Case: Merricks v. Adkisson, Court of Appeals, 11th Circuit 2015 (Charles Ashley Royal, sitting by designation, writing for unanimous three judge panel)
On August 11, 2008, Cpl. Jeffrey Adkisson was employed by the City of Clearwater Police Department and was acting within his discretionary authority. While on duty in a marked patrol car, he saw Merricks’s black Dodge Avenger and suspected that her window tint violated Florida law. Based on suspicion of a window tint violation, he pursued her, stopped her, and planned to check her window tint. As he approached Merricks’s car, however, he smelled the odor of burnt marijuana.
According to Merricks, Adkisson asked to see her license and asked her to “wind” down the other window, so he could see inside her car. While looking for her license, she asked Adkisson why he had stopped her, and he said that her window tint was too dark. She gave him her license and told him that her car was new, that the Dodge dealer had tinted her windows, and that she was sure that the tint was legal.
Because he smelled burnt marijuana, Adkisson asked Merricks if he could search her car, and she said no. After she said no, he asked her if she had been smoking, and she said no. He then asked her if someone else had been in her car who had been smoking. Once again, she said no. She understood that smoking meant smoking marijuana.
Adkisson then stuck his hand through the open window to unlock the car door. He told her that he was going to search her car. The motor was still running, and she did not turn it off, so he reached in to pull the keys out of the ignition. She resisted. She held onto the keys and would not let him take them or turn off the car. Again, she said that he could not search her car. He asked her what she was going to do to stop him. Again, she told him that he could not search her car. She told him three times that he could not search her car.
During this scuffle over the keys and Adkisson’s efforts to search the car, he tried to get Merricks out of the driver’s seat. He could not get the keys to turn off the car because she was holding onto them, so he took her by the arm and jerked her hard to remove her from the seat. However, he could no remove her because she had on her seat belt. Then, while holding her by her wrist with one hand, he unbuckled the seat belt with his other hand and jerked her out of the car. He again told her that he was going to search her car.
After she came out of the car, Merricks asked Adkisson if she could sit on the curb. He said no. Then she asked if she could sit on the hood of her car. Again, he said no and told her that he did not want her to run off. He put her in the back seat of his patrol car while another officer searched her Dodge. He never handcuffed her.
During the search, Adkisson stood in the doorway of the patrol car to keep her from leaving. While standing there, he told her to “give it up.” But she said that she did not know what he was talking about. He told her to tell him where the drugs were because they were going to find them anyway. But, again, she said that she did not know what he was talking about and denied having any drugs.
The search did not take long because her car was very clean. After the other officer found nothing in the Dodge Avenger, a female officer came to the scene and searched Merricks’s person but also found no drugs. Adkisson then released her, and she drove off. He did not give her a traffic citation.
Finally, and as background information, the stop occurred in a violent, high-crime, and high-drug neighborhood. A crowd gathered during the search. And, as a result of Adkisson’s efforts to get Merricks out of the car, she allegedly suffered a torn rotator cuff and had it surgically repaired.
Decision: “Because Defendant Adkisson is entitled to qualified immunity on Plaintiff Merricks’s Fourth Amendment excessive force claim, we REVERSE the district court’s denial of summary judgment and REMAND for further proceedings.”
Criticism: There are several aspects of this case worthy of critical discussion, such as the assumption that apparently legal window tint is reasonable suspicion for a stop, or the assumption that a policeman’s claim that he smells marijuana raises an irrebuttable presumption that there is sufficient probable cause for a vehicle search. I want to focus on a different criticism — one which involves the driver’s refusal to consent to a search and what happened immediately after the driver refused to consent to the search.
First, with respect to the driver’s refusal to consent to the search, Judge Royal mischaracterizes this part of the citizen/police encounter as follows: “[A]lthough Merricks was not resisting arrest, she was resisting the search. Three times she told the officer he could not search her car.” However, refusal to consent to a search is not the same thing as resisting a search. Refusing to consent to a search is important because if a driver consents to a search then that driver waives any 4A rights to complain about the unconstitutionality of the search. Judge Royal’s opinion sets up a catch-22 where the driver effectively has a choice between consenting to a search, or being found guilty of “resisting” law enforcement. That is not the law. Sorry, Judge Royal.
Second, with respect to what happened after the driver refused consent, it appears from the opinion that Cpl. Jeffrey Adkisson immediately reached into the vehicle to take the keys. This is not reasonable. The reasonable thing to do is to issue the driver a verbal command to shut the vehicle off and to then exit the vehicle. The next reasonable thing to do is to give the driver a reasonable chance to comply with these verbal commands. What is not reasonable is for the policeman to skip these steps and, instead, as apparently happened here, to stick his body into a running vehicle and start fighting with the startled driver. Not only is it unreasonable to the citizen to have a policeman suddenly jump in the vehicle, but it is stupid from the standpoint of officer safety, which is supposedly important. Cpl. Adkinsson is incredibly lucky that the plaintiff did not want to do him harm because a determined criminal could have smashed his noggin and driven off in the Avenger with his unconscious body. But, getting back to the citizen’s rights, it was not reasonable for the policeman to go straight from a request for consent to search into a use of force. If Cpl. Adkinsson had ordered the driver out of the vehicle and she refused, then, and only then, should use of force have been an option (although diving into the vehicle still probably wouldn’t have been the preferred force option).
One last criticism: “[A]s a result of Adkisson’s efforts to get Merricks out of the car, she allegedly suffered a torn rotator cuff and had it surgically repaired.” (emphasis added) The opinion states as fact that Cpl. Adkinsson smelled marijuana, but, then, when referring to the rotator cuff injury and the surgery to repair the same, these are somehow merely allegations!?!? I mean, if you can’t be fair, at least try to hide that a bit better.
“Alabama law gives a citizen the right to use force to resist an unlawful arrest . . . [and] permits a person to use reasonable force to defend himself from what he reasonably believes to be the use or imminent use of unlawful force.” Morris v. Town of Lexington, Alabama, 748 F.3d 1316, 1325 (11th Cir. 2014); see also Telfare v. City of Huntsville, 841 So. 2d 1222, 1229 (Ala. 2002) (“The law is clear that, to a limited degree, a party is justified in attempting to resist an unlawful arrest. A party may use reasonable force to extricate himself from an unlawful arrest.” (internal citations omitted)).
Case: McClendon v. CITY OF SUMITON, Dist. Court, ND Alabama 2015
Case: AKSU v. County of Contra Costa, Dist. Court, ND California 2015
What happened: A policeman and a private detective set up an entrapment scheme where the private detective would take a targeted individual out drinking at a bar on false pretenses (for example, to interview the target for an article), and then have the policeman arrest the target for intoxicated driving when he drove away from the bar. It should be noted here that the entrapment was clear, and that the two plaintiffs escaped criminal liability due to the entrapment defense. Plaintiffs then sued the policeman civilly for the entrapment.
Decision: Entrapment is not a Constitutional violation. “[A precedential decision] in fact held that ‘probable cause for arrest is not nullified by the fact that the otherwise successful investigation was maliciously inspired.’ Until and unless the Ninth Circuit holds that entrapment negates probable cause, this Court’s hands are tied. There was probable cause here.”
Criticism: I don’t see how blatant entrapment meets the “reasonableness” requirement of 4A given its longstanding status as an inappropriate police tactic. Perhaps there are cases of borderline entrapment (for example, lost wallet schemes) where the entrapment is not clear and no civil liability would exist. However, where the entrapment is as blatant as it was in this case, it does not strike me that a reasonable judge could find the entrapment to be “reasonable” as that term is used in the Fourth Amendment.
Comment: This opens the door to police setting up entrapment type enforcement squads where they never intend to charge the target, but merely want to punish targets with arrest, search and civil forfeiture.
Case: MECHELLI v. Ferree, Dist. Court, WD Pennsylvania 2015
Plaintiff considers herself an animal rights activist and a member of People for the Ethical Treatment of Animals (“PETA”). Plaintiff alleges that on multiple occasions, Defendant Ferree, acting as McKeesport’s dog catcher, threatened to shoot Plaintiff’s dogs. Plaintiff lobbied to the former McKeesport mayor, James Brewster, to terminate Defendant Ferree for animal cruelty. Defendant Ferree was terminated, but was subsequently reinstated by Brewster’s successor, Michael Cherpko. In June 2013, Plaintiff, along with others, protested the Ferree Kennels for alleged animal cruelty activity and on the basis that Defendant Ferree shoots dogs kept at the kennels. At the protest, Plaintiff and Defendant Ferree engaged in a verbal confrontation.
On or about August 1, 2013, Plaintiff returned a phone call from McKeesport Detective Kacznski regarding stolen cars and home burglaries in the area. That same day, Plaintiff alleges that two McKeesport officers came to her house and let her two dogs out of a secured area. While one of the dogs was not recovered, the next morning, Defendant Ferree contacted Plaintiff to inform her that he had caught her other dog and that she was to immediately come to the kennel to retrieve her dog or the dog would be shot. After this conversation, Plaintiff went to the home of the mayor of White Oak, a neighboring municipality, Ina Jean Marton and Marton advised Plaintiff to go to the kennel and retrieve her dog because she believed Defendant Ferree would kill it. Plaintiff immediately went to the kennels. While on the way, Plaintiff received a phone call from Marton who urged her to hurry to the kennel because she believed that Defendant Ferree was going to kill the dog. Plaintiff arrived at the kennel and met Defendant Ferree outside and remained on the phone with Marton. Defendant Ferree informed Plaintiff that her dog was inside and Plaintiff handed Defendant Ferree $140.00 to retrieve the dog. Defendant Ferree directed Plaintiff into a lobby area inside of the kennel. Plaintiff remained on the phone with Marton, and Marton asked to speak with Defendant Ferree but he refused. Defendant Ferree then guided Plaintiff to a set of stairs and pushed her in the back down the stairs. Plaintiff lost control of her phone and fell to the ground. Defendant Ferree then kicked Plaintiff in the head, the back of the arms and ribs approximately twenty times, pulled her hair and punched her in the face, lip and jaw. Defendant Ferree also cursed at Plaintiff and used words derogatory to her gender. Plaintiff claims that after Defendant Ferree beat her, he then handcuffed her and contacted the police.
McKeesport Police Officer Stitt, and Officer Houy and approximately five other unknown officers arrived at the kennel, and Defendant Ferree informed the officers that Plaintiff had resisted arrest. Plaintiff was transported to the McKeesport Police Department where she was then told there was a warrant out for her arrest for various theft by deception charges. Therefore, Plaintiff contends that Defendant Ferree was officially working with the McKeesport Police Department to apprehend Plaintiff for this warrant. When she was in custody at the police department, she lost control of her bladder and Defendant Ferree and other officers made fun of her. Plaintiff also had visible injuries to her face and requested medical attention, but it was not provided. A few hours later, Allegheny County detectives arrived at the McKeesport Police Station to take Plaintiff to Allegheny County Jail but determined that she needed medical attention and took her to Mercy Hospital for treatment.
At Mercy Hospital, Plaintiff was diagnosed with a concussion and trauma to her back, shoulder, face and legs. After she received medical attention, she was then taken to Allegheny County Jail and released the same day. The next day, she sought additional medical attention and was diagnosed with a chest contusion, concussion and post-concussion syndrome. She suffered dizziness, fatigue, pain in her ribs and swelling.
Plaintiff was charged with disorderly conduct for the occurrence with Defendant Ferree at the kennels, and a preliminary hearing on the matter was held on December 10, 2013. Defendant Ferree did not testify at or attend the preliminary hearing. At the hearing, Defendant Officer Stitt testified that he was summoned to the kennel because he was informed that there would be a warrant suspect there. At the conclusion of the preliminary hearing, the disorderly conduct charges were dismissed.
Plaintiff brought suit against Defendant Ferree, Officer Stitt, the City of McKeesport and Unknown McKeesport Police Officers. Plaintiff asserts several claims against Defendant Ferree under 42 U.S.C. § 1983 including: First Amendment retaliation (Count I); excessive force under the Fourth Amendment (Count II); cruel and unusual punishment under the Eighth Amendment (Count III); Intentional Infliction of Emotional Distress (Count V); False Arrest (Count VI); Malicious Prosecution (Count VII); and False Imprisonment (Count VIII).
Decision: No qi for the dogcatcher because he shouldn’t be beating people up.
Case: Kane v. Lewis, Court of Appeals, 4th Circuit 2015 (unpublished)
What happened: A jury found that police failed to knock and announce before breaking into an apartment to perform a search pursuant to a warrants. After the police were inside the apartment, they tried to break into one of the occupant’s bedrooms, but were unsuccessful. After this, the occupant allegedly came charging out of the bedroom, allegedly with a sheathed knife. After the occupant burst out of his bedroom, police in the apartment allegedly shouted that they were police, and allegedly shouted that they were police (police alleged that they also announced that they shouted that they were police before breaking in, but this was contradicted by neighbors in another unit of the apartment). After the occupant allegedly failed to drop the knife, police shot him twice in the head, killing him. Jury awarded $250,000 to the occupant’s friend based on the failure to knock and announce creating a dangerous situation where it was likely that the occupant would be killed.
Decision: Court decided that the occupant knew that it was police he was charging at because: (i) police allegedly announced their identity after plaintiff started to charge; and (ii) police were wearing shirts that said police. Appellate court reduced the $250,000 award down to an award of nominal damages.
Criticism: The occupant had to make a split second decision under rapidly evolving circumstances. He shouldn’t be expected to realize that it was actually policemen in his apartment in mid-charge at an intruder. In my opinion, the appellate court is engaging in some highly unfair “Monday morning quarterbacking” here.
Criticism: Court shouldn’t be crediting the interested testimony of how the police acted after they were in the apartment. Who knows whether police really did announce themselves after they burst in? Who knows whether the occupant heard them, but failed to believe they were police, alleged shouts of “police” and screen printed shirts bearing the word “police” notwithstanding? Who knows whether the slaughtered occupant really even charged with the sheathed knife? Dead men tell no tales. This is exactly the situation the knock and announce requirement was fashioned to protect against. The appellate court’s evidentiary credulity is especially egregious in this case because police were contradicted by neighbors, whom the jury apparently believed, about whether they announced before breaking in. The “sheathed knife” bit also seems pretty suspicious.
Dissent: Circuit Judge Pamela Harris wrote a good dissent pointing out that there are reasons to believe that the deceased occupant may well not have known that it was police in his apartment, and explaining the proper burdens of proof and persuasion which should have been legally applied in this case. From the dissent:
Those are precisely the circumstances — “tense, uncertain, and rapidly evolving” — under which we give police officers the benefit of the doubt when it comes to their perceptions. In evaluating the use of force by officers, we make allowances for the fact that such situations can be exceptionally confusing and fast-moving, with officers required to make split-second judgments under suboptimal conditions. In the context of a rapid-deployment and high-pressure nighttime raid, police officers cannot be held to “the 20/20 vision of hindsight,” and must instead be judged under a more forgiving standard.
Indeed, the Officers here argued as much to the jury, in defending against Kane’s claim for excessive force. According to the Officers, for instance, events in the apartment were so fast-moving and conditions for observation so poor that they could not discern — nor be expected to discern — that what Cornish [the deceased occupant] held in his hand was a knife in a sheath and not, as they thought at the time, an unsheathed knife, or perhaps a machete or a pipe. The jury apparently credited that account, and decided the excessive force claim against Kane. There is no reason I can think of that the same jury could not apply the same standard to Cornish — who, unlike the Officers, had the benefit of neither training nor advance warning when he found himself caught up in the tumult of a military-style nighttime raid — and assume that Cornish, too, would be unable to exercise the powers of careful discernment that could be expected under less fraught circumstances.