Tsutomu Shimomura alleges that on February 22, 2011 he was going through a security checkpoint at DIA when a TSA agent took his properly labeled 180cc bottle of prescription medication and used a sampling strip to test the bottle’s contents for the presence of explosive materials. [ECF No. 1 at ¶¶ 10, 13]. He was concerned that touching the sampling strip to the dispensing mechanism on the bottle might have contaminated the medicine and created a risk to his health, so he inquired about the sterility and composition of the strip. Id. at ¶ 14. The agent was not able to answer his questions satisfactorily, so he asked to speak to her supervisor. Id. at ¶¶ 14-15.
TSA Agent Kendra Carlson, a supervisor, was summoned. Id. at ¶ 16. Mr. Shimomura expressed concern about contamination and informed Agent Carlson that the procedure did not follow proper TSA protocol. Id. The Complaint does not lay out the back and forth that followed, but one might imagine its temperature from the fact that a Denver Police Officer, Wade Davis, came to the scene and stood close by, observing everything that occurred upon and after his arrival. Mr. Shimomura was unhappy with the response he was getting—or not getting—from Agent Carlson and asked to speak to her supervisor, only to be rebuffed with the retort “I am the supervisor.” Id. at ¶ 18.
The Complaint does not tell us how the contamination discussion ended, but it does suggest that the encounter reached the point where Agent Carlson ordered Mr. Shimomura to “get the hell” out of the area. Id. at ¶ 19. Mr. Shimomura commented that he needed to retrieve a computer bag still sitting in the bin. Agent Carlson retrieved it, but upon handing it to Mr. Shimomura, she allegedly again threatened to have him arrested, this time if his exit did not occur in “two seconds.” Id. at ¶ 20. Mr. Shimomura said something about checking to make sure everything was there, causing Agent Carlson to take umbrage at what she perceived to be an accusation of stealing, and thereby setting off another round of spurned requests to speak to her supervisor.
Exasperated, Mr. Shimomura turned to Officer Davis, who up to that point had merely been standing by, and told him that he wanted to speak to Agent Carlson’s supervisor. When Officer Davis indicated that he couldn’t help, Mr. Shimomura copied down his name and badge number. That did not sit well. Officer Davis allegedly threatened to arrest Mr. Shimomura if he did not move in “two seconds.” Id. at ¶ 21. And both Agent Carlson and Officer Davis “crowded” Mr. Shimomura in a threatening manner. Id.
But, all might still have ended well enough had it not been for what occurred next. Mr. Shimomura alleges that as he began walking away, pulling his roller bag behind him, Agent Carlson — with Officer Davis at her side — followed “closely and aggressively.” Id. at ¶ 22. After taking a few steps, Mr. Shimomura “paused,” whereupon Agent Carlson walked into the bag, her right leg touching the bag’s right corner. Id. Fortunately, from the Court’s perspective at least, this part of the fray was captured on a security video. More on that later.
That was enough, according to Mr. Shimomura, to push Agent Carlson and Officer Davis over the edge. Agent Carlson accused Mr. Shimomura of assaulting her with the rolling bag. Officer Davis, claiming that he had witnessed an assault, directed Mr. Shimomura to sit on a bench in the screening area. He then huddled with Agent Carlson and two other TSA agents, Terry Cates and Patti Zeller, ostensibly to compare notes and get their stories straight. According to Mr. Shimomura, Officer Davis and Agent Carlson then decided to charge Mr. Shimomura with assault. Officer Davis served him with a criminal complaint. Each of the four conspirators allegedly prepared “coordinated” and “false statements supporting this decision.” Id. at ¶¶ 30-38.
Mr. Shimomura claims that he was detained for approximately an hour and a half. By the time he was released from TSA and police custody he had missed his flight and had to buy a new ticket on a different flight.
The criminal complaint was dismissed after the prosecuting attorney saw the security footage. Indeed, although he accuses TSA of delaying disclosure of the video to him, editing key portions out, and providing no audio to go with it, he states that his lawyer obtained one of the video’s key portions, i.e., a portion that establishes that defendants’ assault allegations were false. The Court has been provided with a copy of the video and, because Mr. Shimomura has placed great reliance on it and has essentially incorporated it into his Complaint, I have taken a look at it. Having done so, I am not at all surprised that the D.A. dropped the criminal charge after he looked at it. It shows minor contact between the bag and Agent Carlson, at most, and lends no support to the charge that Mr. Shimomura intentionally or recklessly assaulted her.
Decision: Judge R. Brooke Jackson gave the policeman qi and dismissed all of Plaintiff Shimomura’s claims.
Comment: Even though there was video here, Judge Jackson decided that the alleged tripping of the TSA agent happened too fast for the policeman to know that it didn’t really happen. Maybe Plaintiff Shimomura would have gotten a more favorable result if the TSA agent was joined as a co-defendant.
Another tasering the diabetic case. Plaintiff was drinking soda straight out of the soda fountain at the local Hardee’s. No qi for the policeman, one Sergeant David Weber of the Decatur County (Indiana?) Sheriff’s Department. Should have been a published decision. Should also have specified which state the relevant Decatur County is in.
One case that really increased my interest in 4A issues was the September 2009 killing of Livonia, Georgia pastor Jonathan Ayers, largely because of the hugely disturbing video (safe for work):
The civil trial is over (but probably not the appeals). Verdict = $2.3M. More at that AJC:
My preliminary comments:
I have been waiting for a while for a case like the one below to blog. One area of the law that troubles a lot of people, myself included, is how ready police are to use a SWAT raid these days. You can read more about that in this series of recent blog posts by blogger [i]Ex-Cop Law Student.[/i] Or, if you prefer a longer treatment, then there is Radley Balko’s straitforward book length indictment of the way SWAT raids have become the go to tactic for police. To put my spin on it, troubled as I am by SWAT raids, and by police initiated violence more generally, I have always been more troubled by police dishonesty, including situations where police may, or may not, be dishonest, but where it is impossible to find out the truth later. Speaking for myself, I would rather be beaten up by police than be lied about by them. I would rather sustain physical injuries than injuries to my character and good name. I will say that I have not yet been the victim of police lies, but I see the potential and I see it as a serious possibility (not just for me, but, rather, for anyone in modern society). To put it plainly, we have made America’s police into soldiers at war, and the first casualty of war is truth.
Which brings me to confidential “reliable” informants (now, more often in legal circles simply referred to as confidential informants, or CI). the law has evolved to a point where police can get a warrant simply by saying that a CI: (i) is reliable; and (ii) sold the CI drugs. The idea is that police won’t say in a warrant request that a CI is reliable when the CI has not been reliable. There are two fundamental and huge problems with this “protection” against CIs who are not reliable.
One big problem is that police define “reliable” different than we do. CIs are usually drug addicts or drug dealers, and often commit other crimes — this is how they get enlisted to become informants in the first place. Would you let such a person babysit your kids? “Reliable” is a relative term, and, in the context of CIs it has been defined down all the way to the realm of meaninglessness. The old saying says that a broken clock is right twice a day — by the standards commonly applied to CIs that is considered rock solid reliability.
The other big problem with “reliability” of CIs is that nobody gets to do an independent investigation, or determination. of whether the CI is reliable. Is the CI a drug addict or a convicted child molester? The policeman doesn’t have to ask the CI that when he is seeking a warrant, and nobody gets a chance to look into that later, after the warrant has been served. Nobody gets to examine that if the warrant turns up evidence of crime that leads to a criminal trial and conviction. More trouble-ingly, nobody gets to look into that if the warrant turns up no evidence. The plaintiff in a civil suit doesn’t get to depose the CI, or do any other investigation of what kind of person the CI is. The plaintiff doesn’t get to know if the CI is an spiteful ex-lover, a career criminal or a disgruntled ex-employee. I hope this changes during my lifetime. It is a simply shameful state of the law. I’ll be more specific: I can live with the fact that criminal defendants o not get to know who the CI was, but civil plaintiffs, innocent plaintiffs, should have the right to get to know their CI and the right to paint a picture of their CI as someone that the police should have well known better than to rely on. I realize that this paragraph is what my younger brother would call a “rant.” So be it. This is a rant-worthy legal problem in the current system.
So, now we come to the new case, a Second Circuit decision — three judges — three different opinions. It is a case where CI abuse meets SWAT abuse. Plaintiff, of course, does not get to know her CI, but at least her civil suit for the SWAT raid she suffered survives, hobbled by CI law though it may be.
Case: McColley v. County of Rensselaer, Court of Appeals, 2nd Circuit 2014
What happened: CI said that there were drugs in plaintiff’s apartment, so police did a violent, surprise SWAT raid on her apartment a couple weeks later. No drugs found.
Decision: Judge Pooler took the position that the police might be liable for neglecting to mention certain facts, which they knew, in their warrant application, such as the fact that plaintiff lived there and had no criminal record. Judge Calabrisi took a middle road by taking the position that police had probable cause for a warrant, but not reasonable suspicion for a SWAT raid (as opposed to a more traditional, less violent search warrant service). Judge Raggi, writing for the dissent, thought that the police were good to go.
Case: Lu v. Christensen, Dist. Court, D. New Mexico 2014
In August or September 2012, SET began surveillance of Lu and her employees for indicators that Asian Massage was operating as a brothel. . . . Posing as customers, SET also visited Asian Massage and attempted to obtain sexual favors such as “happy endings” during their massages. . . .Neither Lu nor her employees provided any of the SET officers with a happy ending during the investigations. . . . However, McCall alleged that one of the masseuses made a gesture during a massage meaning that she wanted to give a happy ending. . . . Further, McCall and Sanchez found that one of Lu’s employees went by the name of Tina, which was a name identified on an erotic massage website as one of the masseuses at “Asian Massage.” . . . In a later massage on October 10, 2012, Sanchez communicated with the masseuse to perform a “hand job,” and although the masseuse was “apparently enticed,” Sanchez left the massage parlor before this “happy ending” could occur. . . . While at Asian Massage, the officers also did not see a massage license posted in the building.
. . .
 According to Wiktionary, a “happy ending” is “[a] handjob, especially one after a massage.” Happy ending, WIKTIONARY (Dec. 9, 2013, 9:52 AM), http://en.wiktionary.org/wiki/happy_ending. For alternate definitions, see also Happy ending, URBAN DICTIONARY (Jan. 25, 2003), http://www.urbandictionary.com/define.php?term=happy%20ending.
What happened: Police handed qi on some, but not all, of plaintiff’s civil claims against them.