Police, The Fourth Amendment, Qualified Immunity

The Power Of A Great Dissent

leave a comment »

Case:  Evans v. US, Court of Appeals, 6th Circuit 2018

Comment:  Bad opinion, great dissent


MERRITT, Circuit Judge, dissenting.

The Seventh Amendment requires that “the right to a trial by jury shall be preserved . . . according to the rules of the common law.” In other similar police shooting cases of this type in which there are disputes of fact, the court has insisted upon a jury trial. Withers v. City of Cleveland, 640 F. App’x 416 (6th Cir. 2016).

There is a dispute of fact here. First, plaintiff alleges that she only heard a loud banging on the front door of her mobile home. She did not hear any accompanying announcement. When she ran to the door and peered into the peephole, she saw individuals dressed in black and devoid of identifying markings. Those individuals kicked the door in with such force that they broke her nose and knocked her backwards. Then, an agent threw her facedown on the ground in the main room and handcuffed her. She attests that the agents still did not identify themselves at this point or provide her with a warrant. Second, plaintiff remained handcuffed close to the bedroom, but heard no talking, yelling, warnings, or commands coming from the bedroom. She asserts that she would have heard any such communications due to her proximity to the bedroom. However, she only heard two gunshots. Plaintiff’s two daughters, also present with her in the main room, corroborate her version of events. These alleged facts are pertinent and indicate an attitude and pattern of behavior on the agents’ behalf that a jury may find extreme and unwarranted. The dispute of fact may convince the jury that the officers’ alleged violent behavior caused the decedent to try to protect himself with a pistol in self-defense before he was killed. We have a long-standing tradition of trial by jury in these kind of cases. We should continue to honor that tradition.

Written by Burgers Allday

April 11, 2018 at 5:23 pm

Posted in Uncategorized

Did Miami-Dade Officer Miguel Carballosa plant concealed carry permit holder’s own gun to justify a bad shoot?

leave a comment »

This week’s midweek bonus case (up a bit early because I couldn’t wait) is fascinating and disturbing and not getting the attention that it deserves. We’ll start with the court’s recitation of the facts (edited to clarify names of the people involved and some of the relevant background):

According to Officer Miguel Carballosa, after hospital worker David N. Alexis pulled into his house, Alexis walked across the street towards Carballosa’s unmarked police vehicle [that was staking out the house across the street from Alexis’ house]. Officer Carballosa stated that while Alexis was walking towards him, Alexis’s right hand was concealed behind his back and thus Officer Carballosa could not see that hand. Alexis looked through the front windshield of the unmarked police vehicle. According to Carballosa, he then rolled down his window, identified himself as a police officer, and said “Let me see your hands.” Carballosa stated that Alexis said nothing, did not comply with Defendant’s commands, and instead backed away with his right hand still concealed behind his back. According to Defendant, as Alexis was backing away, Carballosa exited his vehicle, and Alexis brought his right hand around, revealing that he was holding a gun. Defendant stated that Alexis was holding his gun “outward, low, ready and it appeared like it was coming upwards.” Carballosa stated that when he saw Alexis’s gun, he immediately discharged his weapon, firing multiple times and killing Alexis.  . . .

As Officer Carballosa was firing his weapon, Alexis’ friend Acevedo pulled up. Acevedo saw Defendant standing in the middle of the street shooting at Alexis. According to Acevedo, Alexis was screaming and turning to run inside his house. Acevedo did not see a gun in Alexis’s hand or on the street. Acevedo was scared so she did a U-turn and called 911. Acevedo later returned to the scene and spoke with police officers. Acevedo told the officers that she had previously seen Alexis carry a gun on his person and in his car. Officers discovered that Alexis had a concealed carry permit and found a gun registered to Alexis on the street.

As noted, Carballosa testified that Alexis failed to comply with Defendant’s commands and further that Alexis’s right hand moved forward and up. The expert on the proper use of police force hired by Alexis’ estate in the lawsuit, Joseph Stine, disagreed, testifying that under Carballosa’s version of events, Plaintiff had complied with Officer Carballosa’s commands. That is, Carballosa had told Alexis, “Show me your hands,” and never told him to drop his gun. Alexis complied with that directive, according to the expert.

As to whether evidence existed to dispute Carballosa’s claim that Alexis was armed at the time he was shot, an expert witness on firearms and ammunition, Gerald Styers, testified that in his opinion there was evidence to support an inference that Alexis was not holding a gun at the time he was shot. First, Alexis’s gun had been found 20 feet away from Alexis’s body. Styers also noted that Alexis’s gun had been found among the spent shell casings that had fallen when Officer Carballosa fired his gun and that Carballosa’s gun ejects its cartridge cases to the right and to the rear of the gun. Styers also discounted as an explanation for Alexis’s gun being near where Carballosa fired his own gun the possibility that Alexis had thrown the gun* because Styers found no markings or gouges on the gun, which he would have expected to find because the gun would have landed on asphalt. All of this led Styers to conclude that Alexis “was not in possession of the firearm when he was fired . . . upon.”

* Notably, Officer Carballosa never said that Alexis threw the gun or offered any explanation how Alexis’s gun happened to find itself near where Defendant would have been standing when Defendant shot Alexis. Further, in the report and recommendation, adopted by the district court when it denied summary judgment, the magistrate judge noted that Carballosa’s various accounts were “inconsistent and contradictory” concerning “when, where, and how” Carballosa had perceived the possession of a gun by Alexis, as well as other material facts concerning Carballosa’s encounter with Alexis.

Case: MIGHTY v. Miami-Dade County, Court of Appeals, 11th Circuit 2018

First comment:  Why was this not investigated as a murder case by the police?  Assuming that they did not investigate it as a murder case, I hope that Alexis’ estate brought claims for failure to investigate.  There is no duty to protect, but, at least police often claim, they do have a duty to investigate crimes after they occur.  That seems like it didn’t happen here.  A plaintiff in a civil suit should not be the lead investigators, which seems to be exactly what is happening here.

Second comment:  I do not think that undercover police should be empowered to do Terry stops (and should probably also be severely restricted in their power to arrest).  This case shows why.

Third comment:  Sometimes carrying a gun makes one less safe, rather than more safe.  For example, if a bunch of teachers and/or students had guns at Parkland, then it seems quite possible that there would have been more casualties once the police showed up.  I am reluctant to criticize the dead, but it seems likely that David N. Alexis would still be alive if he did not feel empowered to check out the suspicious vehicle across the street from his house, instead of ignoring it or calling 911.  I hasten to add that this assumes that Alexis really did approach Carballosa, rather than vice versa.

Criticism:  I think that the court should have used the word planting, and been more forthright in saying the following:  there is considerable circumstantial evidence tending to show that police officer(s) planted a dead man’s own gun.  The opinion says this in substance, but not nearly as clearly as it should.

Written by Burgers Allday

April 1, 2018 at 4:28 am

Posted in Uncategorized

Who was driving the car?

leave a comment »

Case:  Richter v. Pennsylvania State Police, Dist. Court, WD Pennsylvania 2018
What happened:  A car with two occupants left a bar and got into a single vehicle crash where one occupant died.  Three witnesses said that the occupant that perished was the person driving the car.  Police investigators prepared a crash report that stated that, based on “crash dynamics,” the surviving occupant was the one driving the car.  Police charged the surviving occupant with vehicular homicide by drunk driving.  She was acquitted.  Then, she sued police for false arrest (that is, an arrest not based on “probable cause”) and became the plaintiff in the present civil suit.

Decision:  Judge Bissoon held no QI for the police because a jury could find that the situation surrounding the charging and arrest lacked probable cause.

Comment:  This was an interesting case for me because it comes down primarily to trying to balance: (i) the possibility of human witness bias, on the part of the witnesses who said plaintiff was not the driver; against (ii) the possibility of bias in forensic analysis on the part of a police investigator.  On the one hand, the witnesses may not have wanted to see a drinking buddy go to prison.  On the other hand, the police investigator is paid to help police bring cases, and putting people convicted of drunk driving behind bars is good public relations.  Just because bias is possible on either side of this case doesn’t mean that there was bias.  It would be interesting to see a jury trial that explored these possibilities based on evidence and then asked a jury to decide how a reasonable police officer would have netted things out when it was time to decide whether or not to criminally charge plaintiff.

Another comment:  I think that a lot more info needs to be developed before one could make any sort of intelligent and impartial guess about the existence of probable cause here.  This case will probably settle prior to trial —  I doubt the police want a well-funded* lawyer working to poke holes in the work of their forensic investigator.  Glad the case was not nipped in the bud by QI here.



* Whether funded by hourly fees and costs or expectation of contingency fees — this doesn’t matter, but what does matter is that civil lawyers generally don’t work for cheap.

Written by Burgers Allday

March 30, 2018 at 11:24 am

Posted in Uncategorized

Is a savvy judge struck?

leave a comment »

Cases can be lost due to QI at the “pleading stage,” the “summary judgement stage,” or (I think) at/after trial.  The summary judgement stage occurs after the parties can collect evidence by discovery procedures, such as document requests and depositions, but before a trial takes place.  This is the stage at which most judicial opinions dealt with by this blog are generated.

Getting a QI based dismissal at the pleading stage is more difficult because:  (i) there has been no opportunity for the plaintiff to collect evidence through discovery; and (ii) it is difficult to decide cases when there is not complete evidence.  However, plaintiff must be telling a plausible story in her pleading document (that is, her complaint or amended complaint) that would lead one to think a violation of clearly established 4A law may well have occurred.

The law of how plausible a complaint must be to avoid dismissal was changed by a pair of famous Supreme Court cases in 2007 that made it more difficult for plaintiffs to get past the complaint stage (not just in police conduct cases, but basically in all civil cases across the entirety of the civil law).  The bottom line is that some suits against police officers are dismissed at the pleading stage, and it is likely that the proportion of dismissals at this early stage has increased since the 2007 sea change in the law.

This is not necessarily a bad thing, even for those, like me, Burgers, who believe that civil suits are a hugely important mechanism for enforcement of the Fourth Amendement vis-a-vis the cops.  There are plenty of unsophisticated and/or unrealistic individuals who are desperate for attention, money, etc., and bad law suits tarnish the 4A good claims and the marginal 4A claims.  So, early separation of the wheat from the chaff may well be a net positive as a systemic matter.

The foregoing primer is all a length prelude to the “funnyquote” (at least it struck me as funny):

The factual allegations of a complaint are assumed true and construed in favor of the plaintiff, even if it strikes a savvy judge that actual proof of those facts is improbable. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007))(internal quote marks omitted).

Quote from:  Suber v. Lemons, Dist. Court, ED Missouri 2018

Case summary:  It is okay to arrest a guy on outstanding traffic warrants as a pretext for investigating his suspected role in a double murder.  This case was pro se (that is, no lawyer on the plaintiff’s side) as these pleading stage dismissal cases often tend to be.

Written by Burgers Allday

March 27, 2018 at 4:16 am

Posted in Uncategorized

A right to resist the threat of excessive force?

leave a comment »

This weekend I am going to delve into two recent cases that came up right in a row on my ongoing GOOGLE Scholar Case Law search I use to find pretty much all the cases that I blog here.  To me, the facts of both of these cases raise a 4A question that I don’t think I have ever seen dealt with — and the opinions in each case don’t exactly pinpoint the issue either — one of the opinions kind of makes a tangential pass, but misses the point, as I, Burgers, will discuss.

The starting point is that folks in the United States do not have a right to resist illegal arrests by police, but they do seem to have a fairly clearly established Constitutional right to resist police when police use excessive force.*  However, an issue arises out of this strain of 4A law, which is:  Do people have a right to resist the threat of excessive force by police?

Before I get to this week’s cases, let me start with a somewhat outlandish hypothetical to illuminate the issue.  A police officer says to a suspect the following:  “You are under arrest for a crime, and I am so angry at your criminal behavior that I am now going to beat you up with my truncheon before I cuff and stuff you.”  This is a clear, and purposely exaggerated, example of a threat to use excessive force by the hypothetical police officer.  Is the suspect within her Constitutional rights at this point to, say, tackle the police officer and then run away to a safe space?  Remember, the suspect / arrestee has not yet been subjected to any force, there is merely an imminent threat of force in this hypothetical.

One would think that the law would have answered the issue posed in the previous paragraph, but I am not aware of an answer.  More concerning is that I think civil rights plaintiffs attorneys and/or judges sometimes fail to spot this issue even when the facts of a case present it.  This is the lens through which I, Burgers, will now look at this week’s pair of cases.

First case:  Hutchins v. McKay, Dist. Court, D. Massachusetts 2018

What happened:  Plaintiff’s son was involved in a verbal altercation with mother of his child.  Police officer pulled out his club, but plaintiff grabbed the end of the club before the officer could strike his son.  Police arrest plaintiff for assault on a peace officer and other charges.  Charges later dropped by the prosecutor.  Plaintiff sues for false arrest.

Decision:  Police had probable cause for arrest because plaintiff grabbed the end of the club, so no false arrest.  With respect to the issue of the right to resist excessive force, Judge Ponsor cryptically stated as follows:  “Plaintiff does not contest that he grabbed Defendant Officer McKay’s baton. His argument that he was entitled to use reasonable force to help his son, or protect himself, against excessive force by the officers assists him (as will be seen below) in regard to his claims of excessive force, but his decision to intervene and seize the officer’s baton gave the officers probable cause, both under the federal constitution and the common law, to place him under arrest.”

First criticism on first case:  Nobody had been hit with the baton yet, but does a person have to wait to be struck to start resisting, and not be subject to arrest? After all, if one waits to be hit by a club, then: (i) significant damage, even death, may result; and (ii) if one waits to be struck then one may not be in a good position to resist subsequent excessive force after the first blow. In short, Judge Ponsor seems to have glossed over the idea that a threat of excessive force perhaps should be sufficient to give rise to a right to resist.

Second criticism on first case:  Judge Ponsor says that the right to resist excessive force helps out plaintiff on his excessive force claim, but, after reading the full opinion, it is not clear, at least to me, Burgers, what Judge Ponsor meant by that.

Kudos on first case:  There were other 4A and QI issues in this case that I thought Judge Ponsor’s opinion handled well, but these are outside the scope of this blog entry.

Second case:  KUHLKEN v. County of San Diego, Dist. Court, SD California 2018

What happened:  Plaintiff involved in a parking lot incident while she was driving her car. She, and those on the other side of the incident, both called police. Police “requested” plaintiff’s identification, and, in response, plaintiff questioned why her id was being requested. San Diego Deputy D. Smith responded to that query by threatening to electroshock plaintiff. Plaintiff responded to this threat by calling for help, refusing to hand over her purse to Deputy Smith and pulling her purse away from Deputy Smith. Police then attempted to arrest plaintiff and she resisted that arrest. There were issues involving alleged excessive force in making the arrest that are interesting, but beyond the scope of this blog entry.

Decision:  Plaintiff was required to hand over her identification as soon as she was asked, and she was not allowed to further delay handing it over fter Deputy Smith thretened to electroshock her.

First criticism on second case:  Judge Bencivengo’s opinion seemed to find no legal significance in the fact that Deputy Smith threatened to apply an electroshock to plaintiff when he had no right to do so. Personally, I think that an outrageous threat like this amounts to a criminal assault by Deputy Smith and should have suspended any duty that plaintiff may have otherwise had to co-operate with Deputy Smith.

Second criticism on the second case: I find Deputy Smith’s conduct, and Judge Bencivengo’s approval of his conduct, pretty repugnant on common sense and common decency grounds. When plaintiff asked why she had to hand over her id, then he could have explained that California law required her to because she was involved in an incident while driving. Instead Deputy Smith said that she had to hand it over or he would use his Taser on her. This kind of criminal threat does not inspire trust in law enforcement, and it is therefore unlikely to be an effective strategy as a practical matter and as a matter of efficient and effective public service.


* Too many cases seem to ignore the clearly established right to resist excessive force, but courts cannot remove this right simply by ignoring it. This may be the subject of a blog post for another day.

Written by Burgers Allday

March 24, 2018 at 11:57 am

Posted in Uncategorized


leave a comment »

Written by Burgers Allday

March 24, 2018 at 8:56 am

Posted in Uncategorized

Does an RS detainee have the right to film police?

leave a comment »

It now seems to be clearly established that bystanders have a First Amendment right to film police activity (for example, the police detaining somebody under putatively reasonable suspicion). This week’s case raises, but does not answer, a related question, to wit, does a person who is being detained under reasonable suspicion have a right to record the police who are detaining her?

Case:  Sandberg v. Englewood, Court of Appeals, 10th Circuit 2018

What happened:  Police were detaining a plaintiff based on putatively* reasonable suspicion. Plaintiff wanted to video his ongoing detention, but police refused to let him video. After a four hour detention, police charged the suspect with disorderly conduct.** The charges were later dropped prior to any trial.

Decision:  Plaintiff’s right to video his own detention was not “clearly established” at the time of the police refusal to allow him to video. Quoth the court: “[T]he district court concluded that it was not clearly established that police officers violate the First Amendment when they prevent a person who is subject to police action from filming police activities. We agree.”

Criticism:  So, basically, plaintiff would have had to defy police orders, and subject himself to (additional) criminal liability, in order to establish his right to video his own detention. Not good incentives to put out there.

Another criticism:  The subject’s 1A right to video his own detention should be a no-brainer at this point in history and should be considered “clearly established” by the cases establishing the right of third parties to video police — after all, the detainee has, if anything, a greater and more direct interest in video’ing his own detention in order to generate potentially exculpatory evidence and evidence of Constitutional violations by the popo.


* I say “putatively” here because the police were detaining the suspect for open carrying in an open carry state, so not sure that I agree with the court’s decision that there was reasonable suspicion, or even “arguable reasonable suspicion.”

** The disorderly conduct charge was based on plaintiff’s open carry of a firearm in an open carry state. Many readers of this case will probably be more interested in the Second Amendment issue decided by this case, but this is a 4A blog, not a 2A blog, so I am not going to discuss the gun issue other than to note that it is interesting and important.

Written by Burgers Allday

March 16, 2018 at 2:17 pm

Posted in Uncategorized