I, Burgers Allday, have taken classes, and these classes have had teachers from whom I have learned and to whom I collectively owe a great debt of gratitude. Now I see that one of my teachers has written a panel opinion denying qualified immunity (qi) to Tustin, California police officer Osvaldo Villarreal.
It has long been clear that “[a] police officer may not seize an unarmed, nondangerous suspect by shooting him dead.” Garner, 471 U.S. at 11. Viewing the evidence in the light most favorable to the plaintiffs, that is precisely what Officer Villarreal did here.
According to the Plaintiff, Barksdale, and Battle, the Honda at all times drove away from the officers and never made contact with an officer or any other object. . . . In fact, the Plaintiff testified that neither officer was ever around the Honda, and that Plaintiff had jumped in the passenger seat of the Honda, Allen was to the left of the Honda close to the rear of his cruiser. Battle also testified to having seen the officers in front of the Honda about five to ten feet away when the shooting occurred and that while Allen fell at some point, Battle did not see the Honda hit him.
Defendant Officers recount these events differently. They testified that as the Honda drove out of the driveway, the vehicle struck Allen, Deposition of Gregory Powell, According to Allen, he fired after the vehicle hit him “when the vehicle was directly beside” him, because Allen feared he “could have got [sic] ran over by the rear of the vehicle.” At Barksdale’s criminal trial, Powell also testified that he was about ten feet away from the vehicle when he saw the driver’s side front of the vehicle hit Allen, prompting him to shoot at the vehicle. (“My reason for firing is because he [Allen] got hit by the car. He [Barksdale] used the car as a weapon.”).
Comment: As I best understand this portion of the opinion, Officer Allen is claiming that after the front of the car hit him he was standing beside the car worried that the rear of the car would hit him, prompting him to shoot at the car. This seems incredible on its face for at least the reason that if was worried that the car would hit him then it would have been much safer to get out of the way than to aim and fire. The kind of magical thinking that Officer Allen is trying to get us to engage in is mirrored by deposition testimony of one of his fellow officers (Officer Gregory Powell) who testified that he shot at the car while it was driving away because he feared that it was dragging Officer Allen. Think about that for a second . . . a car is dragging a fellow police officer and that makes it acceptable to shoot at the car!!!
Another Comment: While Judge Paula Xinis did not buy into the police officers’ testimony, I think she could have expressed more incredulity towards the police officers than she did.
What happened: The part of this case I find interesting involves state law, rather than Fourth Amendment law. The Minnesota state law in question forbids police from making warrantless arrests for misdemeanors unless the arresting police officer personally witnessed the misdemeanor. In this case, the police officers violated the Minnesota law. Still, the court gave the police qualified immunity (qi) because the court held that the arrest was a “citizen’s arrest” made by a complaining citizen.
First criticism: This loophole regarding citizen’s arrests makes no sense, and the court should have interpreted the law in a different way to avoid the absurdity.
Second criticism: Based on the facts of the case, it does not sound like a citizen’s arrest was made. Rather, the police officers made the arrest. The above-linked opinion contains an explanation about why the court considered this to be a citizen’s arrest despite the fact that police officers made the arrest. I found this explanation less than convincing.
Question: Is it too late for the plaintiff to sue the private citizen who made the so-called “citizen’s arrest?”
Anomaly: It is weird to see police being on the side of a citizen’s right to arrest. However, this becomes less of an anomaly when one considers that the citizen did not actually make the arrest in any meaningful sense of the word “arrest.”
One common and obvious criticism of qualified immunity (qi) law, as it currently stands, is that it provides court with an avenue to avoid deciding Fourth Amendment (4A) issues that the courts should be deciding. This does happen. However, my impression after following civil cases against the police for several years now, is that this judicial dodge happens less frequently than I would have guessed that it does.
That said, here is an example of a prestigious and authoritative appellate court using qi to avoid deciding a 4A issue that, IMHO, should have been decided:
Here are the alleged facts:
Just after midnight on December 26, 2009, while on duty, George received a call regarding complaints of a shooting in the area of Snow Hill Road in Brooksville, Florida. George responded to the call and remained in the area for approximately half an hour but did not make contact with anyone at the time. Soon after George left the area, Plaintiffs’ neighbors Eugenia and Joseph Simpson called the police department, complaining that they heard explosions coming from Plaintiffs’ residence at 22315 Snow Hill Road. George was again dispatched to the call, but this time he spoke with Eugenia Simpson, who told him that she heard multiple loud explosions coming from Plaintiffs’ residence. Simpson reported that she heard the explosions following a verbal argument between her husband and Bratt.
After speaking with the Simpsons, George decided to contact Plaintiffs to discuss the complaint their neighbors made. George walked directly to the front door of Plaintiffs’ residence. Once there, he knocked and then heard Bratt ask, “Who is there?” In response, George identified himself as a deputy with the Hernando County Sheriff’s Office and said that he needed to speak with Bratt. Bratt requested to see George’s badge. So George illuminated his police badge with his flashlight and again identified himself as a deputy. At the time, George wore a standard green uniform issued by the Hernando County Sheriff’s Office.
Bratt opened the front door approximately one foot, turned on the lights inside his house, and asked, “What’s the problem?” Again, George identified himself as an officer of the Hernando County Sheriff’s office. In response, Bratt opened the door a little wider.
By this point, Bratt’s wife, Marjorie Youmans, had come to the front door. Bratt and Youmans both began yelling at George to “get off of their property.” As Youmans yelled at George, she began to move toward George. But Bratt put his arm across her chest to prevent her from approaching George. Immediately, George yelled “domestic violence” and began pushing on the door. Bratt attempted to shut the door in George’s face, but he was unable to do so. Then George reached in through the crack of the open doorway and deployed his Taser on Bratt’s leg.
According to Plaintiffs, the front door then burst open, and George came “flying in.” But as he did so, George slipped on the wood floor, fell, and hit his face against the living-room floor. George sustained a broken nose, a laceration to the left side of his nose, and two other cuts to his face. As a result of these injuries, George began to bleed heavily while lying on the floor of Plaintiffs’ living room.
Eventually, George got to his knees. Bratt picked up George’s Taser, which was lying on the floor of the living room, and handed it to George, asking him to please not tase him again. But as Bratt began to hand George the Taser, George tried to tase Bratt again. So Bratt ripped the Taser out of George’s hand and threw the Taser to the ground.
A physical struggle ensued, with George attempting to handcuff Bratt and Bratt resisting George’s attempts. After a 20 to 25-minute struggle, George prevailed and handcuffed Bratt in his living room. A backup officer arrived, entered the residence, and escorted Bratt outside. Although Bratt was charged criminally for his actions on December 29, 2009, he was acquitted of all charges arising out of the incident.
Quiz: Does the 4A exception of “exigent circumstances” justify Officer George’s entry of the residence if the alleged facts are true?
Case makes one wonder how often this police department lied about anonymous tips before getting caught.