police4aqi

Police, The Fourth Amendment, Qualified Immunity

4A False Arrest Versus 1A Retaliatory Arrest

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In order to make out a claim for false arrest based on Fourth Amendment (4A) rights, there must be an absence of probable cause (or even “arguable probable cause”) for the arrest. Arguably, this makes it too difficult to make out a civil case for false arrest (especially when qualified immunity is factored into the mix), but that is not the point of this post.

Rather, this post is more about civil claims for arrests that caused by retaliation motivations on the part of police officers who make the arrest. As a simple example, if a police officer could arrest all speeders, but only took speeders to jail when they had a pro-Trump bumper sticker, then this would presumably be a clear case of retaliatory arrests in violation of the First Amendment because it amounts to government punishment of speech based on the content of the speech. Probably same result if the police only stopped speeders with pro-Trump bumper stickers.

In the examples of the previous paragraph, there would be no 4A violation so long as the speeders really were speeding (it probably would not matter whether state law allowed a custodial arrest for simple speeding, but that is a subject for a different post. The reason there is no 4A violation is because the speeders really are speeding and this, of course, amounts to probable cause for the crime of speeding. Still, it would be disturbing if police were allowed to discriminate in enforcement based upon whether the suspect was a Trump supporter or not. That type of thing, if allowed, would chill speech, and that is a First Amendment problem, even if it is not a Fourth Amendment problem.

Unfortunately, some courts are beginning to treat the existence of probable cause as a defense to a 1A retaliation claim. Here is a new case that is an example of exactly that problem:

Case: Garcia v. Harris County, Dist. Court, SD Texas 2018

Written by Burgers Allday

November 26, 2018 at 4:21 pm

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21 November, 2018 08:50

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Written by Burgers Allday

November 21, 2018 at 8:20 am

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Is reckless conduct by police sufficiently bad so as to violate 4A

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It seems to be well-established law, at this point in time, that negligent conduct does not violate the Fourth Amendment. For example, if the police negligently arrest the wrong person and hold her in jail, then this is not typically considered as a 4A violation. I, Burgers, have never understood this because the touchstone of 4A and the touchstone of negligence law is the same thing, to wit: reasonableness. But, that aside . . . let’s move on.

In today’s case, a police officer (one Dallas police officer Amy Wilburn) plead guilty to a criminal charge of recklessly discharging a firearm. Her bullet hit and injured a passenger in a vehicle, who has become the plaintiff in a civil suit against the officer. So, it has been established that the Officer Wilburn’s conduct was reckless.

One might think that this would be enough to establish a 4A violation as a per se matter. Even if negligence is somehow “reasonable” under 4A, recklessness is less reasonable than mere negligence, so one would think that a 4A violation has been established. However, Judge Sidney A. Fitzwater has decided otherwise, holding that the admittedly reckless shooting may, or may not, violate 4A, and that a jury should decide the matter. Moneyquote:

[E]xcessive force requires intentional, not merely reckless, conduct.

I, Burgers, doubt that this is a correct legal analysis.

Case: Walker v. Wilburn, Dist. Court, ND Texas 2018

Written by Burgers Allday

November 15, 2018 at 6:37 am

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Resisting lawful arrest versus resisting unlawful arrest versus resisting a police attack

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This post is going to very briefly go over some established law, as I, Burgers, best understand it, and then pivot to a related area where I think the law needs further development.

Resisting lawful arrest: The rule is that one cannot legally resist unlawful arrest, but one can do some degree of resistance to excessive force. Resisting a lawful arrest is a terrible idea, of course.

Resisting unlawful arrest: One does not have a Constitutional right to resist an unlawful arrest, which means that the various states may make it a crime to resist unlawful arrest, and most have. The rule at common law was that one was allowed to resist an unlawful arrest, and I believe that a handful of states have maintained this rule to this day.

Resisting a police attack: It is this third category where I don’t think the law is as up-to-date and established as it should be. What I mean by “resisting a police attack” is where the police officer is not trying to arrest you, but merely attacking you. I think that many courts lump this in with resisting an unlawful arrest, but I think it is a different thing, and probably should be treated differently by the law. There should be a right of self-defense against an attack by a police officer that is clearly intended as an attack and clearly not intended as an attempt to take a person into custody for a suspected crime.

Today’s case is a good example of an opinion that struggles with this concept of resisting a police attack. A truck driver and a police officer were having a dispute over parking tickets. Allegedly, the police officer was trying to get a cash bribe to informally quash the tickets. The police officer then slapped the truck driver’s cell phone out of his hands and grabbed the truck driver by the neck and/or shoulders with enough force to rip the truck driver’s shirt off. The truck driver successfully fought back, and then disengaged from the police officer, backed away, put his hands up and verbally surrendered. Then the police officer shot the truck driver in the abdomen. The truck driver lived. He was criminally convicted of felony battery on a police officer.

The truck driver then sued the police officer (one Curtis Minchuk, a police officer with the Town of Merrillville, Indiana) on the theory that the shooting amounted to excessive force. The opinion, linked below, focused on whether it would have been clear to Officer Minchuk that the truck driver had surrendered before Officer Minchuk decided to fire his gun at the truck driver. The seventh Circuit panel in the civil case denied qualified immunity (QI) to Officer Minchuk so the excessive force claim can move forward, presumably to settlement or trial.

My problem with this whole situation is more with the criminal case than the civil case. Slapping a cell phone out of somebody’s hands and ripping their shirt off is not properly considered as an attempt to make a lawful arrest, or an attempt to make an unlawful arrest — it is not an attempt to make an arrest at all — it is simply an attack, an assault and a battery. The fact that the attacker is a police man doesn’t turn this attack into an attempted arrest. The fact that the police man was arguing with the police officer about a legal matter does not turn this attack into an attempted arrest. It seems to me that the truck driver had an inalienable human right to defend himself from the attack and that the Indiana state criminal court did not respect that right in convicting the truck driver of felony battery. I do think that the Seventh Circuit could have, and should have, addressed this issue in the civil case — even if they felt bound by holdings and/or findings of the Indiana state criminal court.

Simply put, Officer Minchuk was simply the aggressor in a fight, a fight not connected with an attempted arrest or detainment, and, as such, he had no right to shoot the truck driver, whether the truck driver surrendered or not.

Case: Strand v. MINCHUK, Court of Appeals, 7th Circuit 2018

Written by Burgers Allday

November 14, 2018 at 9:21 am

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12 November, 2018 07:58

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Written by Burgers Allday

November 12, 2018 at 7:28 am

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Pre-trial detainment conditions: should eventual determination of guilt or innocence matter?

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In today’s case, plaintiff complained that he was held in solitary confinement for nine (9) months before his criminal trial. At the criminal trial he was found guilty of some pretty serious charges and sentenced to ten (10) years, with a possibility of parole after three (3) years. While serving that sentenced, plaintiff sued on the theory that solitary confinement amounted to a punishment and was not the way pretrial detainees should be held.

I, Burgers, skipped around the opinion in the civil suit as I read it. I first read the parts of the opinion that recounted how plaintiff was held in solitary, as a pre-trial detainee, for nine (9) months, and that the court found that this was a violation of plaintiffs Fourteenth Amendment rights (specifically, due process rights vis-a-vis the state of Hawaii), but that the state was entitled to qualified immunities and other immunities from paying damages to plaintiff for this rights violation. At this point, I did not know what the charges were and incorrectly guessed that plaintiff had been found not guilty at his criminal trial. I was pretty indignant at this point in my review of the court’s opinion in the civil case.

Then I, Burgers, read the part of the opinion that recounted how plaintiff had been found guilty of some pretty serious offenses. At this point, my indignation largely evaporated. THis got me to thinking: as far as plaintiff’s should it matter that plaintiff was guilty and should it matter that the criminal offenses were morally reprehensible? My mind says that it should not matter, but my heart says otherwise.

Case: Gordon v. MAESAKA-HIRATA, Haw: Supreme Court 2018

Written by Burgers Allday

November 8, 2018 at 7:50 am

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Meet John Doe

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In the 1941 Frank Capra film Meet John Doe, a journalist makes up a fictional person called John Doe. When John Doe becomes something of a sensation, the journalist hires a man to play John Doe. I will leave the movie there because I haven’t actually seen it, and also because spoilers.

Moving to today’s case, the plaintiffs allege that confidential informant John Doe may never have bought drugs at plaintiffs house, and, further, that the John Doe produced to the judge to get the search warrant may have been a different person than the John Doe produced, under strenuous protest, at the civil suit a couple of years later. In a two to one split decision, the Seventh Circuit panel brushed off these concerns about John Doe’s identity and credibility, ruling that the district court was correct in awarding summary judgement to the police. A dissent by Judge David Hamilton pointedly pointed out that the Chicago police officer primarily responsible for securing the search warrant, one Michael Jolliff-Blake, flip flopped over the course of the civil litigation about whether he even remembered who John Doe really was. Moneyquote from Judge Hamilton’s dissent:

Confusion, poor recordkeeping, and the effects of time on memory may be reasonable explanations for the conflicts, but they are not the only ones. A reasonable jury could also conclude that if Officer Jolliff-Blake was willing to testify—repeatedly—to his original version, then he simply is not a reliable witness. Maybe his memory was faulty. Maybe he was not being honest. Either way, he impeached his own testimony on critical facts. He showed that his testimony is not reliable. At the very least, that’s what a reasonable jury could find.

Case: Edwards v. JOLLIFF-BLAKE, Court of Appeals, 7th Circuit 2018

Written by Burgers Allday

November 7, 2018 at 3:28 am

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