Police, The Fourth Amendment, Qualified Immunity

Judge Matthew W. Brann enthusiastically supports seventeen electroshocks to the suspect

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Case:  Kircher v. PENNSYLVANIA STATE POLICE DEPARTMENT, Dist. Court, MD Pennsylvania 2016

Here is a table, copied from the opinion, of the seventeen Taser strikes administered by the police to the suspect:

                                                  Time Between          Total Time
  No.    Time       Officer (#)     Duration         Discharges            Elapsed

  1     3:37:11   Farabaugh (1)       0:05                -                   0:05
  2     3:37:20   Farabaugh (2)       0:05               0:04                 0:14
  3     3:39:24   Farabaugh (3)       0:04               1:59                 2:17
  4     3:40:18      Miller (1)       0:05               0:50                 3:12
  5     3:40:45      Miller (2)       0:05               0:22                 3:39
  6     3:40:54      Miller (3)       0:05               0:04                 3:48
  7     3:42:30   Farabaugh (4)       0:05               1:31                 5:24
  8     3:42:39   Farabaugh (5)       0:05               0:04                 5:33
  9     3:42:49   Farabaugh (6)       0:05               0:05                 5:43
  10    3:43:00  Farabaugh (7)        0:05               0:06                 5:54
  11    3:43:21     Miller (4)        0:02               0:16                 6:12
  12    3:43:27     Miller (5)        0:05               0:04                 6:21
  13    3:43:37     Miller (6)        0:07*              0:05                 6:30
  14    3:43:41     Miller (7)        0:03               0:00                 6:33
  15    3:43:53     Miller (8)        0:10               0:09                 6:52
  16    3:45:01     Miller (9)        0:02               0:58                 7:52
  17    3:45:20    Miller (10)        0:05               0:17                 8:14


Decision:  Not only did Judge Brann give qi — he held that the officers didn’t need qi because their seventeen Taser strikes were reasonable under 4A as a matter of law.

Criticism:  Barbaric opinion.  Judicial approval of executive behavior that society should not countenance.  Not the America I was raised to believe that I would be living in.

Another criticism:  I think the biggest problem here is all the strikes with four or five seconds between them.  I think these short intervals between Taser strikes cast serious doubt on the police officers testimony that the suspect was continuing to resist, which, in turn, casts serious doubt as to whether the police officer conduct was as reasonable as Judge Brann would have it.

Faint praise:  Good for Judge Brann for including the interesting, and I think relevant, table of Taser strikes in his opinion.  I think many judges would not have done so.

Written by Burgers Allday

August 24, 2016 at 9:19 am

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21 August, 2016 17:11

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Sent from my iPod

Written by Burgers Allday

August 21, 2016 at 4:41 pm

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“Plaintiff does not explain why Officers would plant [an illegal] drug on him. “

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Case: Eden v. Vaughn, Dist. Court, ED Missouri 2016

C’mon, Judge E. Richard Webber.  If you think real hard, you can think of a few possibilities — not that these possible motivations would be susceptible to proof by the plaintiff.

The decision, as a whole, is fine.  Summary judgement (sj) of qualified immunity (qi) is denied.  Just wish the courts would start attaching videos to decisions like this that have relevant dashcam vid.

Written by Burgers Allday

August 20, 2016 at 2:37 pm

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Heightentened Pleading Standards Exacerbates Dead Men Tell No Tales Problem

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Case:  MIGHTY v. Miami-Dade County, Court of Appeals, 11th Circuit 2016

What happened:  Police approached a man walking up to his parents’ house thinking he was going to rob the place.  The man was not armed.  There was a confrontation of some sort which ended up with one, or perhaps more, police officers shooting the man to death, including one shot in the back.  Beyond this the Miami-Dade Police Department will not say any more about the shooting.  The man’s mother decided to sue, but she has no additional information beyond what the Miami-Dade Police Department has said, which is very little and certainly nothing that affirmatively indicates that the police should not have shot this particular man.

Disclaimer:  The comments below are intended for hardcore legal junkies only (although you don’t have to be a lawyer).  Read no further if the law bores you!

Comments:  In 2007, the U.S. Supreme Court heightened “pleading standards” for civil suits brought under federal law.  This means that you, if you will imagine yourself as a plaintiff, must have more info than was previously required to “avoid dismissal” of a complaint.  This can be a good thing because it helps nip meritless law suits in the bud.  However, this can be a bad thing in cases where the defendant party that you are suing has exclusive access to the witnesses and information that you need to prove your case.  In the case linked above, this downside is pretty dramatic.  The dead man is dead so he cannot say whether he posed a real threat to police at the time he began to be struck by their bullets.  The only witnesses are police.  There is likely a lot of “documentary”evidence in the form of radio transmissions, dashcam footage, use of force reports, incident investigations and the like — but, the problem is that any and all of this juicy potential evidence is under control of the Miami-Dade Police Department.  The dead man’s mother, therefore, needs “discovery” to get her hands on this evidence to prove her contention that the police were out of line in shooting her son multiple times until he was dead.  The catch-22 here is that she can’t get “discovery” if her suit is “dismissed” at its inception due to the “heightened pleading standards” now operative on her federal claims (brought under a federal law called 42 U.S.C. section 1983, as with most federal civil suits against police officers).

In this case, both the district court and the appeals court* decided that the mother’s lawsuit could go forward, or, more precisely, “avoid dismissal.”  This means that the mother, as plaintiff, will get some discovery and thereby force the Miami-Dade Police Department to say more than it has so far.  This seems like the right result.  It seems inconceivable that the police could kill somebody and not need to explain, ever, in any meaningful way.  Still, the result does not seem consistent with the “heightened pleading standards,” at least as they are applied in less dramatic cases.  More specifically, the appellate court decision linked above makes much of the fact that one of the bullets was in the back — but — does that mean that the mother’s lawsuit would be dismissed if all the bullets happened to be in the man’s front?  That seems, to me, a pretty fine fact distinction upon which to base a decision as to whether a lawsuit like this one survives its gestation.

My proposal:  I wish courts would do more to make sure that an exception to “heightened pleading standards” develops for cases where all the evidence is likely to be in possession of the defendant(s).  This would have been a great case for doing so.  I can’t help but believe that it is the real, but unspoken, reason as to why the Eleventh Circuit appellate court panel of judges ruled as they did in this case, allowing the mother’s suit to proceed at least until she gets her hands on some of the data that the police have been hiding.



* It is very odd that an appellate court would ever review a district court denial of a defendant’s dismissal motion, but that is one of those weird quirks of “qualified immunity” law, of which there are many.

Written by Burgers Allday

August 18, 2016 at 6:52 pm

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Deputy Donavin Geiger allegedly fails to identify himself as law enforcement, choosing instead to hurl curse words

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Case:  Crawford v. Geiger, Court of Appeals, 6th Circuit 2016


At approximately 9:00 pm on August 26, 2012, plaintiff Mark Crawford received a phone call from his mother, Jane Crawford, informing him that she and her daughter (also Crawford’s sister), plaintiff Debra Ornelas, had heard what sounded like a break-in at the family’s furniture store, Crawford’s Furniture. Ms. Crawford asked her son to come investigate the noise immediately.

After hanging up, Crawford told his nephew, plaintiff Brendon Reed (also Ornelas’ son and Ms. Crawford’s grandson), that Ms. Crawford believed someone was breaking into one of the furniture store’s warehouses and had asked Crawford and Reed to “get there right now.” Crawford then proceeded to retrieve ammunition, a Colt .45 pistol, and shotgun. Thereafter, he and Reed—who was armed with an AR-15 rifle—climbed into Reed’s Dodge pickup truck. With Reed driving, it took the two men approximately a minute to a minute-and-a-half to travel between Crawford’s house and Ms. Crawford’s property, where Crawford’s Furniture was located.

Meanwhile, after she and Ms. Crawford heard what sounded like noise from a break-in, Ornelas drove her vehicle behind the Crawford’s Furniture warehouses to investigate. At the same time, Ornelas was on her cell phone with her daughter-in-law (also Reed’s wife), Christine Reed. Although Ornelas knew that her mother was planning to call Crawford, she instructed Christine to call 911. Shortly after Ornelas hung up with Christine, an Allen County, Ohio dispatcher called Ornelas to follow-up on the 911 call Christine had placed. The dispatcher informed Ornelas that police officers were en route to Crawford’s Furniture and remained on the line with Ornelas until she saw an officer and his canine partner on the property. Ornelas later learned that this particular police officer was defendant Donavin Geiger, a deputy with the Allen County Sheriff’s Department.

Deputy Geiger approached Ornelas, who was still seated in her vehicle, and told her to go back to Ms. Crawford’s house. Ornelas complied, parking her vehicle near the patio adjacent to the house; meanwhile, Geiger proceeded to approach the warehouses from the north.

When they reached Crawford’s Furniture, Reed parked his truck approximately 30 feet from Ms. Crawford’s house, and Crawford jumped out of the truck to retrieve his pistol and ammunition. After Crawford re-entered the truck, the two men proceeded to “speed load” the pistol, the rifle, and the shotgun, then drive toward the warehouses “dynamically,” i.e., loudly and with the truck’s bright headlights turned on. At this time, they had no idea that Ornelas had called 911 or that Geiger, a police officer, was searching the premises.

As Reed was turning left to “do a sweep behind the warehouses,” he saw a bright light and stopped the truck. Reed and Crawford then exited the truck to “cover [the] perceived threat”—Reed armed with his rifle and Crawford holding his shotgun and wearing the pistol holstered on his left side.

The parties’ accounts of what occurred next diverge considerably. According to Plaintiffs, after Reed parked the truck, he and Crawford assumed a “triangle” formation in relation to the person shining the bright light—who they later learned was Deputy Geiger—with their firearms trained on the light source. Crawford announced, “Mark A. Crawford, identify yourself, you’re trespassing on private property.” (R. 69-4, PageID# 1145; R. 69-6, PageID# 1335). Crawford continued to identify himself by name and as the property owner,[1] and both he and Reed told Geiger “identify yourself” several times. According to Plaintiffs, Geiger never identified himself (by name or as a police officer), but instead trained his very bright flashlight on Crawford and Reed and shouted, “put [y]our guns down” and “get on the fucking ground.” (SeeR. 69-4, PageID# 1140, 1142, 1146; 69-6, PageID# 1328, 1334-36, 1342-44). This “standoff” continued for approximately 15 to 40 seconds. At their respective depositions, both Crawford and Reed testified that they refused to obey Geiger’s commands to drop their weapons and get on the ground because they could not see him in the dark, did not realize he was a police officer (at in least in part due to his refusal to identify himself), and perceived him as an “unknown threat.”

About 30 to 40 seconds into the standoff, Crawford heard radio traffic, a sound with which he was familiar based on his prior employment in the military and as a corrections officer. Upon hearing the radio traffic, Crawford “took a leap of faith,” assumed the person shining the bright light in his direction was a law enforcement officer, and put his shotgun on the ground. Crawford also instructed Reed to drop his rifle and step away from the weapon. Reed complied. Crawford raised his hands in the “surrender position,” but never reached for or removed the pistol on his belt because Geiger did not specifically instruct him to drop this second firearm and “anybody knows you don’t touch a pistol locked down in your holster if your hands are up[.]” (See R. 69-6, PageID# 1346, 1350-51, 1353).

While talking to Ms. Crawford in front of the house, Ornelas overheard at least part of the standoff between Geiger, Crawford, and Reed. The “first audible thing” Ornelas heard was Geiger “saying that he was going to shoot somebody in the fucking head.” (R. 69-7, PageID# 1766). “[D]irectly after that,” she heard her brother say, “Mark A. Crawford, property owner.” (Id.). Although she could discern some of what was being said during this confrontation, Ornelas did not “understand what all the yelling was about,” and assumed that Geiger had mistaken Crawford and Reed for “the people breaking into the warehouse.” (Id. at 1766-67).

Hoping to dispel any misunderstanding, Ornelas hurried over to the warehouses. There, she saw Crawford and Reed standing next to the driver’s side of Reed’s truck. Initially, Ornelas tried to explain to Deputy Geiger that Crawford was the property owner, Reed was her son, and that she herself had called 911. However, when the yelling between Geiger and Crawford continued and no one appeared to be listening to her, Ornelas approached Reed to ask what was wrong.

Meanwhile, even after Crawford had assumed the “surrender position,” Deputy Geiger continued saying “get on the ground” and “I’ll shoot you in the fucking head.” (R. 69-6, PageID# 1345-46, 1352-53, 1409). Crawford refused to comply with this command because he believed Geiger was “out of control” and feared for his own safety. Around the same time, several more police officers arrived on the scene, including defendant Cory Lee, a deputy for the Allen County Sheriff’s Department, and defendants-appellants Nicholas Hart and Jesse Evilsizer, a sergeant for the Lima Police Department and an officer for the Elida Police Department, respectively. Deputy Lee, Sergeant Hart, and Officer Evilsizer were all responding to a call for assistance that Deputy Geiger had made over his radio during the initial standoff with Crawford and Reed. In his call for assistance, Geiger stated that he had encountered “armed suspects.”

As the other officers began to arrive, Deputy Geiger changed his command to Crawford from “get on the ground” to “put your hands on the truck.” When Crawford complied with the latter order, Geiger “bounce[d] [Crawford’s] head off the hood of the truck” and said, “Now you’re going to jail motherfucker,” as he put his full body weight on Crawford’s neck. (See R. 69-6, PageID# 1357, 1361, 1371). Geiger also removed Crawford’s pistol from his holster.

Written by Burgers Allday

August 18, 2016 at 5:38 pm

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14 August, 2016 11:20

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Sent from my iPod

Written by Burgers Allday

August 14, 2016 at 10:50 am

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Police need retention holsters

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I have long thought that police need retention holsters.  Apparently, there are levels of retention, and I am not sure what level is best, but some level such that a combatant reaching for the police officer’s gun won’t be able to get it or shoot it.  Generally speaking police need retention holsters, and, again, speaking generally, they don’t use them.

I have held this belief even before this happened: New York officer shot, killed after crazed man snatches gun from holster: police  (I was just a couple of miles away from the scene of that crime)

Now:  Rolen v. City of Cleveland, Court of Appeals, 6th Circuit 2016

This new case (well worth reading in its entirety) reinforces my belief that police need retention holsters.

Written by Burgers Allday

July 31, 2016 at 3:40 pm

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