Detectives Who Can't Tell Black From White Need To Get Better Appellate Lawyers

MILLER v. PRINCE GEORGE'S COUNTY, USCA-4 No. 05-2250, http://pacer.ca4.uscourts.gov/dailyopinions/opinion.pdf/052250.P.pdf,
on appeal from USDC-MDD, before Michael, Motz, and King, Circuit Judges, opinion by Motz, filed 22 Jan 2007.

LONG STORY SHORT: Plaintiff presented substantial evidence that the detective who obtained the warrant for Plaintiff's arrest knew that the suspect was white, but disregarded or misrepresented records showing that Plaintiff was black, which a reasonable officer would have known to be a violation of constitutional rights. Binding in MD, NC, SC, VA, WV.

FACTS: On 29 May 2004, Virginia State Trooper Ward observed that Plaintiff's vehicle did not have a front license plate. During the traffic stop, Trooper Ward discovered a warrant from Plaintiff's home state of Maryland for the arrest of someone who matched Plaintiff's name, birthdate, and description, except that Plaintiff was black and the warrant said he was white. Trooper Ward arrested Plaintiff, who spent 19 days incarcerated in Virginia before the charges of theft and second-degree burglary against him were dismissed.

Plaintiff discovered that the warrant resulted from the investigation of Detective Dougans of the Prince George's County PD into the 23 July 2002 theft of a lawnmower from a residence. The victim and a witness had seen a green Jeep Cherokee with light wood paneling circling the neighborhood 15 times just before the lawnmower disappeared, and the victim knew that Daniel Miller, a reputed petty criminal, owned such a vehicle and often stayed at his sister's place. Indeed, police recovered the lawnmower from that residence the same day of the theft. Detective Dougans learned from witnesses that Daniel Miller was a 25-year-old skinny white male.

Detective Dougans searched the local criminal database for Millers and found a record for Plaintiff, which incorrectly stated Plaintiff was white but correctly noted his age of 35 and gave Plaintiff's valid driver license number. Detective Dougans then looked up Plaintiff's DL in the Maryland Motor Vehicle Administration records, which correctly described him as black and also correctly noted that Plaintiff had owned a Jeep, but had turned in the tag three years ago (MVA SOP was to securely store turned-in tags until their destruction), and the suspect Jeep Cherokee could not possibly have displayed that tag. Detective Dougans then searched the Maryland state criminal database for a white man who otherwise matched Plaintiff, and found no such record. That was the end of Detective Dougans' investigation. Later, he testified that he had gotten the information describing Plaintiff by searching for Plaintiff's turned-in tag in MVA records, but Sergeant Lee of MVA's records section testified that MVA records showed no evidence of any such search. Also, Detective Dougans claimed to have written down the turned-in tag number on a slip of paper, but no such note was in the case file.

Five months later, Detective Dougans filed an application for charges against Plaintiff. In support, he swore out an affidavit stating that a witness had seen Plaintiff's former license tag on the suspect Jeep, that the suspect Jeep belonged to Plaintiff, and giving Plaintiff's race as white but otherwise correctly describing him. The magistrate issued the warrant that same day.

PROCEDURE: Plaintiff sued Prince George's County and Detective Dougans in U.S. District Court for the District of Maryland for allegedly violating his Fourth Amendment rights per 42 U.S.C. § 1983 and for false arrest and malicious prosecution under Maryland law, specifically that the warrant affidavit contained deliberate or reckless material falsehoods, and consequently was so misleading that it could not have supported probable cause. Defendants moved for summary judgment, arguing that their actions did not violate Plaintiff's constitutional rights, and even if they did, Defendants were entitled to qualified immunity. Defendants further argued that false arrest was inapplicable because no Defendant actually arrested Plaintiff, and the warrant affidavit made probable cause, foreclosing malicious prosecution. The trial court agreed. SUMMARY JUDGMENT GRANTED in all respects; case dismissed.

Plaintiff appealed to the U.S. Court of Appeals for the Fourth Circuit, arguing that the facts as taken most favorably to him could not support summary judgment. In his appellate brief, Detective Dougans conceded that certain of his statements or omissions were material, but claimed that he really had searched MVA records for the turned-in tag; argued the he had subjectively meant to obtain a warrant to arrest a white man; disputed Plaintiff's version of other facts; and disparaged Plaintiff's case as without evidentiary support and entirely based on mischaracterizations and conjecture.

DECISION: To obtain qualified immunity, an officer must show that either his conduct did not violate any constitutional right, or that the violated right had not been clearly established at the time of his actions. As to the first part, Plaintiff had to show that Detective Dougans not only put material falsehoods in the warrant affidavit (and/or that he omitted facts that would have negated probable cause), and that such falsehoods were deliberate or in reckless disregard for the truth, but also that if the false information were taken out (and/or omitted facts put back in), the rest of the affidavit would not establish probable cause.

The Fourth Circuit examined the record and found evidence that Detective Dougans intentionally or recklessly misrepresented that a witness had given him the turned-in tag number, misrepresented that he had searched for Plaintiff's turned-in tag, and omitted that his state criminal database search for a white man otherwise matching Plaintiff's description turned up nothing. After correcting for these errors, the affidavit would have at most applied for the arrest of a white man of the Plaintiff's first and last name, and therefore did not make probable cause for Plaintiff's arrest. The fact that some other officer served the warrant did not save Detective Dougans from Fourth Amendment liability, because he was the one who applied for its issuance when he knew about the lack of probable cause. (However, it did save him and the County from Maryland state false arrest claims; only the actual arresting officer can be liable for that.) Lack of probable cause is also evidence of malice supporting the Maryland tort of false arrest.

Since a reasonable jury could find that Detective Dougans had violated Plaintiff's Fourth Amendment rights, the Fourth Circuit considered whether those rights were clearly established when Detective Dougans swore out the misleading warrant, and ruled that for at least ten years, binding precedent had forbidden officers to mislead magistrates into issuing warrants that the offending officers knew were without probable cause. Under no reasonable reading of the record could Detective Dougans be entitled to qualified immunity.

The Fourth Circuit heavily criticized Detective Dougans' derogatory and erroneous statements about Plaintiff's case, noting the impropriety of trying to use the appellate process to dispute heretofore undisputed facts. Many of Detective Dougans' cited cases actually undercut his position instead of supporting it. Plaintiff had made a substantial preliminary showing of serious constitutional violations, and if anyone's case relied chiefly on supposition and error, it was Detective Dougans'. SUMMARY JUDGMENT AFFIRMED as to the Maryland false arrest claim; REVERSED in all other respects.

EDITORIAL: Bravo Zulu, Fourth Circuit! Cases like these are the very reason why we have appellate courts--to correct obvious screwups at the trial level. Two thumbs down, WAY down, for the detective and his lawyer. Together, they are a textbook illustration of the difference between a dumbass and an assclown. A mere dumbass waits five months between investigation and warrant, by which time all details have been long forgotten and the file is all there is to go on. Shoulda taped that little note paper in there!

An assclown decides (assumes? hopes?) that appellate judges and their law clerks will believe whatever hooey they serve up in the brief, and not take a few minutes to read transcripts and affidavits, or pull and read cited cases. Said assclown is in for an unpleasant surprise, because judges and clerks DO check up on appellate lawyers--and they DO keep private lists of bullcrap artists who try to sleaze their way to victory. Assclowns abound in the insurance defense community, but government lawyers ought to know far better.

Argue the facts and law as they really are, take your lumps as they come, and move on--works for me, and might well have worked here. Instead, it looks like His Highness Prince George of County will be whipping out the royal checkbook. And all because of a used lawnmower that wasn't gone for even a whole day. What a way to run a railroad.