Police, The Fourth Amendment, Qualified Immunity

Entrapment is not a Constitutional violation at least in the Ninth Circuit

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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.

Written by Burgers Allday

May 18, 2015 at 3:43 am

Posted in Uncategorized

McKeesport, PA dogcatcher case

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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.

Written by Burgers Allday

May 16, 2015 at 7:14 am

Posted in Uncategorized

Jack may 2015

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Sent from my iPod

Written by Burgers Allday

May 10, 2015 at 12:04 pm

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Bad failure to announce case

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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.

(citations omitted)

Written by Burgers Allday

March 23, 2015 at 5:53 am

Posted in Uncategorized

“That is my butt you are sticking your finger in.”

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Case: Maroney v. SLAISE, Dist. Court, ND Ohio 2015


When asked by Slaise as to why he had pulled her over, Maroney indicated it was due to a short in her headlight which caused her headlights to go out when she crossed the railroad tracks. Slaise then asked Maroney how much she had to drink and she reported having consumed two beers.

Maroney observed additional deputies arrive on the scene, Officers William Joseph and Daniel Howard. Slaise then asked Maroney to exit the car and directed her to the sidewalk. Maroney was asked and consented to taking a sobriety test.

Slaise administered the HGN (horizontal gaze nystagmus) test and one of the other officers administered a handheld breathalyzer test.

Maroney was asked to perform the walk and turn test. She attempted the test but after 2 or 3 steps she stopped indicating she could not do it.

Slaise then proceeded to handcuff Maroney’s hands behind her back. It was during the handcuffing that Slaise inserted one of his fingers into Maroney’s rectum, through her clothing.

Maroney then stated, “that is my butt you are sticking your finger in.” This statement was heard by Officers Joseph and Howard.

Maroney was then transported to the Lima Police Department in Slaise’s car. During that ride, she complained to Slaise about his actions. Upon arriving at the Lima Police Department, Maroney again complained about Slaise’s actions.

At the station, Maroney was administered a breathalyzer test and tested under the legal limit. She was then transported to her home by Officer Howard and repeated her statement regarding Slaise’s actions and the physical intrusion.

On July 11, 2014, Maroney instituted this action against Officers Slaise, Joseph, and Howard . . .

ON EDIT: The titular quote of this blog post reminds me of a dirty joke we used to tell back in junior high back in the early 80s, which imperatives of good taste prevent me from repeating here.

Written by Burgers Allday

March 22, 2015 at 7:57 am

Posted in Uncategorized

Excerpts from Goodwin v. City of Painesville (6th Cir. 2015)

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I found this 4aqi case to be exceptionally interesting and instructive, so what follows is a set of long excerpts from the opinion, similar to how law school textbooks present opinions.

Case: Goodwin v. City of Painesville, Court of Appeals, 6th Circuit 2015

Excerpted version of opinion:

JANE B. STRANCH, Circuit Judge.

Plaintiffs David Lee Nall and Rebecca Nall filed this case following an incident in which Painesville Police Department Officers, initially responding to a noise issue, entered their apartment and tasered Mr. Nall for a total of 26 seconds. During the tasering, Mr. Nall began foaming at the mouth, stopped breathing, and went into cardiac arrest. He was rushed to a hospital, where he remained for two weeks. As a result of his cardiac arrest, Mr. Nall suffers from anoxic brain injury—injury to the brain due to lack of oxygen—and his mental functioning remains greatly impaired. Both Nalls were charged with disorderly conduct as a result of the incident, though charges against them were later dropped.

The Nalls allege several constitutional claims under 42 U.S.C. § 1983 and several state law claims against the Officers. The Officers sought summary judgment on the basis of qualified immunity . . . [Summary judgment based on qualified immunity is denied to the police in this appellate court decision]

. . .

The Nalls were hosting a gathering of about seven people in their second-floor apartment in the early morning hours of July 26, 2010. At around 1:30 a.m., two of the guests were outside arguing with the Nalls’ downstairs neighbor. A police dispatcher sent Painesville Police Department Officers Roberto Soto and Jason Hughes to the Nalls’ address, telling them that there was a disturbance outside, possibly a fight. Ms. Nall could hear her guests arguing outside and asked them to come back in when she saw a police cruiser slowly drive down her street.

When Officers Soto and Hughes arrived, the downstairs neighbor told them that the disturbance was coming from the Nalls’ apartment on the house’s second floor. As Officer Soto stood with the neighbor at the side of the house, he could not hear any noise emanating from the Nalls’ residence, but as he approached the rear stairway access to their apartment he could hear yelling coming from within. Officers Soto and Hughes knocked on the Nalls’ back door and both David and Rebecca Nall answered. Mr. Nall was wearing only blue jeans, without a shirt or shoes on, and was breathing heavily and sweating. The officers told the Nalls there had been a complaint of some noise, and Ms. Nall responded that some people had been outside, but she had brought them in and everyone would try to keep it down. Mr. Nall acted agitated by the officers’ presence at the door, but Ms. Nall said she would get him to calm down. According to Ms. Nall, after Officers Soto and Hughes left, it was “very loud” in the apartment because the guests had been drinking and “people were trying to talk over top of each other.” Mr. Nall was mad and was saying he did not want the police there. Ms. Nall went into the kitchen at that time.

Rather than leaving after telling the Nalls to keep the noise down, the Officers remained at the end of the Nalls’ driveway because they could hear loud voices coming from the apartment. According to the Officers, as the noise continued and they started seeing neighbors come out, they headed back to the Nalls’ apartment to make an arrest or give a citation for the noise. As Officers Soto and Hughes approached the apartment for the second time, a woman later identified as Michelle Prochaska came down the stairs. The Officers state that she told them Mr. Nall was “crazy,” had ripped her necklace off, and had said he was going to kill everyone in the apartment and the police. The officers radioed for backup, then continued to the apartment door with the intention of arresting Mr. Nall for disorderly conduct.

When Officers Soto and Hughes came back, Ms. Nall was back in the living room, from where she heard Mr. Nall answer the door, an officer ask him to step outside, and his response that he did not have to step outside. As Mr. Nall returned to living room, Ms. Nall heard a loud noise that sounded as if the officers had kicked the front door open. Officers Soto and Hughes entered the apartment and Ms. Nall saw Officer Soto discharge a Taser at Mr. Nall from about six feet away. She heard a buzzing sound, saw the Taser wires hit Mr. Nall, and saw him immediately drop to the ground. Mr. Nall landed on his back and appeared to involuntarily bring his hands up under his chin as the current ran through him. Officer Soto stood at Mr. Nall’s feet. Officers tried to get Mr. Nall’s hands behind his back and, according to Ms. Nall, were telling him to “quit resisting,” though it was apparent that his whole body was convulsing due to the Taser, and that he was not resisting. Ms. Nall described this application of the Taser as “so long. . . [i]t felt like they were never letting up on it.” R. 34-1, PageID 682. Officer Matthew Collins entered the Nalls’ apartment during this time and worked with Officer Hughes to handcuff Mr. Nall. Officer Soto tasered Mr. Nall again, this time using the Taser in drive stun mode—holding electrical contacts at the end of the device itself against Mr. Nall’s body. The data file from Officer Soto’s Taser shows that the first application of the Taser (through the probes attached to the wires) lasted 21 seconds and that the second application of the Taser (in drive stun mode) lasted 5 seconds. The officers were able to handcuff Mr. Nall soon afterwards.

As the officers were attempting to handcuff Mr. Nall, Ms. Nall was screaming and using profanity. She told them to get off of Mr. Nall and that they had no right to be in the apartment. During this time, one of the Nalls’ other guests called 911 to report that police officers had burst into the apartment and used a Taser on Mr. Nall. She said Mr. Nall couldn’t follow the officers’ instructions to put his hands behind his back “because of the shock” and that “[f]oam was coming out of his mouth . . . they shocked him so bad.” R. 39-15, PageID 1208-09.

After Mr. Nall was handcuffed, Officers Soto and Collins took him outside. Officer Hughes and another officer who had arrived on the scene, Officer Russell Tuttle, then arrested Ms. Nall for disorderly conduct. Mr. Nall was also charged with disorderly conduct.

Mr. Nall was unresponsive as the officers moved him out of the apartment, and Officer Collins heard a change in his breathing. Mr. Nall was drooling or foaming from the mouth, he had urinated on himself, and his eyes were open but he did not appear to be conscious. Officers Soto and Collins called for an ambulance and initiated efforts to revive him. Mr. Nall stopped breathing soon after the paramedics arrived, and went into full cardiac arrest at the scene. He was rushed to the hospital, where he remained for over two weeks. Hospital tests indicated that his blood alcohol level was 0.287 mg/100ml, which is markedly elevated.

As a result of his cardiac arrest and the lack of oxygen to his brain, Mr. Nall suffers from severe cognitive impairment that greatly affects his memory and executive functioning. He cannot remember what he has previously done in a day or what he has eaten, and needs reminders to perform most activities of daily living and self-care, including bathing and using the bathroom. He has forgotten significant life events, such as his wedding. His doctor has recommended constant supervision and support, and the Nalls have moved in with Ms. Nall’s parents because Mr. Nall cannot be left alone.

The disorderly conduct charges against both Mr. Nall and Ms. Nall were dismissed based on the decision by a Painesville Municipal Court Judge that the Officers lacked exigent circumstances to enter the Nalls’ apartment. The Officers contest the above version of facts in a number of respects, but for the purpose of appeal they have accepted the facts as taken in the light most favorable to the Nalls.

. . .

This appeal concerns four alleged constitutional violations: that Officer Soto used excessive force against David Nall, that Officers Hughes and Collins failed to protect Mr. Nall from Officer Soto’s excessive force, that Officers Soto and Hughes improperly entered the Nalls’ residence without a warrant, and that Officers Hughes and Tuttle arrested Ms. Nall without probable cause. . . .

. . .

The first Graham factor—the severity of the crime—weighs in Mr. Nall’s favor. The Officers stated that they returned to the apartment to arrest Mr. Nall for disorderly conduct. A jury could conclude that disorderly conduct is not a “serious” crime when determining whether an officer used excessive force in effecting the arrest for that crime.

Regarding the second Graham factor, the Officers argue that Prochaska’s alleged statements to them provide a reasonable basis for determining that Mr. Nall posed an immediate threat to their safety or the safety of others. According to Officer Soto, Ms. Prochaska said Mr. Nall was “crazy,” that he had ripped her necklace off, and that he had threatened to kill everyone in the apartment, as well as the police officers. Officer Hughes provided a substantially similar account of events, adding that Ms. Prochaska also told the officers that Mr. Nall had thrown her down and pushed another female in the apartment. The Officers’ version of events is supported by an affidavit from Ms. Prochaska. Ms. Nall was in the kitchen when the incident with Ms. Prochaska allegedly took place. Though Ms. Nall would not have been able to hear exactly what was said, she heard “[n]othing [that] sounded like an argument,” only conversation that “sounded like a bunch of drunk people trying to talk over top of each other.”

Plaintiffs lack testimonial evidence directly contradicting Ms. Prochaska, but they point to several pieces of circumstantial evidence that a reasonable jury could find undermine the Officers’ credibility. First, Ms. Prochaska’s affidavit was signed on June 7, 2011, almost a year after the incident and, significantly, one day after Painesville Police Department officers issued her a summons for operating a vehicle under the influence of alcohol (OVI). Two days after Ms. Prochaska signed the affidavit pertaining to the Nall case, the OVI charges against her were dropped, which the Nalls argue implies that she exchanged her affidavit for a positive outcome in her criminal case.

Further, Officer Soto testified that he planned to arrest Mr. Nall for disorderly conduct even after hearing Ms. Prochaska’s statements about Mr. Nall’s behavior. When asked to characterize disorderly conduct, Officer Soto stated that “[d]isorderly conduct is a misdemeanor, fourth degree. It’s nothing.” Plaintiffs argue that if it were reasonable for the officers to conclude that Mr. Nall posed a substantial threat and had in fact assaulted Ms. Prochaska, they likely would have sought to arrest Mr. Nall for assault or another more serious crime, rather than for disorderly conduct.

As the district court noted, Officer Soto failed to activate his recording device during the incident, in violation of the Painesville Police Department policy of recording citizen encounters. This was not the first time—Officer Soto had already been warned about his failure to use a recording device during an earlier citizen encounter. The district court also observed that a jury could weigh Officer Soto’s apparent pattern of avoiding documentation of his actions against his credibility. Moreover, Officer Soto had once been reprimanded for taking a marijuana pipe out of evidence, an act that the district court found could weigh against his credibility.

The Officers counter that the court must accept Ms. Prochaska’s testimony at face value because the Nalls did not present testimonial evidence that refutes her affidavit. Though the “prospect of challenging a witness[`s] credibility is not alone enough to avoid summary judgment,” . . .

The Nalls do not rely on the abstract possibility that a jury might discredit the testimony of Ms. Prochaska and the Officers regarding Mr. Nall’s dangerousness. Rather, they present a series of specific facts that could plausibly place the witnesses’ credibility at issue in the mind of a reasonable juror. The district court was correct to conclude that the facts related to the second Graham factor, whether Mr. Nall posed an immediate threat to the safety of the officers or others, remain at issue.

The third Graham factor requires the court to consider whether Mr. Nall was actively resisting arrest or evading arrest by flight. The facts viewed in the light most favorable to the Plaintiffs present two distinct periods of possible resistance: first, the time leading up to Officer Soto’s initial firing of the Taser at Mr. Nall, and second, the period in which Mr. Nall was lying on the floor after the Taser barbs had already struck him.

The constitutional analysis of the first period turns on whether Mr. Nall’s refusal to exit his apartment after Officer Soto asked him to do so constitutes “active resistance,” as opposed to passive resistance or no resistance at all. . . . Active resistance to an officer’s command can legitimize an officer’s use of a Taser. . . . Such resistance can take the form of “verbal hostility” or “a deliberate act of defiance.” . . . When the officers came to the apartment the second time, Officer Soto “asked” Mr. Nall to step out of his apartment. Mr. Nall refused, saying that he did not have to come outside, and withdrew into the apartment. Officer Soto then followed him in and fired the Taser probe into his chest without further instructions or warning. The Officers urge the court to find that Mr. Nall’s statement that he did not have to leave his apartment constituted verbal hostility and that his movement from the doorway to the living room constituted a deliberate act of defiance. Neither conclusion is borne out by the case law as applied to the facts taken in the light most favorable to the Plaintiffs.

. . .

The final step in the Graham analysis requires the court to inquire “whether the totality of the circumstances justifie[s] a particular sort of . . . seizure.” Graham, 490 U.S. at 396 . . . This court has considered an officer’s actions in a given case “in light of testimony regarding the training that [the officer] received.” . . .

The parties agree that an uninterrupted 21-second application of a Taser is atypically long. According to the department’s Taser instructor, a typical Taser cycle lasts five seconds, during which time the officer using the Taser should evaluate the need for further force. Officer Soto had been certified on the Taser since 2004. His training materials included a warning stating that Taser applications directly across the chest may cause sufficient muscle contractions to impair normal breathing patterns. While this is not a significant concern for short (5 sec) exposure, it may be a more relevant concern for extended duration applications. Accordingly, prolonged applications should be avoided where practicable. . . . The record further shows that Officer Soto was trained that a subject was more at risk of breathing problems the longer the application of the Taser, and that a prolonged application was one of 15 seconds or more. Though Officer Soto said he had mistakenly believed that a Taser application would last only five seconds even if he depressed trigger longer, he was trained that power would flow through the device continuously until he released the trigger. Officer Soto was also taught that common effects of tasering include the subject falling immediately to the ground, involuntary muscle contractions, and the subject freezing in place with his legs locked.

The “careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake” called for in Graham indicates that a jury could reasonably find that Officer Soto violated Mr. Nall’s Fourth Amendment right to be free from excessive force. The prolonged tasering of Mr. Nall was severe: Officer Soto’s training indicated that it lasted well into the risky period and that the probes were in a position that could cause breathing problems during extended application. Further, the application of the Graham factors to the facts taken in the light most favorable to the Nalls shows: (1) that Mr. Nall’s crime was not serious, (2) there was little basis to believe Mr. Nall was a threat to the officers or others, (3) Mr. Nall’s initial resistance was at most a passive refusal to comply with a single request to leave his residence, and (4) it was objectively apparent that Mr. Nall’s failure to present his hands to be cuffed was due to Taser-induced involuntary convulsions. The Officers’ challenges to the Nalls’ facts have no place in the court’s qualified immunity analysis on appeal. Plaintiffs’ facts state a constitutional violation.

. . .

Once a court finds a constitutional violation, it must next consider whether “the right was clearly established at the time of the alleged violation.” . . .

Here, the district court framed the constitutional question as “whether an intoxicated misdemeanant, who had not been placed under arrest and who had neither fled nor resisted, had a right not to be tasered twice in his own home for a total of 26 seconds, as of 26 June 2010.” On appeal, the Officers argue both that Mr. Nall had no clearly established right to be free of the initial tasering, and that he had no clearly established right to be free of a tasering that lasted 26 seconds. Time frames—the initial tasering and then the continued use of force—define two distinct constitutional questions.

. . .

There is no clearly established right for a suspect who “actively resists” and refuses to be handcuffed to be free from a Taser application. . . . Whether Mr. Nall had a clearly established right not to be tasered after refusing to step out of his apartment hinges on whether this refusal and his subsequent return to his living room constituted “active resistance,” or was merely “noncompliance” or no resistance at all. . . .

. . .

The Officers urge the court to follow Cockrell v. City of Cincinnati, which found no clearly established constitutional violation for the tasering of a person who jaywalked and then fled from a pursuing officer, despite the officer’s failure to order the suspect to stop or state that he was under arrest. 468 F. App’x 491, 498 (6th Cir. 2012). But Cockrell is distinguishable. There, the suspect’s flight and the officer’s subsequent pursuit made it clear to the suspect before the Taser was fired that the officer intended to apprehend him. Here, absent a statement that he was under arrest or an order to get on the ground or something similar, it was not objectively apparent that the Officers intended to take Mr. Nall into custody, or that he was not free to remain in his own home.

More importantly, because the “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed,” . . . the setting of Mr. Nall’s arrest renders Cockrell inapposite. To arrest a person in his home, police officers need both probable cause and either a warrant or exigent circumstances. A holding that a simple refusal to exit one’s own home—and surrender the heightened Fourth Amendment protections it provides—constituted active resistance of an officer’s command sufficient to justify a tasering would undermine a central purpose of the Fourth Amendment.

. . .

Considering the facts of the incident taken in the light most favorable to the plaintiff, the constitutional question is whether as of June 26, 2010 it was a clearly established violation of a suspect’s constitutional rights to subject him to a prolonged tasering after he had stopped resisting officers’ efforts to arrest him. Caselaw reveals that such a right was clearly established.

The Officers contend that Officer Soto is entitled to qualified immunity not just on his initial decision to taser Mr. Nall, but for the duration of the first and second tasering on the basis that there is no clearly established law stating that a suspect has a right to be free of more than one Taser application when the suspect “objectively, reasonably appears to resist arrest.” Officer Soto claims that he made a reasonable mistake of fact about how long his Taser would discharge when triggered and that Mr. Nall objectively appeared to resist arrest during the tasering. But as discussed in Section III.A.1, Officer Soto had been trained that electricity would continue to flow past the five second mark, and Ms. Nall testified that Officer Soto stood over Mr. Nall and continued tasering him as he was obviously convulsing and powerless to respond to the officers’ commands.

Though it is the Nalls’ version of the facts that govern our inquiry here, even if a jury were to credit the Officers’ account of events concerning Mr. Nall’s alleged initial resistance in the doorway, it could still determine that the extended tasering of Mr. Nall was gratuitous because it extended far past the point that he had ceased resisting. . . .

. . .

We have held that “the right to be free from physical force when one is not resisting the police is a clearly established right,” Wysong v. City of Heath, 260 F. App’x 848, 856 (6th Cir. 2008), and that officers “could not reasonably have believed that use of a Taser on a non-resistant subject was lawful,” Kijowski v. City of Niles, 372 F. App’x 595, 601 (6th Cir 2010). [Case precedents] indicate that these principles apply after a suspect has ceased resisting, even if the suspect did offer some resistance at the outset.

We acknowledge that the “calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” . . . In some contexts this would counsel against holding an officer to a standard where it is necessary to evaluate changes in a suspect’s behavior over a period of seconds, but with a Taser seconds count. Officer Soto had been trained about the potentially grave consequences of prolonged application, especially to the chest area. Furthermore, by Plaintiffs’ account the change in Mr. Nall’s physical state was drastic and immediately apparent to Officer Soto. On these facts, it is reasonable to hold the officer accountable for noting changes in Mr. Nall’s physical state over the 26-second tasering period.

. . .

The Supreme Court has declared, as a “basic principle of Fourth Amendment law,” that “searches and seizures inside a home without a warrant are presumptively unreasonable.” . . . Exigent circumstances are among the few “well-defined” and “carefully circumscribed” exceptions to the warrant requirement. . . . Because warrantless searches are presumptively unreasonable under the Fourth Amendment, the government bears a “heavy burden” of proving exigency. . . . In general, exigent circumstances exist when “`real immediate and serious consequences’ will `certainly occur’ if a police officer postpones action to obtain a warrant.” . . .

We have identified the emergency situations giving rise to the exigent circumstances exception to the warrant requirement as (1) hot pursuit of a fleeing felon, (2) imminent destruction of evidence, (3) the need to prevent a suspect’s escape, or (4) a risk of danger to the police or others. . . . After finding that “none of the traditionally recognized exigent circumstances is squarely presented under the facts” of the case before it, this court has also recognized an additional exigent circumstance, based on “an ongoing and highly intrusive breach of a neighborhood’s peace in the middle of the night.” United States v. Rohrig, 98 F.3d 1506, 1519 (6th Cir. 1996).

Here, the Officers argue that they were permitted to enter the apartment under Rohrig’s limited exception to the warrant requirement or, in the alternative, on the traditional exception of risk of danger to others, on the basis that Mr. Nall had allegedly assaulted one person in the apartment and posed a risk to the other people inside.

. . .

In Rohrig, two police officers responding to a late night noise complaint could hear loud music coming from the defendant’s home from about a block away. Id. at 1509. Soon after the officers arrived, a group of neighbors approached them to complain about the noise. Id. One officer banged repeatedly on the front door of the defendant’s home but received no response; the other unsuccessfully attempted to obtain the telephone number of the residence. Id. From outside the house, the officers observed two sets of stereo speakers inside and discovered that the home’s rear entrance had only an unlocked screen door securing it. Id. Both officers loudly announced their presence and then entered the house, continuing to announce their presence as they moved from room to room. Id. They discovered marijuana plants, the stereo, and the defendant, who was intoxicated and asleep on the floor. Id.

In fashioning its “new exigency that justifies warrantless entry” on the above facts, the Rohrig court created a three-part test based on the Supreme Court’s Fourth Amendment jurisprudence:

First, we must ask whether the Government has demonstrated a need for immediate action that would have been defeated if the . . . police officers had taken the time to secure a warrant. Next, we must identify the governmental interest being served by the officers’ entry into [the] home, and ask whether that interest is sufficiently important to justify a warrantless entry. Finally, we must weigh this governmental interest against Defendant’s interest in maintaining the privacy of his home, and ask whether Defendant’s conduct somehow diminished the reasonable expectation of privacy he would normally enjoy. . . . The Rohrig court found that the very late hour, the blasting music audible from at least a block away, and the “irate group of pajama-clad neighbors” outside demonstrated that time was of the essence, and that the defendant’s expectation of privacy was diminished because he was “projecting loud noises into the neighborhood in the wee hours of the morning, thereby significantly disrupting his neighbors’ peace.” Id. at 1522.

Considering the second prong, the government interest involved, the Rohrig court acknowledged that reliance on a noise ordinance might suggest a diminished government interest because Supreme Court precedent instructs that the weight of a government interest “should be measured in part by the severity of the offense being investigated.” Id. (citing Welsh, 466 U.S. at 742-43, 753-54. But the court found that the Welsh analysis “has less relevance as one moves away from traditional law enforcement functions and towards what the Supreme Court has referred to as `community caretaking functions.'” Rohrig, 98 F.3d at 1521 . . . Because the officers in Rohrig were not aiming to “track down a suspected violator of a local ordinance,” the court found it “inappropriate to gauge the government’s interest by looking only to that ordinance.” 98 F.3d at 1521. Relying heavily on the specific facts presented, the court found that by entering the residence “for the limited purpose of locating and abating a nuisance,” the officers were restoring “the neighbors’ peaceful enjoyment of their homes and neighborhood,” and that given “the importance of preserving our communities,” the interest “is not so insignificant that it can never serve as justification for a warrantless entry into a home.” Id.

Applying Rohrig to the facts here provides no exception to the warrant requirement. First, an argument between two people outside the Nalls’ home triggered the noise complaint that brought the officers there. But when Officer Soto arrived at the scene at about 1:33 a.m. the Nalls’ disputing guests were already inside and Soto could hear nothing until he was at the stairs to the Nalls’ apartment. Though the noise escalated after the officers gave their first warning and left, the Taser log shows that Mr. Nall was tasered at 1:41 a.m., under ten minutes after that initial warning. These facts cannot show that the Nalls were generating the type of ongoing and overbearing public disturbance that would give rise to the necessity for immediate action.

The facts here also do not suggest a government interest in entering the home similar to that of the officers in Rohrig. In Rohrig, the officers entered seeking an occupant to turn off the blaring stereo; here, the Nalls were at home and responded to the officers’ knocks on the door on both occasions. The second time the officers came, they did not tell David Nall to quiet his home or issue him a citation for a noise violation; they immediately asked him to step out of the apartment, and then entered the apartment by force. The timing of the sequence of events matters. Several minutes of elevated noise cannot so diminish the Nalls’ interest in maintaining their privacy that a warrantless entry would be permitted under Rohrig. Rohrig—as expressly recognized in the opinion—is a narrow, fact-specific holding:

We wish to emphasize the fact-specific nature of [our] holding. By this decision, we do not mean to fashion a broad `nuisance abatement’ exception to the general rule that warrantless entries into private homes are presumptively unreasonable. We simply find that, in some cases, it would serve no Fourth Amendment purpose to require that the police obtain a warrant before taking reasonable steps to abate an immediate, ongoing, and highly objectionable nuisance, and we conclude that this is just such a case.

Rohrig, 98 F.3d at 1525 n.11.

To allow entry under Rohrig on the facts of the instant case would transform Rohrig’s narrow holding into the broad nuisance abatement exception that the Rohrig court expressly eschewed. No reasonable officer could find that five to ten minutes of noise emanating from the Nall home late at night was such an “immediate, ongoing, and highly objectionable nuisance” as to permit warrantless entry absent additional facts sufficient to meet the recognized exceptions to the warrant requirement.

. . .

Officers Hughes and Tuttle arrested Ms. Nall for disorderly conduct during the conclusion of the incident with Mr. Nall. Ms. Nall admits that she raised her voice, cursed at the officers, and was upset, but argues that her acts were not unreasonable under the circumstances, and that the officers therefore did not have probable cause to arrest her. On summary judgment, the district court held that—given the factual dispute about the legitimacy of the officers’ entry into the Nalls’ home and whether or not Officer Soto’s use of force was gratuitous—it was “not prepared to rule as a matter of law that Mrs. Nall’s loud verbal protests made from her couch should have constituted a criminal behavior in the eyes of a reasonable officer.”

The validity of an arrest “does not depend on whether the suspect actually committed a crime. . . .” . . . Rather, “a warrantless arrest by a law officer is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed.” . . . The Fourth Amendment standard for probable cause requires “facts and circumstances within the officer’s knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.” . . . The qualified immunity doctrine requires that “probable cause determinations, even if wrong, are not actionable as long as such determinations pass the test of reasonableness.” . . . The reasonableness of an officer’s probable cause determination is a question of law. Id. . . .

To determine whether the officers had probable cause to arrest Ms. Nall, the court “must look to the law of the jurisdiction at the time of the occurrence.” . . . The officers arrested her for an alleged violation of Ohio Revised Code § 2917.11(A)(2), which states: “No person shall recklessly cause inconvenience, annoyance, or alarm to another by doing any of the following: . . . (2) Making unreasonable noise or an offensively coarse utterance, gesture, or display or communicating unwarranted and grossly abusive language to any person.” Under Ohio law, a person acts with the required mental state for the crime—recklessness— “when, with heedless indifference to the consequences, he perversely disregards a known risk that his conduct is likely to cause a certain result or is likely to be of a certain nature.” Ohio Rev. Code § 2901.22(C).

Long ago, the Ohio Supreme Court held that “a person may not be punished under R.C. 2917.11(A)(2) for `recklessly caus(ing) inconvenience, annoyance, or alarm to another,’ by making an `offensively coarse utterance,’ or `communicating unwarranted and grossly abusive language to any person,’ unless the words spoken are likely, by their very utterance, to inflict injury or provoke the average person to an immediate retaliatory breach of the peace.” . . . The standard with regard to statements made to police officers is the same as for any other person: “The question is whether, under the circumstances, it is probable that a reasonable police officer would find her language and conduct annoying or alarming and would be provoked to want to respond violently.” . . .

The result does not alter if the incident takes place in a dwelling: A man repeatedly yelling, “If you don’t have a f—ing warrant, get out” at police officers who entered an apartment was found not to be violating the disorderly conduct statute because the language would not “provoke the average person to an immediate retaliatory breach of the peace.”

Even if we were to assume, as the Officers argue, that the level of noise Ms. Nall was making could itself violate Section (A)(2), the fact remains that under the plain language of the statute, a disorderly conduct charge against her can stand only if she “recklessly caused inconvenience, annoyance, or alarm” by “unreasonably” making the noise. Ohio Rev. Code § 2917.11(A)(2). Ms. Nall testified that during the incident with Mr. Nall, she was screaming at the officers that they had no right to be in her house, that she was swearing, and that she was “freaked out.” One of the officers told Ms. Nall to “shut the f— up,” repeatedly tried to quiet her, and told her that he would arrest her if she did not calm down.

But because Ms. Nall had a clear basis to be concerned about her husband’s physical safety and was responding to a possibly illegal entry into her home by the officers, we cannot conclude at the summary judgment stage that her conduct was sufficiently reckless and unreasonable to allow an officer to reasonably believe there was probable cause to arrest her. Accordingly, we affirm the district court’s denial of summary judgment with regard to the arrest of Ms. Nall.

. . .

Written by Burgers Allday

March 22, 2015 at 7:30 am

Posted in Uncategorized

22 March, 2015 06:40

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Written by Burgers Allday

March 22, 2015 at 6:10 am

Posted in Uncategorized


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