police4aqi

This and other developments at:

http://www.officer.com/news/10715327/no-charges-filed-against-pa-police-in-student-beating

Tidbit:  The complaint alleges that Miles was reciting the Lord’s Prayer as the officers beat him.  It probably sounds calloused, but  can’t help thinking that that would make a gripping cinematic scene.

UPI covers the judge’s decision in this case out of Florida.

Moneyquote:

“The Sheriff’s Department knew or should have known implementation of the policy would inevitably lead to violations of the Fourth Amendment for false arrest,” [the judge] wrote in his ruling rejecting the department’s contention that the letter written by then-Palm Beach County State Attorney Barry Krischer gave deputies the authority to order blood be drawn.

Krischer had written that “any nurse who refuses to draw blood when requested by a law enforcement officer is in violation of [state law] as actively obstructing a police officer in his lawful investigation.”

[The judge wrote that] Krischer’s unsigned letter was “woefully inadequate,” noting he didn’t include any case law to back up his opinion.  The magistrate said that while Florida law gives officers the authority to force a suspected drunken driver to submit to a blood test, it doesn’t require a nurse to perform the procedure.

Read more: http://www.upi.com/Top_News/US/2012/05/21/Nurse-vindicated-in-blood-draw-case/UPI-74821337627711/#ixzz1vgo6v3eV

Quote:

The plaintiff brought this federal civil rights suit against law enforcement officers in a Wisconsin county (and against the county itself), charging that they had denied him equal protection of the laws. They had done this, the complaint alleges, by failing to respond to his complaints about gangs that were harassing him and his wife and had eventually forced them to sell their house in the Village of Denmark and move to another village in the county, with the gangs in hot pursuit. The district court, interpreting the pro se complaint as simply a complaint about inadequate police protection, dismissed the suit for failure to state a claim, correctly ruling that states are not required by the Fourteenth Amendment to provide adequate police protection against private violence. [citations omitted throughout this block quote] The plaintiff appealed, and the appeal was submitted to a three-judge panel in March 2011. The panel noted that the complaint could be interpreted as charging the defendants with arbitrarily providing less police protection to the plaintiff and his wife than the police provide to other residents of Brown County. The plaintiff’s invocation of the equal protection clause of the Fourteenth Amendment supported that characterization, and so interpreted the suit presented a “class of one” discrimination claim, as distinct from a claim of discrimination based on a plaintiff’s membership in a particular group, such as a racial or religious minority. However, although detailed, the complaint did not allege that the defendants’ failure to protect the plaintiff from harassment by gangs had been the result of their harboring some personal animosity toward the plaintiff or his wife, and the panel concluded that without such an allegation the plaintiff’s equal protection claim failed. In advance of publication, the panel circulated its proposed opinion affirming the dismissal of the suit to the full court under Circuit Rule 40(e), because the opinion proposed a new approach to the standard of liability in class-of-one discrimination cases. The full court decided on April 12 of last year to hear the case en banc, and so the panel opinion was not published and instead the appeal was reargued before the full court. The plaintiff had litigated pro se, but upon deciding to hear the case en banc the court requested Thomas L. Shriner, Jr., of the law firm of Foley & Lardner LLP, to represent the plaintiff. We thank Mr. Shriner, his colleague Kellen C. Kasper, and the firm for their excellent representation of the plaintiff. In deciding to hear the case en banc, the court had hoped that the judges might be able to agree on an improved standard for this difficult class of cases. We have not been able to agree. The court has split three ways, but by a tie vote has affirmed the dismissal of the suit.

Case: CIANFAGLIONE v. ROGERS (C.D.Ill. 5-11-2012)

Facts:

On May 19, 2008, Plaintiff, Angelina Cianfaglione . . . received a citation for driving on a suspended license. After pleading not guilty to driving on a suspended license and demanding a jury trial, Plaintiff failed to appear for a scheduled court appearance at the Edgar County Courthouse on August 14, 2008. Judge David Lewis ordered a warrant to issue for Plaintiff’s arrest and set bond at $4,000. In the days between August 14, 2008 and August 20, 2008, Plaintiff alleges that: (1) she contacted the Sheriff of Edgar County and was told that a warrant would be issued for her arrest in a few days and that the bond would be $400 and that once issued, she could turn herself in at the jail; (2) she repeatedly checked the “Judici” website to see if her warrant had been issued and it had not; and (3) she contacted the Circuit Clerk’s office on August 20, 2008 about the warrant and was told it was not yet issued.

. . .

On August 20, 2008, Defendants Rogers and Burgin, who were deputies of the Sheriff of Edgar County, Illinois, were in a marked police vehicle in a close proximity to Plaintiff’s home. At approximately 5:00 p.m., Plaintiff, with her young son in the backseat of her vehicle, left her home to drive to a restaurant in Paris, Illinois. Defendant Rogers, at some point prior to August 20, 2008, became aware that there was a warrant ordered issued for Plaintiff’s arrest relating to a missed court appearance. At the time Plaintiff started driving away from her home on August 20, 2008, Defendant Rogers called Assistant State’s Attorney Allen A. Bell Jr. (“ASA Bell”), to ask him whether a warrant for Plaintiff’s arrest was still in effect. ASA Bell provided an affidavit stating that on August 20, 2008, he informed Defendant Rogers “that a valid warrant for the arrest of [Plaintiff] was in existence and that he could seek to arrest her in connection with said warrant.” After receiving this information from ASA Bell, Defendants Rogers and Burgin pulled Plaintiffs vehicle over near the restaurant she was traveling to.

Plaintiff alleges that after she came to a stop, Defendants Rogers and Burgin walked up to her vehicle and asked her “have you been doing methamphetamine today” and “how much methamphetamine have you smoked today.” Plaintiff immediately denied using or possessing any methamphetamine. . . . During this five minute [interval], Plaintiff alleges that Defendant Rogers searched her purse and cell phone without her explicit consent. . . .

Plaintiff was now standing outside of her vehicle. At this time, Plaintiff’s pockets were checked for contraband and her car doors and trunk were opened. Next, the narcotic detector canine—AJ, who was handled by Defendant Burgin—was brought out and walked around Plaintiff’s vehicle. Defendants Burgin and Rogers allege that AJ made a signal, which was sitting down, for contraband. After AJ allegedly made an alert on Plaintiff’s vehicle, Defendants Burgin and Rogers searched Plaintiff’s vehicle, but did not discover any narcotics or contraband. After the unsuccessful search of Plaintiff’s vehicle, they placed her under arrest pursuant to the warrant they were informed existed for her arrest by ASA Bell. They placed her in handcuffs and transported her to the Edgar County Jail. . . .

Upon arrival at the Edgar County Jail, Defendants Rogers and Burgin ordered that Plaintiff be strip searched. The sole basis for ordering this strip search was the suspicion that Plaintiff had illegal contraband on her person, a suspicion which was based solely on the narcotic detector canine alert made by AJ when walking around Plaintiff’s vehicle. Defendants have not offered any other facts supporting this suspicion, such as a previous criminal history of illegal drug use or possession or any information that would have led them to believe that she was carrying illegal drugs on August 20, 2008. According to Plaintiff, Defendant Wilson, who was a deputy of the Sheriff of Edgar County and was working in the Edgar County Jail on the night in question, told Defendants Rogers and Burgin that they “shouldn’t be doing this … because that’s not even signed yet.”

Pursuant to Defendants Rogers and Burgin’s orders, Defendant Weger, a female part-time employee of the Office of the Sheriff of Edgar County, conducted a strip search of the Plaintiff. According to the Defendants’ version of events, Plaintiff was subjected to an ordinary visual strip search. According to Plaintiff’s version of events, she was subjected to a much more invasive type of search. Specifically, Plaintiff alleges that she was ordered to strip off all of her clothes and bend over and touch her toes. After complying with this order, Plaintiff alleges Defendant Weger conducted a body cavity search with the assistance of a flashlight and rubber gloves. Plaintiff alleges, that in the process of completing a body cavity search, Defendant Weger touched her “vagina to spread her apart and touched [her] buttocks with her hands and spread the cheeks apart.” No illegal drugs were found during the search of Plaintiff’s person. Plaintiff was then allowed to put her clothes back on and was allowed to pay $400 bond to Defendant Wilson who signed the Bail Bond Receipt and allowed Plaintiff to leave the Edgar County Jail.

The bench warrant for Plaintiff’s arrest was issued and signed by Judge David Lewis on August 21, 2008. The warrant for Plaintiff’s arrest was received by the Edgar County Sheriff, Timothy Cripes, on August 21, 2008, and was signed as executed by Defendant Wilson on August 21, 2008.

(footnotes omitted)

Decision: QI for the claim of arrest with no warrant(!). QI on the false dog alert(!). Court does allow the plaintiff to maintain her strip search claim.

Comment: Wow. Just wow.

h/t:  twinz2z

. . . and eventually gets a $95,000 settlement in addition to the fact that she got to lock a misbehaving police officer in her basement and still lives to tell about it.  You can almost imagine her saying the other policemen who were hassling her, “You want to know where Dre is?  He’s locked in my basement!”  The story.

H/t:  The Agitator, again.

Puppycide, two anecdotes.  Drip, drip, drip.

Not too fond of the term “puppycide,” although it does seem to fit these two sad, but highly common, fact pattern stories about dogs dying at the hands of overzealous policemen.

John Wesley Hall over at the fourthamendment.com reports this worth-reading-at-least-the-blurb new decision on “sophisticated” drug sniffing K9 officers.

This is why we can’t have nice things.

Case:  MITCHELL v. SHEARRER (E.D.Mo. 3-20-2012)

What happened: Police were investigating some kind of grass clipping mess and decided to knock on plaintiff’s door to investigate the source of the grass clippings.  When plaintiff answered, the policeman demanded identification from him.  Plaintiff refused, and was pulled out of his home and arrested and taken to jail.

Decision:  Police may end up being liable for arresting plaintiff for failure to produce id documentation.

Quote:

Further, [Officer] Shearrer has not shown that there was probable cause for the plaintiff’s arrest.  Shearrer testified that plaintiff refused to obey a lawful command and thereby committed a crime in his presence. The command that plaintiff refused to obey was to produce identification. The plaintiff, however, was under no obligation to speak to the officer or to produce any identification documents:

[[When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do. And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak.   When the police knock on a door but the occupants choose not to respond or to speak, "the investigation will have reached a conspicuously low point," and the occupants "will have the kind of warning that even the most elaborate security system cannot provide."   And even if an occupant chooses to open the door and speak with the officers, the occupant need not allow the officers to enter the premises and may refuse to answer any questions at any time.]]

Kentucky v. King, 131 S.Ct. 1849, 1862 (2011) [Ed:  internal citations omitted, double bracket used for internal block quote].   An individual does not run afoul of the law by failing to comply with a police officer’s directive to do something that he is not legally required to do.

As previously reported here, Spokane Police Department Officer Thompson has been convicted in the beating death of Otto Zehm (who had been mistakenly reported, back in 2006, as a thief at a convenience store ATM).  More indictments are expected regarding the coverup.  More delay for the civil suit, of course, but had to note a little soundbite from the media coverage:

Federal prosecutors told the jury during trial that Thompson told department officials that Zehm “attacked” and “lunged” at him, which prompted him to use his baton. However, after [Police Officer] McIntyre viewed the video prosecutors say she told Thompson that the video showed no lunge and he then stopped making that claim.

Wow.  Bad.  Don’t let anyone tell you that police can be trusted to screen video footage, at least when the screener’s fellow  policemen are committing any legally questionable state actor conduct in the video recording.  This tipping off of the bad policeman is what can, and at least sometimes does, happen.

PoliceOne site reports.

Sorry I have been away for a bit.  Was working on an artistic endeavor, a labor of love.  But that is done now.  Back to the workaday world for your correspondent, Burgers Allday.

Pass me the flask, please.

Assuming the recited facts of the court opinions to be true, what the police (that is, the unnamed deputies of the SCOTUS opinion) did to Ms. Kelly in this case was awful, just awful. Hopefully she was well compensated by the police for her ordeal. We have no real way of knowing.

But, imagine for a second that the police did quietly pay off Shelly Kelly for a covenant not to sue. If I imagine these circumstances, I imagine that they would have to pay Ms. Kelly less if they went and shook up Bowen’s long-ago former foster mother.  But, even if plaintiff could somehow magically produce a convenient police memo saying that the Millender search was going to be performed to help soothe Shelly Kelly’s understandably frayed nerves rather than because of any belief that he and/or his gun were going to be there, I am not sure that this would even be relevant to the determination on qi.

On a different aspect:

I was disappointed that the dissents did not go into the issue of whether there was a “fair probability” that Bowen had moved back in with his former foster mother.  IIRC,* the evidence that he had gone to live with his mother was that Bowen supposedly told Kelly that if they ever broke up then he would go live with his former foster mother. How is that enough to get into someone’s house? Not only is it implausible on its face, it is testimony of an interested witness, and would almost certainly have been lost any relevance** by the time of Augusta Millender’s search warrant application because of the intervening circumstances of the attempted murder of Shelly Kelly and Bowen fleeing the scene and failing to turn himself in and so on*** . . .

I was a lot more disappointed that the police were granted a search warrant at all than by the fact that they seized plaintiff’s gun.

Footnote(s):

*  The SCOTUS opinion merely reports that Kelly thought Bowen would go to the former foster mother’s and that his “ties” to the address were confirmed by checking the motor vehicles database.  But, of course, the motor vehicle database is not a license to raid all of a suspect’s former residence addresses (or is it?).  It is difficult to see how Kelly’s speculations on Bowen’s whereabouts would add much to the magistrate’s probable cause calculus here.

**  Of course, if the police really thought that he might have been living at Millender’s house, notwithstanding the silliness and falsity of that theory, then they could have staked out the location to confirm he was not living there.  Maybe they did!

***  What do I mean by “and so on”?  Glad you asked.  On Planet Earth and in Common Sense Land, Millender’s house would be one of the least likely places for Bowen to have gone to live, or to have stowed the weapon used in the shooting.  This is because he would have realized that the police would be looking there.  Criminals understand the concepts of the heat being on and of lying low.  Jesse James used to hide out at his mother’s farm, but that was a long, long time ago.

This saddens me.  Will have to get it off the blog rolls eventually.  A fairly idiosyncratic blog, I thought.  I strongly agreed more often than I strongly disagreed, but some of my strongest positive, and negative, blog-entry reactions of the past few years have been reactions to Simple Justice blog entries and/or comments.  I think this reflects the uneasy relationship that the criminal defense bar has with the police4aqi bar.  Lot of ambivalence there.

On balance, Simple Justice was one of the best blogs (or blawgs as SHG liked to call them) ever because it made you think!  “Simple” as that.  Packrat, over at Injustice Everywhere, mentioned that Simple Justice inspired him to start blogging, and I would say the same thing as far as my Police4aqi blog is concerned.

If you have never checked out Simple Justice, then please click the link to it on the blog roll over to your right.  Because SHG has, on occasion, professed a fondness for the music of Phil Ochs, let’s conclude with some of that:

ON EDIT:  Yay!  SHG’s Simple Justice blog seems to be back as of March 2012.

You would be amazed at how often police officers say that they are dragged by cars with their arms caught in the window.  In the latest story of this type, the police officer managed to kill the “regcit.”

http://wusa9.com/news/article/189808/373/Witness-To-Fatal-Police-Shooting-Says-Officer-Was-Not-Dragged

Professor Moskos writes in his Cop In The Hood blog about NYPD police officer Richard Haste’s killing of Ramarley Graham:

When [these] kinds of events happen, don’t be [] surprised or shocked or outraged. This is what happen[s] with drug prohibition and the war on the drugs. The courts destroy the 4th Amendment. Police bust down doors. Police assume (with the courts’ blessing) that drug dealers are armed. Sometimes police make mistakes, and unarmed people get shot.

Sure, the Drug War was a but-for cause of Ramarley’s death, and is one message, I’d say the most obvious one, to be taken from the tragedy. But, it is easy to get carried away and forget about other messages. Trigger happiness (or recklessness as the penal codes generally call it), in and of itself, also appears somewhat likely to have been a but-for cause, and, if so, would be a more proximate and direct cause at that. Another problem is that Officer Haste may not have been making a “mistake” at all, as the above-quoted passage seems to assume. For all we know at this point in time, Officer Haste may have waited his entire career to get alone in a room with a suspect, gun justifiably drawn, situation properly tense, so that he could play Dirty Harry Callahan. I know of nothing to suggest Haste has this attitude problem, but there are certainly people out there who do, and he could be one of them. If Haste was born in late 1985, he could be the reincarnation of Dan White for all we know right now.

Assuming no facts favorable to Officer Haste that we haven’t heard about yet, some serious jail time for Officer Haste would make these kinds of reckless murders and manslaughters go down in frequency, which hopefully is a high priority for police departments and police educational institutions around the country.

ON EDIT:

Professor O’Donnell has this comment about the increased freedom to shoot that recent NYPD police-related policy changes are going to provide:

But the department still has to do more than put it in writing. It needs to explain[] to officers what it means and it needs to explain to them that deadly force is still a last resort.

They already know that deadly force is a last resort. They get that already. They know that they can’t tie the suspect’s corpse to a bridge and burn it. They knew better than to dunk Ramarley’s head in the toilet after they shot him down next to it. When Haste chose to lay waste, he knew it was the last resort and that there would be no further resorts after his bullet was done doing the talking. People are not complaining that Officer Haste tried additional “last resorts” after Ramarley died. The problem is explaining the degree of personal risk that police officers are expected to take on and paid by society to take on. Police seem to have forgotten this, generally speaking. Call it “sacrifice.” Call it “duty.” Call it “bravery.” Whatever you call it, it needs to start happening again.

Law professor and scholar Edwin Chemerinsky on the recent per curium Supreme Court decision in Ryburn v. Huff:

[I]n the recent Ryburn ruling, the court found qualified immunity based on the absence of a case on point. A rumor circulated in a high school that a student there had threatened violence. The police went to the boy’s home to investigate. The boy and his mother came out of the house and answered the police questions. The officer asked permission to enter the home, and the mother refused. When the mother entered the home, the police officer followed without permission and against her wishes. The officer said that his experience was that parents usually allow officers in their home when asked for consent. The police found no weapons or other contraband and ultimately concluded that the rumors about the boy were unfounded.

The 9th Circuit rejected qualified immunity. The Supreme Court, in a per curiam opinion, reversed. Once more, the court stressed the absence of decisions on point and said: “No decision of this court has found a Fourth Amendment violation on facts even roughly comparable to those present in this case.” The court said that its precedents had allowed police to enter a home when there was a fear of violence.

But those decisions had allowed police to enter when there was reason to believe that there might be violence in the home; here it was a only a rumor and there was no basis for suspicion other than the occupant of the home not wanting the police to enter.

The court, of course, has not overruled Pelzer. But it is notable that in neither of these cases is it cited; nor does the court focus on, what should be the central inquiry underPelzer: Did the officer have fair notice that the conduct violated the Constitution? Requiring that the plaintiff have a case on point to overcome qualified immunity will create an obstacle for civil rights plaintiffs in many cases.

 

http://www.abajournal.com/news/article/chemerinsky_new_hurdles_for_civil_rights_cases/

http://abclocal.go.com/kfsn/story?section=news/local&id=8539299&rss=rss-kfsn-article-8539299

What happened:  He/said she said case of alleged false arrest and alleged brutality.  Arrestee, a high school girl, plans a civil suit against the police.

Criticism:  Soon-to-be plaintiff’s video performance, recounting her pain and injuries, seems to me as a bit much and a bit scripted.

Red teardrop eye.

Matthew Stewart is a young man who seemingly has grown some pot plants at some time at his tiny house and home in the city of Ogden in the state of Utah. Some police officers got wind of this and some days, or perhaps months, later raided his modest home. The police found some growing equipment, although it is unclear at this point whether they found any pot. During the raid, police put a couple bullets in Stewart, Stewart’s doctors won’t tell him how many. If this is all one knew about the Stewart case, one would probably suspect that a civil suit against the police, along with its inevitable qi claim by police, was imminent.

However, things on the civil suit front are not very clear at all in the Stewart case because he used a handgun to shoot at the police officers during the raid. About this part, the police say that they made announcements and knocked prior to entering Stewart’s house and that Stewart responded by going into a hiding place with his gun, later springing out at the police officers and shooting at them even as they slowly retreated from Stewart’s house. Police claim that 6 police officers made the initial entry, 6 additional police officers were called in to participate after the shooting started and that of these involved officers, 5 were injured (presumably all shot), 1 fatal. In an interesting, if macabre, twist, the police officer who died, Jared Francom, had helped video record an earlier raid, which video recording became something of a YouTube hit because it showed the police raid team shooting a groggy man with a golf club to death. The police have not said how many of the police officers that they believe to have been shot by Stewart versus how many were shot friendly fire (if any).

Now, about a month after the raid, Stewart has spoken to the media, as is described in a Salt Lake City Tribune interview and article:

Matthew David Stewart, 37, said he never heard officers identify themselves or announce they were at his home to serve a search warrant. Stewart, in an interview Friday at the Weber County Jail, said his alarm clock woke him, then he heard a crash that sounded like glass breaking. “Some parts I remember vividly . . . Other parts it was like I was running on instinct . . . When you’re convinced that you are getting robbed and most likely killed by a group of armed men, your instincts kick in.” Stewart declined to answer some questions, including whether he was growing marijuana in his home on Jackson Avenue, as the strike force was investigating. Stewart did say he believes marijuana should be legal. Stewart said he “had no idea” he was under investigation by the strike force. He worked a night shift at the Walmart in Riverdale and was asleep as the strike force arrived between 8 and 8:30 p.m. Although Stewart said he didn’t hear officers announce themselves, he didn’t answer whether he had some indication police officers had entered his home.

“I didn’t know,” he said. “All I knew for sure is they were there to rob and kill me.” Stewart served in the U.S. Army. He saw no combat but said the training was meant to be “like the real thing.” On Friday, he said he also worked nine years as armed security for the Internal Revenue Service. Stewart said he has not been diagnosed with any disorders as a result of his service, though on Friday he said he felt the Army and security stints changed him. He did not elaborate.

When asked whether he applied his military and security training the night of the shooting, Stewart replied: “It makes sense.” As for Francom and the injured officers, Stewart said: “I’m totally devastated that anybody had to suffer over any of this. This never should have happened.” Stewart thinks two bullets struck him during the shootout, but he isn’t sure. He said he can’t tell what are entrance and exit wounds and he had difficulty getting answers from his doctors and nurses at the hospital where he remained until Monday. . . “I’m still having a lot of trouble dealing with the colostomy,” Stewart said. “It’s a big psychological blow, but it’s also real difficult in here.” . . . Another bullet struck Stewart in his left leg and damaged nerves there. Stewart said he can’t stand in one place long without “blinding pain” in the leg. “I’ve always been a big fan of the truth,” Stewart said. “It’s tough for me to stay silent on some issues.”

Matthew Stewart throwing in the details about the alarm clock and the breaking glass was telling to me. That kind of detail has the sound of someone telling the truth. The fact that they won’t give him a straight answer about how many bullets went into his own body is also sympathetic. Lawyers can debate whether Mr. Stewart should be talking at all, but, in my opinion, Stewart did an impressive job laying out his case. It contrasts starkly with the police evasions (won’t release search warrant), failure to address obvious issues (like friendly fire) and nonsense (like blowing up Stewart’s closet for no apparent good reason).

Maybe there will be a civil suit after all.

http://www.ocregister.com/news/slappy-335962-substance-mesa.html

In a somewhat complicated, but encouraging, case, an Oregon federal jury verdict held the police liable for arresting a protester who was recording the officer with his camera. The arrest was made under the wiretap law, but Oregon’s wiretap law apparently doesn’t forbid the recording that was done in this case. Story here:

http://www.oregonlive.com/pacific-northwest-news/index.ssf/2012/01/eugene_verdict_clarifies_law_p.html

Also of interest in this case was a ruling from the bench granting qualified immunity on the claim that the warrantless police search of the camera was unConstitutional. What made this ruling interesting was the forcefulness of the court’s finding that searching a modern digital camera incident to arrest is presumptively a 4a violation — the judge was clearly trying to provide qi-cognizable notice of what the law is in anticipation of future claims of qi by police in future similar cases. Court’s opinion here:

http://www.leagle.com/xmlResult.aspx?xmldoc=In%20FDCO%2020120119F56.xml&docbase=CSLWAR3-2007-CURR

Memo to police:

How to use the new Supreme Court decision in Jones (the GPS case):

1. Start putting remote kill switches in regular citizen cars. It is better for police to have an available kill switch and not need it than it is to need a kill swith and not have it. Four justices don’t seem to think this implicates 4a at all (prior to use of the kill switch to stop the vehicle anyway), and it only takes one more who believes that these remote switches are so minor that they don’t require a warrant. Even Justice Scalia’s majority opinion states that there has to be both trespass and monitoring to make a 4a violation. But kill switches don’t “monitor,” so go for it! Start with your impounds and then work your way thru the high crime neighborhoods. If people try to stop an officer from installing the kill switch then arrest and charge the perp with interference. The prosecutor’s office can always drop the charge if the perp consents to always have a kill switch as part of his plea agreement.

2. Keep doing unwarranted GPS. You might wonder why the police should keep doing this, post-Jones. The reason is simple: none of the evidence collected by the GPS needs to be admitted in court. The information might be less useful because of the inadmissibility, but it is still good stuff. AND: it gets even better! After the police officers collect up all the GPS evidence, then the prosecutor can always isolate the brief relevant segments and admit ONLY those into evidence when the court case rolls around. Even Justice Alito’s concurring opinion that addressed the monitoring aspect (rather than the “trespass” aspect) conceded that short term monitoring (in and of itself) might not be a “search.” This works out perfectly because in most cases it is only a tiny, tiny sliver of the monitoring that is needed in court to make the case. This tiny sliver will always be “short term” so you basically get in everything you want to get in on a going forward basis.

3. If the perp wants to see all the collected data then make sure the extraneous monitoring has ceased to exist before his court appointed lawyer asks for it. So far as the perp needs to know, the only monitoring that was performed was that little tiny sliver that will be shown to the jury in court. Any other monitoring simply didn’t happen, absent the perp providing some good evidence indicating otherwise.

4. A policeman’s best friend is good faith error — and until they invent a tiny person who can get inside a policeman’s skull, they are all good faith errors when the policeman makes them (because he says so!). This is a powerful perk. As courts try to draw some kind of legal line between permissible short term surveillance and impermissible long term surveillance, then the policeman simply needs to say that the legal standard is confusing and constantly evolving and the policeman got mixed up and thought his monitoring did qualify as short term even though it turned out that it did not (shucks!). I mean it is not like the policeman put the GPS device into the perp’s pet dinosaur!

Fourth Amendment.com reports on this recent federal district court opinion here:

http://fourthamendment.com/blog/index.php?blog=1&title=d_ore_cell_phones_shouldn_t_be_subject_t&more=1&c=1&tb=1&pb=1

Basically, two policeman looked at a drunk driving suspect’s device and found sex images of plaintiff and his girlfriend. According to Fourth Amendment.com, the court held that if the drunk driving arrest was proper (this is contested) then the fact that the policemen looked at the private sex pictures is: (i) unConstitutional; but (ii) properly subject to qualified immunity for lack of previous cases on point. OTOH, if the drunk driving arrest was improper then there will be no qualified immunity because there is established case law (and hence no qi) vis-a-vis improper drunk driving arrests.

Case: POWELL v. JOHNSON (D.Minn. 1-17-2012)

What happened: A policeman went into a plaintiff’s garage because plaintiff’s garage door was open and the policeman wanted to investigate. The plaintiff’s pit bull dog ran, or jogged (depending upon whom you believe), at the policeman, so the policeman shot the pet in the head and killed it.

Decision: No liability for the police because of qualified immunity. Decision seems to say that a police officer can shoot a dog even if the dog is on its own property.

Criticisms: The opinion does not actually specify whether the dog was on its owner’s property or not when it was shot. This is a flaw in the opinion. Even if this fact of the dog’s location were somehow legally irrelevant, then that should have been explained at least because there is a popular perception that a dog is allowed to run around in its own yard without being shot. In a similar vein, the decision does not actually specify whether the policeman was on plaintiff’s property* at the time he decided to shoot. This is another flaw. Again, even if this fact of the policeman’s location were somehow legally irrelevant, then that should have been explained at least because there is a popular perception that people are not allowed to trespass, and then shoot the property owner’s dog if the dog becomes agitated by the trespasser. Finally, and most egregiously, the opinion utterly fails to deal with the issue of whether the policeman had a right to be in plaintiff’s garage in the first place. It is true that the police officer was on an investigation, but, based on the opinion’s selective recitation of facts, it does not seem like there would have been “probable cause” to believe that any of the suspects were in the garage. Assuming no probable cause and no warrant, it is difficult to understand how the policeman could have believed that he had a right to be in the plaintiff’s garage, without a warrant or probable cause or exigent circumstances. As I see it, it was almost certainly the trespassing that was the proximate cause of the pet/guard dog’s death — meaning that the policeman should be liable. His decision to shoot the pet may have been a “split second decision,” but the decision to go into the garage was not a split second decision by any means and should not be treated like one. If there is some theory excusing the policeman’s apparent trespass into the garage then the opinion should have explained that. As it is, the opinion simply seems wrong for failing to consider the Constitutionality of the entry, and instead improperly focusing exclusively on what happened after the dog started his approach.

FOOTNOTE(S):

* As I best understand the recitation of facts in the opinion, both the policeman and the dog were in the garage when the dog was shot to death by the policeman.

Trevon Cole family to receive $1.7 million settlement from Las Vegas police – News – ReviewJournal.com.

Man who says cop planted drugs gets $150,000 | slappy, substance, mesa – News – The Orange County Register.

As states are rushing to make synthetic marijuana illegal, one wonders how soon the police dogs will be asserted to have been trained on detection of this newly-illegal substance. Here is an article that suggests that the local police dogs can already detect Spice / Hayze / whatever-you-want-to-call-it:

http://magicvalley.com/news/local/west-end/filer-schools-tackle-spread-of-spice/article_401dc80e-d353-5900-a267-e174d4da15cd.html

Under what circumstances may the police bring a drug-sniffing dog around a person’s home?

The Supreme Court will take up at least a piece of that question this term as it has taken up the Florida v. Jardines case, in which K9 Officer Franky was brought around to someone’s doorstep and allegedly responded with a response that allegedly reliably indicated the presence of contraband. Some are predicting that this case will be limited to the issue of whether a police dog sniff at someone’s home is a Constitutionally cognizable “search.” Then again, it seems to me that there is wide consensus that it is not a search. Where the large dispute seems to enter is on the issue of whether an alleged K9 indication is probable cause for a search on the indicated-upon home.

More at:

http://www.abajournal.com/news/article/supreme_court_grants_cert_in_cases_of_drug-sniffing_dog_indian_tribes_repay/

Case: EZE v. CITY UNIV. OF NEW YORK AT BROOKLYN COLLEGE (E.D.N.Y. 12-27-2011)

What happened: Plaintiff, a college student, went to campus security to complain that her landlord had set up secret cameras in her apartment and that her roommates were saying bad things about her on the internet. Instead of investigating the complaint as though it might be true, security decided to have the complainant psychologically analyzed at a mental hospital. Plaintiff was held at the mental hospital for a couple of weeks. It turned out that the student did not have any psychological problems, and that her landlord had placed a hidden camera in her bedroom. It was not established whether or not her roommates had said bad things about her on the internet, although this part of plaintiff’s story seems plausible, at least in 20-20 hindsight. Plaintiff was thrown out of college, ostensibly for missing tests when she was held against her will during her involuntary committement.

Decision: Security officers may end up being liable here for forcing plaintiff to go to the mental hospital, but not for her relatively long stay.

Comment: The security officers (and others) who were defendants in this case were not police officers, although, police officers can and do require a subject to go get a psychiatric evaluations sometimes, even if the subject has not committed any crime.

The poll. All internet polls are silly, of course, and, in a way, Packratt‘s annual poll is sillier than most because it compares videos showing misconduct that is reprehensible (at least in most cases) for fundamentally different reasons. Consider the two biggest police misconduct videos of the year: (i) Lt. Pike peppersprays the UC Davis Occupy protestors; and (ii) the Kelly Thomas (fatal) beating video. How can one compare these things to each other? One can’t — at least I don’t think so. Nevertheless, every year I do cast my vote because it is good to reflect upon these videos as a group because, poll silliness notwithstanding, a clearer holistic picture of police misconduct emerges. It is this cumulative effect that really shows police attitudes — this cumulative effect is the only way to show something cultural, like an institutional attitude. These institutional attitudes, understanding them, whether for the purpose accommodating, encouraging or curbing the attitude, are key to good and wise police rules and practice reform.

I voted for the Todd Blair shooting and the Jose Guerena* shooting videos. Both of these videos show examples of bad police announcements that are not designed to make people in the dwelling aware that policemen are outside, trying to get in. In both of these videos, it is not merely that announcement efforts are weak or lacking. Rather, it seems that the “announcements” in both cases are designed to confuse, that is, designed to make people in the dwelling think that it is not police trying to break in. In the Blair case, the police are shouting over each other so that it is difficult to make out anything anybody is saying.** Where is the bullhorn? Even if it was at the bullhorn cleaning shop, is it really that difficult to shout a five word message in unison? In Jose Guerena, the police touted the fact that a siren was used. Then the video dropped. Sure, they used a siren.*** Sadly, it was a siren that sounded exactly like a car alarm, and, to make matters worse, it appears that the car alarm was not even sounded in any particular proximity to the Guerena residence. The “siren” didn’t make things clearer — it made them more confusing — and, again, police had to know that ahead of time. I think these announcement problems are egregious, at least from what we can see on video,**** and are under-reported, even by websites generally unafraid to criticize police.

FOOTNOTE(S):

* The Jose Guerena shooting video was a write-in vote because it was not in the poll options. [ON EDIT: JG shooting video has been added to the poll now.]

** What is being huskily shouted is difficult to understand as captured by a camera that was right in the room with the shouting officers — one also has to consider (as the police in Utah surely did) that the garbled babble is going to be even more impossible to decipher inside of Blair’s apartment.

*** Let’s be clear: sirens and flashing lights should be used generously at forced entry raids because they give the strongest and most unmistakeable indication of police presence. In the context of a forced entry raid (especially a forced entry raid designed to give as little notice as possible), the siren is a very good thing, not a bad thing. However, the police who shot Jose Guerena were trying to subvert the siren by using it, but using it in a way inconsistent with giving notice of police presence.

**** The best video showing how police do not announce came out a couple years ago via Barry Kooper (sp?):

Odessa empty house video

Unlike the Guerena and Blair videos of 2011, the police in the Odessa empty house video aren’t putting on a show for the camera.

Case: MONTGOMERY v. WARREN COUNTY (S.D.Miss. 12-27-2011)

What happened: Plaintiff fled car accident (which was a crime). Police caught up with him later and arrested him roughly. Plaintiff sues for excessive force.

Decision: Police may end up being liable here. While the opinion suggests that the police might have been privileged to be allowed to beat up the suspect while he was fleeing, there was no evidence that plaintiff resisted arrest when police found him at a substantially later time. Defendant’s Heck defense was also denied because the alleged excessive force cast no doubt on plaintiffs’ criminal convictions.

Comment: Heck doesn’t usually seem to help the police too much in excessive force cases — and this one is a good example of that.

Headline Credit: Chris Rock (natch!).

Case: SMITH v. BESELER (M.D.Fla. 12-28-2011)

Quote:

Matos omitted two categories of key facts from his affidavit. First, although the only evidence provided in the affidavit of Smith’s involvement [in a robbery] is Matos’s interview with Palmer, the affidavit omits a number of facts that would have seriously undermined Palmer’s credibility. Palmer was interviewed while in custody following his arrest for an automobile burglary which occurred in the vicinity of the later robbery under investigation. Although Palmer was not given a formal deal with law enforcement, he thus had an incentive to cooperate with the police. Moreover, Palmer fit the description given by Maynard of his assailants, and, as any reasonable officer would, Matos suspected that Palmer may have been involved in the robbery. Palmer also stated that he had been under the influence of illegal narcotics while the robbery took place, possibly impairing his recollection of the incident. None of these facts, however, were communicated to the state judge.

Lesson: This case shows one valuable aspect of the warrant requirement of 4a, specifically, the informational value of a warrant. Valuable information from the civil case was gleaned based on what the warrant said (and failed to say) here.

Case: MCMAHON v. FURA (N.D.N.Y. 12-23-2011)

Decision: Seems to indicate that Syracuse, New York’s “disorderly crowds” statute is unConstitutional, specifically void for vagueness. Police may end up being liable for excessive force.

Quote:

[T]he Court is unable to conclude as a matter of law that a reasonable officer would believe that punching a fleeing, non-violent suspect in the jaw would be lawful. Therefore, the excessive force claim against Defendant Fura will proceed to trial.

Comment: Fleeing suspects are usually a bit outside the intended zone of focus for this here blog. However, the line about punching the suspect in the jaw was too good to pass up.

H/t: Injustice Everywhere:

http://www.komonews.com/news/local/Lawyer-Seattles-top-cop-should-resign-after-new-video-surfaces-136288418.html

Comment: There is no mention in this media account (or the others I read today) of a civil lawsuit against the police by the arrestee. Right now the arrestee seems to want relief from the executive and/or legislative branches rather than the judicial branch. Maybe they get him to refrain from filing the civil lawsuit (potentially costly to taxpayers) by firing the police chief or by having him resign.

Although this in-custody death happened in 2009, the deadly chain of events is now being publicized because a photo of the detainee, the late Nick Christie, has been released:

Professional videographer acquitted and plans to sue.

http://www.pixiq.com/article/videographer-arrested-for-terrorist-plot-in-miami-acquitted

This is a he-said-she-said case involving a terroristic threat (to blow up a building) that either was, or was not, uttered by the videographer. A witness told police that the videographer made the threat, but is that really enough to support probable cause for arrest (much less the criminal charges that were pursued all the way through to the recent not-guilty verdict)?

Case: CAMPBELL v. CITY OF SPRINGBORO, OHIO, 788 F. Supp.2d 637 (S.D.Ohio 4-26-2011)

What allegedly happened: A police K9 officer bit two plaintiffs, who were not criminals and who were not fleeing, in two separate incidents. The K9 officer’s handler was accused of excessive force, largely on the theory that he wanted his dog to bite suspects, whether or not they were fleeing or otherwise posed a safety risk.

Decision: Police may end up being liable here.

Quote:

particularly given the questions of fact that exist regarding the adequacy of Spike’s training, the ability of Officer Clark to effectively control Spike during tracks even while Spike was on a lead, and the fact that Officer Clark knew that when he deployed Spike on a track, the likely result would be a bite. Accordingly, the Court denies Officer Clark’s motion for summary judgment as to Plaintiffs’ § 1983 excessive force claims.

Case: VODAK v. CITY OF CHICAGO, 639 F.3d 738 (7th Cir. 2011)

What happened: Chicago police allowed an anti-war protest march (which normally would have required a permit). After the protest march started, there were some public order problems, mostly traffic problems. Consequently, police decide to send the marchers back to the origin point of the march. However, several marchers (and probably many non-marchers) went off on a side street which was different than the route the police wanted protestors to take back to the origin point of the march. Police trapped (or “kettled” as they say in Canada) all the people who happened to be on the wrong side street and made a mass arrest.

Decision: Police may end up being liable here because there is no evidence that they gave clear instructions that could be heard by the people who happened to be on the wrong side street and ended up being arrest for that. Probable cause to make the arrests may have been lacking (at least on the plaintiffs’ version of the facts). Judge Posner writing for the majority, including also Judge Wood.

Quote:

No precedent should be necessary, moreover, to establish that the Fourth Amendment does not permit the police to say to a person go ahead and march and then, five minutes later, having revoked the permission for the march without notice to anyone, arrest the person for having marched without police permission. This would be an indefensible sort of entrapment by the State — convicting a citizen for exercising a privilege which the State had clearly told him was available to him. So this is one of those cases in which a defense of immunity would fail even in the absence of a precedent that had established the illegality of the defendants’ conduct. The absence of a reported case with similar facts may demonstrate nothing more than widespread compliance with well-recognized constitutional principles. (internal quote omitted)

Case: COUDEN v. DUFFEY (D.Del. 12-12-2011) (quoting Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir. 1997)).

Quote:

While the language and method used to effect the arrests appear to be more akin to the Rambo-like behavior associated with police in overdramatized B movies or TV shows than police conduct ordinarily expected in a quiet, family seaside town, we are reluctant to establish a precedent that would subject every police arrest of a group of possible violent offenders to compliance with the Marquis of Queensberry Rules of fair play. Although these police officers came close to the line, these circumstances, in totality, do not rise to a Fourth Amendment violation.