police4aqi

Police, The Fourth Amendment, Qualified Immunity

21 June, 2018 17:23

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Written by Burgers Allday

June 21, 2018 at 4:53 pm

Posted in Uncategorized

Why didn’t Judge Miller deal with the reasonable suspicion issue?

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Case:  POLKINGHORN v. Liles, Dist. Court, SD Texas 2018

What happened:  Plaintiff, a “mentally incapacitated” adult, was out getting fast food with his mother. She was waiting in the car while he went to pick up the food. On his way to get the food, he threw out a “wallet accessory” (that is, a credit card holder) and allegedly held a shiny object in his hand. A police officer saw him and detained him on suspicion that he had stolen the wallet. Plaintiff tried to leave after some questioning and ended up threatening the police officer, and then got beaten up and arrested by her. No charges were brought against plaintiff, probably because he was mentally incapacitated and did not really understand what was going on. Plaintiff sued the police officer for excessive force through his guardian.

Decision:  QI for the police officer on excessive force claim.

Comments:  Judge Gray H. Miller showed little sympathy for the fact that the man was mentally incapacitated (and the police officer probably should have realized that at the time). However, this is not what piqued my interest in the opinion. Rather, what piqued my interest is that there did not seem to be reasonable suspicion for detainment, but for some reason, the District Judge Miller did not consider that as an issue in the case. That seems odd to me and seems like the judge should have raised it even if the plaintiff’s attorney did not.  Also, at the moment that Officer Liles grabbed plaintiff, it is not clear that he would have known he was being detained. If indeed it was not explained to plaintiff, in terms he could understand, that he was being detained prior to being grabbed, then the grabbing seems like a “battery” by the officer, and it also seems like the proximate cause of the bad things that eventuated a few moments later.

Written by Burgers Allday

June 21, 2018 at 3:11 am

Posted in Uncategorized

Officer Knolton tries to sidestep his way into the path of a vehicle — dumb move!

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Case: McGee v. KNOLTON, Court of Appeals, 6th Circuit 2018

Comment: the facts of this case strongly suggest that the Officer Knolton tried to place himself in the path of a moving car as an excuse to shoot the driver to death. This fact pattern comes up more often than one would think and more often than I would like. It is dangerous to the officer. Furthermore, under circumstances where it is not dangerous to the police officer (for example, a slowly moving car or the car is relatively far from the officer), it is still dangerous to the public, dangerous to innocent passengers and an infringement upon the 4A rights of the driver.

Criticism: While the court correctly held that there should be no qi for the police, its opinion could have been clearer that it looks like Madison County, Tennessee, Sheriff’s Sergeant Thomas Knolton was actively trying to put his body in the path of a vehicle that was apparently trying to avoid hitting him, and that this was a very bad thing for him to do.

Written by Burgers Allday

June 13, 2018 at 5:06 am

Posted in Uncategorized

Because police officer is in uniform, it is assumed that the man he killed knew he was police

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Case:  KASSELDER v. City of Mitchell, Dist. Court, D. South Dakota 2018

What happened:  Police officer shot a man to death with his own gun in, or near, an alley on a dark night. It appears that the police officer did not announce that he was police before trying to grab the decedent’s gun.*

Decision:  It is assumed that the decedent new the police officer was police because he was wearing a uniform with a badge and a nameplate.

Criticism:  It seems quite possible that the decedent did not see the badge and nameplate and did not know he was fighting over the gun with a policeman. This is one of those cases that shows why there used to be a rule that officers wear the distinctively shaped police hat.

FOOTNOTE:

* The officer claimed that his bodycam did not turn on when he tried to turn it on. Needless to say, this seems very fishy.

Written by Burgers Allday

June 3, 2018 at 1:41 pm

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The Power Of A Great Dissent

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Case:  Evans v. US, Court of Appeals, 6th Circuit 2018

Comment:  Bad opinion, great dissent

Dissent:

MERRITT, Circuit Judge, dissenting.

The Seventh Amendment requires that “the right to a trial by jury shall be preserved . . . according to the rules of the common law.” In other similar police shooting cases of this type in which there are disputes of fact, the court has insisted upon a jury trial. Withers v. City of Cleveland, 640 F. App’x 416 (6th Cir. 2016).

There is a dispute of fact here. First, plaintiff alleges that she only heard a loud banging on the front door of her mobile home. She did not hear any accompanying announcement. When she ran to the door and peered into the peephole, she saw individuals dressed in black and devoid of identifying markings. Those individuals kicked the door in with such force that they broke her nose and knocked her backwards. Then, an agent threw her facedown on the ground in the main room and handcuffed her. She attests that the agents still did not identify themselves at this point or provide her with a warrant. Second, plaintiff remained handcuffed close to the bedroom, but heard no talking, yelling, warnings, or commands coming from the bedroom. She asserts that she would have heard any such communications due to her proximity to the bedroom. However, she only heard two gunshots. Plaintiff’s two daughters, also present with her in the main room, corroborate her version of events. These alleged facts are pertinent and indicate an attitude and pattern of behavior on the agents’ behalf that a jury may find extreme and unwarranted. The dispute of fact may convince the jury that the officers’ alleged violent behavior caused the decedent to try to protect himself with a pistol in self-defense before he was killed. We have a long-standing tradition of trial by jury in these kind of cases. We should continue to honor that tradition.

Written by Burgers Allday

April 11, 2018 at 5:23 pm

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Did Miami-Dade Officer Miguel Carballosa plant concealed carry permit holder’s own gun to justify a bad shoot?

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This week’s midweek bonus case (up a bit early because I couldn’t wait) is fascinating and disturbing and not getting the attention that it deserves. We’ll start with the court’s recitation of the facts (edited to clarify names of the people involved and some of the relevant background):

According to Officer Miguel Carballosa, after hospital worker David N. Alexis pulled into his house, Alexis walked across the street towards Carballosa’s unmarked police vehicle [that was staking out the house across the street from Alexis’ house]. Officer Carballosa stated that while Alexis was walking towards him, Alexis’s right hand was concealed behind his back and thus Officer Carballosa could not see that hand. Alexis looked through the front windshield of the unmarked police vehicle. According to Carballosa, he then rolled down his window, identified himself as a police officer, and said “Let me see your hands.” Carballosa stated that Alexis said nothing, did not comply with Defendant’s commands, and instead backed away with his right hand still concealed behind his back. According to Defendant, as Alexis was backing away, Carballosa exited his vehicle, and Alexis brought his right hand around, revealing that he was holding a gun. Defendant stated that Alexis was holding his gun “outward, low, ready and it appeared like it was coming upwards.” Carballosa stated that when he saw Alexis’s gun, he immediately discharged his weapon, firing multiple times and killing Alexis.  . . .

As Officer Carballosa was firing his weapon, Alexis’ friend Acevedo pulled up. Acevedo saw Defendant standing in the middle of the street shooting at Alexis. According to Acevedo, Alexis was screaming and turning to run inside his house. Acevedo did not see a gun in Alexis’s hand or on the street. Acevedo was scared so she did a U-turn and called 911. Acevedo later returned to the scene and spoke with police officers. Acevedo told the officers that she had previously seen Alexis carry a gun on his person and in his car. Officers discovered that Alexis had a concealed carry permit and found a gun registered to Alexis on the street.

As noted, Carballosa testified that Alexis failed to comply with Defendant’s commands and further that Alexis’s right hand moved forward and up. The expert on the proper use of police force hired by Alexis’ estate in the lawsuit, Joseph Stine, disagreed, testifying that under Carballosa’s version of events, Plaintiff had complied with Officer Carballosa’s commands. That is, Carballosa had told Alexis, “Show me your hands,” and never told him to drop his gun. Alexis complied with that directive, according to the expert.

As to whether evidence existed to dispute Carballosa’s claim that Alexis was armed at the time he was shot, an expert witness on firearms and ammunition, Gerald Styers, testified that in his opinion there was evidence to support an inference that Alexis was not holding a gun at the time he was shot. First, Alexis’s gun had been found 20 feet away from Alexis’s body. Styers also noted that Alexis’s gun had been found among the spent shell casings that had fallen when Officer Carballosa fired his gun and that Carballosa’s gun ejects its cartridge cases to the right and to the rear of the gun. Styers also discounted as an explanation for Alexis’s gun being near where Carballosa fired his own gun the possibility that Alexis had thrown the gun* because Styers found no markings or gouges on the gun, which he would have expected to find because the gun would have landed on asphalt. All of this led Styers to conclude that Alexis “was not in possession of the firearm when he was fired . . . upon.”

FOOTNOTE:
* Notably, Officer Carballosa never said that Alexis threw the gun or offered any explanation how Alexis’s gun happened to find itself near where Defendant would have been standing when Defendant shot Alexis. Further, in the report and recommendation, adopted by the district court when it denied summary judgment, the magistrate judge noted that Carballosa’s various accounts were “inconsistent and contradictory” concerning “when, where, and how” Carballosa had perceived the possession of a gun by Alexis, as well as other material facts concerning Carballosa’s encounter with Alexis.

Case: MIGHTY v. Miami-Dade County, Court of Appeals, 11th Circuit 2018

First comment:  Why was this not investigated as a murder case by the police?  Assuming that they did not investigate it as a murder case, I hope that Alexis’ estate brought claims for failure to investigate.  There is no duty to protect, but, at least police often claim, they do have a duty to investigate crimes after they occur.  That seems like it didn’t happen here.  A plaintiff in a civil suit should not be the lead investigators, which seems to be exactly what is happening here.

Second comment:  I do not think that undercover police should be empowered to do Terry stops (and should probably also be severely restricted in their power to arrest).  This case shows why.

Third comment:  Sometimes carrying a gun makes one less safe, rather than more safe.  For example, if a bunch of teachers and/or students had guns at Parkland, then it seems quite possible that there would have been more casualties once the police showed up.  I am reluctant to criticize the dead, but it seems likely that David N. Alexis would still be alive if he did not feel empowered to check out the suspicious vehicle across the street from his house, instead of ignoring it or calling 911.  I hasten to add that this assumes that Alexis really did approach Carballosa, rather than vice versa.

Criticism:  I think that the court should have used the word planting, and been more forthright in saying the following:  there is considerable circumstantial evidence tending to show that police officer(s) planted a dead man’s own gun.  The opinion says this in substance, but not nearly as clearly as it should.

Written by Burgers Allday

April 1, 2018 at 4:28 am

Posted in Uncategorized

Who was driving the car?

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Case:  Richter v. Pennsylvania State Police, Dist. Court, WD Pennsylvania 2018
What happened:  A car with two occupants left a bar and got into a single vehicle crash where one occupant died.  Three witnesses said that the occupant that perished was the person driving the car.  Police investigators prepared a crash report that stated that, based on “crash dynamics,” the surviving occupant was the one driving the car.  Police charged the surviving occupant with vehicular homicide by drunk driving.  She was acquitted.  Then, she sued police for false arrest (that is, an arrest not based on “probable cause”) and became the plaintiff in the present civil suit.

Decision:  Judge Bissoon held no QI for the police because a jury could find that the situation surrounding the charging and arrest lacked probable cause.

Comment:  This was an interesting case for me because it comes down primarily to trying to balance: (i) the possibility of human witness bias, on the part of the witnesses who said plaintiff was not the driver; against (ii) the possibility of bias in forensic analysis on the part of a police investigator.  On the one hand, the witnesses may not have wanted to see a drinking buddy go to prison.  On the other hand, the police investigator is paid to help police bring cases, and putting people convicted of drunk driving behind bars is good public relations.  Just because bias is possible on either side of this case doesn’t mean that there was bias.  It would be interesting to see a jury trial that explored these possibilities based on evidence and then asked a jury to decide how a reasonable police officer would have netted things out when it was time to decide whether or not to criminally charge plaintiff.

Another comment:  I think that a lot more info needs to be developed before one could make any sort of intelligent and impartial guess about the existence of probable cause here.  This case will probably settle prior to trial —  I doubt the police want a well-funded* lawyer working to poke holes in the work of their forensic investigator.  Glad the case was not nipped in the bud by QI here.

 

FOOTNOTE:

* Whether funded by hourly fees and costs or expectation of contingency fees — this doesn’t matter, but what does matter is that civil lawyers generally don’t work for cheap.

Written by Burgers Allday

March 30, 2018 at 11:24 am

Posted in Uncategorized