What happened: Police busted into a mobile home and immediately shot the occupant dead because he was holding a gun.
Criticism: It is not fair to the dead man to decide this case without seeing what the police announcement really looked and sounded like. Absent video evidence, there should at least be a trial so that the police officers can be cross-examined about the specifics of the alleged announcement.
Another criticism: I think that courts should start requiring siren blasts and flashing lights during these sorts of raids. Even if there was an announcement, and even if the victim heard the announcement, how was he to know that it really was the police and not bad people pretending to be policemen. Colored flashing lights and a siren blast or two could really help people decide to drop their defensive weapon* during a dynamic entry raid.
* Of course this assumes that the slain person really was holding a gun, which allegation was established only by interested testimony in the case which is the subject of this post.
As reg readers know, (royal) we love the abbreviation “qi” for “qualified immunity here at the police4aqi blog. This is the first time we can recall seeing the abbreviation in a court opinion:
In the opinion, the court found that the policeman (Officer Lynn Brown, employer not given in the opinion) may have let his K9 unit chew too long on a compliant arrestee’s leg. No qi.
As many of you know, Saucier v. Katz is the SCOTUS case that says police officers are given qualified immunity (qi) is their action do not violate “clearly established law,” which means that there have to be prior case(s) involving similar conduct by other police officers, where a court held that a Fourth Amendment (4A) violation was committed in those prior case(s).
When one stops to think about this it is deeply problematic. How can police conduct ever be established as unConstitutional if there has to be a pre-existing case establishing the behavior as unConstitutional before a case can get beyond the qi stage?
One possible answer is that criminal cases where court find 4A violations can be used as “clearly established law” for purposes of avoiding qi and holding police accountable. However, this answer raises a couple of problems. One problem is that 4A law will be made and refined using cases where the asserter of 4A rights is almost always going to be a guilty criminal. In theory, this should not affect how courts will make and refine 4A rights over time, but . . . I mean . . . let’s get real! 4A rights are going to end up much smaller if the definition of 4A rights is made exclusively in the shadow of criminals, rather than innocent people who have their putative 4A rights violated.
Another problem with establishing and refining 4A rights solely in the context of criminal cases is that some bad police behavior will seldom, if ever, occur in the context of a criminal case. This point is demonstrated by a new Tenth Cirtcuit opinion in Aldaba v. Pickens (10th Circuit 2016). In this case, a medical patient in a hospital was resistive and uncooperative because of chemical imbalances caused by his illness. Police officers were called, and they tasered the unruly patient and held him so that he could be injected with sedative. Between the tasering, the injection and his infirm state, the patient died on the spot and his survivors sued police in a civil case. Initially, the Tenth Circuit denied qi to the police, but, last year, the U.S. Supreme Court made the Tenth Circuit have a “do-over” with more rigorous consideration of Saucier. On remand, when considering clearly established law regarding what kind of electroshock force can be used against medical patients (as opposed to criminals), the Tenth Circuit decided, in the linked opinion, that there were no prior similar cases, so qi for the police and no award for the survivors.
This result of no liability for excessive force in subduing unruly medical patients will presumably be repeated in case after case until either the end of time, or until the law has the good sense to reverse Saucier. As of now, there is no jurisprudentially practical way to establish 4A limits on police taser use against medical patients.
Two short qualified immunity court opinions from this week demonstrate, in my opinion, a skewed view of what amounts to valid circumstantial evidence of police intent. More specifically, there seems to be a tendency to ignore circumstantial evidence of bad police intent in order to allow the judge to give municipalities that employ police summary judgement of qualified immunity from Monell liability.
There was apparently evidence that police beat a man to death, although Magistrate Judge Nelva Gonzalez Ramos’ opinion does not go into any detail about what that evidence was. In awarding summary judgement of qualified immunity to the municipality and an individual officer, the opinion finds that there is no evidence of excessive force and no evidence of department policies that lead to the use of excessive force.* I disagree. The beating, in and of itself, and resultant death, in and of itself, s evidence of excessive force. Of course, the police and the government of Corpus Christi should have been given the opportunity to overcome this circumstantial evidence by using countervailing evidence at a civil trial. But, absent an overruling of the magistrate, no trial will happen because the manifest circumstantial evidence of the beating itself was not recognized as circumstantial evidence.
Orlando police officer Jonathan Mills allegedly stuck his finger in plaintiff’s anus and subjected plaintiff to other search related indignities. The opinion denies qualified immunity to Officer Mills. So far, so good. However, the opinion goes on to award sj of qi to Orlando, holding that numerous excessive force complaints against Officer Mills did not amount to evidence Orlando was responsible for what Mills (allegedly) did. Judge Paul G. Byron’s opinion reasoned that these citizen complaints did not amount to circumstantial evidence because the Orlando police department found that all the complaints were false, unfounded, etc. I think this is wrong. There is an obvious fox-guarding-the-henhouse problem here. How is a plaintiff going to prove that Orlando did bad investigations of those complaints when it is the Orlando police has custody of all the evidence of how the citizen complaints were investigated? That is the whole point of circumstantial evidence — it shows things that a plaintiff cannot reasonably be expected to prove with direct evidence. Of course, the police and government of Orlando should have been given the opportunity to overcome this circumstantial evidence at a trial. But, absent a reversal of Judge Byron, this will not happen here.
* Only loosely related, at best, but here is a fascinating Corpus Christi police related case decided this past week.
What happened: Police executed a search warrant at a residence a suspected drug dealer. Apparently no contraband was found on that search,* but, when the suspect returned to the residence a week later, he claimed that $350,000 worth of diamonds were missing from his room.
We also agree with the district court that a reasonable juror would have to engage in “pure speculation” to find that the police seized $350,000 of diamonds from Mackovski’s room during the search. The only evidence Mackovski submitted pertaining to the diamonds was an appraisal from January 2010, indicating they were worth $350,000 at that time. Mackovski was not present during the search, did not return to the property until one week later, does not know whether anyone else went into his room after the search and before his return, and submitted no other evidence that the police stole the diamonds.
Criticism: This explanation is weak. I suspect that the Ninth Circuit do not believe that reasonable jury could take the word of a suspected drug dealer over that of the police. But, that is not how it is supposed to work. I think that the suspected drug dealer should have gotten a jury trial because the panel’s decision makes an inappropriate credibility determination.