In the wake of the Saylor, Brown and Garner grand juries (and others), there has been a fair amount of criticism of the grand jury process. Of course, one criticism is that grand juries are too reluctant to indict police officers. Another criticism is that grand juries are too eager to indict non-police officers (and other parties not particularly beloved of prosecutors). This post relates to grand jury eagerness to indict in most cases.
When the police officer arrests somebody that she shouldn’t have arrested, or, at least, arguably shouldn’t have arrested, then it is understood that the arrestee might later sue “civilly” for false arrest (federal and/or state varieties). However, it is understood that if the arrestee is convicted of the crime for which she was arrested, then the arrestee will lose the civil suit because the criminal court has definitively determined that the arrestee did the crime. This is a rough description of “Heck doctrine,” following the Supreme Court case of Heck v. Humphrey. All of this seems pretty reasonable, at least to me.
What this post is about is situations where there is a grand jury indictment of the arrestee, but no criminal conviction follows. Can the grand jury indictment be used to prove, or at least help prove, that there was probable cause for an arrest and that a false arrest was not made by the police officer? On a closely related note, can the grand jury indictment help support qualified immunity in favor of the police officer on the false arrest claim?
Case: FIALDINI v. Cote, Court of Appeals, 4th Circuit 2014 (unpublished)
[W]e have held that, “an indictment, `fair upon its face,’ returned by a `properly constituted grand jury,’ conclusively determines the existence of probable cause.” . . . Appellants argue that the indictment cannot support a finding of probable cause because [Plaintiff] was not permitted to present evidence before the grand jury, . . . suggesting thereby that had he been allowed to do so, he would have defeated the prosecutor’s showing that there was probable cause for his arrest. We reject this contention.
Criticism: This gives prosecutors a powerful incentive to get indictments in cases of questionable arrests, especially when the prosecutor is one of the strongly “pro-police” variety. If, as some contend, the grand jury can be controlled by the prosecutor, so that the grand jury will “rubberstamp” any indictments the prosecutor truly wants, then it is difficult to see why the resulting indictment would be admissible as evidence in a later civil suit by the arrestee for false arrest.
ON EDIT: In response to the comments, I am not criticizing prosecutors who get an indictment and then try the case in the criminal court. Rather, I am criticizing any prosecutors who get an indictment, never intending to try the case, but, rather, merely to bolster the defense in an actual, or potential, civil suit by the subject of a questionable arrest.
Case: Vasquez v. Lewis, Dist. Court, D. Kansas 2014
Not much remarkable about this case, the headline tells the story. Posted here only because it is yet another case where the police K9 gave a false alert.
Case: Wright v. City of Garland, Dist. Court, ND Texas 2014
Early in the morning of August 23, 2008, Wright drove to the gated entrance of the Retreat Apartments, located in Garland, Texas. . . . He could not enter the apartment complex because he did not know the entry code, so he began honking his horn. . . . At that time, Officer Stallings and other officers of the Garland Police Department (“GPD”) were inside the apartment complex investigating a party that they believed involved underage drinking and marihuana use. When Wright arrived, Officer Stallings was at the northwest corner of the apartment complex searching for two individuals who had fled the scene that the GPD officers were investigating. Officer Stallings heard Wright’s horn honking and suspected that he might be there to pick up the individuals who had fled the scene.
Officer Stallings approached Wright’s car on foot. Wright contends that Officer Stallings shined his handgun-mounted flashlight through the passenger side window; Officer Stallings maintains he shined the flashlight through the front windshield, illuminating Wright sitting in the driver seat. Officer Stallings also avers that he had exited the pedestrian gate of the apartment complex and was heading southwest to cross in front of Wright’s vehicle in order to approach and question Wright. Within seconds of Officer Stallings’ shining his flashlight at Wright’s vehicle, Wright accelerated the vehicle. Wright asserts that he immediately turned to the left, toward the exit of the parking lot of the apartment complex. Officer Stallings states that Wright accelerated toward him. Officer Stallings reacted by firing five shots within a two second interval at Wright’s vehicle, two of which entered through the open passenger widow [sic] and struck Wright, and three of which struck the rear of the vehicle. Wright then sped out of the apartment complex and drove two miles before he lost control, crashed into another vehicle, and was apprehended by police officers.
Nor would the surveillance video enable a reasonable jury to find that, under the totality of the circumstances, Officer Stallings lacked reason to believe that Wright posed a threat of serious harm to his physical safety. The video shows, at 2:20:09, just before Wright’s vehicle accelerated to exit the parking lot, that Officer Stallings was positioned in front of Wright’s vehicle, and a flashlight was illuminating Wright’s front windshield and face. Wright has not introduced any other evidence that would enable a reasonable jury to find that Officer Stallings lacked reason to believe, under the totality of the circumstances, that Wright posed a threat of serious harm to his physical safety at the time he fired his weapon. See Mace, 333 F.3d at 624.
In sum, the summary judgment record would only enable a reasonable jury to find that, as Officer Stallings was approaching Wright’s vehicle from the front and to Wright’s right, Wright accelerated in the direction of Officer Stallings. These actions clearly gave Officer Stallings reason to believe that, under the totality of the circumstances, Wright posed a threat of serious harm to his physical safety at the time he fired his weapon.
Criticism: There are a lot of problems with Judge Fitzwater’s opinion, but I will just focus on one, which is: even if the Plaintiff had been driving right at the policeman, and thus posed an apparent danger to the policeman, the reasonable response to this serious danger is to focus on getting out of the way of the vehicle. Getting out of the way as fast as possible, or shooting the driver, is basically an either/or choice. If it is to be believed that the policeman believed the car was coming right at him,* then the reasonable response to this danger is to get out of the way, and not to shoot the driver, who is not particularly likely to slow down, or even want to slow down, because a policeman is shooting at him. Maybe if the policeman’s bullet hit the brake pedal then it would slow the car down, but that isn’t how these shootings work. Of course, in this very case, the shooting did not stop the car and basically put people and property at risk by creating a situation of a driver with gunshot wounds (who eventually crashed). Even assuming the facts as Judge Fitzwater would have them,** the policeman did not react reasonably to the supposed threat of a car that is about 15 feet away and just starting to move.***
* It is doubtful that the policeman in this case thought that the car was coming at him because the bullets that hit the driver went through the passenger’s side window, which is a powerful indication that the car was not coming at the policeman.
** As the Supreme Court recently reminded the 5th Circuit in Tolan, the district court should not be finding facts on summary judgement, even in qi cases. That is another problem with this opinion — it finds facts on issues reasonably in dispute.
*** Judge Fitzwater’s opinion never relates why Plaintiff Wright decided drive away as the policeman approached his vehicle. However, I believe that there is a clue in this passage of the opinion: “Officer Stallings maintains he shined the flashlight [which was mounted on his handgun] through the front windshield, illuminating Wright sitting in the driver seat.” Seems like all Wright saw was a bright light and the barrel of a gun. I would have “gotten out of Dodge,” too.
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.
UPDATE(S): (i) this opinion has been amended in November or December 2014; and (ii) link to case, above, no longer works (perhaps because the opinion was amended(?)).