Police, The Fourth Amendment, Qualified Immunity

Author Archive

Arrested for exercising freedom of speech

leave a comment »

The 4A part of the name of this blog refers to the Fourth Amendment. However, I occasionally cover freedom of speech cases because sometimes police arrest people for speech, or other expressions, protected by the First Amendment (1A). Today’s qualified immunity (QI) case deals with a woman who was arrested for speaking her mind . . .

Case: Wilson v. City of Shaker Heights, Court of Appeals, 6th Circuit 2018

What happened:

Richard and Elizabeth Minkowetz lived next door to plaintiff Gladys Wilson in Shaker Heights, Ohio. Wilson came to believe the Minkowetzes were vandalizing her property and antagonizing her in various ways. To “fight back,” Wilson began displaying signs and other material in her window facing the Minkowetzes’ property. Some of the signs stated “nasty lil twit” and “Peeping Tom Exposed.” Others were nonsense, reading, for example, “Zoomed Zapped and Snapped.” Others, such as a sign that read “Thur. 10:50” and a sign identifying the Minkowetzes’ address, the Minkowetzes interpreted as messages that Wilson was monitoring their comings and goings. Wilson concedes that the signs referred to, and were directed at, her neighbors.

The Minkowetzes complained to the City of Shaker Heights about the signs, and the city dispatched defendant Officer Martin Dunn of the Shaker Heights Police Department to investigate the Minkowetzes’ complaint. Dunn visited Wilson’s home and took photos of the sign. He also spoke briefly with Wilson before she retreated inside. That day, Dunn provided his report to defendant Randolph Keller, a prosecutor in Shaker Heights.

Plaintiff was arrested and prosecuted for disorderly conduct based on the signs she displayed.

Decision: QI for the police and prosecutor.

Criticism: While the woman’s speech seems kind of wacky to me, it seems clearly protected by 1A and it further seems like the police and prosecutor had every reason to know this. If there were threats, or borderline threats, then I might have some empathy for the police prosecutor, but, given the facts of this case, QI seems flat out wrong and egregiously so.

Written by Burgers Allday

July 19, 2018 at 7:53 am

Posted in Uncategorized

Misuse of the word “ambush”

leave a comment »

One pet peeve of mine is the increasing misuse of the word “ambush” to describe pretty much any sort of attack on police officers. “Ambush” does not mean any sort of attack and it does not even mean any sort of surprise attack. What is worse is that this misuse seems to only be occurring with respect to attacks on police officers and never seems to extend to attacks on civilians. So, I am against this misuse of language, but have not real seen this particular misuse creep into judicial opinions — until just now . . .

Case: MASON-FUNK v. City of Neenah, Court of Appeals, 7th Circuit 2018

What happened: Police were called to a hostage situation. They broke into a building where the hostage taker and hostages were. the hostage taker shot at the police officers (hitting one of them in the helmet) and, in response, the police retreated. One of the hostages escaped and the police shot him to death.*

Opinion: QI for the police who shot the hostage to death.

Criticism: Not going to address the merits of the opinion, but the opinion refers to the hostage taker’s shooting at the raiding police officers as an “ambush.” Legally speaking, an ambush is a surprise attack where the attacker had been laying in wait in a hidden place. That did not happen here — not even close. It is disappointing that the Seventh Circuit so badly misuses the word “ambush” in this opinion.


* The opinion states that the hostage had a silver handgun, although I am skeptical about this for reasons that should be obvious.

Written by Burgers Allday

July 15, 2018 at 6:53 pm

Posted in Uncategorized

Another case with mysteriously missing video footage

leave a comment »

Pierson v. Stenger, Dist. Court, WD Pennsylvania 2018:

The Court notes that [the police] have submitted a GetGo surveillance video from the night in question. . . . However, the video channel which appears to provide a complete view of the parties’ interaction, Channel 17, is inexplicably missing footage between 03:38:29.3 and 03:40:47.1. Footage from Channel 13 appears to show that the immediate aftermath of the punch to Plaintiff’s face occurred at approximately 03:39:29. Neither the punch nor the events immediately preceding the [policeman’s] punch [of the defendant’s face] are depicted in the provided video footage.

Thankfully, the police did not get QI here.

Written by Burgers Allday

July 8, 2018 at 6:50 am

Posted in Uncategorized

7 July, 2018 13:14

leave a comment »

Written by Burgers Allday

July 7, 2018 at 12:44 pm

Posted in Uncategorized

Senior Judge Jack B. Weinstein Goes After Qualified Immunity

leave a comment »

Back in the early 90s, I used to use, and enjoy, Judge Weinstein’s treatise on evidence.  Born in 1921, it is amazing and inspiring that Judge Weinstein is still active on the bench.  He has just released a new opinion on QI, which is basically an attack on the doctrine, marshalling recent academic literature by the late Judge Stephen Reinhardt, Professor Will Baude, Professor I.B. Chambers and many more.

I found the opinion a bit difficult to follow in places, but also peppered with insights and articulations on QI that had never occurred to me before.  Some legal scholars disapprove of lower court opinions that are polemical, which this opinion certainly is, but I like the opinion and think it is more helpful to the jurisprudence on QI than the vast majority of other QI judicial opinions precisely because of its strongly expressed point of view.  And here is the link:

Thompson v. Clark, Dist. Court, ED New York 2018

Written by Burgers Allday

July 2, 2018 at 2:59 am

Posted in Uncategorized

Police shooting at people in moving cars

with 3 comments

Let me start by laying out my opinion on this.  Police should not shoot at suspects in moving cars.  Period.  End of.  If the suspect is driving at the law enforcement officer, then the officer should focus on getting her body out of the way.  Even if the law enforcement officer hits the suspect, then suspect is, as likely as anything else, to keep driving at the law enforcement officer, and maybe even accelerate.  There is nothing magical about shooting someone that makes them take their foot off the accelerator, or swerve to the side.  The same is true if the suspect is driving at other people.  In fact, if the suspect is driving at other law enforcement officers, and they close enough to the fleeing vehicle that they cannot get out of the way, then, in addition to the fact that the bullets will not stop the fleeing vehicle, there is also the additional risk that the bullets will hit the other law enforcement officers.

Obviously, I feel strongly about this, so please, dear reader, indulge this rant just a bit longer.  Imagine that a civilian was going to be hit by a runaway vehicle — stuck accelerator, Incel terrorist, sudden heart attack, it doesn’t matter why — but the vehicle is coming right at the civilian and the civilian happens to be armed and shoots the driver dead.  How would the shooter’s defense of self defense fare in a case like that?  I think it would be laughed out of court.

However, the 2015 case of Mullenix v. Luna, 136 S. Ct. 305 disagrees with me.  It says that it is sometimes reasonable for police officers to shoot drivers for defensive reasons.  In the Mullenix case, the law enforcement officer / shooter was firing from a position of safety, and was allegedly trying to prevent the vehicle from hitting other police officers who were laying down a spike strip.  Terrible opinion that defies common sense for the simple reason that shooting at a vehicle doing 80-some miles per hour makes it less, rather than more, likely that the vehicle will stop or drive in a more predictable fashion.

The Mullenix case has had terrible consequences because it encourages police officers to get their bodies into the paths of vehicles of fleeing felons, or, probably in more cases, to say that they were in the path of a fleeing felon even if they really weren’t.  It is like a new loophole in the general rule against shooting at fleeing felons, and, notably, one that requires the law enforcement officer to put herself in danger, or at least pretend to.  For a tragic example of this kind of tomfoolery, see:  https://patch.com/maryland/perryhall/officer-amy-caprio-awarded-posthumous-departmental-honor (police officer posthumously gets award for getting into path of stolen vehicle, shooting at it and getting herself fatally run over in the process).

Now, the Mullenix case did not initiate the phenomenon of police shooting at fleeing vehicles.  My own interest in the subject goes back to 2002 when Officer Raymond S. Bunn killed Corey Ward,  See, https://police4aqi.wordpress.com/2014/05/17/justice-delayed-is-justice-denied-the-raymond-s-bunn-corey-ward-story/  However, I do think that Mullenix has already started to embolden police officers to try to “push the envelope” and expand this loophole in the general rule against taking potshots at fleeing suspects.  For example, Raymond S. Bunn was actually criminally charged.*  I don’t think that would happen now.  Instead, we are starting to see a whole bunch of civil litigation as courts try to draw the line between when it is reasonable to shoot a fleeing driver and when it is not.  Stated thusly, this is, of course, an impossible task because it is never reasonable to shoot a fleeing driver.

That lengthy prologue brings us to this week’s case:

Case:  Losee v. City of Chico, Court of Appeals, 9th Circuit 2018

What happened:  Facts are not as clear as they could be from the brief, “unpublished” Ninth Circuit opinion, but a fleeing driver apparently hit a utility pole and Chico Police Sergeant Scott Zuschin put himself behind the vehicle.  The vehicle started backing up slowly, so Sgt. Zuschin started firing upon the driver.  In an apparent response to being shot at, the driver then changed course, sped up and started heading in the general direction of a bunch of other police officers who then started shooting.  It is not clear which officer’s bullet(s) killed the driver.  The opinion does not state how many bullets missed the driver and went “downrange” toward fellow law enforcement officers.  The opinion does not state how far the other officers were from the vehicle or how fast it was going.**

Opinion:  Sgt. Zuschin does not get qualified immunity because it is pretty clear that he could have evaded the fleeing vehicle without shooting.  The other officers get QI because their alleged fear may have been reasonable.

Criticism:  This opinion makes things much more difficult than they need to be.  It was not reasonable for any of the officers to shoot at the car, and all the shooting made things more dangerous for the police officers. This is because the shooting caused the vehicle to accelerate (and perhaps drive erratically as well), and further because of all the flying bullets that did not hit the the fleeing Honda or ricocheted off of it.

Further criticism:  The officers behaved in a way that needs to be discouraged by the courts, and I don’t think that this Ninth Circuit opinion goes far enough in discouraging clearly unreasonable police behavior.



* A judge eventually threw out the charges before trial in a move similar to what happened in the prosecution of the officers charged with killing Freddie Gray.  You never seem to see that happen with non-police criminal defendants.

** I suspect that the officers in front of the vehicle did not fear for their lives because they stood there shooting instead of diving out of the way.  However, this is a difficult issue for myself, or a court or anyone to definitively opine upon.  It would not be a problem if courts established a simple rule that it is never reasonable to shoot at a fleeing motorist.

Written by Burgers Allday

July 1, 2018 at 10:29 am

Posted in Uncategorized

Police retaliation for refusing a request to allow a consensual search

leave a comment »

When determining the Constitutionality of police actions, courts are quite reluctant to look at the subjective motives of the police officer.  A classic example of this is the Supreme Court case of Whren v. United States, 517 U.S. 806 (1996).  In that case it was decided that police could perform a vehicle stop for a traffic infraction even if the stop was really a pretext to question the driver and perhaps find probable cause to search the vehicle for contraband.

However, this reluctance to look at subjective motivations becomes problematic when police do things that they are otherwise allowed to do because the officer wants to retaliate for the way a citizen exercises her Constitutional rights.  To give a hypothetical (and probably unrealistic) example, if a police officer started to give speeding tickets to every vehicle over the speed limit with a pro-Donald Trump stickers, and would never give speeding tickets to vehicles with pro-Hillary Clinton stickers, then this would likely be unConstitutional because it would be a form of retaliation against political speech protected by 1A.  This would be true even if all the Trump sticker vehicles were at least one mile per hour over the posted speed limit.*

Against that background, we are ready to plunge into today’s police4aqi case . . .

Case: Henning v. WALMART STORES INC., Court of Appeals, 11th Circuit 2018

What happened:  Someone complained that a plaintiff was taking unauthorized photography inside a McDonald’s restaurant.  While it seems to me that police could have refused to respond to the call for apparent lack of a crime, instead, Brevard County Sheriff’s Deputy Aimee Slater and Brevard County Sheriff’s Department Sergeant Dennis Casey decided to investigate the matter, engaging plaintiff in his van in the parking lot of the McDonald’s.  Slater and Casey wanted to seize plaintiff’s camera and search plaintiff’s van.  The officers claimed to be suspicious because the man had a child’s safety seat in the van.  Plaintiff refused consent and drove to WalMart to shop.  Deputy Slater followed plaintiff to WalMart with another deputy and Sgt. Casey proceeded to convince the store manager to kick plaintiff out of the WalMart.**  Plaintiff did not want to go, so the deputies physically removed him from the store and wrote up some kind of trespassing document and gave it to plaintiff while detaining him for about 15 minutes in the parking lot of the WalMart.***  Plaintiff sued (without a lawyer) for violation of his 4A rights.

Decision:  No violation of 4A because the store manager requested that plaintiff be removed from the WalMart.

Criticism:  This seems pretty outrageous to me.  It is clear that plaintiff was being retaliated against for refusing to give consent to search.  While police may normally have the prerogative to follow people around**** and to alert store managers to suspicious characters, this seems clearly wrong when the motive of the deputies is retaliation for refusal of a consent search.  It is a form of punishing a citizen for exercising her Constitutional rights, and Circuit Judges William Pryor, Jill Pryor and Anderson should have realized this even without a lot of help from eloquent legal briefing (bear in mind that plaintiff was in court pro se).


* I have encountered decisions where courts have seemed to assume that probable cause for arrest immunizes police from 1A retaliation claims, but this seems to me to be fundamentally at odds with the very nature of a 1A retaliation claim.

** It is interesting to note the words that the opinion uses to describe this part of the story: “Slater conveyed [plaintiff’s] location to Casey, who then contacted the store manager to explain his and Slater’s previous interaction with [plaintiff] at the McDonald’s.”

*** As I best understand it, it was not a ticket, but merely written notice that plaintiff was not allowed in the WalMart.

****  It is interesting to contemplate whether there are limits to how long a police office can follow somebody around without at least reasonable suspicion.  Of course, police have to be able to monitor people somewhat, but can the following around ever be so long and intrusive that it becomes unConstitutional stalking or harassment?  I have long had an eye out for a case on this but never found one.

Written by Burgers Allday

June 24, 2018 at 7:19 am

Posted in Uncategorized