Police, The Fourth Amendment, Qualified Immunity

12 June, 2016 16:35

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Sent from my iPod

Written by Burgers Allday

June 12, 2016 at 4:05 pm

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Rabbi complains about lack of investigation into suspected child abuse, gets arrested for child porn, police get qi

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What happened:  This is a confusing case, and the court’s recitation of the facts is kind of muddled, so I will present this in timeline form according to my best understanding of the court’s opinions (there is a majority opinion and a dissenting opinion).

Prior to June 5, 2010:  Mother and Father of a two year old Son become estranged and enter a custody agreement that allows the Father overnight visitations from the Son.   Mother is living with Grandmother and begins consulting Rabbi (and spiritual advisor) whom Grandmother does not like.  Grandmother kicks Mother and Son out of her house and Mother goes to live a Roommate.  Grandmother seeks custody of Son.  Rabbi files police complaint against Grandmother for reasons not stated in the court’s opinion (it is also not clear from the court’s opinions if Rabbi’s complaint against Grandmother was made before or after June 5).

June 5 to June 14:  Mother and Rabbi begin to suspect that Father is sexually abusing Son during overnight visits.  Mother takes Son to at least two doctors (child’s assigned pediatrician and a hospital doctor) where photographs of Son are taken to determine and/or document the suspected sexual abuse.  Mother also apparently takes her own before and after photographs when overnight visits happen.  The doctors say that sexual abuse is “possible.”  We do not know, to this day, whether Son was sexually abused or not.  It does not appear that Rabbi took any of the photographs.

June 15:  Mother and Rabbi go to the police station to report suspected abuse.  More photographs of Son are taken at the police station by Mother.  Police took copies of doctors’ reports (saying that sexual abuse is “possible”) and photographs and fax them to Child Advocacy Center Detective.

June 16:  Mother goes to Child Advocacy Center and meets with Child Advocacy Center Detective.  At some point subsequent to this meeting, Child Advocacy Center Detective comes to the conclusion that no abuse of Son has occurred.

June 16 to June 25:  It appears (court’s opinions are, once again, not clear) that Mother made additional visits to the police and may have been accompanied by Rabbi on some, or all, of these visits.  Mother is not allowed to file a formal complaint.

June 26 (or perhaps earlier):  Mother takes more photographs of Son to further document her suspicions of sexual abuse.  These photographs are taken in a McDonald’s restroom and include, in the images, dated documents to show the date.

June 26:  Mother takes photographs to a self-server printer at a chain drug store, but cannot print them due to a system malfunction.  The self-serve system informs Mother that the photographs will be printed later and that she can pick them up after they are printed.

June 28:  Rabbi calls Internal Affairs (IAB) to complain that Child Advocacy Center Detective, and police generally, are not taking the suspicions of sexual abuse of Son sufficiently seriously.

June 29:  Mother uses Rabbi’s phone to repeatedly call chain drug store to anonymously ask them to destroy the photographs of June 26.  Chain drug store Employee is willing to destroy the photographs until he sees that they depict a naked child.  Employee calls police.  Police see the photographs and suspect kidnapping and/or child pornography.  Police connect the phone number of the call to the chain drug store to Rabbi’s phone because he called the previous day with the IAB complaint in relation to the suspected abuse of Mother’s Son.  Police know that Rabbi did not make the calls to the chain drug store because they were made by a woman.  Nevertheless, police allegedly suspect that Rabbi is involved in kidnapping and/or child pornography because his telephone was used to call the chain drug store.  Personally, I suspect that police were displeased with Rabbi because of his IAB complaint on the previous day.

June 30:  Police review surveillance camera footage and determine that a young woman brought the photographs to be printed at the chain drug store back on June 26, but remain concerned that there has been a kidnapping of the child in the photographs left for development at the chain drug store.  At 8 pm, police interview Roommate who tells police that Son was safe and with Mother as of the morning of June 30.  At 9 pm, police interview Grandmother who tells police that the child in the photographs from the chain drug store are photographs of Son and that she thinks Rabbi is a bad person.  Between the interviews with Grandmother and Roommate, it is reasonably clear that there has been no kidnapping of Son or any other child in connection with the photographs brought to the chain drug store.  Despite this, police allegedly still suspected that Rabbi was involved in kidnapping, child porn and/or child endangerment related to the photographs left at the chain drug store.  At 10 pm, police arrest Rabbi at Rabbi’s Mother’s residence.  An unidentified police officer repeatedly punched Rabbi after he has been packed into an unmarked police vehicle.

After June 30:  Rabbi is charged with child endangerment, but those charges are later dropped.  Rabbi brings civil action against the police.  There is a trial by jury.  Jury finds police liable for false arrest and other violations, but trial judge denies all claims based on summary judgement and/or judgement as a matter of law in a jury trial.


Decision:  Majority opinion gives police qualified immunity (qi) on false arrest claim, finding that there was “arguable probable cause” to arrest Rabbi.  Majority opinion does find that there may be liability for the attack in the police car and for the allegation that the police came into Rabbi’s Mother’s residence without being invited in.


Dissent:  Argues that police did not have probable cause because they knew, or at least should have known, that the photographs left at the chain drug store were further documentation of the suspected child abuse, and assuredly not a form of child porn or child endangerment.


My comment:  It seems pretty reasonable, to me, to infer that the police were retaliating against Rabbi for his IAB complaint.  However, this potential retaliatory motive, no matter how strongly proven, is not considered legally relevant to the determination of arguable probable cause or to determinations of police violations of 4A in general.  Even if I consciously try to tune out the possibility of police retaliation in my mind, I still agree with the dissent that there was no “arguable probable cause,” and that the Rabbi should be compensated for his arrest, which I think was wrongful.


For law geeks (like me):  There should have been a First Amendment retaliation claim because:  (i) there is good circumstantial evidence that police were retaliating based on the IAB complaint; and (ii) arguable probable cause may not be sufficient to stop a claim of First Amendment retaliation by police (the law is not yet clear on this point).  It also seems that a First Amendment retaliation claim would be especially strong here because the speech involved (the IAB complaint) was not an act off civil disobedience, and is the kind of behavior that should be encouraged, especially when sexual abuse of a two year old is suspected in good faith.  Finally, the gratuitous punching attack on the Rabbi, which the trial court found to have indeed taken place, is further evidence that police were acting, as a cohesive unit, out of retaliation, rather than really trying to be good cops.


Case:  Figueroa v. Mazza, Court of Appeals, 2nd Circuit 2016



Written by Burgers Allday

June 9, 2016 at 9:11 pm

Posted in Uncategorized

Wonderful primer on how QI (qualified immunity) stunts development of 4A (Fourth Amendment) law

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Federal district court opinion by Judge Jeffrey Alker Meyer (edited for length, removal of legalese, and ease of understanding):

This is a Fourth Amendment case about the police occupation of a home without a warrant and in the face of an innocent homeowner’s insistence that the police leave. As I explained at length in my prior summary judgment ruling, the police in Greenwich, Connecticut tricked their way into Duncan Lawson’s home at 10:30 pm one night on a pretense that they wanted to talk with him about his 21-year-old son’s drug problem. What the police really wanted was to search the Lawson home for the son’s drugs. The police had already arrested the son elsewhere in town that night, and he had told them he kept a few oxycodone pills in his bedroom at home. Once Duncan Lawson made the mistake of trusting the police to enter his home, the police took full strategic advantage. They then insisted for the first time that they wanted to search the son’s bedroom.

But Duncan Lawson refused to consent. He told the police they should seek a warrant. He stood by his rights in the face of threats from the police that they would seek a search warrant for the entire house, not just the son’s bedroom. And he stood by his rights even after the police threatened to report him to the Department of Children and Families (DCF) and to have Duncan Lawson’s two other children—ages 11 and 16—taken away from him.

The police then decided to get a search warrant, and two officers were dispatched to draft the warrant papers and find a judge to sign them. In the meantime, however, the remaining police officers refused to leave the house until a warrant could be obtained and despite Duncan Lawson’s demand that they leave. To up the proverbial ante, the police also decided that they needed to “secure” the home. They forced Duncan Lawson to wake his two sleeping children, and the police herded the family into a common room downstairs to await the hours long into the night that it might for officers to return with a search warrant.

Duncan Lawson became outraged. He told his children to go back upstairs. He told one of his children to retrieve a phone camera so that he could record what he believed to be abusive conduct by the police. The police stopped him, and then they arrested Duncan Lawson for interfering with the police. They hauled him away in the dead of the night, leaving the two children alone with the police in the home. For good measure, the police told Duncan Lawson again on his way out that they would contact DCF to have his children taken away from him.

In my prior ruling, I concluded that these alleged facts established a flagrant violation of the Fourth Amendment. [T]his seemed to me a reprehensible example of coercive, police-state-style tactics well out of proportion to any legitimate police interests (here, the pursuit of a few pills of oxycodone). I thought there was good reason why Duncan Lawson was outraged. In my view, any reasonable person would be surprised and outraged to learn that if they consent to a police request to enter their home for the purpose of answering questions, then the Fourth Amendment does not require the police to leave if they are told to leave but allows the police to take a whole family as prisoners for so long as the police may take to [get] a warrant.

Under well-established principles of qualified immunity, the police could be liable only if an objectively reasonable officer would have known that the conduct of the police was in violation of clearly established law. For my part, despite the absence of a prior published appellate opinion involving a similarly egregious fact pattern, I thought the facts of this case to be so extreme that an objectively reasonable officer would—and ought—to have known that what the police did that night was a violation of the rights of Duncan Lawson and his family to be free from unreasonable search and seizure.

The [appeals court sitting above me] reversed [my decision that a Fourth Amendment violation had occurred]. The Court of Appeals did not decide whether the police violated the Fourth Amendment. Instead, the Court decided more narrowly that the police officers should be protected from liability by qualified immunity for “the lack of clearly established law barring the police actions” and because “[t]he police entered the home with Duncan Lawson’s consent, and when that consent was revoked it was objectively reasonable for the defendants to believe that exigent circumstances made their continued presence in the house, and their confinement of the residents to the living room, lawful.”

I am hopeful that the [appeals court sitting above me] will one day decide to consider the constitutionality of the type of “knock and talk” practice in this case.

Absent such an examination of the underlying constitutional issue, I fear that police officers in [my part of the country] are and remain free to engage in the kind of tactics that the police allegedly did here: that is, to trick their way into the home, only then to seek consent to search the home, and then to lock down the entire home and all its occupants for several hours pending the securing of a search warrant if the homeowner elects to exercise his constitutional rights. It won’t matter—as in this case—if the police use such tactics when they are in search of just a few pills that a suspect has freely admitted to possessing in his family’s home. It won’t matter that the homeowner has been cooperative (other than to assert his constitutional rights). It won’t matter that the homeowner has not said or done anything to indicate that he will destroy evidence. And it won’t matter if there are sleeping children whose memories may be forever scarred by the experience of a late-night police occupation of their home.

Absent a determination by the [the courts, the law will not] deter future police officers from the type of overreaching conduct that has been alleged to have occurred in this case.

Reliance on the qualified immunity rule—without a resolution of the merits—is troubling when facts suggest that police have deliberately deployed a stratagem to circumvent people’s assertions of their rights and the sanctity of their homes. A failure to address the merits in such circumstances may unwittingly reward the police for the use of clever techniques that are designed to cheapen the exercise of constitutional rights.

And there is surely a paramount interest besides in having clear rules for what the police may do inside a person’s home. It seems to me that for such cases as this the courts of appeals should clarify the constitutional baseline for future cases, even if courts might otherwise conclude that—for lack to date of a clearly established rule—qualified immunity should insulate the unconstitutional conduct in the one case before them.


Worth reading in its entirety, and you can do so at the following: link

Written by Burgers Allday

June 8, 2016 at 4:14 am

Posted in Uncategorized

4 June, 2016 09:46

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Sent from my iPod

Written by Burgers Allday

June 4, 2016 at 9:16 am

Posted in Uncategorized

Overreaching drug laws at work

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These facts are taken from the complaint or documents integral to the complaint. On September 18, 2014, Salvador was at his home in the Bronx. The defendant police officers entered the plaintiff’s apartment pursuant to a warrant that allowed them to search for firearms.[1] After searching a bureau, the officers found some Oxycodone[2] pills in a plastic bag in the same drawer as the prescription bottle for those pills. The plaintiff contends that the pills were lawfully his and that they were in a plastic bag because the lid had fallen off of their proper container. . . .

. . .

The plaintiff is correct that the Oxycodone pills were outside the scope of the warrant, which permitted the officers to search for and seize firearms. The plaintiff does not argue, however, that the police officers exceeded the scope of the warrant when they opened the drawer of his bureau. On the facts alleged in the complaint, the pills were in a plastic bag in the drawer that the police lawfully opened to execute the search warrant. Thus, the plain view doctrine allows for their seizure because the officers were reasonable in determining that the pills were connected with criminal activity. As discussed in more detail below, the pills were in a plastic bag and were not in their proper container. This method of storing the pills itself violated the law.


Written by Burgers Allday

May 30, 2016 at 2:10 pm

Posted in Uncategorized

Magistrate Judge Paul S. Grewal says that it is okay to arrest shop owners for exercising a mechanic’s lien

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Case: NAVEED v. City of San Jose, Dist. Court, ND California 2016

Comment:  Bad decision, hope it is reversed.

Written by Burgers Allday

May 30, 2016 at 9:38 am

Posted in Uncategorized

Has Judge Joseph M. Hood committed reversible error?

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Judge Joseph M. Hood found that police officers could arrest a woman for obstruction because she did not open the door when police came to arrest her brother (who was present in the house).

When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do. And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak. Cf. Florida v. Royer, 460 U.S. 491, 497-498, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). (“[H]e may decline to listen to the questions at all and may go on his way”). When the police knock on a door but the occupants choose not to respond or to speak, “the investigation will have reached a conspicuously low point” . . .

Kentucky v. King, 131 S. Ct. 1849 – Supreme Court 2011

This seems fundamentally inconsistent with Judge Hood’s opinion in Baughman v. Brooks, Dist. Court, ED Kentucky 2016.

Written by Burgers Allday

May 8, 2016 at 5:30 pm

Posted in Uncategorized


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