Police, The Fourth Amendment, Qualified Immunity

What is the basis for reasonable suspicion here?

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Case:  Flanigan v. PANIN (6th Circuit 2018)

What happened:

Flanigan’s excessive-force claim against Panin arises from his arrest by Panin. On the morning of the incident, Flanigan was walking in Clarkston, Michigan. Around that time, Panin received a dispatch call about a suspicious person. Nothing in the dispatch call indicated that the suspicious person was assaultive.

While Flanigan was walking, Panin stopped him and told him to freeze. Panin came within ten to twenty feet of Flanigan, but he had not said anything when Flanigan turned and started to walk away. Flanigan believed that, because he had done nothing wrong, he did not need to stay and talk with Panin. Panin then asked Flanigan to come speak with him and Flanigan “began to slightly engage in conversation” with Panin. However, after Flanigan did not give Panin his name, Panin told Flanigan that he would be handcuffed.

A foot chase ensued. During the course of events, Panin tased Flanigan twice. Flanigan thought he had gotten away from Panin when he made it to the backyard of a friend’s house, but Panin soon caught up. Flanigan was lying on the ground when Panin appeared. Panin then maced Flanigan and hit him in the head fifteen to twenty times before placing him in handcuffs.

Decision: Excessive force may have been used against the plaintiff by Officer Panin. There was a dissent by Judge Kethledge opining that Officer Panin should receive qualified immunity.

Comment: This case seems to be missing an analysis of whether the initial stop was supported by “reasonable suspicion.” Why did the call say that the suspicious person was suspicious? Was the call anonymous? Was there any reason to believe that the plaintiff was the suspicious person who was the subject of the call? Given that there was no evidence a crime had been committed, did Officer Panin have the right to demand plaintiff’s name?

Written by Burgers Allday

February 10, 2018 at 9:40 am

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Did San Mateo PD lie about having grounds for “reasonable suspicion”

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In the past couple of weeks there has been a spate of stories about Baltimore police possibly planting evidence (toy guns, soup cans with drugs).  Recognizing, or, more precisely, failing to recognize, police dishonesty is a main concern of this blog.  The improbable stories that police officers tell in Fourth Amendment qualified immunity cases are a big reason why police 4a qi cases are interesting to me.

Today’s case raises an issue analogous to the determination of when evidence planting has occurred — an issue  that is more subtle and even more interesting, at least to me.  This issue is:  how can we tell when police are lying about having grounds for reasonable suspicion (RS).  This issue isn’t raised by many cases, I would guess for three main reasons:

(i) if the made up RS leads to arrest and trial of a guilty person then you have a very unsympathetic litigant who may well choose not to make an accusation of police dishonesty due to perceived futility;

(ii) if it was an innocent person who was stopped, frisked and released, then she really isn’t going to have the kind of damages to make it worthwhile to bring a civil suit against the police; and

(iii)  it is difficult to know whether police are lying about RS because all of the evidence needed to prove the lie is in the control and custody of police.

I made item (iii) all bold and italics because this is the issue that I would like future courts to address head on when the issue of allegedly made up RS does come up in court.  So, that was a long preamble to this week’s POLICE4AQI case:

King v. City of San Mateo, Case No. 17-cv-04618-DMR, (ND Cal 2018)

The plaintiff, Mr. King, is proceeding pro se (that is, not represented by counsel), perhaps due to a perception that damages, if any, would be low per item (ii),above. The San Mateo police stopped him when he was on his way from work to the bus at one thirty in the morning. Mr. King was persuaded to pull a couple of items from his rucksack, made to lie on the ground, surrounded by several police officers and dogs, and was forced to given identification to an angry police officer named Officer Barker. He was detained for twenty minutes. As far as the reason for the stop, at the scene of the stop, Mr. King was allegedly told that he was suspected of “carrying wearing stolen rucksack/clothing.”

He was unhappy that the fact that he was regarded as a “suspicious person” was made a public record. So, he began his quest for justice with the San Mateo PD by complaining to them. A couple of months after the stop, Mr. King received the following further explanation from the San Mateo PD:

Please understand there was a burglary less than a mile away at 1:07am where a backpack was taken. The witness to the incident said the suspect was carrying the backpack.

Please understand you are not listed in the burglary report and there was no mention of your name. We do not consider you to be a witness or victim in this incident. You were contacted based on circumstances such as wearing a backpack while walking the streets in the early morning hours less than a mile from the incident and within minutes of the burglary taking place.

Now, if this is true, it almost certainly would amount to reasonable suspicion for the stop and the demand for identification. But, is it true? Will the court give Mr. King sufficient discovery to probe the truth / falsity of this explanation? Will Mr. King, as a pro se, be able to conduct effective discovery? What should happen to the San Mateo PD if they are lying?

This is all hugely interesting to me because I think there is a pretty good chance that the story of the burglary is a lie. I think there is a good chance it is a lie because the San Mateo PD didn’t think that Mr. King would make a federal case out of it, or, if he did, then the court would nip the case in the bud. Even if some court were to allow discovery, then it would not be difficult to type up a fake burglary report with some redacted victim and witness names. In other words, I think there is a good chance that there was a lie here because if the San Mateo police officers were corrupt enough to be inclined to lie in the first place, then they would know it would be highly unlikely they would ever be caught. Further enhancing the probability that a lie happened is the sentiment that many people would have if they heard about this story: a guy was made to lie on the ground and show his id — so what?

Well, I, for one, think the possibility of a police lie here is a big deal. I would like to see / hear not just the police report of the alleged burglary and the 911 call, but also deposition testimony from the victims and witnesses. This is probably not going to happen, but, I am happy to report that the court refused to dismiss Mr. King’s case, and I sincerely hope he gets to the bottom of whether the San Mateo police are telling the truth or lying here. Even if they are telling the truth, maybe they can learn to be a little more forthcoming and candid next time, without making somebody make a federal case out of it.

Written by Burgers Allday

February 3, 2018 at 7:18 am

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Dismissal of criminal charge in exchange for stipulation of probable cause

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Phillips v. Manning, Dist. Court, ND Ohio 2018

What happened: Criminal court’s “journal” showed that she stipulated to probable cause for her arrest as part of a deal for dismissal of charges. District Court held that that was sufficient to preclude a civil claim for false arrest.

Burger’s Review:  Thumbs down


First of all, I don’t think this reflects the law — that is, I don’t think the executive branch can use deals regarding criminal charges to preemptively bargain away any later possible civil suits.

Second, if what happened here is not illegal then it should be. It provides bad incentives to have potential police misconduct compromise impartial and evenhanded handling of criminal charges.

Third, plaintiff said that she didn’t make the stipulation that the criminal court’s “journal” (not a transcript, by the way) reflected. Court refused to entertain the argument that the journal could be inaccurate. Not fair.

Fourth, because the journal did not include a transcript of the alleged stipulation of the existence of probable cause, it is impossible to tell whether any such stipulation was properly informed as to later consequences (most notably, the foreclosure of a later civil claim for false arrest).

Written by Burgers Allday

January 29, 2018 at 7:57 am

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District Court reversed in Alexander v. Round Rock!

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I posted at length, criticizing the Magistrate Judge Mark Lane’s opinion and decisions in Alexander v. Round Rock.

Happily, the Fifth Circuit has now reversed most of those decisions on appeal, including the decision on “reasonable suspicion,” which was a primary focus of my earlier criticisms of Magistrate Judge Lane’s opinion.

Looking back at my blog entry on the district court case, I owe an apology to plaintiff’s counsel because I accused plaintiff’s counsel of not raising retaliation claims.  The appellate court opinion makes it clear that those issues were raised and preserved for appeal.  Sadly, the appellate court gave the popo qualified immunity on the retaliation claims.  Here is a post at the Volokh Conspiracy blog criticizing the award of qi on the 5A retaliation claim.  I also believe that qi was inappropriate on the 1A retaliation claim because police should be considered to be on notice that retaliation for an exercise of free speech always was, is, and hopefully always will be unConstitiutonal.  Given that notice, I believe that there should be no qualified immunity available on 1A retaliation claims and categorically so, by the very logic of the immunity itself.

Written by Burgers Allday

April 23, 2017 at 8:09 am

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Link to headnotes for a couple interesting police 4A QI cases

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Part of the reason I am on hiatus is that other blogs are doing a great job covering the cases I would normally cover here.  This week there were three police 4A QI type cases I would have blogged, but they are all very capably synopsized at this Volokh Conspiracy (VC) post:


Written by Burgers Allday

April 4, 2017 at 6:06 am

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Sent from my iPod

Written by Burgers Allday

March 9, 2017 at 5:49 pm

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Bye for now

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I am going to take a break from this blog.  Couple reasons for that:

  •  other blogs are doing a pretty good job covering the kind of cases that I used to have “all to myself”
  • gotten busy in the real world with family and professional issues

Wanted to thank my readers.  I don’t think there were many of you, but I know there were some, and that is gratifying to me.  If you want to get in touch with me for some reason:

creativityistheengine (at) gmail.com



The way I found cases to blog about was to just do a GOOGLE Scholar search using the following search string:  “fourth amendment” “qualified immunity” (hence the name, 4aqi).  Every week there are plenty of new cases to read.  I would go so far as to recommend that interested non-lawyers try this because most 4aqi court opinions discuss the facts, and factual disputes, separately from the legal mumbo jumbo, and the fact sections are usually clear and coherent (although they can be slanted and manipulative, too).  The point is, you don’t have to be a lawyer to at least know what happened “on the street” in most of these cases.  To me it is always more interesting and relevant than my local newspaper.

Other websites that cover 4aqi stories:

Radley Balko’s The Watch blog at WaPo  (Radley is the best and has been for a long time)

Volokh Conspiracy (especially their federal court roundups that they started recently)

Fault Lines blog at Mimesis Law (various posts have different, often clashing, perspectives, which keeps it lively)

Cop Talk sub-forum in the Glock Talk forums (best place for a rank and file policeman’s perspective — it is not always pretty)

AmIFreeToGo forum on Reddit (used to be better)


Written by Burgers Allday

March 6, 2017 at 8:42 am

Posted in Uncategorized