“It is the nature of a democratic society that all of us, especially the police, take some risks in the interest of preserving freedom.”
Larson v. Dupnik, Dist. Court, D. Arizona 2015
Since Lambert in 2006, it has been clear that the emergency exception for officer safety does not operate to protect law enforcement officers from all risk; the Fourth Amendment does not require law enforcement officers to take unreasonable risks. Lambert, 98 F.3d at 1186-87. In Lambert the court explained why handcuffing or pointing a weapon at a suspect does not automatically convert an investigatory stop into an arrest with a balance being struck between guarding against violence and guarding the Fourth Amendment, “specifically the freedom from unreasonable searches and seizures.” Id. at 1187. By the nature of their job, law enforcement officers agree to subject themselves to some physical jeopardy “that is inherent in the job of a law enforcement officer.” Id. But, “it is the nature of a democratic society that all of us, especially the police, take some risks in the interest of preserving freedom.” Id. Therefore, balanced against the need for officer safety, is the right of all people to be free from the terrifying and humiliating experience of being pulled from their cars [or homes] at gunpoint, handcuffed, or made to lie face down on the pavement when insufficient reason for such intrusive police conduct exists.” Id.
The Court finds that clearly established law gave Defendants fair warning that the emergency exception to the Fourth Amendment right to be free from an unreasonable seizure and search is narrow and only applies when there are reasonable grounds to believe an emergency exists, i.e., that there is an imminent threat of violence to officers or others. Clearly established law gave Defendants fair warning to not rely on a lack of evidence or on unreliable evidence as reasonable grounds to believe an emergency exists in the first place, and that when reasonable grounds do not exist to believe there is an imminent threat of violence to officers or others, police are required to conduct further inquiry. Defendants had fair notice that without reasonable grounds to believe an emergency existed, a warrantless search and seizure is presumptively unreasonable and a violation of the Fourth Amendment.
Case: KATEKARU v. Egan, Dist. Court, WD Missouri 2015
What happened: A plaintiff’s nephew was living with him. During some kind of dispute with the nephew, plaintiff called police on the nephew. After that, the nephew pulled a knife and threatened to hurt himself. Plaintiff took the knife away from the nephew. When the police arrived, plaintiff gave police the knife and explained the situation. Police wanted to question the nephew, but the nephew ran away. Plaintiff went to go into his house, but police gave a command to plaintiff to stay in his front yard. Plaintiff made a derogatory comment about the policeman and went back into his house anyway. Police arrested plaintiff for “failing to obey a lawful command.”
Decision: Policeman gets summary judgement of qualified immunity (sj of qi) because plaintiff did disobey a “lawful command.”
Criticism: I think the opinion did not deal with some serious issues regarding what a “lawful command” is. Why was ordering plaintiff to stay out of his house a “lawful command” and not merely a “lawful suggestion?” In other words, it would have been lawful for plaintiff to obey the command/suggestion, but it is not clear that the lawfulness of the commanded/suggested conduct makes it lawful for the policeman to command the commanded conduct. For example, if the policeman ordered plaintiff to tie the policeman’s shoe, then would that have been a lawful command because it is legal, in Missouri, to tie another person’s shoe. Personally, I think: (i) the scope of what can lawfully be commanded must be reasonably connected to legitimate police objectives (in this case catching the nephew); (ii) that ordering plaintiff to stay out of his house was not reasonably connected to the objective of catching the nephew; and (iii) the policeman’s order was therefore not a “lawful command.”
Comment: I don’t know why a First Amendment retaliation claim was not raised. It is pretty clear under the facts that the police arrested plaintiff for making a derogatory mark towards the policeman and not because going inside his house would help the nephew evade capture.
When will police officers learn to stop sticking their bodies through the windows of stopped vehicles?
Preliminary comment: I think that it is time for those who train police to stop sticking their heads, arms, shoulders and torsos through the windows of stopped vehicles. Relatedly, policemen shouldn’t be trying to snatch a driver’s keys through a vehicle window.
Case: Johnson v. Yonkers, Dist. Court, D. Maryland 2015
Comment: This is not a hugely exciting case. No one was killed, even badly hurt. No one even went to jail. It is just another data point among many (for example, GOOGLE: dubrose tensing) that tend to show that it is bad police practice for the police officer to put himself through the window of a stopped vehicle.
Another comment: On some traffic stop videos, we see drivers refusing to roll down their windows all the way. Not recommending that you do that, but preventing the policeman from putting his body parts through the window seems like a pretty good reason to just put down the window a little bit and not all the way.
Case: NATTRESS v. Lancaster County, Dist. Court, D. Nebraska 2015
What happened: Plaintiff was on trial, where he was a defendant on a sexual assault charge, and he won his trial. Instead of immediately releasing him upon the jury’s verdict of “not guilty,” security was going to take him back to jail for some kind of out-processing. During this time, plaintiff and the guards taking him back to jail had an altercation in the hallway and elevator of the county courthouse complex. Plaintiff alleges that the guards beat him up in retaliation for a gesture he made in the courtroom. The guards claimed that plaintiff resisted handcuffing and attacked them. There were 100 cameras in the courthouse, but only 32 recorded at any given time. The county alleged that none of the courthouse videos shows the altercation. Plaintiff was convicted of third degree assault against one of the guards.
Decision: By pleading guilty to the third degree assault charge, plaintiff lost his wrongful arrest claims under Heck doctrine. No qi for police on excessive force.
[T]he plaintiff argues that he only pled no contest to assault because video recordings of the force used to arrest him had not been retained, and he was threatened with the charge of being a habitual criminal. . . . Essentially, he implies that his guilty plea was coerced. But Heck holds that a § 1983 claim that would necessarily imply the invalidity of a conviction or sentence should be dismissed without prejudice unless the “conviction has already been invalidated.” . . . His allegation of a coerced plea does not change that.
Comment: Maybe it is time to reverse Heck because of the coerced guilty plea problem. This would be a good case for the Supreme Court because the assault charge here does look like it was brought to cover up the fact that the guards beat up their prisoner for no good reason.
Another comment: 32 cameras and no video. Please!
Recently, hidden camera video of a pot shop raid in Santa Ana, California made the national news because it showed the police doing and saying bad things. One thing that did not get criticized was the poor quality of the announcement the police made before breaking down the doors (on external door and one internal door). And now, a different pre-dor-bust announcement case from Hayward , California . . .
Case: Chavez v. City of Hayward, Dist. Court, ND California 2015
What happened: Fact dispute over whether police made decent announcement before busting the door in:
According to Troche, after listening on the landing outside the apartment for at least ten seconds, Troche instructed one of the officers to radio to their sergeants or supervisors that they were going to do a “knock and notice” before kicking in the door. (Troche Dep. 65-67.) Troche knocked on the door and announced, “Hayward Police.” He states that after the officers waited 10-15 seconds, he kicked the door in, simultaneously pulling out his firearm. By contrast, Plaintiff testified that he did not hear a knock on the door, but instead heard “Hayward PD” before the door was kicked in a “split second” later. (Chavez Dep. 156.) Apfeltzweig testified that she and Plaintiff were moving towards the front door to open it for the police but only got a few steps before the officers were inside, and that the police came in “one second” after yelling “Hayward PD.” (Apfeltzweig Dep. 114, 117-18, 120.)
Comment: Reading the whole opinion in the Chavez case, it is pretty easy to see who is telling the truth there.