police4aqi

Police, The Fourth Amendment, Qualified Immunity

22 June, 2019 09:13

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Written by Burgers Allday

June 22, 2019 at 8:43 am

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8 May, 2019 15:59

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Written by Burgers Allday

May 8, 2019 at 3:29 pm

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The 4A QI Decisions of Judge Lisa Godbey Wood, Episode 6: A tangent about plea bargains and later civil claims

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In this week’s case, Judge Godbey Wood deals capably with the Heck doctrine.  A driver ran from the cops and they caught up with him in the woods, where plaintiff allegedly got on his stomach and put his hands behind his back for cuffing.  Allegedly the police officers (Ware County, Georgia deputy sheriffs Jason McQuaig and Chris McQuaig) beat plaintiff’s face before and after they put handcuffs on him. Plaintiff plead to DUI, driving with a suspended license, and obstruction. Police argued that, under Heck doctrine, law enforcement either didn’t beat plaintiff’s face in, or, perhaps, had the right to beat plaintiff’s face in. Judge Godbey Wood was not having that and decided that plaintiff’s excessive force claim against the deputies could go forward. All good — too bad there had to be a round of judicial proceedings to establish this.

Case: Caperton v. McQuaig, Dist. Court, SD Georgia 2011

Tangent: Unlike this case, in some cases a plea bargain will foreclose a later civil claim under Heck Doctrine. For a recent example, see: Flores v. Harris, Dist. Court, SD Texas 2019. I, Burgers, do not think that Heck should be considered applicable to foreclose later civil suits against the police in cases where criminal guilt is established by plea bargain.

First, there is no requirement that criminal defendants be advised that they are losing a prerogative to maintain a civil suit when they make the plea deal. This might not be a big deal when a defendant pleads a first degree murder charge down to a second degree murder guilty plea, or something like that, because the prospect of a civil suit would not typically be a strong consideration when deciding to make such a plea. However, if a plaintiff suffers grievous injuries during an arrest, and does not realize that she is losing her civil claims against the police based on her bargain to plead guilty to disorderly conduct or loitering, then that does seem like a deceptive practice that favors the police.

Second, the guilty plea is often a legal fiction and may not reflect actual guilt of any crime. For example, see: this Emily Yoffe article in The Atlantic. Because guilty pleas are notoriously known to be a poor indicator of what happened in reality, they should not be used to establish what happened in reality, which is exactly what Heck doctrine does do.

Third, and beware, this is a law geek point, Heck doctrine effectively imports 4A law that is supposed to be unique to the criminal context over to the civil context. As a generalized, hypothetical example, say that there is a case where the facts and law strongly indicate that: (i) the defendant is guilty, (ii) the police violated defendant’s 4A rights in catching defendant and/or proving her crime, and (iii) a criminal court would apply the “good faith exception” such that defendant would be convicted despite the 4A violation by the police. Under such facts, the defendant would likely plead guilty, but it would mean that she would lose her civil suit even though (at least as far as I know) that was never supposed to be a consequence of the good faith exception. Same thing with Hudson v. Michigan discretionary application of the suppression remedy. On a related note, the judge typically decides suppression hearings on the criminal side, but civil suits against the police are supposed to be decided by a jury. Under Heck, however, it is what the judge decides, in a criminal case context, that matters, rather than what a jury would decide in a civil context. I, Burgers, think that this is a serious flaw in Heck that should be apparent to sophisticated jurists even if they don’t buy my points from the previous two paragraphs.

Fourth, Heck doctrine causes “legal transaction costs” that outweigh its benefits. Even if well paid lawyers defending police in civil suits know that they will probably lose on a Heck doctrine defense, they may bring it anyway to help leverage a favorable settlement based more on legal costs and relative wealth of the parties than it is on any kind of justice or good policy with respect to prospective future police behavior. This is especially true because plea bargains are an economic expedient that generally works in favor of the government (see, Yoffe article, above), and it is kind of hypocritical that this economic expedient then works in an offensive sense against the plaintiff in a later civil suit against the police.

Written by Burgers Allday

April 20, 2019 at 8:54 am

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The 4A QI Decisions of Judge Lisa Godbey Wood, Episode 5: Driving away from a police officer as a basis for reasonable suspicion

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Heavens! It has been a month. Getting back to Judge Lisa Godbey Wood, I decided to go for her newest 4aqi decision this time, an opinion released on the 19th of last month:

Young v. Brady, Dist. Court, SD Georgia 2019

In this case, a police officer walked up to a man’s pickup truck in gravel parking lot of a public park and the man began to drive away. The police officer hit the man’s truck with his hand, got in his police vehicle and began to chase plaintiff who soon stopped. Plaintiff again approached the truck and told the man that he was being stopped. Plaintiff was detained for a few minutes and was handcuffed during the detention. Plaintiff sued pro se.

I, Burgers, was pleasantly surprised by Judge Godbey Wood’s analysis of the police argument that driving away from a police officer gives “reasonable suspicion” to support a stop under 4A and the law of Terry stops:

The fact that Plaintiff drove away from Defendant when Defendant walked up to Plaintiff’s driver-side window is not enough to establish arguable reasonable suspicion. See Fla. v. Bostick, 501 U.S. 429, 437, 111 S. Ct. 2382, 2387, 115 L. Ed. 2d 389 (1991) (“We have consistently held that a refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.”); Fla. v. Royer, 460 U.S. 491, 498 (1983) (plurality opinion) (stating that a person approached by a police officer “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,” and that the person approached “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”); WBY, Inc. v. DeKalb Cty., Georgia, 695 F. App’x 486, 493 (11th Cir. 2017) (“Georgia law clearly provides that citizens have no freestanding obligation to comply with a police officer’s requests when the officer is not discharging a lawful duty. For example, when an officer detains an individual without reasonable suspicion, the citizen is free to ignore requests and/or to walk away, and . . . no charge of obstruction [will] lie.” (internal quotation marks and citation omitted) (alteration in original)); U.S. v. Marcelino, 736 F. Supp. 2d 1343, 1348-51 (N.D. Ga. 2010) (finding no reasonable suspicion when defendant was walking in a well-known, high-crime gang area and immediately walked away when approached by federal law enforcement agents). Defendant did not have arguable reasonable suspicion to detain Plaintiff at that point in time, nor at any other point during the encounter. Accordingly, a reasonable jury could find that Defendant violated Plaintiff’s constitutional right to be free from unreasonable seizures.

The decision seemed to hinge upon the fact that plaintiff did not drive away too quickly or abruptly, which fact was established by dashcam evidence from the police vehicle.

Written by Burgers Allday

April 10, 2019 at 5:18 pm

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17 March, 2019 11:40

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Written by Burgers Allday

March 17, 2019 at 11:10 am

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The 4A QI Decisions of Judge Lisa Godbey Wood, Episode 4: Authority Of Police To Clear Public Spaces / Race

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Case: Townsend v. Coffee County, Ga., 854 F. Supp. 2d 1345 – Dist. Court, SD Georgia 2011

What happened:

On December 2, 2008, Plaintiff Tiffany Townsend, a black female, was driving with a passenger in Coffee County, Georgia. While stopped at a red light, Plaintiff observed a black male driver approaching the intersection with sparks coming from his vehicle. As he came to a stop, Plaintiff approached to inquire if the driver was safe and to advise him to move his vehicle from the roadway. The driver moved his vehicle to a parking lot across the street. Plaintiff followed him and exited her vehicle to inquire again whether he needed assistance. A white female motorist also pulled into the parking lot and proceeded toward the male driver.

At that time, law-enforcement officer Lieutenant Julie Phillips pulled into the parking lot and ordered Plaintiff to return to her vehicle. Plaintiff immediately headed back to her vehicle. As Plaintiff was walking, Coffee County Sheriff’s Deputy Wayne Grantham also pulled into the parking lot. Defendant Grantham ordered Plaintiff to stop. Plaintiff, confused as to which officer’s instructions she should follow, informed Grantham that Lieutenant Phillips had instructed her to return to her vehicle and that she was doing so.

As Plaintiff proceeded to her vehicle, Grantham unholstered his service revolver and told Plaintiff to place her hands on the back of his patrol car and to spread her legs. Grantham did not address the other female motorist who had stopped in the parking lot. Grantham approached Plaintiff, grabbed her arm, placed his weapon to her head, and handcuffed her. Plaintiff asked Defendant why he was treating her differently from the white female motorist. Plaintiff “recalls Defendant Grantham’s [response] being, “I don’t want her … I just want you.” Plaintiff began to weep in the parking lot while handcuffed. After leaving the scene, Plaintiff presented herself at Coffee Regional Medical Center, where her arm was placed in a sling, and she received pain medication and treatment for emotional distress.

Decision: “Viewing the totality of the circumstances, and taking the allegations in Plaintiff’s Complaint as true, the Court cannot say that Defendant did not possess at least arguable probable cause to detain and arrest Plaintiff for the misdemeanor offense of obstructing an officer.”

Criticisms:

AUTHORITY OF POLICE TO CLEAR PUBLIC SPACES: One issue that the opinion does not address is whether either police officer had proper authority to order the plaintiff to do anything. First of all, no facts indicate when she was in way. Delving a little more deeply, there did not seem to be any particular need here for police involvement at at all. It seems like the police involvement with the driver of the vehicle, but, by the very logic of consent encounters, can a regular citizen ever be deemed to be interfering with a consent encounter? Do police officers have some kind of right to clear space around them in a public place, regardless of what they are doing. Even if the police were doing community caretaking in this case (and I see nothing to suggest that police were actually helping the community in any way here), does “community caretaking” give police some kind of plenary power to clear space without a particular, articulable reason as to why the public space needs to be cleared? To put it more coarsely, do police officers have a right to order people around outside the context of investigating a crime? Personally, I would hope not, but Juge Godbey Wood’s opinion in this case seems to think otherwise.

RACE: I will not be discussing race a lot in this series of blog posts about southern georgia, white judge Lisa Godbey Wood. However, as I read her decisions, there are little things that definitely make me wonder if race is a factor in specific decisions of hers, but also whether it colors her expansive view of QI and dim view of 4A in general. In this case, the lack of due consideration for Georgia’s history of race bias seems pretty clear to me, Burgers.

Written by Burgers Allday

March 10, 2019 at 10:58 am

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The 4A QI Decisions of Judge Lisa Godbey Wood, Episode 3: Simpson v. Mason

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Case: Simpson v. Mason, Dist. Court, SD Georgia 2011

What happened:

On September 21, 2007, Plaintiff Kevin J. Simpson travelled to the McDonald’s Restaurant located at 4545 Altama Avenue in Brunswick, Georgia. Upon arrival at the restaurant, Plaintiff witnessed a disturbance involving several youths and observed a young boy lying unconscious in the parking lot. While his exact motivations for doing so are unclear, Plaintiff entered the restaurant and began dispersing the crowd of youths gathered therein. A short time later, the police arrived and also began dispersing the crowd in the restaurant. At one point, Plaintiff heard the discharge of a taser gun but did not observe who caused the discharge.

Defendant Kevin Mason, one of the police officers at the scene, instructed Plaintiff to “get back” three times. Plaintiff replied, “I am getting back” and complied with Officer Mason’s request. Plaintiff claims that following his reply, Officer Mason instructed Defendant Roderick Nohilly, another officer at the scene, to “get” Plaintiff. Plaintiff further alleges that Officer Nohilly slammed him to the ground and handcuffed him, while he was being attacked by Officer Mason’s police dog. The Magistrate Court of Glynn County subsequently issued an arrest warrant on the charge of obstruction of an officer, which was later dismissed and expunged.

Decision: There was not “arguable probable cause” for the arrest on obstruction, so no QI for the police officer. The opinion does not explain why the procurement of the arrest warrant from a court did not excuse any lack of probable cause on the part of the police officers (I think the warrant normally let’s police off the hook unless they lied to get it, but the opinion does not go in to that, sadly).

I, Burgers, agree that the police officers did not deserve Qi here, but I think this was a deficient legal opinion for issues that it did not explain or address. The omissions identified below make me think that the facts of this case may have been a lot more sinister than they first appear to be.

First, what was the “disturbance” and was it the cause or effect of the unconsciousness of the young boy? The way the opinion describes this, it leaves the reader with the impression that a wilding youth knocked out a young boy. That would be consistent with the description of the incident that lead to the police presence. So would a simple fainting spell on the part of the young boy.  Which was it, and what did police know about the disturbance? Drawing on personal experience, I can recall three times that someone in close proximity to me has fainted in public. Once was at a relative’s wedding where the maid of honor fainted from the heat. Once was in eighth grade when a fellow student waited in line ahead of me to buy ice cream in the school cafeteria at lunch time. Once was at a crowded gym, where a man on a treadmill fainted — as he was going down he grasped for the arm of a woman on the treadmill next to his. The woman yelled “rape!,” but quickly saw that she was mistaken as the man crumpled and slid off the back of his treadmill. In none of these cases did police show up an disperse everybody, upon pain of arrest for not stepping lively enough. In fact, only in the treadmill case did the police show up at all, and they stayed in the background, allowing a gymful of people to watch the stricken man be walked out to the ambulance by the paramedics. The point is, the degree of reasonableness of the police depends upon what they were responding to, and the extremely vague description of the “disturbance” makes me think that the police conduct would appear even worse if the readers of the opinion knew the full story.

Second, and this omission is the most egregious both factually and legally, what the hell (pardon my French) was up with releasing the dog?!?!? The opinion explains why there was no qualified immunity for the arrest for obstruction, but it does not explain the reasoning behind denying QI on the excessive force claim. This omission is glaring when one stops to ponder that they let a police dog loose in a McDonald’s just to disperse a “crowd” (also known as customers and staff) of people who had presumably done nothing wrong. This is speculation, but I think Judge Godbey Wood did this to: (i) avoid drawing attention to the worst of the police behavior here; and/or (ii) avoid making additional “clearly established law” on the point that police are not rightfully empowered to release dogs to disperse crowds. If this was her motivation for omitted a discussion of the dog release, then she is a bad judge methinks.

Third, the race of those in the McDonald’s is not mentioned. It probably should have been. If the customers in the McDonald’s and the plaintiff were white, or mostly white, then releasing the dog was wrong. However, if this is a case where a white police officer released a dog to disperse a black crowd, then this is highly reminiscent of an ugly part of America’s history that I thought we left behind. I normally try to leave race out of these things, but this seems like a case where there may have been a moral duty to acknowledge — or at least say enough so that readers won’t suspect that Southern cops have reverted to siccing dogs on black men the way they used to.

Fourth and finally, let’s dissect this little gem: “While his exact motivations for doing so are unclear, Plaintiff entered the restaurant and began dispersing the crowd of youths gathered therein.” I can think of a reason why plaintiff might do this. He might have realized that the Brunswick police were out of control and might show up and start siccing police dogs on unfortunate customers caught in the restaurant and/or leaving through the lot. The reason I think that this is a strong possibility for plaintiff’s motivation is because that is exactly the awful thing the police did here when they did show up.

Written by Burgers Allday

January 23, 2019 at 9:31 am

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