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.
Sometimes tenants decide to have a party in their unit either before the lease starts just as their lease is ending, or after their lease is over. I don’t have firsthand experience, but I guess these parties can get pretty wild. These parties raise interesting issues under criminal trespassing law, specifically, the state of mind (mens rea) required by a defendant to be guilty of criminal trespass. As legally sophisticated readers will appreciate, mens rea has, for centuries now, had an important place in criminal law to protect defendants (for example the difference between murder and manslaughter is basically a difference in mens rea), but mens rea seems to be on the decline as America increasingly becomes a law-and-order oriented nation with fuller and fuller prisons.
Mens rea does not come up that much in the civil cases against the police covered by this blog, but I thought the following dissent was kind of funny because criminal trespass law traditionally does require posting, warning signs, notice, or the like. Traditionally, this requirement of signage was required to ensure that the trespasser knew she was trespassing, which is to say, “no trespassing” signs have long been a way to help establish mens rea on the part of those who ignore the signs. I mean, have you ever seen a “no trespassing” sign? I know I have. Notwithstanding all that, here is what Judge Brown has to say . . .
Case: WESBY v. District of Columbia, Court of Appeals, Dist. of Columbia Circuit 2014
Dissent by Judge Brown:
The court today articulates a broad new rule—one that essentially removes most species of unlawful entry from the criminal code. Officers must prove individuals occupying private property know their entry is unauthorized; otherwise police lack probable cause to make arrests. Moreover, any plausible explanation resolves the question of culpability in the suspects’ favor. Thus, unless the property is posted with signs or boarded up and attempts to prevent access have been deliberately breached, i.e., there is direct evidence of unauthorized entry, law enforcement’s options are limited to politely asking any putative invitee to leave.
“Do your panties match your dress?” allegedly said the 65 year old stranger to the 2 and a half year old girl
This case is an interesting one to ponder when thinking about the outside limits of police powers to lawfully arrest. Part of why it is a fun case to contemplate is that it seems so ordinary and “real.” Part of the reason it is fun to contemplate is that nobody got seriously hurt, or emotionally scarred. I can’t do the case full justice in a blog post, but I will try to give the bare, errr, minimal essentials, and you can click on the link below if you want to read the full thing.
A mother was in the park with her two and a half year old daughter. The daughter was wearing a pink dress when they encountered a sixty-five year old man. After the encounter, the mother called police, and, later, when the policeman showed up, she told the policeman that the stranger had asked the daughter whether her panties matched her dress and her daughter responded inappropriately, as young children will, by lifting her dress to expose her panties, which did indeed match her dress. The policeman detained the stranger, who admitted that he told the girl that she was wearing a “pretty dress,” and stated that the child did lift her dress to expose her panties in response to his comment about her “pretty dress.” The policeman arrested the stranger for felony child molestation and for carrying a firearm in the commission of a felony. Charges were not brought after a preliminary criminal hearing decided that there was not probable cause to make an arrest.
The sixty-five year old brought a civil suit against the policeman for false arrest. Even though it has been determined that there was not probable cause to arrest, there is no civil liability against the policeman if there was “arguable probable cause” at the time of arrest. In the short, and readable, opinion linked below, Judge William S. Duffey, Jr. decided that he would not grant summary judgment (sj) and there would be qualified immunity (qi) for the policeman in the civil suit if a jury determined that “arguable probable cause” existed in light of testimony and evidence to be heard at trial with regard to disputed facts about the encounter in the park and the subsequent arrest in the parking lot of the park.
Case: Benson v. FACEMYER, Dist. Court, ND Georgia 2014
Comment: I think I would have passed this hot potato case to a jury, too, were it that I was judge.