On June 15, 2011, Heilman was headed home from her shift with the Tacoma Police. At approximately 1:45 am, she stopped Papineau on suspicion of driving while intoxicated. She contacted a state trooper to process his arrest. While Heilman waited for the trooper, Papineau exited his truck holding a dark object. Heilman claims she thought the object was a handgun because she saw Papineau pick up a Luger just before he exited his truck. Heilman may have also claimed that Papineau shot at her, though she denies saying this. It is undisputed that Heilman shot at Papineau several times and that she hit him three times. He bled profusely.
Papineau was found with only his wallet in his hands. He was a few feet from the driver side door, near his truck bed. The door was open. A Norinco handgun was on the driver seat. Papineau and his truck bed were covered in blood, but his gun and truck interior were completely clean. Papineau was taken to the hospital, but died just after arrival. The angles of two of his wounds showed that he was facing to the left when was shot (as someone would be while stepping out of a driver side door). His BAC was .24 and he had cannabinoids in his system.
In her report and her subsequent depositions, Heilman claims she definitely saw Papineau pick up his gun, but does not know if he was still holding it when he exited his truck. She also does not know if Papineau shot at her. She claims that Papineau must have either put his gun down as he exited his truck or put it back in his truck after he was shot.
The facts outlined in Pierce County Detective Mark Merod’s subsequent application for a warrant to search Papineau’s truck were dramatically different than the facts described by the officer on the scene. That application claimed that Papineau fired several shots at Heilman, and that his gun was found on the ground next to him, rather than on the driver’s seat. Merod claims he got this information from Detective Tiffany, who in turn claims he got it from Heilman. In an email to the local press, Pierce County Public Information Officer Ed Troyer also claimed that Papineau shot at Heilman. Heilman has not explained why the facts in Merod’s application and Troyer’s email vary dramatically from the facts in her report and depositions.
Judy Papineau offers another theory. She admits that Brooks had a gun and that he always kept it hidden on the passenger seat. She alleges that Brooks did not touch his gun at any point during his encounter with Heilman. Instead, Brooks exited his truck holding only his wallet when Heilman shot him without warning. She insists that Heilman or another officer must have searched her husband’s truck after the shooting, found his gun, and then placed it on the driver’s seat to hide the fact that Heilman shot him without probable cause.
Tacoma Police Chief Richard McCrea reviewed the case and determined that Heilman’s actions were reasonable and within departmental policy.
Decision: No qi for Tacoma police officer Hannah Heilman.
Case: US v. Freeman, No. 12-2233-cr (2d Cir. Nov. 7, 2013).
As the police lacked reasonable suspicion, Freeman certainly had the right to ignore the officers and continue on his way. Freeman merely continued walking in the same direction, and ostensibly at the same pace, as the police never contended otherwise. If we accepted the government’s argument that such a simple refusal to comply could create reasonable suspicion where none existed before, we would create a truly paradoxical class of individuals: individuals who cannot be stopped by officers, but who can be stopped if they refuse to stop. Such a conclusion would gut the Court’s repeated determination that an individual approached by the police need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way. He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds. [internal quotation marks omitted]
Comment: It is nice to see the Second Circuit shut down this oft-played police gambit. By the way, this is not a qualified immunity case, but, rather a criminal case. That means that it took some fortitude for the Second Circuit panel majority to free the armed felon. The opinion does not state whether NYPD Officers Joseph Walsh and Ryan Conroy were subjected to any discipline for violating defendant Freemnan’s 4A rights.
Case: KLEINSCHNITZ v. Phares, Dist. Court, MD Alabama 2013
What happened: Plaintiff alleges that he waited for a safe, well-lighted to pull over for (what appeared to be and turned out to be) a police car. Plaintiff also called 911 and had the dispatcher tell the police car that plaintiff was pulling in to a gas station out of safety concerns. Nevertheless, Dothan, Alabama Officer William Phares did a felony stop (these are not pleasant) in the gas station parking lot and then arrested plaintiff for obstruction. Plaintiff was acquitted of the criminal charge and then sued.
Decision: No qi for Officer Phares.
Comment: Good decision! Assuming plaintiff speaks the truth here, there is no excuse for what Officer Phares did.
Fun cite: Coughlin, 320 So. 2d at 742 (stating the failure to comply statute “was not intended to, does not, and cannot give police officers unbridled power to arrest for refusal to obey any order they may choose to direct at a citizen”)
Judge Mark R. Hornak holds that Patrolman Andrew Bienemann may have discriminated against Hispanic woman
Plaintiff was a US citizen, but the Patrolman was reluctant to believe that, and had her detained for a few hours and then put her in jail.
Every once in a while I like to let my hair down and do some non-legal reading:
Judge Scheindlin has been, and still is, much in the police Fourth Amendment (4A) related news this year over her big stop and frisk opinion.
In this unrelated case, she deals with police performing an undercover sting on a gay man:
There are countless reasons why someone who is not a prostitute might fail to immediately, vocally reject an inexplicable offer of gratuitous money for a consensual sexual act. Pinter’s account of his arrest illustrates some of the most obvious reasons: wariness and confusion. Given the oddity of [Under Cover Officer] 31107′s unprompted request, someone in Pinter’s situation might well fail to perceive the offer of money as a form of solicitation for prostitution, and might instead simply wonder what UC 31107 was thinking: does he have a practice of offering money for consensual sex? Does it give him some thrill? Indeed, if the NYPD began sending attractive young female officers into heterosexual dance clubs where they flirted with older men, asked them what they liked to do sexually, invited them to go nearby to have a sexual encounter — and on the way out, asked whether they would accept $50 to have oral sex performed on them — no doubt a good number of straight men would be too bewildered by this surreal turn of events to recognize that, legally speaking, they were being asked to prostitute themselves. Pinter has provided sufficient evidence for a reasonable jury to find that the NYPD’s undercover officers — who offered fees for sex — succeeded in obtaining agreement, or at least silence, not only from Pinter but from a number of gay men who are not prostitutes.
BTW, Judge Scheindlin allowed many of the claims against the police, notably the Monell claims, to proceed past summary judgement (sj).
Case: Leftridge v. Matthews, Dist. Court, D. Maryland 2013
What happened: In this case, it appears that yet another police K9 unit gave a false alert on a vehicle. In this case, after what woud appear to be a false alert, the policeman claimed to find marijuana on the floor of the suspect’s vehicle, but decided not to bring charges. Here is how the Judge dealt with the false alert and the plaintiff’s allegation that if there was marijuana in the vehicle it was because the police planted it:
In a final sally with respect to his Fourth Amendment claim, Leftridge argues that the deputies “planted” the marijuana residue that they claimed to have found on the floor of the vehicle. However, I agree with defendants that, under the circumstances, this allegation is so inherently implausible as to call for summary dismissal under Aschroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2008). As defendants point out, it would make no sense whatsoever for a law enforcement officer to plant trace amounts of a controlled substance in a vehicle subject to a traffic stop, only to let the driver go with a warning to fix his brake lights.
Comments: Personally, I think this is a badly flawed analysis of human behavior and the operative incentives for policemen. Why would a policeman plant trace amounts of marijuana? So that he does not, at the margin, get a complaint or a civil lawsuit. At least some civilian suspects would not complain in an attempt to avoid charges on the marijuana. And this is true
even if especially when the marijuana has been planted. And policemen know this.
When you stop and think about it, the Judge’s assertion that there is no reason that a policeman would plant marijuana and then not charge criminally on it is even more absurd. If the policeman planted the marijuana, then the last thing that policeman wants is a full blown criminal trial. If the policeman did plant, and it somehow turns out that the defendant has money, then the defendant might hire a good defense lawyer and prove the planting. Chances are that the defendants are not rich. Chances are that none of the video cameras on the scene caught the planting. However, a policeman would be foolish to take those chances. For an evil policeman, the safest course of action is to plant, but no more than a trace amount, with the idea that the scare of the trace amount will keep the traffic stop out of both civil and criminal courts.
Disclaimer: I am not saying that the policeman did plant the marijuana. It is even possible (although I think unlikely) that the K9 really did alert based on the trace amounts the policeman claims to have found. What I am saying is that this should have gone to the jury because the Judge shows herself, with her own words, to be a poor judge of human motivations and incentive-based behavior. This is exactly why we have jury trials in the first place.