Police, The Fourth Amendment, Qualified Immunity

I disagree with Judge Susan O. Hickey on probable cause here

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Case: Howell v. Philson, (WD Arkansas 2013)


On August 13, 2009, around 2:00 a.m., the Magnolia Arkansas Police Department received a report that an African-American male, dressed in all black, was attempting to break into a home located at the corner of McNeil and Madison Streets. Officer John Ferguson was dispatched to the scene.

Officer Philson overheard the dispatch and also responded to the location. Once on location, Officer Philson reported to Officer Ferguson that he had observed a suspicious car in the neighborhood immediately before the alleged burglary. The car had remained idle at a stop sign while in the presence of Officer Philson. Officer Philson decided to search the neighborhood for the vehicle to determine whether it had any connection to the burglary. He found the car parked outside a duplex located near the site of the attempted burglary and relayed the location to Officer Ferguson. Officer Ferguson proceeded to the duplex.

According to Howell, the officers knocked on his duplex neighbor’s door and asked his neighbor to come outside. (ECF No. 16-1). Howell then made the decision to join his neighbor outside. Howell is an African American male and was wearing all black at the time of the incident. The officers noticed that Howell matched the description of the suspect from the alleged burglary. Officer Philson asked Howell to identify himself but Howell refrained. Howell merely stated, “I’m at home.” (ECF No. 16-1).

Howell asserts that he could not otherwise properly identify himself because he had cheese in his mouth when the officers questioned him. Id. Additionally, Howell states that he could not show the officers his identification card because he also had cheese in his hands. Id. Officer Ferguson told Howell that if he did not identify himself, the officers would arrest him. According to Howell, he remained silent for about ten seconds and had no opportunity to respond before Officer Philson grabbed his arm in an attempt to arrest him. Officer Philson claims that Howell pulled away from him. However, Howell asserts that he did not resist and that Officer Philson threw him off of the porch. Id. Howell landed face first on the ground and suffered injuries to his head. Officer Philson also fell from the porch onto the ground. After Howell and Officer Philson fell, Officer Philson handcuffed Howell while he was still on the ground. Officer Philson then escorted Howell to the police car. Howell maintains that he was dragged to the car.

Howell was transported to the hospital where he received several stitches on his face and then to Magnolia Police Department where he was booked and released. Howell received a citation for loitering and refusing to submit to arrest. The homeowner could not confidently say whether Howell was the person he observed attempting to break into his home.

Comment: I, personally, don’t believe this is probable cause or anything close to that. I have a hard time believing that this would have gone down the same way if the plaintiff had been white. Furthermore, the loitering and resisting citations seem like strong evidence of bad faith police conduct to me. Most vexing police4aqi decision I have seen in the past few months.

Written by Burgers Allday

September 28, 2013 at 10:32 am

Posted in Uncategorized

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