Police, The Fourth Amendment, Qualified Immunity

Did police steal $350,000 in diamonds from a suspected drug dealer?

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Case: MACKOVSKI v. City of Garden Grove, Court of Appeals, 9th Circuit 2016

What happened:  Police executed a search warrant at a residence a suspected drug dealer.  Apparently no contraband was found on that search,* but, when the suspect returned to the residence a week later, he claimed that $350,000 worth of diamonds were missing from his room.


We also agree with the district court that a reasonable juror would have to engage in “pure speculation” to find that the police seized $350,000 of diamonds from Mackovski’s room during the search. The only evidence Mackovski submitted pertaining to the diamonds was an appraisal from January 2010, indicating they were worth $350,000 at that time. Mackovski was not present during the search, did not return to the property until one week later, does not know whether anyone else went into his room after the search and before his return, and submitted no other evidence that the police stole the diamonds.

Criticism: This explanation is weak. I suspect that the Ninth Circuit do not believe that reasonable jury could take the word of a suspected drug dealer over that of the police. But, that is not how it is supposed to work. I think that the suspected drug dealer should have gotten a jury trial because the panel’s decision makes an inappropriate credibility determination.

Written by Burgers Allday

December 3, 2016 at 5:54 pm

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“The dashboard camera was supposed to record sound, but for reasons that are unexplained, none has been preserved”

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Funny how that seems to happen.

Case:  NEWMAKER v. CITY OF FORTUNA, Court of Appeals, 9th Circuit 2016

Comment:  This opinion is well written and parses the facts in an excellent manner (as Judge Fletcher is wont to do).

Written by Burgers Allday

November 26, 2016 at 6:51 am

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Sergeant Michael Custer of the PBSO kills a regcit

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Case:  Adams v. SHERIFF OF PALM BEACH COUNTY, Court of Appeals, 11th Circuit 2016

What happened:

There are two versions of the facts in this case. Before the district court, Defendant offered a specific chronological recitation of the events that led to his shooting Adams. Plaintiff is unable to offer, with any specificity, a differing summary of the events because the only other eyewitness to the shooting was the victim of that shooting, Seth Adams, and he is dead. Nonetheless, Plaintiff disagrees that the events could have occurred as Defendant described them, and she produced forensic evidence as well as the testimony of other witnesses that call into question the truthfulness of Defendant’s explanation. We set out first the Defendant’s version of the facts. Then, we set out the evidence offered by Plaintiff that contradicts Defendant’s testimony, along with the impact of that evidence on the credibility of Defendant’s account.

At the time of the incident giving rise to this case, Defendant Michael Custer (“Defendant”) was a sergeant with the Palm Beach County Sheriff’s Office (PBSO). He was assigned to PBSO’s Tactical Unit (TAC), where his responsibilities included performing undercover surveillance operations. On the night of the shooting, he was on duty participating in such an operation. Due to the nature of the operation, Defendant was driving an unmarked police SUV and dressed in plain clothes. Although he was wearing a TAC tee-shirt under his plain gray button-up shirt and a badge clipped to his belt, Defendant wore his button-up shirt untucked, which may have concealed the badge on his belt during his encounter with Adams.

Seth Adams was an employee of A One Stop Garden Shop, which owned the parking lot where the shooting happened. Adams also lived on the premises in a residence behind the nursery, which was adjacent to the parking lot. That night, Adams was wearing a work shirt with A One Stop Garden Shop’s company logo on the front and back.

Shortly after 11:00 p.m., Defendant backed his vehicle into the parking lot of A One Stop Garden Shop, which was closed. A sign that read “NO PARKING 6 PM TO 6 AM VEHICLES WILL BE TOWED” was posted in the parking lot, though Defendant claims to not have seen the sign. Defendant chose this parking spot to take advantage of the darkness there, and remained in his vehicle with the engine running and the lights off.

Around 11:40 p.m., Seth Adams drove his pickup truck into the parking lot and parked parallel to Defendant’s vehicle, facing the other direction. The two drivers faced each other from 10 to 15 feet away, each now with his window down. Defendant stated that Adams immediately began “screaming” and demanding, “Who the f*** are you? What the f*** are you doing here?” Defendant identified himself as a law enforcement officer and showed Adams his ID, but Adams exited his vehicle empty-handed and rapidly approached Defendant’s vehicle. Defendant then exited his vehicle and tried again to show his ID to Adams and explain his presence there. Defendant did not use any device to illuminate his ID, and both he and Adams were behind the headlights of Adams’ truck.

Defendant claims that Adams “sat there listening to [him]” for a “couple of seconds,” but then suddenly grabbed Defendant by the throat. Defendant says he broke free from Adams’ grip on his neck, although the two continued to grapple briefly. Defendant was finally able to extricate himself after hitting Adams with a chest strike, which created some space between himself and Adams. Defendant then drew his firearm, pointed it at Adams, and ordered him to the ground, declaring Adams to be under arrest. Adams, still empty-handed, did not heed the instructions, but walked back and forth in front of Defendant, “hovering” about five feet away. Defendant backed towards his vehicle to retrieve a radio from the front seat, which he used to request backup. The standoff continued, and Adams then ran towards the open door of his truck, not heeding Defendant’s orders to stop, to stay away from the truck, and to get on the ground. Defendant then kicked the open door of Adams’ truck shut, pinning Adams between the door and the vehicle’s frame.

The two struggled there briefly. In the statement in which he first recounted the “pinning” incident, Defendant said he held Adams pinned in the door frame while Adams was “moving around . . . trying to get out of the door” and screaming profanities “the whole time.” Defendant said he perceived that Adams “was trying to get a weapon,” and was “convinced he had obtained a weapon” when he “saw [Adams’] arms coming around.” Defendant then fired four rounds at Adams.

In a later statement, Defendant elaborated on the above account, claiming he saw Adams “fishing around” the interior of the truck while he was pinned in the doorframe. In this account, Defendant says he held his firearm in his left hand as he wrapped his right arm around Adams’ head and neck in an effort to pull Adams away from the truck. Adams suddenly yelled, “F*** you, as loud as he could, and came spinning out of the truck.” At this point, Defendant says he fired his first shot, and then fired three more as he backed away from Adams.

In short, the account offered by Defendant indicates that prior to the shooting, a profane and angry Adams had struggled violently with Defendant and tried to choke Defendant around the neck. Running away from Defendant, Adams tried to get into his truck. Defendant blocked his exit from the truck, pinning Adams inside the truck with the truck’s door pressed against him. But Adams, who appeared to be making an effort to obtain a weapon inside the truck, suddenly spun out of the truck and toward Defendant, who was standing at the truck’s door, and loudly shouted F*** you. At that point, fearing for his life, Defendant shot Adams. Adams died two hours later.

Plaintiff disputes the truthfulness of Defendant’s account and offered evidence that the district court concluded to have contradicted and substantially undermined Defendant’s account of the events. First, Defendant stated that Adams had grabbed Defendant’s neck and throat “as hard as a man can grab you.” Yet, there was no redness or bruising on Defendant’s neck. Nor did the DNA swab conclusively reveal any DNA from Adams.

Key to Defendant’s ultimate explanation for shooting Adams was his assertion that Adams had made his way back to his truck at the point at which he spun back on Defendant, standing right next to the door of the truck. As noted, Defendant thought Adams might have gotten hold of a gun inside the truck. Yet, as pointed out in the district court’s order, Plaintiff produced forensic evidence supporting a conclusion that Adams was actually shot, not inside or near the open door of the truck, but instead as he was standing at the rear of the truck. From this the district court concluded: “[Defendant’s’] claim that he fired his first shot after Adams—standing pinned between the driver’s side door and vehicle frame . . .— suddenly broke free from [Defendant’s] chokehold and spun around shouting obscenities, is thus at complete odds with forensic, blood, and ballistic evidence. . . .”

Further undermining the credibility of Defendant’s statement regarding the above incident as the event precipitating Defendant’s decision to shoot is the fact that Defendant failed to mention this event immediately after the shooting, instead explaining that he shot Adams because the latter tried to choke Defendant. It was only in a later account given in the presence of his attorney that Defendant mentioned this second incident inside Adams’ truck. Further, critical to the accuracy of Defendant’s recounting of the above conduct by Adams is the fact that Adams was allegedly pinned inside his truck with its door open. Yet, investigation immediately after the shooting showed the door of the truck to be closed.

As to one more detail in Defendant’s first description of the initial encounter, Defendant stated that Adams had been hostile and aggressive from the outset and that after Defendant identified himself as a law enforcement officer, Adams kept screaming and “acting like a lunatic.” But another law enforcement officer from Defendant’s team had been driving by and observed the initial encounter between Defendant and Adams. This officer, Agent Drummond, indicated that he saw Defendant get out of his vehicle, while Adams was standing between the two vehicles, and it appeared that Defendant was talking to Adams, with nothing appearing to be wrong. Less than 90 seconds later, Agent Drummond heard on his radio another agent broadcast a warning that shots had been heard in the area, and moments later he heard Defendant’s call for back-up. However, according to Custer, he had initially called for back-up before any shots were fired, and had later issued a second call for back-up in which he noted that he had shot a man who had attacked him.

Written by Burgers Allday

November 26, 2016 at 6:04 am

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24 November, 2016 10:23

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Sent from my iPod

Written by Burgers Allday

November 24, 2016 at 9:53 am

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Novice’s Corner: QI shields negligent behavior by the government

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Sometimes I do an Egghead’s Corner for the lawyers in the audience (if any).  This morning I decided to do a Novice’s Corner, aimed at explaining the more fundamental parts of qi (qualified immunity) law.  QI law has an “intent element,” which means that a policeman (or other government actor) needs to have a certain frame of mind to lose immunity to civil suits brought under federal law.  Roughly speaking, the police officer must be causing damage recklessly, worse (for example, intentionally), in order to lose her qi and thereby subject herself to paying out damages.  Notably, behavior that is merely negligent is not enough — the police officer keeps qi in that case and the injured party walks from her lawsuit emptyhanded.

Case:  CAMINATA v. COUNTY OF WEXFORD, Court of Appeals, 6th Circuit 2016

What happened:  Arson investigator did a bad arson investigation that ended up putting a guy in prison.  Project Innocence got the guy effectively exonerated after many years in prison.  However, the arson investigator gets qi, and has no liability for the innocent guy’s stint in the joint, because the court found the investigator’s behavior to be “negligent,” and not so bad as to be considered “reckless.”

Criticism:  QI law developed in an environment where it was assumed that the government actor would be personally liable, and that government actors did not make enough, as public servants, to be expected to bear the risk that a negligent decision would personally bankrupt them.  This assumption seems unrealistic in the modern world.  It seems to me like the government should be liable for negligently caused damages of its employees, just like a private business would.  I will leave a discussion of respondeat superior and qi law for another time (not a Novice’s Corner post!).

Written by Burgers Allday

November 22, 2016 at 7:07 am

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Police can shoot at you for shining a flashlight at them

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Case:  Blair v. City of Dallas, Court of Appeals, 5th Circuit 2016

What happened:

On the evening of October 2, 2013, Aquino and Cantu were patrolling a Dallas neighborhood, mainly looking for criminal activity related to prostitution. The officers were shining a spotlight on the street and sidewalks while driving through the area. Blair was outside his apartment complex talking on his cell phone when the officers passed. When the officers shined the spotlight on Blair, he told the officers to get the light out of his eyes. The officers reversed the car and asked Blair to repeat what he had said. Blair again told the officers to get the light out of his eyes.

After this exchange, Blair went into his apartment. Blair’s girlfriend, Cynthia Oliver, and their three-year-old son, D.O., were inside the apartment as well. The officers did not attempt to communicate with Blair at all as he went inside. Instead, the officers exited their patrol car, unholstered their weapons, and approached the apartment complex. The front door of Blair’s apartment faced the wall of a neighboring church. As the officers entered the area between the apartment complex and the church, Blair opened the screen door to his apartment and attempted to step outside. Blair was holding a flashlight that had a handle resembling a pistol grip. The officers saw a bright light. They then fired multiple shots at Blair. Blair closed the screen door and was not hit by the officers’ gunfire, but Blair, Oliver, and D.O. contend that they were fearful for their lives during the incident.

Plaintiffs Blair, Oliver, and D.O. filed the present action in district court under 42 U.S.C. § 1983, claiming that Aquino and Cantu violated their Fourth Amendment rights by subjecting them to excessive force and wrongful detention.

Decision: Fifth Circuit panel thought that this police shooting was fine and dandy.

Comment: Wow. Just wow.

Written by Burgers Allday

November 20, 2016 at 5:55 am

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May v. CITY OF NAHUNTA, Court of Appeals, 11th Circuit 2016

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Link to the opinion

What happened:  The plaintiff was frustrated and exhausted to the point of physical illness from caring for an elderly relative.  An ambulance was called, but the police showed up to take charge of the situation, as they increasingly seem to do these days in cases of possible medical emergency.  Although plaintiff wanted rest instead of medical care, a policeman decided to order the plaintiff to be taken into custody because plaintiff:  (i) “been clasping her fists;” (ii) “scruffing and hitting herself in the head;” and (iii) “her hair was all over her head in disarray” (internal quote marks omitted).  The policeman forced the woman to change clothes at gunpoint while he watched.

Decision:  The policeman (Officer Tommy L. Allen of the Nahunta, Georgia police department) does not get qualified immunity with respect to the rough and rude manner in which he forced plaintiff to change clothes.  “Indeed, if established, Officer Allen’s conduct is representative of the type of unnecessarily invasive and demeaning intrusion that is undoubtedly within the sphere of what the Fourth Amendment prohibits.”

Comment:  Opinion finds that the policeman had “arguable probable cause” to take plaintiff into medical custody.  This is interesting, first, because it seems a bit novel to use the term “probable cause” used in terms of describing the probability that a medical emergency (as opposed to a criminal law violation) exists.  Second interesting thing is that the “arguable probable cause” seems really weak here.  It seems to me like one should be allowed to hit one’s own head and even ball one’s hands into fists without police interference.  Free expression and all that.  I wonder what kind of medical bill they tried to saddle the plaintiff with.

Written by Burgers Allday

November 20, 2016 at 5:45 am

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