police4aqi

Police, The Fourth Amendment, Qualified Immunity

Pizza sub surfaces on deciduous sea

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Written by Burgers Allday

October 15, 2018 at 11:53 pm

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Another prosecutor offers to trade criminal charges for immunity from civil suit against the police

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Case: Scheffler v. Lee, Court of Appeals, 6th Circuit 2018

[Plaintiff] Scheffler was charged with alcohol intoxication and disorderly conduct, both misdemeanors under Kentucky law. The Commonwealth offered to dismiss the charges in exchange for Scheffler’s stipulation that probable cause existed for his arrest and his agreement not to sue. Scheffler turned down the offer and proceeded to trial. The jury found Scheffler not guilty on both counts after approximately ten minutes of deliberation. Scheffler subsequently filed a complaint with the Louisville Metro Police Department Professional Standards Unit (PSU) against Lee. The PSU investigated, interviewed several witnesses, and ultimately found in favor of [the arresting officer].

I don’t think this kind of offer is legal, and, as I, Burgers, have said before, if it is legal, then it should not be. I wonder whether Judges COOK, STRANCH, or NALBANDIAN reported this to authorities.

I think I may have blogged this case when the District Court opinion came out, but, if so, I can’t find the entry. I remember thinking that the district court opinion was outrageous, and I am glad to see it largely reversed now in favor of the plaintiff.

Written by Burgers Allday

October 14, 2018 at 10:16 am

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Get out of the car, motherfucker!

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Written by Burgers Allday

October 13, 2018 at 10:42 am

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So no reasonable mind could think that this was extreme and outrageous police conduct? Really?!?!

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it is the Court’s responsibility to determine “whether reasonable minds could differ on whether the conduct was sufficiently extreme to result in liability.” . . .

Even accepting Mr. Johnson’s version of the events—that Officer Donald followed him in his CenturyLink van, observed him entering the CenturyLink building, observed that he was wearing a CenturyLink uniform, yet still reported the unsecured premises to dispatch; that after arriving on scene, the officers did not announce themselves as police; that the officers handcuffed Mr. Johnson, pointed their guns at him, and pushed him to the ground; and that the officers laughed and high-fived each other before leaving the scene—the Court finds that Mr. Johnson has failed to demonstrate that the officers’ conduct was “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.”

First, note how Judge Pechman moves the goalposts here. In the first paragraph she says that Mr. Johnson can beat summary judgement by showing that reasonable minds could differ as to whether the alleged police conduct was extreme. Then she turns around in the next paragraph she turns around and says that Mr. Johnson failed to demonstrate to her satisfaction that the alleged conduct was extreme. But the summary judgement standard is whether a reasonable mind could possibly think the alleged conduct was extreme, not whether Judge Pechman personally agrees with that assessment.

Also problematic about this decision, Judge Pechman seemed to assume that an unsecured building amounts to a free pass for police to go on in. I don’t think that is the law, and, if it is then it should not be. That is especially true in cases where officers don’t knock and announce prior to making their warrantless entry, which is what is alleged to have happened in this case.

In Judge Pechman’s favor, she did refuse the police QI on Mr. Johnson’s 4A claim. Apparently, police don’t get to point assault rifles at you and handcuff you just because you are working at your job late at night in an unlocked building. So kudos to Judge Pechman for understanding that much.

Case: Johnson v. City of Olympia, Dist. Court, WD Washington 2018

Written by Burgers Allday

October 7, 2018 at 8:12 am

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5 October, 2018 17:21

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Written by Burgers Allday

October 5, 2018 at 4:51 pm

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Dropping criminal charges in exchange for a promise not to sue the police

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If the plaintiff is to be believed, today’s case involves some pretty outrageous conduct by police and prosecutors, and the opinion is worth reading in full.

Case: Phillips v. Blair, Dist. Court, SD Ohio 2018

There are so many things I could discuss, but I will just cover two things:

1. The court held that the police cannot order a driver out of his vehicle if the vehicle stop is unlawful. I think many courts would analyze this differently and hold that there is a duty to obey even lawful orders. That said, I think this court is correct, despite the fact that many other courts would hold that there is a duty to obey even unlawful orders from the police. Really, this issue may come down to exactly how the Ohio obstruction statute is worded, but the court did not provide this information in its opinion.

2. Offer of dropping the charges in exchange for promise not to sue: “As for the criminal charge, the Columbus City Attorney offered to dismiss it if Mr. Phillips would agree not to pursue a civil case against the police.” If this is true, I think this may have been unethical and/or unlawful conduct on the part of the prosecutor. I wonder if Judge Marbley referred this information to the appropriate authorities.

Written by Burgers Allday

October 5, 2018 at 1:16 pm

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Civil suits against the police and age discrimination

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Sometimes a person’s relatively advanced age is relevant to the issue of whether excessive force has occurred. For example, sitting on the back of an elderly person who resisted arrest is liklier to be excessive force than doing the same thing to a 25 year old who exhibited a comparable degree of resistance.

Sometimes a person’s relatively advanced age is relevant to the issue of whether probable cause exists. For example, a person’s advanced age may make it implausible that she was the masked assailant who pummeled a security guard, whereas probable cause may exist with respect to a younger person.

However, and I believe I have posted about this before, sometimes I get the distinct feeling that courts effectively apply different, and more rigorous standards against police conduct vis-a-vis elderly persons, even when age doesn’t really have anything to do with the situation.

In today’s case, police conducted an aggressive investigation against a woman in her late 70s based on a citizen’s allegation that the elderly woman brandished a handgun at the scene of a minor traffic accident. After a couple of terrifying (but sadly typical) interactions with police investigators, the woman was arrested. The grand jury then refused to indict, and it appears likely, in hindsight and all things considered, that the elderly woman did not brandish a handgun. Won’t get into details, because that would take all morning to write about. The elderly woman then sued police, who, predictably, sought to get rid of the lawsuit by a motion for summary judgement based on qualified immunity.

Case: Sherrod v. McHugh, Dist. Court, Dist. of Columbia 2018

The court decided that there may not have been probable cause to repeatedly, and aggressively, search and eventually arrest the elderly woman because of exculpatory evidence. It is noted that this exculpatory evidence fell far short of proving that the elderly woman did not brandish a handgun — it just made the allegedly brandishing somewhat less likely (as a lawyer would say, the exculpatory evidence was probative, but not conclusive or dispositive). Judge Contreras denied QI to the police on the civil claims based upon lack of probable cause.* In other words, Judge Contreras thought that the police may not have had probable cause to do the things they did to the elderly woman.

I have mixed feelings about this. On the one hand, I personally agree that there was not probable cause because a complaining witness’s bare allegations should not generally be enough to be considered as probable cause.** If the complaining witness had been shot then that would be a different story. If there were corroborating witnesses then that would be a different story.H however, I don’t think a complaining witnesses bare allegations should be enough to arrest somebody, young or old.

Then there is the other hand, and this brings me to the main point of this post — I think that this civil suit would have been tossed if the plaintiff were a younger person. I can’t prove that that is what happened, but my extensive reading of these types of cases leads me to believe that, had the plaintiff been younger, a court would have invoked the familiar rule that a witness’s complaint of a violent crime equals automatic probable cause.

In other words, I think age discrimination (specifically age discrimination in favor of the elderly) exists with respect to civil suits against the police, and I think this is an unrecognized problem. As a final thought, I think cases like this show how qualified immunity could work if courts applied that doctrine in suits brought by relatively young persons the way they typically apply it in suits brought by older people. But, the very fact that QI law provides judicial cover for age discrimination is just one more problem that exists with QI law in its current form.

FOOTNOTES:

* QI to the police was granted on some claims, such as the excessive force claims.

** Or, in the context of QI, “arguable probable cause.”

Written by Burgers Allday

September 29, 2018 at 8:01 am

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