police4aqi

Police, The Fourth Amendment, Qualified Immunity

Rabbi complains about lack of investigation into suspected child abuse, gets arrested for child porn, police get qi

leave a comment »

What happened:  This is a confusing case, and the court’s recitation of the facts is kind of muddled, so I will present this in timeline form according to my best understanding of the court’s opinions (there is a majority opinion and a dissenting opinion).

Prior to June 5, 2010:  Mother and Father of a two year old Son become estranged and enter a custody agreement that allows the Father overnight visitations from the Son.   Mother is living with Grandmother and begins consulting Rabbi (and spiritual advisor) whom Grandmother does not like.  Grandmother kicks Mother and Son out of her house and Mother goes to live a Roommate.  Grandmother seeks custody of Son.  Rabbi files police complaint against Grandmother for reasons not stated in the court’s opinion (it is also not clear from the court’s opinions if Rabbi’s complaint against Grandmother was made before or after June 5).

June 5 to June 14:  Mother and Rabbi begin to suspect that Father is sexually abusing Son during overnight visits.  Mother takes Son to at least two doctors (child’s assigned pediatrician and a hospital doctor) where photographs of Son are taken to determine and/or document the suspected sexual abuse.  Mother also apparently takes her own before and after photographs when overnight visits happen.  The doctors say that sexual abuse is “possible.”  We do not know, to this day, whether Son was sexually abused or not.  It does not appear that Rabbi took any of the photographs.

June 15:  Mother and Rabbi go to the police station to report suspected abuse.  More photographs of Son are taken at the police station by Mother.  Police took copies of doctors’ reports (saying that sexual abuse is “possible”) and photographs and fax them to Child Advocacy Center Detective.

June 16:  Mother goes to Child Advocacy Center and meets with Child Advocacy Center Detective.  At some point subsequent to this meeting, Child Advocacy Center Detective comes to the conclusion that no abuse of Son has occurred.

June 16 to June 25:  It appears (court’s opinions are, once again, not clear) that Mother made additional visits to the police and may have been accompanied by Rabbi on some, or all, of these visits.  Mother is not allowed to file a formal complaint.

June 26 (or perhaps earlier):  Mother takes more photographs of Son to further document her suspicions of sexual abuse.  These photographs are taken in a McDonald’s restroom and include, in the images, dated documents to show the date.

June 26:  Mother takes photographs to a self-server printer at a chain drug store, but cannot print them due to a system malfunction.  The self-serve system informs Mother that the photographs will be printed later and that she can pick them up after they are printed.

June 28:  Rabbi calls Internal Affairs (IAB) to complain that Child Advocacy Center Detective, and police generally, are not taking the suspicions of sexual abuse of Son sufficiently seriously.

June 29:  Mother uses Rabbi’s phone to repeatedly call chain drug store to anonymously ask them to destroy the photographs of June 26.  Chain drug store Employee is willing to destroy the photographs until he sees that they depict a naked child.  Employee calls police.  Police see the photographs and suspect kidnapping and/or child pornography.  Police connect the phone number of the call to the chain drug store to Rabbi’s phone because he called the previous day with the IAB complaint in relation to the suspected abuse of Mother’s Son.  Police know that Rabbi did not make the calls to the chain drug store because they were made by a woman.  Nevertheless, police allegedly suspect that Rabbi is involved in kidnapping and/or child pornography because his telephone was used to call the chain drug store.  Personally, I suspect that police were displeased with Rabbi because of his IAB complaint on the previous day.

June 30:  Police review surveillance camera footage and determine that a young woman brought the photographs to be printed at the chain drug store back on June 26, but remain concerned that there has been a kidnapping of the child in the photographs left for development at the chain drug store.  At 8 pm, police interview Roommate who tells police that Son was safe and with Mother as of the morning of June 30.  At 9 pm, police interview Grandmother who tells police that the child in the photographs from the chain drug store are photographs of Son and that she thinks Rabbi is a bad person.  Between the interviews with Grandmother and Roommate, it is reasonably clear that there has been no kidnapping of Son or any other child in connection with the photographs brought to the chain drug store.  Despite this, police allegedly still suspected that Rabbi was involved in kidnapping, child porn and/or child endangerment related to the photographs left at the chain drug store.  At 10 pm, police arrest Rabbi at Rabbi’s Mother’s residence.  An unidentified police officer repeatedly punched Rabbi after he has been packed into an unmarked police vehicle.

After June 30:  Rabbi is charged with child endangerment, but those charges are later dropped.  Rabbi brings civil action against the police.  There is a trial by jury.  Jury finds police liable for false arrest and other violations, but trial judge denies all claims based on summary judgement and/or judgement as a matter of law in a jury trial.

 

Decision:  Majority opinion gives police qualified immunity (qi) on false arrest claim, finding that there was “arguable probable cause” to arrest Rabbi.  Majority opinion does find that there may be liability for the attack in the police car and for the allegation that the police came into Rabbi’s Mother’s residence without being invited in.

 

Dissent:  Argues that police did not have probable cause because they knew, or at least should have known, that the photographs left at the chain drug store were further documentation of the suspected child abuse, and assuredly not a form of child porn or child endangerment.

 

My comment:  It seems pretty reasonable, to me, to infer that the police were retaliating against Rabbi for his IAB complaint.  However, this potential retaliatory motive, no matter how strongly proven, is not considered legally relevant to the determination of arguable probable cause or to determinations of police violations of 4A in general.  Even if I consciously try to tune out the possibility of police retaliation in my mind, I still agree with the dissent that there was no “arguable probable cause,” and that the Rabbi should be compensated for his arrest, which I think was wrongful.

 

For law geeks (like me):  There should have been a First Amendment retaliation claim because:  (i) there is good circumstantial evidence that police were retaliating based on the IAB complaint; and (ii) arguable probable cause may not be sufficient to stop a claim of First Amendment retaliation by police (the law is not yet clear on this point).  It also seems that a First Amendment retaliation claim would be especially strong here because the speech involved (the IAB complaint) was not an act of civil disobedience, and is the kind of behavior that should be encouraged, especially when sexual abuse of a two year old is suspected in good faith.  Finally, the gratuitous punching attack on the Rabbi, which the trial court found to have indeed taken place, is further evidence that police were acting, as a cohesive unit, out of retaliation, rather than really trying to be good cops.

 

Case:  Figueroa v. Mazza, Court of Appeals, 2nd Circuit 2016

 

 

Written by Burgers Allday

June 9, 2016 at 9:11 pm

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 )

Twitter picture

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

Facebook photo

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

Google+ photo

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

Connecting to %s

%d bloggers like this: