a movie theatre, the police were called, and, instead of waiting for the man’s mother, the police picked a fight with the man (IQ of about 40, clearly showing Down’s) and ended up killing him.
A grand jury failed to criminally indict the police officers, see: http://www.washingtonpost.com/local/no-criminal-charges-in-death-of-robert-saylor-frederick-man-with-down-syndrome/2013/03/22/3a723b6c-932f-11e2-8ea1-956c94b6b5b9_story.html.
In this opinion, Judge William M. Nickerson refuses the police officers and their employer (that is, the State of Maryland) qualified immunity for the killing of Robert Saylor.
Criticism: I don’t think the secretive grand jury proceedings are admissible in the civil case, and, if this is true,it seems wrong. More specifically, I would hate to think that the officers could get out of civil liability at the grand jury by testifying that they followed their traing (see linked WaPo article), but that the State may get out of employer-based liability by claiming that the officers were not trained to do what they did to Robert Saylor. I fear that that is what is about to happen in this civil case if it is not settled.
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.