Police, The Fourth Amendment, Qualified Immunity

Judge Brian M. Cogan refuses to believe that police plant evidence unless they are caught red-handed

leave a comment »

Case:  Jimenez v. City of New York, Dist. Court, ED New York 2016


The only wrinkle in what would otherwise be a plainly meritless case is that plaintiff theorizes that the police must have planted the gun because it is not his. That is his opinion. Notably, he nowhere denies that Jimenez owned a gun, but I will assume he would testify that to his knowledge, she did not. That would still not be sufficient to avoid summary judgment, even with the assumption that plaintiff had never seen Jimenez with a gun. If it were, then a §1983 plaintiff could create an issue of fact in a case where he had been arrested in a drug transaction simply by denying that he had engaged in such a transaction, even with twenty police officers or twenty bishops swearing that they had seen him do it.

This is not to say that police never plant contraband as a pretext for an arrest, or that a plaintiff is never able to raise an issue of fact that they did. And if that is the allegation, a plaintiff could even survive summary judgment without having seen the police in the act of planting the contraband, as plaintiff here admits he did not observe. But in that situation, with the broad discovery tools that a plaintiff has at his disposal, he must come up with something more than a smidgen of circumstantial evidence to show that there is genuine, not merely possible, basis for a jury to buy his theory. And there is no evidence of planting here at all.

My response: There is plenty of circumstantial evidence of planting in this case, and the circumstantial evidence is as follows:

Police provided no bodycam video showing their actions when they allegedly found the contraband.

One plausible, and perhaps even probable, inference to be drawn from the above fact is that police had no bodycam video because the police officers deliberately decided to forbear from generating bodycam video because they intended to plant evidence in, or near, the apartment and then did just that.

Criticism:  Judge Cogan’s opinion ignores the circumstantial evidence in a rush to summary judgement.

Another criticism:  Judge Cogan seems surprisingly untroubled by the fact that the original co-plaintiff in this case disappeared and cannot be located.


Written by Burgers Allday

March 26, 2016 at 7:07 am

Posted in Uncategorized

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s

%d bloggers like this: