police4aqi

Police, The Fourth Amendment, Qualified Immunity

Magistrate Judge Mark Lane stretches “reasonable suspicion” too far

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Link to the opinion

The following criticisms assume familiarity with the opinion:

  1.  Standing in a parking lot and peering into tall grass does not seem at all like reasonable suspicion to me.  Officer Marciano Garza’s testimony that the act of standing in a parking lot and peering into tall grass is consistent with his experience with several criminal activities, namely burglary, solicitation, and trafficking is ridiculous.  It is not ridiculous because it is untrue.  I am sure that standing in a parking lot and peering into tall grass is consistent with burglary, solicitation and trafficking.  Rather, it is ridiculous because it is consistent with anything — murder, kidnapping, animal abuse, killing time, studying grass, having a smoke break, getting one’s bearings, waiting on a friend, etc.  What Officer Garza apparently didn’t testify is that standing in a parking lot and peering into the tall grass is particularly indicative of any crime — and, of course, he didn’t testify that — because common sense tells us that it is not.  The neighborhood drug dealer is no more apt to peer into tall grass, while standing in a parking lot, than any innocent person is.  It doesn’t take special training or special experience to know that.
  2. Magistrate Judge Lane makes much of the fact that plaintiff got back in his vehicle and started to drive at about the time Officer Garza pulled in the lot.  But what would an innocent person do to avoid being pestered by the police officer?  Keep on peering into the tall grass?  Wouldn’t that raise even more suspicion?  Make eye contact with the police officer?  Wouldn’t that raise even more suspicion?  Peer at something else?  Do some stretching exercises?  Pick his nose?  Although plaintiff claimed that it was a coincidence that he decided to get back in his vehicle and drive at about the time Officer Garza pulled into the lot, my guess is that plaintiff was just trying to not get hassled by a police department with obvious anger management issues in a judicial district with a complaisant magistrate judge.  In this, the plaintiff failed, but once he was “guilty” of standing in a parking lot peering into the tall grass, there doesn’t seem like much he could have done to save the situation.*
  3. The opinion does not quantify, or explain,** the factual characterization of the parking lot as a “high crime area” and a “criminal hotspot.”  Here is the area we are talking about:Screenshot 2016-03-05 18.05.45
  4.  Magistrate Judge Lane’s analysis of the excessive force claim is ridiculous and probably highly reversible.  Enough said on that.
  5. This last one is not a criticism of Magistrate Judge Lane, but rather of plaintiff’s attorney.  Plaintiff should have brought both a First Amendment retaliation claim and a Fifth Amendment retaliation claim.  It is clear that plaintiff was pulled from his vehicle not out of a safety concern, but, rather, because he refused to speak to the police (beyond providing identification).  This is both a free speech issue and a refusal to testify against oneself issue.  It makes Officer Garza’s intent relevant to the extent that he was trying to effectively punish an invocation of Constitutional rights.  In this case, Officer Garza’s punitive intent is especially clear because of the fact that Officer Garza characterized plaintiff’s refusal to answer questions as “non-compliance” during his contemporaneous radio call back to dispatch.

 

FOOTNOTE:

* Plaintiff should have gotten out of the car when the police instructed him to do so, but that was later in the encounter.

**Well, the opinion does say that “the Round Rock Police Department ‘had noted an increase in crime in this area between the Extended Stay America Hotel and other hotels in the vicinity in the weeks before the incident.'”  Noted where?  What kind of crime?  What kind of increase?  Vague, unfalsifiable assertion.  More nonsense.

Written by Burgers Allday

March 5, 2016 at 5:31 pm

Posted in Uncategorized

One Response

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  1. […] posted at length, criticizing the Magistrate Judge Mark Lane’s opinion and decisions in Alexander v. Round […]


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