Pass me the flask, please.

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.

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:

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

Where your eyes don't go.

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.

[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/

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.

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.