Police, The Fourth Amendment, Qualified Immunity

Strategic use of grand jury to avoid civil liability on part of police

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Earlier this month I aired my concern that grand juries might be abusively used by prosecutors, in some cases, to thwart civil suits against police. More specifically, here is how I am afraid it sometimes may work:

(1) Police make a questionable arrest, search or property seizure, and are worried about civil liability for doing that.

(2) Prosecutor doesn’t want to bring any criminal charges because of the questionable arrest, search or seizure, but prosecutor also does not want the police to be paying civil judgments out of collected taxes.

(3) So, prosecutor takes the case to a secret grand jury proceeding, makes a one-sided presentation of the case, and gets an indictment on a criminal charge.

(4) Prosecutor then declines to further pursue the criminal charges after the indictment is obtained.

(5) Civil suit is brought against police by the victim of the questionable arrest / search / seizure.

(6) The fact that an indictment was obtained is used to deafeat, or help defeat, the civil suit so the police get away with the questionable arrest / search / seizure with no civil liablility.

Case: Bryant v. Oaks, Dist. Court, WD Virginia 2014

Facts: Police did a questionable sting operation, including a suspicious audio recording, and used this apparently hokey sting to get an arrest warrant for plaintiff and do a civil forfeiture of plaintiff’s mining equipment. A couple of months after the civil forfeiture, the prosecutor brought the case to a grand jury an got an indictment. The criminal indictment was allowed to languish for many years, and when prosecutors finally brought the criminal case, the police officer involved in the hokey sting operation* did not testify. Plaintiff was acquitted at the long-delayed criminal trial, plaintiff received his civilly forfeited mining equipment back and his civil suit against the police was allowed to proceed. Notably, plaintiff claimed that his mining equipment lost its value after being locked up for eight (8) years in civil forfeiture.

Decision: Police get qualified immunity (QI) because the grand jury** indicted, quoting precedent as follows: “It has long since been settled by the Supreme Court that an indictment, fair upon its face, returned by a properly constituted grand jury, conclusively determines the existence of probable cause.” (internal quote marks omitted)

Criticism: It looks like my grand jury abuse fears have been realized in this case. It is true that the prosecutor actually did bring the criminal case eventually, but, given the long and unexplained delay in bringing the criminal charges, and the failure to produce the star law enforcement witness, it looks to me like this was all part of a dog and pony show designed so that the police could escape liability for a doing a hokey sting operation.



* The sting was hokey not just because of a suspicious (sometimes missing) audio tape made during the sting, but also because what law enforcement alleged that plaintiff did was not actually illegal under Virginia law at the time of the sting.

** There were actually multiple grand juries that indicted plaintiff. It is unknown, and unknowable, how many grand juries declined to indict plaintiff.

Written by Burgers Allday

December 27, 2014 at 7:05 am

Posted in Uncategorized

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