Police, The Fourth Amendment, Qualified Immunity

Does an RS detainee have the right to film police?

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It now seems to be clearly established that bystanders have a First Amendment right to film police activity (for example, the police detaining somebody under putatively reasonable suspicion). This week’s case raises, but does not answer, a related question, to wit, does a person who is being detained under reasonable suspicion have a right to record the police who are detaining her?

Case:  Sandberg v. Englewood, Court of Appeals, 10th Circuit 2018

What happened:  Police were detaining a plaintiff based on putatively* reasonable suspicion. Plaintiff wanted to video his ongoing detention, but police refused to let him video. After a four hour detention, police charged the suspect with disorderly conduct.** The charges were later dropped prior to any trial.

Decision:  Plaintiff’s right to video his own detention was not “clearly established” at the time of the police refusal to allow him to video. Quoth the court: “[T]he district court concluded that it was not clearly established that police officers violate the First Amendment when they prevent a person who is subject to police action from filming police activities. We agree.”

Criticism:  So, basically, plaintiff would have had to defy police orders, and subject himself to (additional) criminal liability, in order to establish his right to video his own detention. Not good incentives to put out there.

Another criticism:  The subject’s 1A right to video his own detention should be a no-brainer at this point in history and should be considered “clearly established” by the cases establishing the right of third parties to video police — after all, the detainee has, if anything, a greater and more direct interest in video’ing his own detention in order to generate potentially exculpatory evidence and evidence of Constitutional violations by the popo.


* I say “putatively” here because the police were detaining the suspect for open carrying in an open carry state, so not sure that I agree with the court’s decision that there was reasonable suspicion, or even “arguable reasonable suspicion.”

** The disorderly conduct charge was based on plaintiff’s open carry of a firearm in an open carry state. Many readers of this case will probably be more interested in the Second Amendment issue decided by this case, but this is a 4A blog, not a 2A blog, so I am not going to discuss this issue other than to note that it is interesting and important.

Written by Burgers Allday

March 16, 2018 at 2:17 pm

Posted in Uncategorized

13 March, 2018 02:26

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Written by Burgers Allday

March 13, 2018 at 1:56 am

Posted in Uncategorized

Mungo for Mongo

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When, if ever, do police have liability for errors in large computer databases that they use to make arrests, impound cars, etc.?  The short answer is that they don’t, but I think this should change.  After all, these are not errors that occur because 4A law is necessarily hazy at its edges, or because police officers need to make quick decisions during violent confrontations.

Case:  MONGO v. City of Detroit, Dist. Court, ED Michigan 2018

What happened:  Man’s car impounded because database said he had no insurance when he really did.

Decision:  QI for the police — no liability.


  Adolph Mongo, Plaintiff, represented by Leonard Mungo, Leonard Mungo Assoc.

Written by Burgers Allday

March 11, 2018 at 6:17 am

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Carjackers or police officers?

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Carjacking continues to be a thing.  Police officers being run over continues to be a thing.  Police officers claiming that someone tried to run them over without actually being run over continues to be an even bigger thing.  This week’s mid-week bonus case brings together these themes with a set of two opinions (Middle District of Florida and Eleventh Circuit) in a way that is likely to make these problems worse and not better.

Case:  Spencer v. City of Orlando, Court of Appeals, 11th Circuit 2018; Spencer v. City of Orlando, Dist. Court, MD Florida 2016

What happened:  Apparently unmarked police vehicles attempted to stop a car with three men, including the plaintiff* of this civil suit who was shot to death by police.  One of the men had a gun and there was another gun in the glovebox.  More specifically, the car stopped at first, but drove away again after the two unmarked police vehicles attempted to box it in, and the officer parked to the rear of the plaintiff’s vehicle approached plaintiff shining a flashlight at him.  Plaintiff then backed into the unmarked police vehicle parked behind him and then drove forward away from the scene.  The two unmarked police vehicles pursued and rammed plaintiff’s vehicle until it was stopped again, boxed in, and allegedly disabled.  One of the men (not the plaintiff) ran away from plaintiff’s vehicle with a gun and was shot by one of the police officers, but he did not die.  The driver was shot to death by the other police officer in the driver’s seat.  The third man in the car was not harmed.

Here is the way the District Court recounted the facts (this account was largely repeated in the Eleventh’s Circuit opinion on appeal):

On the evening of May 3, 2013, Orlando Police Department (“OPD”) officers Zambito and Evancoe were working with the Tactical Anti-Crime squad in an undercover Ford Explorer (“Explorer”) in the area of Kirkman and Raleigh Street in Orlando, Florida (“Area”). (Doc. 23-1, ¶¶ 3-4; Doc. 23-2, pp 3-4.) While conducting surveillance in the Area, Evancoe observed three African-American males (“Males”) pull into a 7-11 parking lot in a blue Hyundai (“Hyundai”).[2] (Doc. 23-2, p.4.) The Males were later identified as Marquis Spencer (“Decedent”), Ronmono Carson (“Carson”), Aaron Beavers (“Beavers”). According to Evancoe and Zambito (collectively, the “Defendant Officers”), the Males were acting suspiciously, so the Defendant Officers decided that they would “wait for [the Males] to leave the gas station, [] stop them, [and] see what [the Males were] up to.” (Id. at 4-5.) In the meantime, Evancoe called for backup, and OPD Officer Elio Florin (“Florin”) and his partner (“Bigelow”) responded to the call. (Id. at 5.)

Once the Males returned to their car and exited the parking lot, Evancoe observed the following violations of Florida law: (1) the Males did not put on their seatbelts;[3] and (2) Decedent, the driver, did not come to a complete stop when exiting the parking lot. (Id.; Doc. 23-1, ¶¶ 6-7.) Consequently, as Decedent turned southbound onto Kirkman Road, Zambito activated the emergency lights on the Explorer and initiated a traffic stop of the Hyundai in the turn lane at the intersection of Kirkman Road and Raleigh Street.[4] (Doc. 23-1, ¶ 8; Doc. 23-2, p. 5.) Zambito positioned the Explorer “closely behind” the Hyundai and Florin positioned his vehicle in front of the Hyundai, essentially creating a “soft block” on the Hyundai (“First Stop”). (Doc. 23-1, ¶ 9; Doc. 23-2, p. 21; Doc. 23-3, p. 13; see also Doc. 27-1, p. 11.)

Evancoe exited the Explorer with a flashlight in his hand and a gun in his holster. (Doc. 23-2, p. 11.) He was wearing a vest that said “police” in white letters. (Id.) As Evancoe approached the passenger side of the Hyundai, Decedent reversed the Hyundai towards Evancoe, hit the Explorer, and maneuvered around Florin’s vehicle to turn right onto Raleigh Street.[5] (Doc. 23-1, ¶¶ 11-12; Doc. 23-2, p. 6; Doc. 23-3, pp. 4, 7-8; Doc. 27-1, p. 12.) Evancoe returned to the Explorer, and Zambito and Florin engaged in the pursuit of the Hyundai. (Doc. 23-1, ¶ 13; Doc. 23-2, p. 21; Doc. 27-1, p. 13.) At the intersection of Raleigh Street and Resource Avenue, Zambito hit the rear of the Hyundai with the Explorer, causing the Hyundai to lose traction and hit Florin’s vehicle, which by that time was positioned slightly perpendicular to the front of the Hyundai. (Doc. 23-1, ¶¶ 13-14; Doc. 23-2, p. 21; Doc. 23-3, p. 16; Doc. 27-1, p. 15; see also Doc. 23-2, pp. 13-14.) At this point, the Hyundai was “pinned” between the Explorer and Florin’s vehicle, and all three vehicles were stopped (“Second Stop”). (Doc. 23-1, ¶¶ 14-15.)

Immediately: (1) Evancoe exited the passenger side of the Explorer and moved toward the passenger side of the Hyundai; (2) Florin exited his vehicle; and (3) Carson fled from the Hyundai with a gun. (Id. ¶ 15; Doc. 23-2, pp. 14-15, 21; Doc. 23-3, pp. 4, 8; Doc. 27-1, pp. 16, 19.) As Florin attempted to exit his vehicle, Zambito heard the Hyundai’s engine rev and saw the Hyundai move towards Florin. (Doc. 23-1, ¶ 15; see also Doc. 23-2, p. 21.) After losing sight of Florin and hearing the Hyundai engine rev again, Zambito “fired several rounds … to prevent Florin from being killed.” (Doc. 23-1, ¶¶ 17-18.) Evancoe heard the gunshots and saw Carson running from the Hyundai with a gun in his hand. (Doc. 23-2, pp. 7, 15-16.)

Evancoe then approached the driver side of the Hyundai, saw Decedent sitting in the driver seat with his left hand on the wheel and his right hand out of sight, and ordered Decedent not to move. (Id. at 7, 17-18.) Nevertheless, Decedent lowered his hands off of the steering wheel, prompting Evancoe to fire six shots toward Decedent. (Id. at 7-8, 18.) “[A]lmost immediately after,” Evancoe heard another round of gunshots between Bigelow and Carson—Bigelow shot Carson once from behind. (Id. at 19; Doc. 27-1, pp. 25, 28.)

Evancoe instructed Beavers—who was in the backseat—to exit the Hyundai, and he obliged. (Doc. 23-2, p. 8.) Evancoe and other OPD officers extracted Decedent from the car and initiated chest compressions, but Decedent died on the scene. (Id. at 9.) A subsequent search of the Hyundai revealed an additional loaded gun in the glove box. (Doc. 23-4, p. 2.)

Decision:  QI for the police, no liability.

First criticism:  Did the driver know that it was police officers or did he think he was being carjacked?

The facts suggest that the driver may not have known he was being stopped by police.  On the one hand, one of the police cars had “emergency lights,” but no mention is made of Officer Evancoe’s Ford Explorer or Officer Florin’s truck being marked.  Moreover, the stop was rather different than a traditional stop in that the Explorer and truck immediately, albeit unsuccessfully, blocked plaintiff’s Hyundai in the space where plaintiff had stopped.  Moreover, plaintiff was being stopped for:  (i) an alleged seatbelt violation, and (ii) not coming to a full stop when exiting a parking lot (one of the survivors of the shooting says that they did stop).  Even if these violations are true, it does no seem like the type of stop that should be effected by two unmarked police vehicles.  Also, there is no mention in the court opinions of the use of a siren or a loudspeaker — those expedients could have gone a long way toward dispelling the appearance of a carjacking.  So, even before Officer Evancoe got out of his Ford Explorer, things probably would have seemed hinky to the plaintiff.

Here is how the Officer Evancoe approached plaintiff’s vehicle:  “Evancoe exited the Explorer with a flashlight in his hand and a gun in his holster. . . . He was wearing a vest that said ‘police” in white letters.”  So, Evancoe was apparently not in full uniform.  We don’t know whether he was shining the flashlight at the eyes of the people in the car, which is poor writing and issue spotting on the part of the courts (district and appellate).  We don’t know how powerful the flashlight was, which is, again, poor writing and issue spotting on the part of the courts.  I am going to fill this informational vacuum with some reasonable speculation, to wit, Evancoe was probably holding a powerful flashlight in front of his torso, and the plaintiff probably could not see the vest and could probably not see the printing on the vest.  In other words, Officers Evancoe and Florin staged something that probably looked, from the plaintiff’s perspective, just like a carjacking.

There should be civil liability for damages that arise proximately out of this special kind of police recklessness to deter this kind of police conduct in the future.  One thing is to not do traffic stops with unmarked (or lightly marked) police vehicles.  Another thing is to use that loudspeaker — that is something that a bad guy is unlikely to have or use in a jacking.

Second criticism:  Why are officers getting out of their nice safe trucks and (allegedly) into the path of the suspect’s vehicle?

It is pretty clear from the opinion that when plaintiff fled the first stop, he was trying to get out of a tight situation and not to run over Officer Evancoe.  However, Evancoe’s legal team apparently presented this to the court as if plaintiff were trying to run over Evancoe, and the courts bought it.  This suggests that it is okay for police officers to lie about suspects attempting to run them over, and that is not okay — it leads to shootings.  Apparently the reason this attempted run over was relevant because it justified the police pursuit, vehicle ramming and eventual police shooting.  Well, it didn’t happen.

Why am I so sure it didn’t happen?  Plaintiff was boxed in between two vehicles.  The District Court opinion states:  “Decedent reversed the Hyundai towards Evancoe, hit the Explorer, and maneuvered around Florin’s vehicle to turn right onto Raleigh Street.”  If the plaintiff had reversed his Hyundai towards Evancoe then that would mean that Evancoe was standing between the Explorer’s front end and the Hundai’s rear end.  His legs would have been crushed between the vehicles.  It would have been an Officer Evancoe sandwich.  But, of course, that didn’t happen.  Evancoe was off to the side somewhere and never in the path of plaintiff’s Hyundai.  More bad writing and police over-indulgence on the part of the courts.

Things get worse on the second, and final, stop.  Here is the key passage in the District Court opinion:

At the intersection of Raleigh Street and Resource Avenue, Zambito hit the rear of the Hyundai with the Explorer, causing the Hyundai to lose traction and hit Florin’s vehicle, which by that time was positioned slightly perpendicular to the front of the Hyundai.  . . .  At this point, the Hyundai was “pinned” between the Explorer and Florin’s [truck], and all three vehicles were stopped . . . As Florin attempted to exit his vehicle, Zambito heard the Hyundai’s engine rev and saw the Hyundai move towards Florin. . . .  After losing sight of Florin and hearing the Hyundai engine rev again, Zambito “fired several rounds … to prevent Florin from being killed.

What does this even mean??!!??!  If the Hyundai was pinned, then how could it move toward Officer Florin as he was exiting the vehicle?  Why was Officer Florin exiting a vehicle into the path the Hyundai would have taken even if it could move?  What does “slightly perpendicular” mean?  How far was Florin from the front end of the Hyundai?  Wouldn’t the fact that Zambito lost sight of Florin mean that Florin was out of danger of being hit by the Hyundai (assuming was in danger to begin with)?  Even if Florin were in danger of being hit by the Hyundai, why would shooting the driver make Officer Florin safer — it seems like it would increase incentive on the driver’s part to try to get out of there fast, especially if Officer Zambito missed?  Did Officer Zambito miss?  Incredibly the opinion does not even say whether the plaintiff was killed by Officer Zambito, Officer Evancoe or a combination of both of them.

As much as this leaves unclear, it does leave a clear bottom line — if police officers go into, or near the path of a potentially moving car then they, or their partners, can use this as an excuse to exercise an itchy trigger finger.  The courts’ forgiveness of this gambit is counterproductive, a bit sickening and obscured by lousy writing.

Miscellaneous criticisms:  Opinions are unclear about whether one of the suspects, named Carson, shot at a police officer, equivocally stating as follows:  “Evancoe heard a round of gunfire between [Officer] Bigelow and Carson. Bigelow shot Carson once from behind.”  Opinions are unclear about why it is illegal, in Florida, to fail to come to a full stop when leaving a parking lot and entering the road (maybe it is, but neither opinion cites to the statute and I doubt it is common knowledge).  Opinions state that the wrongful death claims rely on a “negligence theory” when they clearly rely on a recklessness theory.  I could go on, but, if you have read this far then you get the point . . .


    • * Technically the “plaintiff” was the decedent’s mother because the driver died by police bullet(s), but this blog entry will refer to the decedent as the “plaintiff” for clarity of discussion reasons.

Written by Burgers Allday

March 8, 2018 at 6:41 pm

Posted in Uncategorized

QI in cases not involving criminal law

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Qualified immunity (QI) does not bestow liability on police in situations where Fourth Amendment (4A) law is not “clearly established.”  But how does 4A law get clearly established, with respect to some reasonably specific fact pattern, in the first place?

The most common answer to that question is that 4A is used by criminal defendants, primarily in the context of suppression decisions under the exclusionary rule.  In these cases, judges must decide whether 4A applies — whether or not “clearly established” by a prior case — so that the judge knows whether or not to apply the exclusionary rule and exclude evidence obtained pursuant to the putative 4A violation from a criminal trial of a criminal defendant.

In my humble opinion, one major problem with this state of 4A and QI law is that it means that new 4A law can only be established in cases where the party asserting 4A rights is likely to have committed a criminal act, and may well escape punishment if a 4A violation is found by the criminal court.  I think that sets up a systemic bias against robust and fair 4A protection.*

Today’s case is about a different problem caused by the “clearly established law” requirement of QI as it applies in cases based upon 4A claims (that is, various forms of unreasonable searches and seizures).  This problem is the problem of how 4A law can ever become clearly established in fact patterns that do not involve criminal defendants, and, therefore, do not tend to lead to suppression decisions under the exclusionary rule as a vehicle to apply 4A law to new fact patterns.

Case:  Hill v. Walsh, Court of Appeals, 1st Circuit 2018

What happened:  Police went to a house to take a man to the hospital pursuant to an order of civil commitment (that is, a non-criminal order which is not an arrest warrant).  When Officer William Henault of the Taunton, MA police department looked into the house he thought he saw the shadow of a person, but nobody came to the door, which lead the police on scene to believe that the subject of the civil commitment was in the house dying of an opioid overdose at that very moment.  So the police went into the house and shot off some fire extinguishers to “subdue” the dogs.**  Turns out that no one was at home.***  The owners of the home sued the police for damage.  Police invoked the emergency aid exception to the warrant requirement of 4A in order to attempt to Constitutionally justify their warrantless entry into the home.

Decision:  Police get QI because the emergency aid exception is not clearly established in the context of civil commitment papers.  The court did not decide whether 4A was violated by the Taunton police, stating as follows:  ” We need not — and do not — decide whether a [civil commitment] warrant is sufficient per se to justify warrantless entry into the home.”

Criticism:  How can it ever be decided whether a civil commitment warrant is sufficient to justify police entry into one’s home?  Under the court’s reasoning, there would never be a way to clearly establish 4A law in this area because any cases on this subject would be civil suits against the police, rather than criminal cases against criminal defendants.  Sadly, the court did not address this problem, which seems like a pretty obvious and big problem to me.

Another criticism:  Remember the shadow that Officer Henault says that he thought he saw in the house?****  It is astounding to me that the court thought that seeing something that looked like a shadow of a person in a house could ever serve as evidence that a medical emergency was going on in the house.  It is just not a reasonable inference to make, and reflects excessive solicitude toward police that I can’t imagine would ever be given to other litigants bound by various standards of “reasonable” behavior and decision-making.



* Elsewhere I have advocated for the abolishment of the exclusionary rule for the reason that it is effectively gutting 4A.

**Was happy to read that they did not kill the dogs as police are sometimes wont to do.

*** The civil commitment warrant said on its face that the subject was at a local hospital, so police should have known that the subject was not at the home they broke into. Amazingly, the court forgave this police oversight, blithely stating that “hindsight is twenty-twenty.”

**** I would love to know if there is any physical evidence of Officer Henault saying the thing about the shadow in the house before police broke in and found no one at home.  Seems pretty, ummm, convenient.

Written by Burgers Allday

March 4, 2018 at 4:44 pm

Posted in Uncategorized

Police testimony speak

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Police officers have a special way of speaking in depositions and in court — a way that I don’t think any other attestant could get away with.  One common example is when an officer testifies that she “placed the plaintiff on the ground,” when what she really means is that she knocked the plaintiff to the ground.  “Placed on the ground” connotes something along the lines of laying an infant down in her crib, and, when used by police to describe knocking somebody over (especially when that person hits her head), it is misleading and somewhat dishonest.  If you haven’t guessed, I am not a fan of police testimony speak.

In today’s case, the policeman’s testimonial phrase that bothers me describes what Norwalk, CT police officer Paul Wargo alleges to have happened after he directed plaintiff to stand with his hands on the trunk of a car:  “[Plaintiff] suddenly and without prior warning began to throw his right arm, elbow or shoulder back at [me, the police officer].”  First off, how does Officer Wargo not know if it was a shoulder or an elbow — these are not easy body parts to mistake with each other.  Second, even if Officer Wargo wanted to clearly allege that plaintiff threw an elbow at him, then the police officer should say, “plaintiff threw an elbow at me.”  The disjunctive part of the phrase that reads “plaintiff began to throw an elbow at me” makes no sense.  You throw an elbow or you don’t, but nobody “begins to throw an elbow.”  Third, there is also no such thing as “throwing a right arm.”  That is not a thing.  One can throw a punch, or swing a fist, or windmill an arm, or flail an arm, but nodody “throws a right arm.”

In this case, the misleading and nonsensical language discussed in the preceding paragraph because plaintiff tried to use it to get summary judgement of no liability (QI) from the bloody head injury that Officer Wargo caused by bashing his flashlight into plaintiff’s head.*  Thankfully, the judge didn’t buy into it, but, frankfully, I wish Judge Shea’s ruling did more to criticize this kind of testimonial nonsense.  If those words had been submitted in any context other than a police officer testifying about his police work then I think he just might have.

Case:  Gomez v. City of Norwalk, Dist. Court, D. Connecticut 2018

*Officer Wargo proceeded to testify that his bashing of the flashlight into plaintiff’s head was accidental.  It should also be noted that although plaintiff does not seem to be challenging the fact that he was stopped by Officer Wargo merely for lingering too long in an area that the police considered to be a drug area, the only crime he was convicted of was a “breach of the peace” that was apparently committed by plaintiff after being bashed in the head by Officer Wargo’s flashlight and in apparent response to being bashed in the head by Officer Wargo’s flashlight.  That part is pretty disgusting, too, and makes me hope that plaintiff wins big in this civil suit.

Written by Burgers Allday

February 18, 2018 at 10:52 am

Posted in Uncategorized

11 February, 2018 10:47

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Written by Burgers Allday

February 11, 2018 at 10:17 am

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