SCOTT v. HARRIS, SCOTUS No. 05-1631, http://www.supremecourtus.gov/opinions/06pdf/05-1631.pdf , on certiorari from USCA-11, opinion by Scalia, concurrences by Ginsburg, Breyer, dissent by Stevens, filed 30 Apr 2007.
LONG STORY SHORT: Police use of force to cause high-speed reckless driver to crash, thereby preventing him from posing further danger of death or serious harm to others, was a reasonable seizure and not a violation of the Fourth Amendment. Binding on ALL courts in and of the United States.
FACTS: At about 2230 one night, Deputy clocked Plaintiff at 73 in a 55 and activated his blue lights. Plaintiff continued on at speeds exceeding 85, down a mostly two-lane road as other officers, including Defendant, joined the pursuit. Plaintiff slowed down and entered a shopping center parking lot, but as officers almost had him boxed in, Plaintiff drove off again, colliding with and damaging Defendant's marked police car. Defendant became the lead unit in the chase [Note: On the tape, Defendant says "78, let me get him, my car's already tore up."] and followed Plaintiff through the night, with blue lights and siren on.
The videotape showed Plaintiff crossing double yellow lines, running through red lights, and swerving around cars on the road; other vehicles had already pulled over as the pursuit passed them. Six minutes and ten miles after the chase had begun, Defendant requested permission to perform a PIT maneuver (pursuit intervention technique that spins out the subject vehicle without damage to it or the pursuer unless they hit some other object), and Defendant's supervisor said "take him out." Defendant judged that he was unable to safely PIT Plaintiff, and instead accelerated enough to tap Plaintiff's rear bumper. [Note: On the tape, Defendant says "This'll be a real bad 10-50."] Plaintiff lost control and his vehicle ran off the road and into a light pole, rendering Plaintiff a permanent quadriplegic.
PROCEDURE: Plaintiff sued Defendant in U.S. District Court for the Northern District of Georgia per 42 U.S.C. § 1983 for excessive force and unreasonable seizure in violation of the Fourth Amendment. After discovery, which included production of the dashboard camera videotapes of the pursuing officers, Defendant moved for summary judgment on qualified immunity grounds, arguing that Plaintiff's actions posed such a serious hazard to life and safety of innocent people that Defendant's use of force to stop him was reasonable. The trial court ruled that issues of material fact remained, and a reasonable jury could find that Defendant's use of force was unreasonable. QUALIFIED IMMUNITY DENIED.
Defendant appealed to the U.S. Court of Appeals for the Eleventh Circuit, which viewed the dash-cam tapes as part of its record review, and ruled that Defendant's pushing Plaintiff's car amounted to deadly force. The Eleventh Circuit evaluated the tapes as showing mostly empty roads and Plaintiff maintaining control of his vehicle, posing little threat to pedestrians and other motorists. On the facts so far, held the Eleventh Circuit, a reasonable jury could find that Defendant unreasonably seized Plaintiff and violated his Fourth Amendment rights. Also, it was clear to a reasonable officer at the time that ramming Plaintiff's vehicle was illegal, if the jury found the facts to be as Plaintiff alleged. DENIAL OF QUALIFIED IMMUNITY AFFIRMED. Defendant petitioned the Supreme Court of the United States for certiorari review, which was granted.
DECISION: Because the case arrived directly from the summary judgment stage, no jury had found any facts. Plaintiff's and Defendant's versions of the facts were understandably at odds, and often would be unreviewable, but as it happened, here the whole chase was on videotape. No one claimed that the tapes were altered or otherwise unfair, so they were fair game to help establish whether a reasonable factfinder could see things Plaintiff's way. Upon viewing the tapes, the Supreme Court ruled that the video evidence of a hair-raising high-speed Hollywood-style chase so totally discredited Plaintiff's version of the facts that no reasonable jury could possibly believe him. The Eleventh Circuit was in error, and should have viewed the facts in the light depicted by the videotape.
Next, the Supreme Court had to follow its own precedent and analyze Defendant's qualified immunity defense in two steps, first by deciding whether Defendant's actions violated one or more of Plaintiff's constitutional rights, and second, whether any violation was clearly established to reasonable officers at the time. Supreme Court precedent firmly established that officers must have probable cause to believe that a fleeing subject posed an immediate threat of serious physical harm to officers or others, that deadly force was the only way to stop the threat, and that when feasible the subject had warning that deadly force was about to happen. For example, shooting a young, skinny, unarmed man in the back of the head to keep him from getting away after a petty burglary would be unreasonable.
However, that example (Tennessee v. Garner to be exact) did not create a magical on/off switch triggering rigid preconditions to use of deadly force; it was just one application, among many, of the Fourth Amendment's reasonableness test. The facts here were very different, chiefly that Plaintiff's flight in a motor vehicle was itself the danger. Neither was the wrecking of Plaintiff's vehicle the near-certain death that a gunshot to the head would be. Plaintiff deliberately placed many people in grave danger, ignored blue lights and sirens, and had only himself to blame. The Supreme Court readily agreed with Defendant's application of force to the one, in order to protect the many.
Neither should Defendant have felt obligated to terminate pursuit and let Plaintiff go, in hopes that Plaintiff would slow down and calm down. First, Defendant had no assurance that Plaintiff would do that; for all Defendant knew, Plaintiff would figure that the police were taking a shortcut or calling ahead for a roadblock, and would keep on going. Second, should the Supreme Court set a rule that police must always terminate pursuit when subjects drive fast and recklessly enough, then all anybody has to do to escape police is to, well, drive fast and recklessly enough. This policy would reward scofflaws with immunity.
The rule, instead, shall be: A police officer's attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death. Defendant is entitled to summary judgment in his favor. DENIAL OF QUALIFIED IMMUNITY REVERSED.
Justice Ginsburg's concurrence agreed with the result under these specific facts, but would not have set down the rule in the preceding paragraph, because such cases are so fact-specific.
Justice Breyer's concurrence agreed with the result under these specific facts, and agreed that the Court should not try to make one simple rule governing such cases. Justice Breyer also would have the Court recede from its rigid two-step qualified immunity analysis. Sometimes it makes more sense to go on with the second step (whether the law was clearly established at the time) and respect the traditional judicial reluctance to decide constitutional issues, instead of wasting judicial resources on the first step (did the officer's conduct violate constitutional rights) and unnecessarily address the Constitution when there is some way around it.
Justice Stevens' dissent would have affirmed the Eleventh Circuit and let the case go to trial. Upon his own viewing of the tape, he did not see any danger sufficient to justify Defendant's wrecking of Plaintiff, who often used his turn signal, did not run anyone off the road, and generally was not the stuff of Hollywood. The police could have abandoned the chase and arrested Plaintiff later, as many police department policies would dictate. The Court usurped the jury's factfinding function and should not have set a per se rule for interrupting police pursuits.
EDITORIAL: Everybody go to the Supreme Court website, www.supremecourtus.gov , and download that dash-cam tape (you'll need RealPlayer) to see what they're talking about. You half expect to hear Sheriff John Bunnell doing a voiceover. I'll say it's not THE worst chase video I've ever seen, but it ranks right up there. Sure enough, this knucklehead is speeding, crossing double yellow lines, running stoplights, and taking it to the parking lot. I saw exactly why the defendant officer said his car was already tore up--because Crash Test Dummy rammed him! So you have a driver using serious or deadly force against an officer--and then running off for more of the same--in the middle of the night down dark country roads, and the Eleventh Circuit says "well, okeydoke!"? Pray givest thou unto me a break.
In a footnote, Justice Stevens says the real problem is that the eight young whippersnappers sitting next to him didn't learn to drive properly; that is, they grew up on four-lane interstates, while when HE was coming up, people knew how to pass slowpokes correctly even on two-lane roads. Kids these days! (It's supposed to have been the original Chief Justice, John Marshall, who first moaned "oh, to be 70 again.") Sorry, Justice Stevens, some of us still drive mostly on two-lane roads, and I can garontee, that guy was off the chain. It means nothing to me that some drivers had the good sense to pull over before the chase got there, because the roadside is dangerous and you can get run over when sitting dead still. Also, you can't hear police sirens (as opposed to ambulance and firetruck sirens) until they're almost on you, regardless of what the DOT tests certify.
So we now have more or less a blank check for terminating dangerous pursuits any which way we can. This decision SEEMS to legalize even firing shots at a vehicle so long as you don't aim to kill anybody. But remember, while you may not have any Fourth Amendment/Section 1983 problem, you may have a BIG state-law problem if your state legislatures step into the gap, and a BIG unemployment problem if what you did gets ruled "out of policy." You also have to live with what you do, which in this case, was putting a 19-year-old in a wheelchair forever. I guess it's only slightly less bad than HIM doing the same or worse to others. Lord's peace on Deputy Scott, and may you never have to do anything like that again.
Monday, April 30, 2007
Saturday, April 28, 2007
Yes, You CAN Get Sued If You Carry Double-Action Pistols Without Manual Safeties
LYONS v. CITY OF CONWAY, USDC-ARED No. 4:04CV02303-JLH, 2007 U.S.Dist. LEXIS 29871, before USDJ Holmes, filed 23 Apr 2007.
LONG STORY SHORT: Officer's discharge of double-action pistol lacking manual safety, wounding subject he was arresting, was an unreasonable seizure if intentional; but departmental policy of issuing .45-caliber hollowpoint ammunition was constitutional. Not binding anywhere, but may be persuasive.
FACTS: Defendant, a sergeant of the Conway, AR PD, responded to a report of someone shoplifting steaks at a Kroger store. A Kroger employee advised Defendant that he had chased Plaintiff, the suspect, who hid in a fenced area behind a restaurant. Defendant and his partner looked through slats in the fence to see Plaintiff in a crouched position. Not knowing whether Plaintiff was armed or dangerous, the officers entered the fence and turned to face Plaintiff with their pistols in hand, but not cocked. Defendant was carrying his department-issued SIG P220. [Note: The P220 is normally carried with a full magazine, loaded chamber, and hammer down, but can be deliberately cocked for a lighter trigger pull.] Defendant ordered Plaintiff to get up and approach the officers, and Plaintiff complied. The officers could see that Plaintiff was probably not armed, and Defendant ordered Plaintiff to get on the ground.
Plaintiff began to comply, and the officers approached him on either side, each grabbing a shoulder. Plaintiff was on all fours "like a frog on a lily pad" and could not see what Defendant was doing. Defendant testified that he was simultaneously struggling with Plaintiff and trying to holster his pistol. The other officer testified that Defendant was pawing at his uniform coat and having trouble holstering his pistol. All agreed that Defendant's pistol discharged once, sending a .45-caliber hollowpoint bullet into Plaintiff's shoulder. The projectile exited Plaintiff's underarm and lodged in the top of his thigh. The other officer had turned his attention back to Plaintiff, and neither he nor Plaintiff saw the actual shot. Defendant testified that the shot was completely accidental, and even Plaintiff admitted that Defendant looked very upset after the shot.
Defendant thereafter suffered dizzy spells whenever he had to take a call, and was so nervous about drawing his pistol that he never again did so, even when he should have. Defendant soon left regular police work and became an unarmed code enforcement officer. Firearms experts tested Defendant's P220, impacting its sides in the way Defendant described the events, and could not make it fire by any other means than pulling the trigger. The P220 has a decocker, but no manual safety device. If about 13.5 pounds of force is applied to a P220's trigger, it will fire if a cartridge is in the chamber. An internal affairs investigation concluded that Defendant's pistol fired because Defendant had his finger inside the trigger guard.
PROCEDURE: Plaintiff sued Defendant and the City of Conway in U.S. District Court for the Eastern District of Arkansas per 42 U.S.C. § 1983 for violating his Fourth Amendment right to be free from excessive force and unreasonable seizure. Plaintiff admitted that Defendant had probable cause to arrest him, but claimed that Defendant deliberately shot him when he posed no threat of death or serious bodily harm, and that the City's policy of issuing .45-caliber pistols loaded with hollowpoint bullets, but without manual safeties, amounted to a policy of deliberately inflicting maximum harm on arrestees. After discovery, Defendant moved for summary judgment on qualified immunity grounds, arguing that Plaintiff had no evidence that the shot was deliberate. The City moved for summary judgment, arguing that its gun and ammunition policies were meant only to inflict maximum harm on subjects who posed deadly threats.
DECISION: Whether the force an officer used was reasonable depends on the totality of the circumstances, which include the severity of the crime (misdemeanor shoplifting), whether the suspect poses an immediate threat to the safety of officers or others (Plaintiff did not), and whether the suspect is actively resisting arrest or fleeing (Plaintiff was not). A reasonable jury could conclude that no reasonable officer would have shot Plaintiff under the circumstances.
However, the Fourth Amendment governs only intentional government actions. If Defendant's shot was not intentional, then Plaintiff suffered no constitutional violation. Intent is normally a question of fact. In Defendant's favor was his and the other officer's testimony that the shot was completely an accident during attempted reholstering. Against Defendant were the IA finding that he had his finger inside the trigger guard, and the lab tests confirming that Defendant's P220 would not discharge except by trigger action. Defendant's obvious state of upset immediately after the shot and Defendant's subsequent inability to function as an armed police officer did not tilt one way or the other, because these consequences could have resulted from factors other than Defendant's dismay at having accidentally shot somebody. Plaintiff therefore showed that a genuine issue of material fact as to Defendant's intent still existed. QUALIFIED IMMUNITY DENIED as to Defendant.
On the other hand, the City showed good reason for issuing large-caliber pistols with hollowpoint bullets, to wit, so police officers could inflict maximum harm on suspects in deadly force situations. This policy was neither arbitrary nor conscience-shocking. Plaintiff also could not show that Defendant was carrying out any policy or custom of the City if he intentionally shot Plaintiff, nor could the City be liable under respondeat superior if Defendant accidentally shot Plaintiff. SUMMARY JUDGMENT GRANTED for the City.
EDITORIAL: Of course it was accidental! Wonder if it might even have been a fold of clothing that got snagged in the trigger guard as he was trying to holster it. If it did happen like IA said it did, then this was a violation of Jeff Cooper's second and third rules (keep your finger off the trigger, and do not let the muzzle cover anything or anybody you don't want to shoot) of gun safety. Easy enough to violate them in the heat of the moment--but once that bullet is underway, you can't take it back. Why didn't the guy sue the officer for negligence? That would have been more likely to work, although I'm not at all in a position to judge whether the officer was truly negligent or really, really unlucky. It's said there are no accidental discharges, only negligent ones, but I wouldn't say so absolutely. I hope the City of Conway offers the guy a heap big settlement.
I thought we were over the debate about hollowpoint bullets, which ACLU used to claim were cruel and unusual or something. Perhaps the assclowns who complain about hollowpoints would prefer that we go back to hardball bullets that are less likely to stop violent bad guys but are more likely to overpenetrate said violent bad guys and continue on to hit innocent people. But hey, that's in compliance with the Hague and Geneva Conventions, and the people that wrote those documents MEANT well, so they must be good. I hope it's then OK if I shoot bad guys with a 9-pellet buckshot load after the hardballs didn't stop them.
Let this case be a lesson that there are no court-proof weapons. We've all read in the gun magazines and elsewhere that we should leave the cocked-and-locked 1911s and Hi-Powers to Experten because everybody else is just too dumb to remember to wipe off the thumb safety and too accident-prone to be running around with a cocked gun. "For safety reasons" police should carry double-action or double-action-only or "safe-action" Glock-type pistols, without manual safeties so you can fire them just like a double-action revolver. We have just seen how well that philosophy can work! With no manual safety, that trigger is going back if your finger is in the wrong place at the wrong time. Better yet, after it fires, you are running around with a cocked gun and no manual safety, but you are still conditioned to think that because the FIRST shot is DA, you have a safe gun. As Inspector Clouseau would say, "not anymore."
Now if this officer had been issued and properly trained with that horrid "unsafe" 1911, he would probably never even have disengaged the thumb safety in this situation. Even if he had, then he would have been in the habit of re-engaging the thumb safety before holstering, thus possibly saving him from a misplaced trigger finger--and saving his career, and saving the city from laying out megabucks, and most of all saving the poor subject from being shot. Of course, you NEVER totally depend on a mechanical safety and ALWAYS obey gun safety rules, but I'll take all the help I can get. And that, kids, is why THIS lawyer-deputy carries a 1911!--that, and it's easier to hit with than anything else, and the manual safety also might give me a few seconds after a weapon snatch to do something about it. That said, the SIG 220 is a wonderful, accurate, reliable gun that has saved the life of more than one fellow deputy, and the DAK trigger eliminates the cock/decock conundrum. But NO gun confers magic immunity from lawsuits. I'll keep my 1911 as long as I can.
This is as good a time as any to mention that a few months ago on another forum, I pointed out the exact same reasons that a P220 might not always be better than a 1911 in court. I was immediately shouted down with cries of "dumbass" and dire warnings that "you will surely lose your case in court," and the mods accused me of "spouting crap" and threatened to ban me if I ever expressed any more opinions about weapons--because I never know what I'm talking about. Needless to say, I do not populate that forum very often anymore. Funny how neither the mods (who really need to get over themselves) nor anybody else from that forum ever comes over HERE and insults me. They're welcome to, as long as they say why.
LONG STORY SHORT: Officer's discharge of double-action pistol lacking manual safety, wounding subject he was arresting, was an unreasonable seizure if intentional; but departmental policy of issuing .45-caliber hollowpoint ammunition was constitutional. Not binding anywhere, but may be persuasive.
FACTS: Defendant, a sergeant of the Conway, AR PD, responded to a report of someone shoplifting steaks at a Kroger store. A Kroger employee advised Defendant that he had chased Plaintiff, the suspect, who hid in a fenced area behind a restaurant. Defendant and his partner looked through slats in the fence to see Plaintiff in a crouched position. Not knowing whether Plaintiff was armed or dangerous, the officers entered the fence and turned to face Plaintiff with their pistols in hand, but not cocked. Defendant was carrying his department-issued SIG P220. [Note: The P220 is normally carried with a full magazine, loaded chamber, and hammer down, but can be deliberately cocked for a lighter trigger pull.] Defendant ordered Plaintiff to get up and approach the officers, and Plaintiff complied. The officers could see that Plaintiff was probably not armed, and Defendant ordered Plaintiff to get on the ground.
Plaintiff began to comply, and the officers approached him on either side, each grabbing a shoulder. Plaintiff was on all fours "like a frog on a lily pad" and could not see what Defendant was doing. Defendant testified that he was simultaneously struggling with Plaintiff and trying to holster his pistol. The other officer testified that Defendant was pawing at his uniform coat and having trouble holstering his pistol. All agreed that Defendant's pistol discharged once, sending a .45-caliber hollowpoint bullet into Plaintiff's shoulder. The projectile exited Plaintiff's underarm and lodged in the top of his thigh. The other officer had turned his attention back to Plaintiff, and neither he nor Plaintiff saw the actual shot. Defendant testified that the shot was completely accidental, and even Plaintiff admitted that Defendant looked very upset after the shot.
Defendant thereafter suffered dizzy spells whenever he had to take a call, and was so nervous about drawing his pistol that he never again did so, even when he should have. Defendant soon left regular police work and became an unarmed code enforcement officer. Firearms experts tested Defendant's P220, impacting its sides in the way Defendant described the events, and could not make it fire by any other means than pulling the trigger. The P220 has a decocker, but no manual safety device. If about 13.5 pounds of force is applied to a P220's trigger, it will fire if a cartridge is in the chamber. An internal affairs investigation concluded that Defendant's pistol fired because Defendant had his finger inside the trigger guard.
PROCEDURE: Plaintiff sued Defendant and the City of Conway in U.S. District Court for the Eastern District of Arkansas per 42 U.S.C. § 1983 for violating his Fourth Amendment right to be free from excessive force and unreasonable seizure. Plaintiff admitted that Defendant had probable cause to arrest him, but claimed that Defendant deliberately shot him when he posed no threat of death or serious bodily harm, and that the City's policy of issuing .45-caliber pistols loaded with hollowpoint bullets, but without manual safeties, amounted to a policy of deliberately inflicting maximum harm on arrestees. After discovery, Defendant moved for summary judgment on qualified immunity grounds, arguing that Plaintiff had no evidence that the shot was deliberate. The City moved for summary judgment, arguing that its gun and ammunition policies were meant only to inflict maximum harm on subjects who posed deadly threats.
DECISION: Whether the force an officer used was reasonable depends on the totality of the circumstances, which include the severity of the crime (misdemeanor shoplifting), whether the suspect poses an immediate threat to the safety of officers or others (Plaintiff did not), and whether the suspect is actively resisting arrest or fleeing (Plaintiff was not). A reasonable jury could conclude that no reasonable officer would have shot Plaintiff under the circumstances.
However, the Fourth Amendment governs only intentional government actions. If Defendant's shot was not intentional, then Plaintiff suffered no constitutional violation. Intent is normally a question of fact. In Defendant's favor was his and the other officer's testimony that the shot was completely an accident during attempted reholstering. Against Defendant were the IA finding that he had his finger inside the trigger guard, and the lab tests confirming that Defendant's P220 would not discharge except by trigger action. Defendant's obvious state of upset immediately after the shot and Defendant's subsequent inability to function as an armed police officer did not tilt one way or the other, because these consequences could have resulted from factors other than Defendant's dismay at having accidentally shot somebody. Plaintiff therefore showed that a genuine issue of material fact as to Defendant's intent still existed. QUALIFIED IMMUNITY DENIED as to Defendant.
On the other hand, the City showed good reason for issuing large-caliber pistols with hollowpoint bullets, to wit, so police officers could inflict maximum harm on suspects in deadly force situations. This policy was neither arbitrary nor conscience-shocking. Plaintiff also could not show that Defendant was carrying out any policy or custom of the City if he intentionally shot Plaintiff, nor could the City be liable under respondeat superior if Defendant accidentally shot Plaintiff. SUMMARY JUDGMENT GRANTED for the City.
EDITORIAL: Of course it was accidental! Wonder if it might even have been a fold of clothing that got snagged in the trigger guard as he was trying to holster it. If it did happen like IA said it did, then this was a violation of Jeff Cooper's second and third rules (keep your finger off the trigger, and do not let the muzzle cover anything or anybody you don't want to shoot) of gun safety. Easy enough to violate them in the heat of the moment--but once that bullet is underway, you can't take it back. Why didn't the guy sue the officer for negligence? That would have been more likely to work, although I'm not at all in a position to judge whether the officer was truly negligent or really, really unlucky. It's said there are no accidental discharges, only negligent ones, but I wouldn't say so absolutely. I hope the City of Conway offers the guy a heap big settlement.
I thought we were over the debate about hollowpoint bullets, which ACLU used to claim were cruel and unusual or something. Perhaps the assclowns who complain about hollowpoints would prefer that we go back to hardball bullets that are less likely to stop violent bad guys but are more likely to overpenetrate said violent bad guys and continue on to hit innocent people. But hey, that's in compliance with the Hague and Geneva Conventions, and the people that wrote those documents MEANT well, so they must be good. I hope it's then OK if I shoot bad guys with a 9-pellet buckshot load after the hardballs didn't stop them.
Let this case be a lesson that there are no court-proof weapons. We've all read in the gun magazines and elsewhere that we should leave the cocked-and-locked 1911s and Hi-Powers to Experten because everybody else is just too dumb to remember to wipe off the thumb safety and too accident-prone to be running around with a cocked gun. "For safety reasons" police should carry double-action or double-action-only or "safe-action" Glock-type pistols, without manual safeties so you can fire them just like a double-action revolver. We have just seen how well that philosophy can work! With no manual safety, that trigger is going back if your finger is in the wrong place at the wrong time. Better yet, after it fires, you are running around with a cocked gun and no manual safety, but you are still conditioned to think that because the FIRST shot is DA, you have a safe gun. As Inspector Clouseau would say, "not anymore."
Now if this officer had been issued and properly trained with that horrid "unsafe" 1911, he would probably never even have disengaged the thumb safety in this situation. Even if he had, then he would have been in the habit of re-engaging the thumb safety before holstering, thus possibly saving him from a misplaced trigger finger--and saving his career, and saving the city from laying out megabucks, and most of all saving the poor subject from being shot. Of course, you NEVER totally depend on a mechanical safety and ALWAYS obey gun safety rules, but I'll take all the help I can get. And that, kids, is why THIS lawyer-deputy carries a 1911!--that, and it's easier to hit with than anything else, and the manual safety also might give me a few seconds after a weapon snatch to do something about it. That said, the SIG 220 is a wonderful, accurate, reliable gun that has saved the life of more than one fellow deputy, and the DAK trigger eliminates the cock/decock conundrum. But NO gun confers magic immunity from lawsuits. I'll keep my 1911 as long as I can.
This is as good a time as any to mention that a few months ago on another forum, I pointed out the exact same reasons that a P220 might not always be better than a 1911 in court. I was immediately shouted down with cries of "dumbass" and dire warnings that "you will surely lose your case in court," and the mods accused me of "spouting crap" and threatened to ban me if I ever expressed any more opinions about weapons--because I never know what I'm talking about. Needless to say, I do not populate that forum very often anymore. Funny how neither the mods (who really need to get over themselves) nor anybody else from that forum ever comes over HERE and insults me. They're welcome to, as long as they say why.
Friday, April 27, 2007
Can I See You With My Flash Suppressor? Not In The 10th Circuit
REEVES v. CHURCHICH, USCA-10 No. 04-4240, 2007 U.S.App. LEXIS 9301, on appeal from USDC-UTD, before USCJs Murphy, Seymour, O'Brien, opinion by O'Brien, filed 24 Apr 2007.
LONG STORY SHORT: Officer did not conduct a Fourth Amendment search by allegedly inserting a rifle barrel through a home's slightly open window, and since no one submitted to the show of force, neither did the officer seize anyone. Binding in CO, KS, NM, OK, UT, WY.
FACTS: Defendant, a detective with the Salt Lake County, UT Sheriff's Office had probable cause to arrest Diviney for assaulting his estranged wife. Defendant did not have an arrest warrant, but learned from a witness that Diviney was staying at the Bells' residence, was possibly armed, and planned to depart the jurisdiction. Defendant brought along several officers from the Salt Lake City PD to the Bells', which was the second story of a duplex, to try a knock-and-talk with the hope of getting permission to enter and search for Diviney.
The only way into the duplex was the unlocked front door, which had stairs leading up to the Bell apartment and down to the lower apartment. All the windows in the duplex had bars over them. After discussion about how best to proceed, Defendant and some of the officers decided to enter the duplex, leaving the other officers outside to contain the building and prevent Diviney's escape. All officers had weapons in hand, and some, including Defendant, had rifles. Plaintiff, a 14-year-old female in the lower apartment, had just finished taking a shower when she noticed the commotion outside, and ran into her mother's bedroom, which had an open window with bars and foliage protecting it. Plaintiff testified (and Defendant denied) that Defendant inserted his rifle barrel through the foliage and bars until the barrel was inside the room, and that the barrel followed her as she moved around. Plaintiff also heard someone say "get down on the ground." Instead, she closed the window blinds and ran to another room. One of the other officers testified to pointing a rifle at Plaintiff's window when he saw movement inside.
Plaintiff's mother went outside to find out what was going on, and saw officers pulling Sharon Bell out of the upper apartment. Plaintiff's mother inquired strongly of the officers as to what they were doing, only to have one of them (and he denied doing so) tell her "get back in your apartment, bitch." Diviney, the object of the officers' quest, proved not to be in the building, and in fact was apprehended in Las Vegas sometime later.
PROCEDURE: Plaintiff and her mother sued Defendant and the other officers in U.S. District Court for the District of Utah per 42 U.S.C. § 1983 for violating their Fourth Amendment right to be free from unreasonable search and seizure. After discovery, Defendant moved for summary judgment on qualified immunity grounds, arguing that even assuming Plaintiff's truthfulness, a rifle barrel inserted through a window was not a search, and because Plaintiff moved away instead of submitting to the show of force, she suffered no seizure either. The trial court agreed, and also ruled that even if Defendant's actions amounted to a search or seizure, the same was reasonable under the circumstances and did not violate the Fourth Amendment. QUALIFIED IMMUNITY GRANTED. Plaintiff appealed to the U.S. Court of Appeals for the Tenth Circuit.
DECISION: The duplex's open yard was not part of Plaintiff's curtilage, so Plaintiff had no reasonable expectation of privacy that would the officers to be there. It was also well known that once the officers were in the yard, they did not have to avert their gaze from any open windows; the bars and foliage on Plaintiff's window did not render it closed. Defendant's merely looking through the window was not an unreasonable search.
However, no prior Tenth Circuit cases addressed whether an officer's rifle barrel inserted through an open window was a search. Most "search" cases from around the nation involved some sort of sensory device, or part or all of an officer's person, inserted into a home's interior. Another example of a search is testing a key to see if it will open a particular lock. In other words, officers are generally trying to gather information when "search"ing. The Tenth Circuit found it persuasive that Defendant's rifle barrel could not gather any information, at least not more than what Defendant could already see when looking in the same direction, and therefore Defendant did not search Plaintiff with his rifle barrel. At most, this was common-law trespass.
Neither did the officers "seize" Plaintiff or her mother under the totality of circumstances. Despite the show of force, including allegedly calling Plaintiff's mother "bitch" (which the Tenth Circuit does not recommend doing), Plaintiff and her mother did not submit, and continued to do things contrary to the officers' commands. Even if the officers' actions were a seizure, it was a reasonable one, because they were there to apprehend a suspect in a violent crime and were justified in having weapons ready. Given that no officer violated any constitutional right, the second part of the qualified immunity test (whether a reasonable officer would have known his conduct to be illegal at the time) was moot. GRANT OF QUALIFIED IMMUNITY AFFIRMED.
EDITORIAL: Most interesting. The opinion mentioned how the "victims" testimony shifted a bit, such as the mother at first saying a gun was pointed at her face, and then later saying the muzzle touched her face. Neither do I deem it certain that the detective shoved his rifle barrel into the window. Likely, this case would not have survived in the end.
Nonetheless, breaking the window plane (or pane) with your longarm's muzzle does not seem a particularly capital idea. For sure, the open end of an AR-15 flash suppressor is mighty scary to me, and the closer it is, the more I would be likely to surrender before finding out whether the raggedy cavities that 5.56mm inflicts on ballistic gelatin are an accurate predictor of real wounds. The downsides are, now you've given whoever is inside a means of grabbing your rifle barrel. They just might get a good enough grip to rip your rifle out of your grip. At the least, they can deflect your barrel with one hand and use the other hand to empty their gun into you point-blank. I suppose I should go ask some high-speed types what they think.
More legal questions--is it still not a search if your patrol rifle, like mine, DOES have information-gathering capability, in the form of a riflescope with up to 4x magnification? How about if the scope is only at 1.1x magnification? Also like mine, maybe you have a SureFire 900A weaponlight that resembles the one on the tripods in War of the Worlds--is that a search if you shine 230 lumens inside? How about the little blue LED navigation lights? Maybe UNlike me you have a PVS-14 night sight--is that different from plain view if you point it in an open window? The next time I'm at home alone and the TV is broken, I'll write an essay on these and more.
LONG STORY SHORT: Officer did not conduct a Fourth Amendment search by allegedly inserting a rifle barrel through a home's slightly open window, and since no one submitted to the show of force, neither did the officer seize anyone. Binding in CO, KS, NM, OK, UT, WY.
FACTS: Defendant, a detective with the Salt Lake County, UT Sheriff's Office had probable cause to arrest Diviney for assaulting his estranged wife. Defendant did not have an arrest warrant, but learned from a witness that Diviney was staying at the Bells' residence, was possibly armed, and planned to depart the jurisdiction. Defendant brought along several officers from the Salt Lake City PD to the Bells', which was the second story of a duplex, to try a knock-and-talk with the hope of getting permission to enter and search for Diviney.
The only way into the duplex was the unlocked front door, which had stairs leading up to the Bell apartment and down to the lower apartment. All the windows in the duplex had bars over them. After discussion about how best to proceed, Defendant and some of the officers decided to enter the duplex, leaving the other officers outside to contain the building and prevent Diviney's escape. All officers had weapons in hand, and some, including Defendant, had rifles. Plaintiff, a 14-year-old female in the lower apartment, had just finished taking a shower when she noticed the commotion outside, and ran into her mother's bedroom, which had an open window with bars and foliage protecting it. Plaintiff testified (and Defendant denied) that Defendant inserted his rifle barrel through the foliage and bars until the barrel was inside the room, and that the barrel followed her as she moved around. Plaintiff also heard someone say "get down on the ground." Instead, she closed the window blinds and ran to another room. One of the other officers testified to pointing a rifle at Plaintiff's window when he saw movement inside.
Plaintiff's mother went outside to find out what was going on, and saw officers pulling Sharon Bell out of the upper apartment. Plaintiff's mother inquired strongly of the officers as to what they were doing, only to have one of them (and he denied doing so) tell her "get back in your apartment, bitch." Diviney, the object of the officers' quest, proved not to be in the building, and in fact was apprehended in Las Vegas sometime later.
PROCEDURE: Plaintiff and her mother sued Defendant and the other officers in U.S. District Court for the District of Utah per 42 U.S.C. § 1983 for violating their Fourth Amendment right to be free from unreasonable search and seizure. After discovery, Defendant moved for summary judgment on qualified immunity grounds, arguing that even assuming Plaintiff's truthfulness, a rifle barrel inserted through a window was not a search, and because Plaintiff moved away instead of submitting to the show of force, she suffered no seizure either. The trial court agreed, and also ruled that even if Defendant's actions amounted to a search or seizure, the same was reasonable under the circumstances and did not violate the Fourth Amendment. QUALIFIED IMMUNITY GRANTED. Plaintiff appealed to the U.S. Court of Appeals for the Tenth Circuit.
DECISION: The duplex's open yard was not part of Plaintiff's curtilage, so Plaintiff had no reasonable expectation of privacy that would the officers to be there. It was also well known that once the officers were in the yard, they did not have to avert their gaze from any open windows; the bars and foliage on Plaintiff's window did not render it closed. Defendant's merely looking through the window was not an unreasonable search.
However, no prior Tenth Circuit cases addressed whether an officer's rifle barrel inserted through an open window was a search. Most "search" cases from around the nation involved some sort of sensory device, or part or all of an officer's person, inserted into a home's interior. Another example of a search is testing a key to see if it will open a particular lock. In other words, officers are generally trying to gather information when "search"ing. The Tenth Circuit found it persuasive that Defendant's rifle barrel could not gather any information, at least not more than what Defendant could already see when looking in the same direction, and therefore Defendant did not search Plaintiff with his rifle barrel. At most, this was common-law trespass.
Neither did the officers "seize" Plaintiff or her mother under the totality of circumstances. Despite the show of force, including allegedly calling Plaintiff's mother "bitch" (which the Tenth Circuit does not recommend doing), Plaintiff and her mother did not submit, and continued to do things contrary to the officers' commands. Even if the officers' actions were a seizure, it was a reasonable one, because they were there to apprehend a suspect in a violent crime and were justified in having weapons ready. Given that no officer violated any constitutional right, the second part of the qualified immunity test (whether a reasonable officer would have known his conduct to be illegal at the time) was moot. GRANT OF QUALIFIED IMMUNITY AFFIRMED.
EDITORIAL: Most interesting. The opinion mentioned how the "victims" testimony shifted a bit, such as the mother at first saying a gun was pointed at her face, and then later saying the muzzle touched her face. Neither do I deem it certain that the detective shoved his rifle barrel into the window. Likely, this case would not have survived in the end.
Nonetheless, breaking the window plane (or pane) with your longarm's muzzle does not seem a particularly capital idea. For sure, the open end of an AR-15 flash suppressor is mighty scary to me, and the closer it is, the more I would be likely to surrender before finding out whether the raggedy cavities that 5.56mm inflicts on ballistic gelatin are an accurate predictor of real wounds. The downsides are, now you've given whoever is inside a means of grabbing your rifle barrel. They just might get a good enough grip to rip your rifle out of your grip. At the least, they can deflect your barrel with one hand and use the other hand to empty their gun into you point-blank. I suppose I should go ask some high-speed types what they think.
More legal questions--is it still not a search if your patrol rifle, like mine, DOES have information-gathering capability, in the form of a riflescope with up to 4x magnification? How about if the scope is only at 1.1x magnification? Also like mine, maybe you have a SureFire 900A weaponlight that resembles the one on the tripods in War of the Worlds--is that a search if you shine 230 lumens inside? How about the little blue LED navigation lights? Maybe UNlike me you have a PVS-14 night sight--is that different from plain view if you point it in an open window? The next time I'm at home alone and the TV is broken, I'll write an essay on these and more.
Saturday, April 21, 2007
OIS Of Apparently Unarmed, Fleeing Teen Must Go To Jury--But Media Gets It Wrong As Usual
BOUGGESS v. MATTINGLY, USCA-6 No. 06-5619, 2007 U.S.App. LEXIS 8614, on appeal from USDC-KYWD, before ChUSCJ Boggs, USCJs Daughtrey, Gibbons, opinion by Boggs, filed 16 Apr 2007.
LONG STORY SHORT: Plaintiff presented evidence that an officer shot and killed an apparently unarmed, fleeing suspect who posed no immediate danger; qualified immunity therefore did not protect the officer from jury trial or possible liability. Binding in KY, MI, OH, TN.
FACTS: Defendant, an undercover officer in the Louisville, KY Metro PD, was sitting in a car in a grocery store parking lot, wired for sound and waiting for suspects to arrive for a prearranged crack cocaine deal. Other officers were listening covertly, and Officer Thomerson was watching. If Defendant needed help, he could say a code word and the other officers would intervene. When the suspects, including Newby, walked up to Defendant's car, they reached inside and stole money, then ran away. Defendant got out of his car, thinking that they had all left the scene, but saw Newby bending over to pick up a $20 bill. Defendant tried to arrest Newby, whom he did not think was armed, but Defendant also knew that drug dealers normally carry guns. Newby resisted arrest, and according to Defendant, tried to take his concealed Glock 22 away. Defendant also testified that he deduced from the look in Newby's eyes that Newby meant to kill him.
Officer Thomerson, the grocery store manager, and three people in a car nearby observed the struggle. No one saw any firearms or heard any shots until after Newby broke loose and ran. Defendant drew his Glock 22, which can be loaded with up to 16 shots, and fired at Newby, hitting him three times in the back; upon examination, Defendant's pistol had 11 live rounds remaining. After Defendant began firing, Newby checked his waistband as he ran. Newby ran around a corner and sat down. Defendant, Officer Thomerson, and a third officer approached Newby, who struggled as the third officer handcuffed him. Newby had a gun in his waistband, but Defendant never said anything to the effect that he thought Newby was armed, nor did Defendant ever say the code word for danger. Newby soon died of gunshot wounds.
PROCEDURE: Plaintiff, Newby's mother and administrator of his estate, sued Defendant in U.S. District Court for the Western District of Kentucky per 42 U.S.C. § 1983 for violating Newby's Fourth Amendment right to be free from unreasonable seizure. Defendant moved for summary judgment on qualified immunity grounds, arguing that a reasonable officer in his position could lawfully have used deadly force to stop Newby. Plaintiff conceded that Defendant had probable cause to arrest Newby for dealing cocaine and resisting arrest, but responded that no reasonable officer would have shot Newby. The trial court ruled that material facts were still at issue and that a reasonable jury could credit Plaintiff's evidence that Newby posed no deadly threat and had not tried to kill Defendant or take his weapon. Under those facts, no reasonable officer would have shot at Newby. QUALIFIED IMMUNITY DENIED. Defendant appealed to the U.S. Court of Appeals for the Sixth Circuit.
DECISION: Fourth Amendment law is clear and firm that only when an officer has probable cause to believe that a fleeing suspect poses a threat of serious physical harm may the officer use deadly force to stop the suspect. If the officer knows the suspect to be armed, then that fact weighs in favor of justifying force. However, the officer must also reasonably believe that the suspect will use the weapon to inflict harm. Shooting at all fleeing felons is worse than chasing them and not catching all of them.
Defendant testified that Newby fought with him and tried to take his weapon, and that drug dealers are usually armed. A jury might well credit his evidence, and take into account that Newby did in fact have a gun, and find Defendant not liable. But Defendant indisputably never said the danger code word, and never told other officers he thought Newby was armed. At the summary judgment stage, the Sixth Circuit had to review the evidence in the light most favorable to Plaintiff, and a reasonable jury could find that Newby never drew a weapon, never threatened Defendant, never tried to take Defendant's gun, and ran directly away without any indication that he was going to hurt anybody. If so, no reasonable officer in Defendant's position would have believed deadly force to be justified. DENIAL OF QUALIFIED IMMUNITY AFFIRMED.
EDITORIAL: Not in the opinion are a couple of things you should know: Mattingly was promptly indicted for murder, but the jury walked him on that charge. They deadlocked on a charge of reckless endangerment, which prosecutors soon dropped, and Mattingly's lawyers had his record expunged under state law. But he also got fired from the force, and never got his job back.
Now if you've stayed with me so far, you know that all the Sixth Circuit really said is, Newby's family can take it to trial because they have enough evidence. NObody has won or lost the suit yet. But Mattingly was white and Newby was black, so therefore the news media has no use for facts and just assumes the white guy is guilty. Brett Barrouquere, a racist idiot flying the Associated Press flag, lied about this case, claiming that the Sixth Circuit already ruled that Mattingly "acted in 'bad faith' when he fatally shot a 19-year-old" and "lacked justification to shoot" and "overreacted in shooting Newby" and so forth and so on. The Sixth Circuit said no such thing! They only said that's what a jury COULD BELIEVE from the evidence. That is how summary judgment works. Since the criminal jury turned him loose on the same evidence, it's not hard to believe that a civil jury would do the same.
But again, the news media cannot be bothered with facts or simple legal concepts. I sincerely hope that Mattingly sues racist idiot reporter Brett Barrouquere for libel. If racist idiot reporter Brett Barrouquere sues ME for calling him a racist, he will not win, because I have EVIDENCE for MY opinions. Racist idiot reporter Brett Barrouquere misreported a court opinion to make a white officer look automatically guilty when the opinion said no such thing. There can be no other motive than racism for such willful misreporting. Also, racist idiot Brett Barroquere should be aware that the last time I had to defend a defamation suit, the other side spent some $100,000 trying to beat me, and didn't come close. So, racist idiot Brett Barroquere, either correct your lies and tell no more future lies, or I will keep exposing you as a racist idiot, Brett Barroquere.
LONG STORY SHORT: Plaintiff presented evidence that an officer shot and killed an apparently unarmed, fleeing suspect who posed no immediate danger; qualified immunity therefore did not protect the officer from jury trial or possible liability. Binding in KY, MI, OH, TN.
FACTS: Defendant, an undercover officer in the Louisville, KY Metro PD, was sitting in a car in a grocery store parking lot, wired for sound and waiting for suspects to arrive for a prearranged crack cocaine deal. Other officers were listening covertly, and Officer Thomerson was watching. If Defendant needed help, he could say a code word and the other officers would intervene. When the suspects, including Newby, walked up to Defendant's car, they reached inside and stole money, then ran away. Defendant got out of his car, thinking that they had all left the scene, but saw Newby bending over to pick up a $20 bill. Defendant tried to arrest Newby, whom he did not think was armed, but Defendant also knew that drug dealers normally carry guns. Newby resisted arrest, and according to Defendant, tried to take his concealed Glock 22 away. Defendant also testified that he deduced from the look in Newby's eyes that Newby meant to kill him.
Officer Thomerson, the grocery store manager, and three people in a car nearby observed the struggle. No one saw any firearms or heard any shots until after Newby broke loose and ran. Defendant drew his Glock 22, which can be loaded with up to 16 shots, and fired at Newby, hitting him three times in the back; upon examination, Defendant's pistol had 11 live rounds remaining. After Defendant began firing, Newby checked his waistband as he ran. Newby ran around a corner and sat down. Defendant, Officer Thomerson, and a third officer approached Newby, who struggled as the third officer handcuffed him. Newby had a gun in his waistband, but Defendant never said anything to the effect that he thought Newby was armed, nor did Defendant ever say the code word for danger. Newby soon died of gunshot wounds.
PROCEDURE: Plaintiff, Newby's mother and administrator of his estate, sued Defendant in U.S. District Court for the Western District of Kentucky per 42 U.S.C. § 1983 for violating Newby's Fourth Amendment right to be free from unreasonable seizure. Defendant moved for summary judgment on qualified immunity grounds, arguing that a reasonable officer in his position could lawfully have used deadly force to stop Newby. Plaintiff conceded that Defendant had probable cause to arrest Newby for dealing cocaine and resisting arrest, but responded that no reasonable officer would have shot Newby. The trial court ruled that material facts were still at issue and that a reasonable jury could credit Plaintiff's evidence that Newby posed no deadly threat and had not tried to kill Defendant or take his weapon. Under those facts, no reasonable officer would have shot at Newby. QUALIFIED IMMUNITY DENIED. Defendant appealed to the U.S. Court of Appeals for the Sixth Circuit.
DECISION: Fourth Amendment law is clear and firm that only when an officer has probable cause to believe that a fleeing suspect poses a threat of serious physical harm may the officer use deadly force to stop the suspect. If the officer knows the suspect to be armed, then that fact weighs in favor of justifying force. However, the officer must also reasonably believe that the suspect will use the weapon to inflict harm. Shooting at all fleeing felons is worse than chasing them and not catching all of them.
Defendant testified that Newby fought with him and tried to take his weapon, and that drug dealers are usually armed. A jury might well credit his evidence, and take into account that Newby did in fact have a gun, and find Defendant not liable. But Defendant indisputably never said the danger code word, and never told other officers he thought Newby was armed. At the summary judgment stage, the Sixth Circuit had to review the evidence in the light most favorable to Plaintiff, and a reasonable jury could find that Newby never drew a weapon, never threatened Defendant, never tried to take Defendant's gun, and ran directly away without any indication that he was going to hurt anybody. If so, no reasonable officer in Defendant's position would have believed deadly force to be justified. DENIAL OF QUALIFIED IMMUNITY AFFIRMED.
EDITORIAL: Not in the opinion are a couple of things you should know: Mattingly was promptly indicted for murder, but the jury walked him on that charge. They deadlocked on a charge of reckless endangerment, which prosecutors soon dropped, and Mattingly's lawyers had his record expunged under state law. But he also got fired from the force, and never got his job back.
Now if you've stayed with me so far, you know that all the Sixth Circuit really said is, Newby's family can take it to trial because they have enough evidence. NObody has won or lost the suit yet. But Mattingly was white and Newby was black, so therefore the news media has no use for facts and just assumes the white guy is guilty. Brett Barrouquere, a racist idiot flying the Associated Press flag, lied about this case, claiming that the Sixth Circuit already ruled that Mattingly "acted in 'bad faith' when he fatally shot a 19-year-old" and "lacked justification to shoot" and "overreacted in shooting Newby" and so forth and so on. The Sixth Circuit said no such thing! They only said that's what a jury COULD BELIEVE from the evidence. That is how summary judgment works. Since the criminal jury turned him loose on the same evidence, it's not hard to believe that a civil jury would do the same.
But again, the news media cannot be bothered with facts or simple legal concepts. I sincerely hope that Mattingly sues racist idiot reporter Brett Barrouquere for libel. If racist idiot reporter Brett Barrouquere sues ME for calling him a racist, he will not win, because I have EVIDENCE for MY opinions. Racist idiot reporter Brett Barrouquere misreported a court opinion to make a white officer look automatically guilty when the opinion said no such thing. There can be no other motive than racism for such willful misreporting. Also, racist idiot Brett Barroquere should be aware that the last time I had to defend a defamation suit, the other side spent some $100,000 trying to beat me, and didn't come close. So, racist idiot Brett Barroquere, either correct your lies and tell no more future lies, or I will keep exposing you as a racist idiot, Brett Barroquere.
Premature Eviction: Deputy Shouldn't Have Stripped Sexual Harasser Of His House, But QI Renders Lawsuit Impotent
REVIS v. MELDRUM, USCA-6 No. 06-5197, 06-5399, 2007 U.S.App. LEXIS 8951, on appeal from USDC-TNED, before USCJs Gilman, Sutton, USDJ-MIED Tarnow by designation, opinion by Gilman, filed 19 Apr 2007.
LONG STORY SHORT: Deputy's eviction of money judgment debtor from his house without postjudgment notice and hearing was unconstitutional, but the law was so unclear that no reasonable deputy could have known his conduct was unconstitutional, and qualified immunity saved him from liability. Binding in KY, MI, OH, TN.
FACTS: Harasser's former Employee sued him and his company for sexual harassment, winning $620,764.50 in damages, fees, and costs from them at trial. Harasser was personally liable for $462,964.50, and the judgment warned him that "execution may issue" while the case was on appeal, unless he posted an appeal bond. Three months before, Tennessee had changed its rules of civil procedure governing executions, abandoning most distinctions between executions on real and personal property, but required 20 days notice before selling any real property. Employee obtained a writ of execution against Harasser's house and another against all his personal property on the premises. Deputy Eaton received the writs, noted that they commanded him to take the listed property from Harasser, and asked the county attorney what to do, but did not specifically ask whether it was necessary to levy on Harasser's house. The county attorney advised him to obey the face of the writs.
Deputy Eaton arrived at Harasser's house just after dawn, served the writs on him, and stayed to keep order. A moving company, contracting with Employee's counsel, removed Harasser's personal property, including valuable artwork and furnishings. Another contractor changed the locks and did not give Harasser any keys. At 2200 that night, Deputy Eaton escorted Harasser off the premises, told Harasser he could not come back, and asked Harasser if he had any cash on him. Harasser produced $3 from his wallet, which Deputy Eaton did not take. A week later, Harasser posted an appeal bond and received all his property and house back.
PROCEDURE: Harasser sued Deputy Eaton, and private parties involved in the levy of his property, in U.S. District Court for the Eastern District of Tennessee per 42 U.S.C. § 1983 for violating his Fourth and Fourteenth Amendment rights against unreasonable seizure and deprivation of property without due process, on grounds that Deputy Eaton did not follow the proper Tennessee procedure. Deputy Eaton moved for summary judgment, arguing that he had not violated the Constitution, and if he had, then he was not on notice that his conduct was illegal. The private parties also moved for summary judgment, arguing that their private actions did not amount to state action.
The trial court ruled that Harasser got all the process that was due him in the trial itself, and upon judgment, Harasser should have known that all his property was fair game for writs of execution. Deputy Eaton's conduct was not illegal, and if it was, he still should have qualified immunity. Also, the private parties were not state actors upon these facts, and could not have violated the Constitution. SUMMARY JUDGMENT GRANTED; case closed. Upon the private parties' motion per 42 U.S.C. § 1988, the trial court also ruled that Harasser's suit against them was without foundation and vexatious. $65,183.61 ATTORNEY FEES AWARDED. Harasser appealed to the U.S. Court of Appeals for the Sixth Circuit.
DECISION: Qualified immunity requires a two-part analysis; first, whether Deputy Eaton's conduct violated the Constitution, and if so, whether a reasonable officer in his place would have known so at the time. Key to both questions was just what the judgment allowed Deputy Eaton to do, and although Harasser conceded that seizure of his personal property was not unconstitutional, he argued that the money judgment did not entitle a deputy to take possession of Harasser's house with only a writ of execution.
Ruling for the first time on this issue, the Sixth Circuit agreed with Harasser that all the judgment really said was that Harasser owed Employee some money. The judgment did NOT say that Employee now owned Harasser's house or could automatically throw Harasser out on the street. Judgment debtors have much stronger possessory interests in their homes than in their personal property or even wages, weighing against execution. Also, executing against a house might be useless if the judgment debtor has no equity in the house, or has tenants with valid leaseholds and their own due process rights. Many states, including Tennessee, have homestead protections, and execution on judgments should not be allowed to short-circuit them. Before erroneously depriving judgment debtors of their homes, even temporarily, the Sixth Circuit ruled that Fourteenth Amendment due process requires postjudgment notice and hearing.
It followed that Deputy Eaton, by allowing locks to be changed and forbidding Harasser to return, unreasonably seized Harasser's house. Deputy Eaton's actions thus violated the Fourth Amendment, but in doing so, he was following advice of counsel to carry out the plain language of the writs, which in turn conformed to Tennessee civil procedure rules. No clear federal caselaw prohibited his actions. No reasonable officer in his place would have known that he was about to violate the Constitution. Lastly, Deputy Eaton's verbal exchange with Harasser, resulting in Harasser showing $3 and being allowed to keep it, was only a question that Harasser need not have answered, and not a Fourth Amendment search. QUALIFIED IMMUNITY AFFIRMED.
The private parties were only doing what state statute and rule allowed them to. Notably, Harasser did not claim that Tennessee's procedures were unconstitutional; if he had argued and won that point, it might have been a different story. Neither did the private parties conspire with Deputy Eaton to deprive Harasser of any rights. SUMMARY JUDGMENT AFFIRMED, but since the Sixth Circuit had shown Harasser's arguments not to be obviously hopeless, and even despite the trial court's findings that Harasser had been too aggressive and multiplied his filings for purposes of harassment, ATTORNEY FEE AWARD VACATED and remanded for reconsideration.
EDITORIAL: This was not only the right result, but also a Nickelback case: for all the right reasons. Poor deputy, he was only doing what he really thought was right, and no good deed goes unpunished. Now we know, at least in the Sixth Circuit, we don't do it quite that way anymore.
This case wouldn't have happened if Mr. Harasser would have paid the judgment into the court registry, or done what his lawyer doubtless told him to do and get a supersedeas bond. Neither would it have happened if the Law Offices of Eager Beaver had just done an eviction procedure, which would have taken only another three weeks. I fully understand how much fun it is to collect on righteous judgments, especially for sexual harassment, but sometimes you just gotta hold your horses. Since they decided to go on and John Wayne it, and since the Sixth Circuit pointed out that Harasser's claims were not totally harebrained, they probably won't get their attorney fees back now. Expensive lesson!
LONG STORY SHORT: Deputy's eviction of money judgment debtor from his house without postjudgment notice and hearing was unconstitutional, but the law was so unclear that no reasonable deputy could have known his conduct was unconstitutional, and qualified immunity saved him from liability. Binding in KY, MI, OH, TN.
FACTS: Harasser's former Employee sued him and his company for sexual harassment, winning $620,764.50 in damages, fees, and costs from them at trial. Harasser was personally liable for $462,964.50, and the judgment warned him that "execution may issue" while the case was on appeal, unless he posted an appeal bond. Three months before, Tennessee had changed its rules of civil procedure governing executions, abandoning most distinctions between executions on real and personal property, but required 20 days notice before selling any real property. Employee obtained a writ of execution against Harasser's house and another against all his personal property on the premises. Deputy Eaton received the writs, noted that they commanded him to take the listed property from Harasser, and asked the county attorney what to do, but did not specifically ask whether it was necessary to levy on Harasser's house. The county attorney advised him to obey the face of the writs.
Deputy Eaton arrived at Harasser's house just after dawn, served the writs on him, and stayed to keep order. A moving company, contracting with Employee's counsel, removed Harasser's personal property, including valuable artwork and furnishings. Another contractor changed the locks and did not give Harasser any keys. At 2200 that night, Deputy Eaton escorted Harasser off the premises, told Harasser he could not come back, and asked Harasser if he had any cash on him. Harasser produced $3 from his wallet, which Deputy Eaton did not take. A week later, Harasser posted an appeal bond and received all his property and house back.
PROCEDURE: Harasser sued Deputy Eaton, and private parties involved in the levy of his property, in U.S. District Court for the Eastern District of Tennessee per 42 U.S.C. § 1983 for violating his Fourth and Fourteenth Amendment rights against unreasonable seizure and deprivation of property without due process, on grounds that Deputy Eaton did not follow the proper Tennessee procedure. Deputy Eaton moved for summary judgment, arguing that he had not violated the Constitution, and if he had, then he was not on notice that his conduct was illegal. The private parties also moved for summary judgment, arguing that their private actions did not amount to state action.
The trial court ruled that Harasser got all the process that was due him in the trial itself, and upon judgment, Harasser should have known that all his property was fair game for writs of execution. Deputy Eaton's conduct was not illegal, and if it was, he still should have qualified immunity. Also, the private parties were not state actors upon these facts, and could not have violated the Constitution. SUMMARY JUDGMENT GRANTED; case closed. Upon the private parties' motion per 42 U.S.C. § 1988, the trial court also ruled that Harasser's suit against them was without foundation and vexatious. $65,183.61 ATTORNEY FEES AWARDED. Harasser appealed to the U.S. Court of Appeals for the Sixth Circuit.
DECISION: Qualified immunity requires a two-part analysis; first, whether Deputy Eaton's conduct violated the Constitution, and if so, whether a reasonable officer in his place would have known so at the time. Key to both questions was just what the judgment allowed Deputy Eaton to do, and although Harasser conceded that seizure of his personal property was not unconstitutional, he argued that the money judgment did not entitle a deputy to take possession of Harasser's house with only a writ of execution.
Ruling for the first time on this issue, the Sixth Circuit agreed with Harasser that all the judgment really said was that Harasser owed Employee some money. The judgment did NOT say that Employee now owned Harasser's house or could automatically throw Harasser out on the street. Judgment debtors have much stronger possessory interests in their homes than in their personal property or even wages, weighing against execution. Also, executing against a house might be useless if the judgment debtor has no equity in the house, or has tenants with valid leaseholds and their own due process rights. Many states, including Tennessee, have homestead protections, and execution on judgments should not be allowed to short-circuit them. Before erroneously depriving judgment debtors of their homes, even temporarily, the Sixth Circuit ruled that Fourteenth Amendment due process requires postjudgment notice and hearing.
It followed that Deputy Eaton, by allowing locks to be changed and forbidding Harasser to return, unreasonably seized Harasser's house. Deputy Eaton's actions thus violated the Fourth Amendment, but in doing so, he was following advice of counsel to carry out the plain language of the writs, which in turn conformed to Tennessee civil procedure rules. No clear federal caselaw prohibited his actions. No reasonable officer in his place would have known that he was about to violate the Constitution. Lastly, Deputy Eaton's verbal exchange with Harasser, resulting in Harasser showing $3 and being allowed to keep it, was only a question that Harasser need not have answered, and not a Fourth Amendment search. QUALIFIED IMMUNITY AFFIRMED.
The private parties were only doing what state statute and rule allowed them to. Notably, Harasser did not claim that Tennessee's procedures were unconstitutional; if he had argued and won that point, it might have been a different story. Neither did the private parties conspire with Deputy Eaton to deprive Harasser of any rights. SUMMARY JUDGMENT AFFIRMED, but since the Sixth Circuit had shown Harasser's arguments not to be obviously hopeless, and even despite the trial court's findings that Harasser had been too aggressive and multiplied his filings for purposes of harassment, ATTORNEY FEE AWARD VACATED and remanded for reconsideration.
EDITORIAL: This was not only the right result, but also a Nickelback case: for all the right reasons. Poor deputy, he was only doing what he really thought was right, and no good deed goes unpunished. Now we know, at least in the Sixth Circuit, we don't do it quite that way anymore.
This case wouldn't have happened if Mr. Harasser would have paid the judgment into the court registry, or done what his lawyer doubtless told him to do and get a supersedeas bond. Neither would it have happened if the Law Offices of Eager Beaver had just done an eviction procedure, which would have taken only another three weeks. I fully understand how much fun it is to collect on righteous judgments, especially for sexual harassment, but sometimes you just gotta hold your horses. Since they decided to go on and John Wayne it, and since the Sixth Circuit pointed out that Harasser's claims were not totally harebrained, they probably won't get their attorney fees back now. Expensive lesson!
Sunday, April 15, 2007
Leaving A Cul-De-Sac After 911 Hangup, Even Early In The Morning, Isn't Reasonably Suspicious
UNITED STATES v. COHEN, USCA-6 No. 06-5594, 2007 U.S.App. LEXIS 8519, on appeal from USDC-KYWD, before USCJs Moore, Gibbons, USDJ-OHSD Sargus by designation, opinion by Moore, filed 13 Apr 2007.
LONG STORY SHORT: 911 hangup call from a house in a small cul-de-sac did not give reasonable suspicion to stop a car leaving the cul-de-sac, resulting in suppression of all evidence from search incident to arrest. Binding in KY, MI, OH, TN.
FACTS: 911 received a hangup call at 4:52am from a house that was one of five or six addresses on a small cul-de-sac, which was in turn at the end of a dead-end road. Two police cars responded on what they considered to be a "trouble run," and the lead officer saw a car leaving the cul-de-sac four minutes after the 911 call. He Terry-stopped the car and the other officer stopped in front of it. Defendant got out of the car, then got back in, and in response to the lead officer's request for license, registration, and proof of insurance, said "just shoot me, just shoot me." Officers had Defendant stay in the back of a patrol car while another officer inquired at the address that had called 911, finding out that Defendant and his girlfriend had argued, but there was no emergency. Officers also discovered that Defendant's license was suspended and that he had a probation warrant. They arrested Defendant and searched his car, finding eleven rounds of .380 ammunition under the driver seat and a .380-caliber pistol in the trunk.
PROCEDURE: The United States indicted Defendant in the U.S. District Court for the Western District of Kentucky for possessing a firearm and ammunition while a convicted felon. Defendant moved to suppress all evidence, arguing that no reasonable suspicion supported the Terry stop. The trial court agreed. MOTION TO SUPPRESS GRANTED. The United States appealed to the U.S. Court of Appeals for the Sixth Circuit.
DECISION: Reasonable suspicion, or lack of it, stems from the totality of the circumstances. Here, the 911 hangup was equal to an anonymous tip, which must both assert illegallity and identify a determinate person to carry any weight. 911 calls do not always mean illegality--although, say, a burglar alarm might have--and this one did not identify any determinate person. By the time the officers got there, Defendant did not look suspicious and was not very close to the 911 address. Even considering the early hour and the few people on the road, the Sixth Circuit could not see reasonable suspicion on these facts. SUPPRESSION AFFIRMED.
EDITORIAL: This one's a bladerunner--that is, on the knife edge. I guess I see the Sixth Circuit's point. With only five or six houses on the cul-de-sac, somebody leaving at 0456 could be early for work, or could be taking a breather from beating the crap out of his girlfriend. Had I been there, I sure would have been inclined to pull the guy over and see what he knew about 911 hangups. With the luxury of hindsight, what these officers COULD have done was follow him around until he either committed a traffic violation or voluntarily pulled over. But I'm sure he got into plenty of trouble with his probation officer anyway!
LONG STORY SHORT: 911 hangup call from a house in a small cul-de-sac did not give reasonable suspicion to stop a car leaving the cul-de-sac, resulting in suppression of all evidence from search incident to arrest. Binding in KY, MI, OH, TN.
FACTS: 911 received a hangup call at 4:52am from a house that was one of five or six addresses on a small cul-de-sac, which was in turn at the end of a dead-end road. Two police cars responded on what they considered to be a "trouble run," and the lead officer saw a car leaving the cul-de-sac four minutes after the 911 call. He Terry-stopped the car and the other officer stopped in front of it. Defendant got out of the car, then got back in, and in response to the lead officer's request for license, registration, and proof of insurance, said "just shoot me, just shoot me." Officers had Defendant stay in the back of a patrol car while another officer inquired at the address that had called 911, finding out that Defendant and his girlfriend had argued, but there was no emergency. Officers also discovered that Defendant's license was suspended and that he had a probation warrant. They arrested Defendant and searched his car, finding eleven rounds of .380 ammunition under the driver seat and a .380-caliber pistol in the trunk.
PROCEDURE: The United States indicted Defendant in the U.S. District Court for the Western District of Kentucky for possessing a firearm and ammunition while a convicted felon. Defendant moved to suppress all evidence, arguing that no reasonable suspicion supported the Terry stop. The trial court agreed. MOTION TO SUPPRESS GRANTED. The United States appealed to the U.S. Court of Appeals for the Sixth Circuit.
DECISION: Reasonable suspicion, or lack of it, stems from the totality of the circumstances. Here, the 911 hangup was equal to an anonymous tip, which must both assert illegallity and identify a determinate person to carry any weight. 911 calls do not always mean illegality--although, say, a burglar alarm might have--and this one did not identify any determinate person. By the time the officers got there, Defendant did not look suspicious and was not very close to the 911 address. Even considering the early hour and the few people on the road, the Sixth Circuit could not see reasonable suspicion on these facts. SUPPRESSION AFFIRMED.
EDITORIAL: This one's a bladerunner--that is, on the knife edge. I guess I see the Sixth Circuit's point. With only five or six houses on the cul-de-sac, somebody leaving at 0456 could be early for work, or could be taking a breather from beating the crap out of his girlfriend. Had I been there, I sure would have been inclined to pull the guy over and see what he knew about 911 hangups. With the luxury of hindsight, what these officers COULD have done was follow him around until he either committed a traffic violation or voluntarily pulled over. But I'm sure he got into plenty of trouble with his probation officer anyway!
Friday, April 13, 2007
Inventory Search Of Arrestee's Bags Was Regular, Even If It Was Kind Of Irregular
UNITED STATES v. BANKS, USCA-4 No. 06-4216, http://pacer.ca4.uscourts.gov/dailyopinions/opinion.pdf/064216.P.pdf , on appeal from USDC-MDD, before Chief USCJ Wilkins and USCJs Williams, Duncan, opinion by Duncan, filed 13 Apr 2007.
LONG STORY SHORT: Detective's search in his office of two duffel bags taken from Defendant's vehicle upon arrest was a good faith inventory search, since Defendant asked to have the bags brought along and all prisoner property was supposed to be inventoried. Binding in MD, NC, SC, VA, WV.
FACTS: Defendant drove Runner to a Target pharmacy to pick up controlled substances for which Runner had submitted a forged prescription the day before. Runner went to the pharmacy counter while Defendant walked around the store. The pharmacist had already alerted Detective Gunn of the Anne Arundel County Police to the probably forged prescription, and stalled Runner until Detective Gunn could get a uniformed officer to the pharmacy. By the time Detective Gunn got there, the uniformed officer had arrested Runner for passing the forged prescription and Defendant on four outstanding warrants. Detective Gunn had himself taken out one of those warrants, for another forged prescription.
Detective Gunn asked Defendant if he wanted anything from the vehicle brought to the station, and Defendant said there were two duffle bags in the trunk. Detective Gunn took both bags and Defendant to the station, left Defendant with the booking officers, and took the bags into his own office. Written policy required the arresting officer to turn prisoner property over to booking officers. Detective Gunn opened the bags, saw medical assistance cards and prescriptions, and realized the material inside was beyond his expertise and should not be given to booking officers for storage and return to Defendant. Over the next several days, Detective Gunn inventoried and recorded many similar incriminating items in the bags, and eventually gave it all to DEA. Police and federal agents used the evidence to get search warrants, helping to reveal Defendant's leading role in a large prescription drug conspiracy.
PROCEDURE: The United States indicted Defendant in U.S. District Court for the District of Maryland on a conspiracy charge and many drug and healthcare fraud charges. Defendant moved to suppress all evidence from the two duffel bags, arguing that Detective Gunn's warrantless search was not in accord with regular search policy and was unreasonable under the Fourth Amendment. The trial court found as fact that Detective Gunn's actions were perfectly reasonable and in good faith, and the inventory search exception to the warrant requirement applied. MOTION TO SUPPRESS DENIED. A jury convicted Defendant of all charges except one, and the trial court sentenced him to 16 years. Defendant appealed to the U.S. Court of Appeals for the Fourth Circuit.
DECISION: Inventory searches are an administrative task incident to arrest and jailing. Warrants are unnecessary so long as the search sticks to standardized criteria and is not a ruse to cover general rummaging. However, officers may have some discretion to evaluate containers and decide in good faith whether to open them. The Fourth Circuit carefully read the written policy and noted that by its own terms, it applied to the arresting officer. That happened to be the first uniformed officer on the scene, not Detective Gunn. Also, Defendant was the one who requested Detective Gunn to bring the bags to the station. When they got there, Detective Gunn possessed the bags--not Defendant--so they were not prisoner property for purposes of the written search policy.
There was a general policy that everything belonging to prisoners would be inventoried. Had booking officers done the inventory search, they too would have seized and secured all contraband, which the medical benefit cards and prescriptions obviously were. Defendant had to show that Detective Gunn's motive was investigative, but since the trial court's factual finding of good faith without investigative motive was not clearly erroneous, the Fourth Circuit would not disturb it, even if the search was a bit irregular. DENIAL OF SUPPRESSION AFFIRMED. Defenant otherwise received a fair trial. CONVICTIONS AFFIRMED in all respects.
EDITORIAL: With brilliant dope-slingers like these, who needs narcs? "Okay sir, Officer Cufnstuf just busted your colleague here for this fake scrip, and you got four warrants--one of which I seem to remember swearing out myself, and for the same thing--so that's why he hooked you up too. What can I do for you today--carry your luggage, perhaps?" (trying not to laugh) "Well, Detective, now that you mention it, in the trunk of my low-profile rented Lincoln Town Car are two great big D-bags just chock full of lots more forged prescriptions and stolen Medicaid cards, more than enough to blow my whole op sky-high and send me down for 16 years. I say, old boy, might I trouble you to look after them while I am so indisposed?" "But of course--it's what I live for. Would sir also care for a gin and tonic?"
That was an interesting Fourth Circuit backbend--the inventory search policy applied to the arresting officer and to prisoner property, not the officer who happened to transport the prisoner and happened to have some of the prisoner's property with him. Voila, everything gets searched somehow, and no warrant necessary. Not bad, but how about just pointing out that the bags were in the guy's vehicle and there was probable cause to think he was passing fake scrips, so it's open season on the bags under the automobile exception.
LONG STORY SHORT: Detective's search in his office of two duffel bags taken from Defendant's vehicle upon arrest was a good faith inventory search, since Defendant asked to have the bags brought along and all prisoner property was supposed to be inventoried. Binding in MD, NC, SC, VA, WV.
FACTS: Defendant drove Runner to a Target pharmacy to pick up controlled substances for which Runner had submitted a forged prescription the day before. Runner went to the pharmacy counter while Defendant walked around the store. The pharmacist had already alerted Detective Gunn of the Anne Arundel County Police to the probably forged prescription, and stalled Runner until Detective Gunn could get a uniformed officer to the pharmacy. By the time Detective Gunn got there, the uniformed officer had arrested Runner for passing the forged prescription and Defendant on four outstanding warrants. Detective Gunn had himself taken out one of those warrants, for another forged prescription.
Detective Gunn asked Defendant if he wanted anything from the vehicle brought to the station, and Defendant said there were two duffle bags in the trunk. Detective Gunn took both bags and Defendant to the station, left Defendant with the booking officers, and took the bags into his own office. Written policy required the arresting officer to turn prisoner property over to booking officers. Detective Gunn opened the bags, saw medical assistance cards and prescriptions, and realized the material inside was beyond his expertise and should not be given to booking officers for storage and return to Defendant. Over the next several days, Detective Gunn inventoried and recorded many similar incriminating items in the bags, and eventually gave it all to DEA. Police and federal agents used the evidence to get search warrants, helping to reveal Defendant's leading role in a large prescription drug conspiracy.
PROCEDURE: The United States indicted Defendant in U.S. District Court for the District of Maryland on a conspiracy charge and many drug and healthcare fraud charges. Defendant moved to suppress all evidence from the two duffel bags, arguing that Detective Gunn's warrantless search was not in accord with regular search policy and was unreasonable under the Fourth Amendment. The trial court found as fact that Detective Gunn's actions were perfectly reasonable and in good faith, and the inventory search exception to the warrant requirement applied. MOTION TO SUPPRESS DENIED. A jury convicted Defendant of all charges except one, and the trial court sentenced him to 16 years. Defendant appealed to the U.S. Court of Appeals for the Fourth Circuit.
DECISION: Inventory searches are an administrative task incident to arrest and jailing. Warrants are unnecessary so long as the search sticks to standardized criteria and is not a ruse to cover general rummaging. However, officers may have some discretion to evaluate containers and decide in good faith whether to open them. The Fourth Circuit carefully read the written policy and noted that by its own terms, it applied to the arresting officer. That happened to be the first uniformed officer on the scene, not Detective Gunn. Also, Defendant was the one who requested Detective Gunn to bring the bags to the station. When they got there, Detective Gunn possessed the bags--not Defendant--so they were not prisoner property for purposes of the written search policy.
There was a general policy that everything belonging to prisoners would be inventoried. Had booking officers done the inventory search, they too would have seized and secured all contraband, which the medical benefit cards and prescriptions obviously were. Defendant had to show that Detective Gunn's motive was investigative, but since the trial court's factual finding of good faith without investigative motive was not clearly erroneous, the Fourth Circuit would not disturb it, even if the search was a bit irregular. DENIAL OF SUPPRESSION AFFIRMED. Defenant otherwise received a fair trial. CONVICTIONS AFFIRMED in all respects.
EDITORIAL: With brilliant dope-slingers like these, who needs narcs? "Okay sir, Officer Cufnstuf just busted your colleague here for this fake scrip, and you got four warrants--one of which I seem to remember swearing out myself, and for the same thing--so that's why he hooked you up too. What can I do for you today--carry your luggage, perhaps?" (trying not to laugh) "Well, Detective, now that you mention it, in the trunk of my low-profile rented Lincoln Town Car are two great big D-bags just chock full of lots more forged prescriptions and stolen Medicaid cards, more than enough to blow my whole op sky-high and send me down for 16 years. I say, old boy, might I trouble you to look after them while I am so indisposed?" "But of course--it's what I live for. Would sir also care for a gin and tonic?"
That was an interesting Fourth Circuit backbend--the inventory search policy applied to the arresting officer and to prisoner property, not the officer who happened to transport the prisoner and happened to have some of the prisoner's property with him. Voila, everything gets searched somehow, and no warrant necessary. Not bad, but how about just pointing out that the bags were in the guy's vehicle and there was probable cause to think he was passing fake scrips, so it's open season on the bags under the automobile exception.
RJM Acquisitions Escapes FDCPA Liability For Bona Fide Bankruptcy Boo-Boo
ROSS v. RJM ACQUISITIONS FUNDING LLC, USCA-7 No. 06-2059, 2007 U.S.App. LEXIS 5759, on appeal from USDC-ILND, before USCJs Posner, Ripple, Williams, opinion by Posner, filed 13 Mar 2007.
LONG STORY SHORT: Debt buyer/collector's computer bankruptcy search did not discover the consumer's bankruptcy under a different name and neither did the prior collection agency notify it; consequently, the attempt to collect the debt from the consumer in violation of FDCPA was a bona fide error. Binding in IL, IN, WI.
FACTS: Plaintiff owed $574.72 to Federated Department Stores and could not repay it. Federated sold it to RJM Acquisitions Funding LLS as part of a large portfolio of bad debt. RJM assigned its affiliate Plaza Associates to collect Plaintiff's debt from "Lisa Ross." Plaintiff petitioned for bankruptcy protection under her full name "Delisa Ross" and listed Plaza Associates on her bankruptcy schedules, but misnamed RJM as RMA; neither did she list "Lisa Ross" as an alias. Plaza learned of the BK and returned the account to RJM without correcting Plaintiff's name or notifying RJM of the BK. Plaintiff received full discharge of the debt, but several months later, RJM mailed her two dunning letters seeking to collect the debt. Just before doing so, RJM searched for bankruptcies under the name "Lisa Ross," which did not pick up Plaintiff's BK in the name "Delisa Ross." Plaintiff's counsel told RJM that the debt was discharged, and RJM immediately ceased all collection efforts.
PROCEDURE: Plaintiff sued RJM in U.S. District Court for the Northern District of Illinois per 15 U.S.C. § 1692e(2)(A), which forbids a debt collector's false representation of the character, amount, or legal status of a debt. RJM moved for summary judgment, arguing that the 15 U.S.C. § 1692k(c) bona fide error defense applied because RJM had followed reasonable procedures designed to prevent dunning bankrupts. The trial court agreed that RJM's error was bona fide and it should not be liable. SUMMARY JUDGMENT GRANTED. Plaintiff appealed to the U.S. Court of Appeals for the Seventh Circuit.
DECISION: Trying to collect a debt discharged in bankruptcy is one of the many ways a collector can misrepresent the character, amount, or legal status of a debt. FDCPA is a strict liability consumer protection statute and violations of it need not be intentional to entitle a consumer to damages. The only way for a collector to save itself is to show that the violation was unintentional and occurred despite procedures reasonably designed to prevent errors.
RJM qualified for this defense. Plaintiff made the principal error in the first place, by not listing aliases on her bankruptcy schedules. If she had fulfilled this basic duty, RJM could have found her and would not have dunned her. RJM could not reasonably have found Plaintiff's full name by searching her short name. The Seventh Circuit tried itself to find "Delisa Ross" by entering "Lisa Ross" on search engines, but received no suggestions such as "do you mean Delisa Ross?" A credit report would have shown Plaintiff's BK discharge, but ordering a credit report for every debtor is prohibitively expensive and not reasonable to require for FDCPA compliance. Under these facts, Plaintiff's appeal was not far from frivolous. AFFIRMED in all respects.
EDITORIAL: I see the point, I'm afraid. Judge Posner has on numerous occasions ripped scofflaw collectors a new one, but is equally protective of collectors who did not break the law or tried their best not to. I am no fan of RJM Acquisitions, not least because they bought the entire Camco portfolio, and Camco was the Medellin Cartel of debt collection. But here, RJM didn't buy a toxic waste pool of fictitious debts like they did from Camco, and their own Plaza Associates let them down. Maybe RJM is wising up.
LONG STORY SHORT: Debt buyer/collector's computer bankruptcy search did not discover the consumer's bankruptcy under a different name and neither did the prior collection agency notify it; consequently, the attempt to collect the debt from the consumer in violation of FDCPA was a bona fide error. Binding in IL, IN, WI.
FACTS: Plaintiff owed $574.72 to Federated Department Stores and could not repay it. Federated sold it to RJM Acquisitions Funding LLS as part of a large portfolio of bad debt. RJM assigned its affiliate Plaza Associates to collect Plaintiff's debt from "Lisa Ross." Plaintiff petitioned for bankruptcy protection under her full name "Delisa Ross" and listed Plaza Associates on her bankruptcy schedules, but misnamed RJM as RMA; neither did she list "Lisa Ross" as an alias. Plaza learned of the BK and returned the account to RJM without correcting Plaintiff's name or notifying RJM of the BK. Plaintiff received full discharge of the debt, but several months later, RJM mailed her two dunning letters seeking to collect the debt. Just before doing so, RJM searched for bankruptcies under the name "Lisa Ross," which did not pick up Plaintiff's BK in the name "Delisa Ross." Plaintiff's counsel told RJM that the debt was discharged, and RJM immediately ceased all collection efforts.
PROCEDURE: Plaintiff sued RJM in U.S. District Court for the Northern District of Illinois per 15 U.S.C. § 1692e(2)(A), which forbids a debt collector's false representation of the character, amount, or legal status of a debt. RJM moved for summary judgment, arguing that the 15 U.S.C. § 1692k(c) bona fide error defense applied because RJM had followed reasonable procedures designed to prevent dunning bankrupts. The trial court agreed that RJM's error was bona fide and it should not be liable. SUMMARY JUDGMENT GRANTED. Plaintiff appealed to the U.S. Court of Appeals for the Seventh Circuit.
DECISION: Trying to collect a debt discharged in bankruptcy is one of the many ways a collector can misrepresent the character, amount, or legal status of a debt. FDCPA is a strict liability consumer protection statute and violations of it need not be intentional to entitle a consumer to damages. The only way for a collector to save itself is to show that the violation was unintentional and occurred despite procedures reasonably designed to prevent errors.
RJM qualified for this defense. Plaintiff made the principal error in the first place, by not listing aliases on her bankruptcy schedules. If she had fulfilled this basic duty, RJM could have found her and would not have dunned her. RJM could not reasonably have found Plaintiff's full name by searching her short name. The Seventh Circuit tried itself to find "Delisa Ross" by entering "Lisa Ross" on search engines, but received no suggestions such as "do you mean Delisa Ross?" A credit report would have shown Plaintiff's BK discharge, but ordering a credit report for every debtor is prohibitively expensive and not reasonable to require for FDCPA compliance. Under these facts, Plaintiff's appeal was not far from frivolous. AFFIRMED in all respects.
EDITORIAL: I see the point, I'm afraid. Judge Posner has on numerous occasions ripped scofflaw collectors a new one, but is equally protective of collectors who did not break the law or tried their best not to. I am no fan of RJM Acquisitions, not least because they bought the entire Camco portfolio, and Camco was the Medellin Cartel of debt collection. But here, RJM didn't buy a toxic waste pool of fictitious debts like they did from Camco, and their own Plaza Associates let them down. Maybe RJM is wising up.
Thursday, April 12, 2007
Fraudulent Podiatrist Puts Foot In Mouth; Trial Court Doesn't Step On Him Hard Enough
UNITED STATES v. BLATSTEIN, USCA-4 No. 06-4210, http://pacer.ca4.uscourts.gov/dailyopinions/opinion.pdf/064210.P.pdf , on appeal from USDC-VAED, before USCJs Michael, King, SrUSCJ Hamilton, opinion by King, filed 12 Apr 2007.
LONG STORY SHORT: Statements of former employees and patients established probable cause to search podiatrist's office for evidence of fraudulent billing, but trial court committed plain error in his favor in sentencing after guilty plea, requiring resentencing. Binding in MD, NC, SC, VA, WV.
FACTS: FBI agents were investigating Defendant for alleged healthcare fraud. A former employee reported that Defendant personally billed patients for surgery supposedly done in a nonexistent facility. Another former employee reported that Defendant listed a mail drop as the address for his fictitious facility, received payments there for surgery not done, and had several patients complain about charges for services they never received. A patient reported filling out paperwork in Defendant's office after having an ingrown toenail removed when his wife noticed an extra carbon copy underneath the form. When she tried to see what was on the extra paper, Defendant and an employee physically tried to take the paper back, but the patient and his wife escaped with it; the name of the fictitious facility was on it. Three other patients reported being billed over $19,000 for treatment in a facility they had never heard of. FBI agents used the foregoing in an affidavit to obtain a search warrant for Defendant's office and home, finding incriminating evidence.
PROCEDURE: The United States indicted Defendant in U.S. District Court for the Eastern District of Virginia on one count of healthcare fraud and seven counts of mail fraud. The day after the indictment, Defendant moved to suppress all evidence on Franks grounds, arguing that the agents did not take into account a Virginia statute that allowed occasional surgery in a doctor's office without hospital licensing. The trial court ruled that the affidavit more than established probable cause and that the Virginia statute had no effect on that. MOTION TO SUPPRESS DENIED. Defendant pleaded guilty to one count of mail fraud, reserving his right to appeal the suppression issue.
The parties agreed to recommend a 24-month sentence, within the advisory guidelines range. Without notifying the parties before the sentencing hearing as Rule 32(h) required, the trial court varied downward based on mitigating information in the presentence report, and sentenced Defendant to a year and a day. The United States objected to the variance but did not take exception to the trial court's not giving advance notice. Defendant appealed the denial of suppression, and the United States cross-appealed the sentence, to the U.S. Court of Appeals for the Fourth Circuit.
DECISION: As to the alleged omission from the search warrant affidavit, Virginia statute had no bearing whatsoever on Defendant's charged offenses. Defendant's own employees and patients provided evidence that he had tricked patients into signing for services they had never received, and that none of them had ever been in the fictitious facility where Defendant claimed to have operated on them. This made probable cause to search Defendant's office and home for evidence of healthcare fraud and mail fraud. No Franks violation could have possibly occurred because Virginia hospital licensing exceptions did not legalize criminal fraud. DENIAL OF SUPPRESSION AFFIRMED.
As to the trial court's not noticing the parties in advance of variance, the Fourth Circuit ruled that this was plain error, and correctable on appeal even though the United States never objected to the lack of notice. Trial courts cannot do this even if there are grounds for variance in the presentence report. Parties cannot prepare their arguments without notice, because courts can vary sentences for many different reasons, and no party can guess accurately which factors the trial court plans to use. The Fourth Circuit had vacated sentences before when courts varied upward without notice to defendants, so long as defendants had good arguments that they would have presented upon notice. Here, the United States had forceful arguments against downward variance, and the substantial right to present them. SENTENCE VACATED and remanded for resentencing.
EDITORIAL: What the hey?? Governments don't have RIGHTS, they have POWERS. People have RIGHTS. Courts exist to limit government powers and enforce peoples' rights, at least up to a point. This case does not reach that point. And here, the U.S. Attorney--that is, the guys and gals who spend all day doing federal criminal litigation and are supposed to know what they're doing--didn't say boo at sentencing about the lack of notice. Isn't it pretty fundamental that if you don't complain about something at trial, you shouldn't get to bother the appeals court about it? Doesn't the Fourth Circuit hammer defendants all the time for not objecting? Why does the U.S. Attorney get to fall down on the job and have the Fourth Circuit set them back up?
Back in the day, governments could not have appealed this sort of decision at all. So now the federal courts are supposed to give the federal government a second or third chance every time the sentence seems a little light? It's looking that way. I like Florida's rule that the State can only appeal an illegal sentence. This sentence is far from illegal--except that the "advisory" Guidelines don't like it, and their "advice" is now more important than centuries of common law experience where we got the rule that governments generally have no appeal from criminal courts. Will the Supremes please take a look at this one.
Oh yeah, I'm also supposed to yell at the crook who committed the crimes in the first place. Well, he shouldn'ta did that, but what kind of chump insurance company doesn't get around to checking the addresses of what are supposed to be hospitals? Since the opinion gave the address of this crook's mail drop, if BC/BS had taken ten seconds to Yahoo/Google it like I did just now, they might have thought it odd that the first page has hits for a motivational speaker, glass contractor, Christian ministry, and dorm rugs at the same address. No hospitals. So why did BC/BS apparently keep on writing this knucklehead big checks for doing nothing? Sure, throw him in prison a couple years, but some bureacrats at the Blues need to take a whipping too.
LONG STORY SHORT: Statements of former employees and patients established probable cause to search podiatrist's office for evidence of fraudulent billing, but trial court committed plain error in his favor in sentencing after guilty plea, requiring resentencing. Binding in MD, NC, SC, VA, WV.
FACTS: FBI agents were investigating Defendant for alleged healthcare fraud. A former employee reported that Defendant personally billed patients for surgery supposedly done in a nonexistent facility. Another former employee reported that Defendant listed a mail drop as the address for his fictitious facility, received payments there for surgery not done, and had several patients complain about charges for services they never received. A patient reported filling out paperwork in Defendant's office after having an ingrown toenail removed when his wife noticed an extra carbon copy underneath the form. When she tried to see what was on the extra paper, Defendant and an employee physically tried to take the paper back, but the patient and his wife escaped with it; the name of the fictitious facility was on it. Three other patients reported being billed over $19,000 for treatment in a facility they had never heard of. FBI agents used the foregoing in an affidavit to obtain a search warrant for Defendant's office and home, finding incriminating evidence.
PROCEDURE: The United States indicted Defendant in U.S. District Court for the Eastern District of Virginia on one count of healthcare fraud and seven counts of mail fraud. The day after the indictment, Defendant moved to suppress all evidence on Franks grounds, arguing that the agents did not take into account a Virginia statute that allowed occasional surgery in a doctor's office without hospital licensing. The trial court ruled that the affidavit more than established probable cause and that the Virginia statute had no effect on that. MOTION TO SUPPRESS DENIED. Defendant pleaded guilty to one count of mail fraud, reserving his right to appeal the suppression issue.
The parties agreed to recommend a 24-month sentence, within the advisory guidelines range. Without notifying the parties before the sentencing hearing as Rule 32(h) required, the trial court varied downward based on mitigating information in the presentence report, and sentenced Defendant to a year and a day. The United States objected to the variance but did not take exception to the trial court's not giving advance notice. Defendant appealed the denial of suppression, and the United States cross-appealed the sentence, to the U.S. Court of Appeals for the Fourth Circuit.
DECISION: As to the alleged omission from the search warrant affidavit, Virginia statute had no bearing whatsoever on Defendant's charged offenses. Defendant's own employees and patients provided evidence that he had tricked patients into signing for services they had never received, and that none of them had ever been in the fictitious facility where Defendant claimed to have operated on them. This made probable cause to search Defendant's office and home for evidence of healthcare fraud and mail fraud. No Franks violation could have possibly occurred because Virginia hospital licensing exceptions did not legalize criminal fraud. DENIAL OF SUPPRESSION AFFIRMED.
As to the trial court's not noticing the parties in advance of variance, the Fourth Circuit ruled that this was plain error, and correctable on appeal even though the United States never objected to the lack of notice. Trial courts cannot do this even if there are grounds for variance in the presentence report. Parties cannot prepare their arguments without notice, because courts can vary sentences for many different reasons, and no party can guess accurately which factors the trial court plans to use. The Fourth Circuit had vacated sentences before when courts varied upward without notice to defendants, so long as defendants had good arguments that they would have presented upon notice. Here, the United States had forceful arguments against downward variance, and the substantial right to present them. SENTENCE VACATED and remanded for resentencing.
EDITORIAL: What the hey?? Governments don't have RIGHTS, they have POWERS. People have RIGHTS. Courts exist to limit government powers and enforce peoples' rights, at least up to a point. This case does not reach that point. And here, the U.S. Attorney--that is, the guys and gals who spend all day doing federal criminal litigation and are supposed to know what they're doing--didn't say boo at sentencing about the lack of notice. Isn't it pretty fundamental that if you don't complain about something at trial, you shouldn't get to bother the appeals court about it? Doesn't the Fourth Circuit hammer defendants all the time for not objecting? Why does the U.S. Attorney get to fall down on the job and have the Fourth Circuit set them back up?
Back in the day, governments could not have appealed this sort of decision at all. So now the federal courts are supposed to give the federal government a second or third chance every time the sentence seems a little light? It's looking that way. I like Florida's rule that the State can only appeal an illegal sentence. This sentence is far from illegal--except that the "advisory" Guidelines don't like it, and their "advice" is now more important than centuries of common law experience where we got the rule that governments generally have no appeal from criminal courts. Will the Supremes please take a look at this one.
Oh yeah, I'm also supposed to yell at the crook who committed the crimes in the first place. Well, he shouldn'ta did that, but what kind of chump insurance company doesn't get around to checking the addresses of what are supposed to be hospitals? Since the opinion gave the address of this crook's mail drop, if BC/BS had taken ten seconds to Yahoo/Google it like I did just now, they might have thought it odd that the first page has hits for a motivational speaker, glass contractor, Christian ministry, and dorm rugs at the same address. No hospitals. So why did BC/BS apparently keep on writing this knucklehead big checks for doing nothing? Sure, throw him in prison a couple years, but some bureacrats at the Blues need to take a whipping too.
I Hear You Knocking But You Can't Reach In--And Next Time, You'll Pay
MCCLISH v. NUGENT, USCA-11 No. 06-11826, 2007 U.S.App. LEXIS 8294, on appeal from USDC-FLMD, before USCJs Anderson, Marcus, USDJ-FLSD Altonaga by designation, opinion by Marcus, concurrence by Anderson, filed 11 Apr 2007.
LONG STORY SHORT: Deputy knocked and the homeowner opened the door voluntarily, but that did not allow deputy to reach inside and arrest him without a warrant; however, qualified immunity applied because the right was not clearly established. Binding in AL, FL, GA.
FACTS: Plaintiff, age 75, and Roommate lived in a mobile home at the end of a long dirt road with a gate across its entrance, in Hernando County, FL. Neighbors called the sheriff's office to complain that Roommate was screaming ethnic slurs and death threats at them, and firing guns in the air. Defendant, a Hernando County deputy, responded to Neighbors' house at 4:00pm and interviewed them. While Defendant was there, Plaintiff observed them, and drove by Neighbors' house, yelling at them. Defendant heard Plaintiff threaten to kill Neighbor, though Plaintiff denied it and another deputy nearby did not hear what Plaintiff said.
Defendant and the other deputy returned to the sheriff's office, where Defendant reviewed the location's previous call history. Defendant decided to charge Plaintiff with aggravated stalking, a Florida felony, based on his observations and what he learned from records. Defendant did not obtain an arrest warrant, but went back to Plaintiff's home with backup to arrest him just before midnight. Another neighbor of Plaintiff's had a clicker to open the gate leading to Plaintiff's home, but even though Plaintiff had told that neighbor never to open the gate without Plaintiff's permission, he did so at the deputies' request. Defendant knocked on Plaintiff's front door and announced that he was LE. Everyone agreed that Plaintiff voluntarily opened the door, but Plaintiff and Roommate testified that Defendant reached inside and pulled Plaintiff outside. Defendant testified that Plaintiff came out on the porch voluntarily. Either way, Defendant arrested Plaintiff and transported him. Plaintiff's charges were dropped as part of pretrial intervention.
PROCEDURE: Plaintiff sued Defendant in U.S. District Court for the Middle District of Florida per 42 U.S.C. § 1983 for violating his Fourth Amendment right to be free from unreasonable warrantless arrest without probable cause. Defendant moved for summary judgment, arguing that he acted properly, but that even if he had not, the law was not clearly established enough to put him on notice of any violations he did commit, entitling him to qualified immunity. The trial court assumed without deciding that Defendant did violate the Fourth Amendment, but then ruled that under the facts before it, the law was not clearly established beforehand and Defendant was not liable for violating it. QUALIFIED IMMUNITY GRANTED. Plaintiff appealed to the U.S. Court of Appeals for the Eleventh Circuit.
DECISION: Qualified immunity requires a two-step analysis: whether Defendant violated one or more constitutional rights, and if so, whether the law was clearly established at the time of Defendant's acts. Courts are traditionally reluctant to rule on constitutional questions unless they absolutely have to, but when deciding qualified immunity, they DO absolutely have to. Among other reasons, that is how the law gets settled for purposes of the second step. The trial court erred by dodging the first step.
Taking the facts as favorably as they could toward Plaintiff, who testified that Defendant reached inside his home and pulled him out to effect a warrantless arrest, the Eleventh Circuit ruled Defendant's actions unconstitutional. "The poorest man in his cottage may bid defiance to all the forces of the Crown," meaning that the police may not intrude by even a fraction of an inch, absent a warrant or an exception to the warrant requirement. Here, there was no consent and no exigent circumstances, given the passage of seven hours between the first encounter and the warrantless arrest. Though Plaintiff opened the door voluntarily, that did not indicate consent to entry or abandonment of any reasonable privacy expectation, not in the Eleventh Circuit.
However, the second step of qualified immunity requires the law to be clearly established for a plaintiff to recover. In the Eleventh Circuit, the only courts whose decisions can clearly establish the law are SCOTUS, the Eleventh Circuit itself, and the highest court of the state where the events happened. At the time of Defendant's actions, none of those courts had squarely decided whether an officer without a warrant could reach an arm's length inside to seize an arrestee who opened the door. Indeed, other federal circuits had ruled that yes, officers may do that. Though the better answer was no, Defendant's conduct was not clearly unlawful at the time. GRANT OF QUALIFIED IMMUNITY AFFIRMED.
The concurrence would have ruled Defendant's actions constitutional, since Plaintiff was on or near the threshold of his home and voluntarily put himself in a position to be seized.
EDITORIAL: So now we know. Like in football, all you have to do is break the plane, and your bank might get broken. Or you could, oh I dunno, go get an arrest warrant sometime that afternoon ...
To drop a name, Judge Altonaga of the Southern District of Florida, who was on this panel by designation, was the very first judge I ever appeared in front of as a lawyer. When she was a state judge of the Eleventh Judicial Circuit, which consists solely of Dade County, I had a client who needed a domestic violence injunction, which other states call a restraining order and NC calls a 50B. I remember one of the cases before us where the domestic violence victim broke down in tears while testifying, and Judge Altonaga, without loss of judicial composure, reached for a handy box of tissues and passed it over the bench. I thought that was a nice touch. Judge Altonaga then actually granted my injunction, which kept my client and her troublesome husband apart for long enough that both of them were able to calm down and reconcile.
LONG STORY SHORT: Deputy knocked and the homeowner opened the door voluntarily, but that did not allow deputy to reach inside and arrest him without a warrant; however, qualified immunity applied because the right was not clearly established. Binding in AL, FL, GA.
FACTS: Plaintiff, age 75, and Roommate lived in a mobile home at the end of a long dirt road with a gate across its entrance, in Hernando County, FL. Neighbors called the sheriff's office to complain that Roommate was screaming ethnic slurs and death threats at them, and firing guns in the air. Defendant, a Hernando County deputy, responded to Neighbors' house at 4:00pm and interviewed them. While Defendant was there, Plaintiff observed them, and drove by Neighbors' house, yelling at them. Defendant heard Plaintiff threaten to kill Neighbor, though Plaintiff denied it and another deputy nearby did not hear what Plaintiff said.
Defendant and the other deputy returned to the sheriff's office, where Defendant reviewed the location's previous call history. Defendant decided to charge Plaintiff with aggravated stalking, a Florida felony, based on his observations and what he learned from records. Defendant did not obtain an arrest warrant, but went back to Plaintiff's home with backup to arrest him just before midnight. Another neighbor of Plaintiff's had a clicker to open the gate leading to Plaintiff's home, but even though Plaintiff had told that neighbor never to open the gate without Plaintiff's permission, he did so at the deputies' request. Defendant knocked on Plaintiff's front door and announced that he was LE. Everyone agreed that Plaintiff voluntarily opened the door, but Plaintiff and Roommate testified that Defendant reached inside and pulled Plaintiff outside. Defendant testified that Plaintiff came out on the porch voluntarily. Either way, Defendant arrested Plaintiff and transported him. Plaintiff's charges were dropped as part of pretrial intervention.
PROCEDURE: Plaintiff sued Defendant in U.S. District Court for the Middle District of Florida per 42 U.S.C. § 1983 for violating his Fourth Amendment right to be free from unreasonable warrantless arrest without probable cause. Defendant moved for summary judgment, arguing that he acted properly, but that even if he had not, the law was not clearly established enough to put him on notice of any violations he did commit, entitling him to qualified immunity. The trial court assumed without deciding that Defendant did violate the Fourth Amendment, but then ruled that under the facts before it, the law was not clearly established beforehand and Defendant was not liable for violating it. QUALIFIED IMMUNITY GRANTED. Plaintiff appealed to the U.S. Court of Appeals for the Eleventh Circuit.
DECISION: Qualified immunity requires a two-step analysis: whether Defendant violated one or more constitutional rights, and if so, whether the law was clearly established at the time of Defendant's acts. Courts are traditionally reluctant to rule on constitutional questions unless they absolutely have to, but when deciding qualified immunity, they DO absolutely have to. Among other reasons, that is how the law gets settled for purposes of the second step. The trial court erred by dodging the first step.
Taking the facts as favorably as they could toward Plaintiff, who testified that Defendant reached inside his home and pulled him out to effect a warrantless arrest, the Eleventh Circuit ruled Defendant's actions unconstitutional. "The poorest man in his cottage may bid defiance to all the forces of the Crown," meaning that the police may not intrude by even a fraction of an inch, absent a warrant or an exception to the warrant requirement. Here, there was no consent and no exigent circumstances, given the passage of seven hours between the first encounter and the warrantless arrest. Though Plaintiff opened the door voluntarily, that did not indicate consent to entry or abandonment of any reasonable privacy expectation, not in the Eleventh Circuit.
However, the second step of qualified immunity requires the law to be clearly established for a plaintiff to recover. In the Eleventh Circuit, the only courts whose decisions can clearly establish the law are SCOTUS, the Eleventh Circuit itself, and the highest court of the state where the events happened. At the time of Defendant's actions, none of those courts had squarely decided whether an officer without a warrant could reach an arm's length inside to seize an arrestee who opened the door. Indeed, other federal circuits had ruled that yes, officers may do that. Though the better answer was no, Defendant's conduct was not clearly unlawful at the time. GRANT OF QUALIFIED IMMUNITY AFFIRMED.
The concurrence would have ruled Defendant's actions constitutional, since Plaintiff was on or near the threshold of his home and voluntarily put himself in a position to be seized.
EDITORIAL: So now we know. Like in football, all you have to do is break the plane, and your bank might get broken. Or you could, oh I dunno, go get an arrest warrant sometime that afternoon ...
To drop a name, Judge Altonaga of the Southern District of Florida, who was on this panel by designation, was the very first judge I ever appeared in front of as a lawyer. When she was a state judge of the Eleventh Judicial Circuit, which consists solely of Dade County, I had a client who needed a domestic violence injunction, which other states call a restraining order and NC calls a 50B. I remember one of the cases before us where the domestic violence victim broke down in tears while testifying, and Judge Altonaga, without loss of judicial composure, reached for a handy box of tissues and passed it over the bench. I thought that was a nice touch. Judge Altonaga then actually granted my injunction, which kept my client and her troublesome husband apart for long enough that both of them were able to calm down and reconcile.
Monday, April 9, 2007
4th Cir Short Note: Bend Over And Take It Like A Man, Dorrance; And Shame On UNC
JENNINGS v. UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, USCA-4 No. 04-2447, http://pacer.ca4.uscourts.gov/dailyopinions/opinion.pdf/042447A.P.pdf , on appeal from USDC-NCMD, before USCA-4 en banc, filed 09 Apr 2007.
Coach Anson Dorrance of the UNC-CH women's soccer team is by far the winningest and most successful coach in women's soccer nationwide. According to Plaintiff, a soccer player for two years, Dorrance was also an outrageous pervert, obsessed with his players' sex lives and constantly commenting on their bodies. In front of some or all of the team, he asked players with whom they were fornicating, talked of large "racks" and spandex, described his wish for a threesome with two Asian players, wondered if a particularly promiscuous player would do the whole lacrosse team, and would have died to be a fly on the wall when a player who was an evangelical Christian committed to chastity lost her virginity. On a road trip, Dorrance got Plaintiff to be alone with him in a dark hotel room with an unmade bed, told her she was on the verge of being cut from the team for low grades, and asked "who are you [do]ing?" Dorrance seemed to focus his vulgar inquiries on each player in turn, and when he chose Plaintiff for such singling out, asked her in front of others whether she had a shagfest with her boyfriend the previous week; Plaintiff, humiliated, refused to respond. Dorrance also touched players inappropriately or pretended to, especially when they were lightly clad. Plaintiff approached Susan Ehringhaus, UNC counsel and assistant to the Chancellor, and detailed Dorrance's behavior. Ehringhaus pooh-poohed her concerns, said Dorrance was a great guy, and told Plaintiff to work it out. Dorrance eventually cut Plaintiff from the team for low grades and lack of fitness at the end of her sophomore year.
Plaintiff sued UNC, Dorrance, Ehringhaus, and others for Title IX (20 U.S.C. § 1681(a)) sex discrimination and per 42 U.S.C. § 1983 for violating her constitutional or federal statutory rights. The trial court granted Defendants' motion for summary judgment and dismissed the case, and a divided panel of the Fourth Circuit affirmed, but the Fourth Circuit granted review en banc.
To defeat summary judgment on a Title IX claim, Plaintiff had to forecast evidence sufficient to prove four elements to a reasonable jury. (1) UNC was an educational institution receiving federal funds, which it of course was. (2) She was subject to harassment based on her sex. UNC laughed off Dorrance's behavior as jokes and horseplay, but the Fourth Circuit ruled that his conduct went far beyond simple teasing and qualified as sexual harassment. (3) The harassment created a hostile or abusive environment. While Title IX is not a general civility code, and substantial allowance is due for the locker-room nature of athletics, a jury could find on these facts that Dorrance's persistent sexual harassment was sufficiently degrading to young women to create a hostile or abusive environment. The harassment deprived her of educational opportunities or benefits. Even after a discount for her disappointment at being cut, Plaintiff certainly suffered deprivation from the sexual harassment she had to endure in order to play soccer for as long as she did. (4) There was a basis to impute liability to the institution. Plaintiff went directly and personally to Ehringhaus and detailed Dorrance's outrageous behavior at length, only to have Ehringhaus take Dorrance's side immediately and not communicate Plaintiff's concerns to anyone else, much less do anything about them. UNC had actual notice and could be liable for its nonfeasance.
As to Section 1983 liability, Plaintiff showed that Dorrance was a state actor and used his position as coach to sexually harass Plaintiff, and this harassment was sufficiently severe or pervasive to interfere with her educational activities. Defendants did not press their qualified immunity defense below, so the Fourth Circuit would not consider it anew on appeal. Plaintiff's other claims were correctly dismissed, but Title IX and Section 1983 survived. GRANT OF SUMMARY JUDGMENT VACATED and cause remanded for further consistent proceedings.
EDITORIAL: Way to go, Heels! They haven't lost yet--all the Fourth Circuit really said is that now it can go to trial--but it's looking pretty bad for the home team. Chapel Hill is supposed to be the Land that Time Forgot as of 1969, a paradise of perfect Diversity, where all people and beliefs are celebrated. (except, of course, for white heterosexual male conservative Christians not of Hispanic origin). So how did the Thought Police allow this to happen in the Home of World Socialism? Tellingly, one of the harassment victims was a Christian who got humiliated because she wanted to wait for marriage. This is a totally unacceptable attitude in UNC, so I guess they didn't care what Dorrance did to that student. Could it also be that the soccer team won a lot of games and 19 national championships, and that's all that matters to UNC?
Mostly, I would guess that this mess was due to UNC's being so totally obsessed with annihilating the imagined Religious Right conspiracy, and after 9/11 making sure that all students agree that Islam is the greatest and most wonderful religion on earth, that they couldn't be bothered with bad things that were actually happening to their students. You see, Dorrance wasn't a Bible-thumping Baptist, so he must have been all right. Susan Ehringhaus said it, and we must all believe it. Except now, of course, she will get to explain to a jury her unbelievable treachery against a female student who needed a little help. As will UNC--but hopefully not with our tax dollars. Take it out of the athletic donation box.
Incredibly, Dorrance is still there. Winning is everything, justice and right are nothing, at UNC.
Coach Anson Dorrance of the UNC-CH women's soccer team is by far the winningest and most successful coach in women's soccer nationwide. According to Plaintiff, a soccer player for two years, Dorrance was also an outrageous pervert, obsessed with his players' sex lives and constantly commenting on their bodies. In front of some or all of the team, he asked players with whom they were fornicating, talked of large "racks" and spandex, described his wish for a threesome with two Asian players, wondered if a particularly promiscuous player would do the whole lacrosse team, and would have died to be a fly on the wall when a player who was an evangelical Christian committed to chastity lost her virginity. On a road trip, Dorrance got Plaintiff to be alone with him in a dark hotel room with an unmade bed, told her she was on the verge of being cut from the team for low grades, and asked "who are you [do]ing?" Dorrance seemed to focus his vulgar inquiries on each player in turn, and when he chose Plaintiff for such singling out, asked her in front of others whether she had a shagfest with her boyfriend the previous week; Plaintiff, humiliated, refused to respond. Dorrance also touched players inappropriately or pretended to, especially when they were lightly clad. Plaintiff approached Susan Ehringhaus, UNC counsel and assistant to the Chancellor, and detailed Dorrance's behavior. Ehringhaus pooh-poohed her concerns, said Dorrance was a great guy, and told Plaintiff to work it out. Dorrance eventually cut Plaintiff from the team for low grades and lack of fitness at the end of her sophomore year.
Plaintiff sued UNC, Dorrance, Ehringhaus, and others for Title IX (20 U.S.C. § 1681(a)) sex discrimination and per 42 U.S.C. § 1983 for violating her constitutional or federal statutory rights. The trial court granted Defendants' motion for summary judgment and dismissed the case, and a divided panel of the Fourth Circuit affirmed, but the Fourth Circuit granted review en banc.
To defeat summary judgment on a Title IX claim, Plaintiff had to forecast evidence sufficient to prove four elements to a reasonable jury. (1) UNC was an educational institution receiving federal funds, which it of course was. (2) She was subject to harassment based on her sex. UNC laughed off Dorrance's behavior as jokes and horseplay, but the Fourth Circuit ruled that his conduct went far beyond simple teasing and qualified as sexual harassment. (3) The harassment created a hostile or abusive environment. While Title IX is not a general civility code, and substantial allowance is due for the locker-room nature of athletics, a jury could find on these facts that Dorrance's persistent sexual harassment was sufficiently degrading to young women to create a hostile or abusive environment. The harassment deprived her of educational opportunities or benefits. Even after a discount for her disappointment at being cut, Plaintiff certainly suffered deprivation from the sexual harassment she had to endure in order to play soccer for as long as she did. (4) There was a basis to impute liability to the institution. Plaintiff went directly and personally to Ehringhaus and detailed Dorrance's outrageous behavior at length, only to have Ehringhaus take Dorrance's side immediately and not communicate Plaintiff's concerns to anyone else, much less do anything about them. UNC had actual notice and could be liable for its nonfeasance.
As to Section 1983 liability, Plaintiff showed that Dorrance was a state actor and used his position as coach to sexually harass Plaintiff, and this harassment was sufficiently severe or pervasive to interfere with her educational activities. Defendants did not press their qualified immunity defense below, so the Fourth Circuit would not consider it anew on appeal. Plaintiff's other claims were correctly dismissed, but Title IX and Section 1983 survived. GRANT OF SUMMARY JUDGMENT VACATED and cause remanded for further consistent proceedings.
EDITORIAL: Way to go, Heels! They haven't lost yet--all the Fourth Circuit really said is that now it can go to trial--but it's looking pretty bad for the home team. Chapel Hill is supposed to be the Land that Time Forgot as of 1969, a paradise of perfect Diversity, where all people and beliefs are celebrated. (except, of course, for white heterosexual male conservative Christians not of Hispanic origin). So how did the Thought Police allow this to happen in the Home of World Socialism? Tellingly, one of the harassment victims was a Christian who got humiliated because she wanted to wait for marriage. This is a totally unacceptable attitude in UNC, so I guess they didn't care what Dorrance did to that student. Could it also be that the soccer team won a lot of games and 19 national championships, and that's all that matters to UNC?
Mostly, I would guess that this mess was due to UNC's being so totally obsessed with annihilating the imagined Religious Right conspiracy, and after 9/11 making sure that all students agree that Islam is the greatest and most wonderful religion on earth, that they couldn't be bothered with bad things that were actually happening to their students. You see, Dorrance wasn't a Bible-thumping Baptist, so he must have been all right. Susan Ehringhaus said it, and we must all believe it. Except now, of course, she will get to explain to a jury her unbelievable treachery against a female student who needed a little help. As will UNC--but hopefully not with our tax dollars. Take it out of the athletic donation box.
Incredibly, Dorrance is still there. Winning is everything, justice and right are nothing, at UNC.
FCRA Short Note: If The Named Plaintiff Lied, Class Certification Will Get Denied
FORREST v. SHENANDOAH NATIONAL BANK, USDC-WIED No. 2:06-cv-11, before Chief USDJ Randa, filed 28 Mar 2007. Not binding on other courts but may be persuasive.
Plaintiff sued Defendant under the Fair Credit Reporting Act, particularly 15 U.S.C. § 1681b, for accessing her consumer credit report without extending a firm offer of credit and without her consent or any other lawful reason to do so. Plaintiff also sought to represent a class of plaintiffs similarly situated, and moved to certify such a class per Fed.R.Civ.P. 23.
Class certification requires adequate representation, both of counsel and of named plaintiff. The court was well familiar with Plaintiff's counsel, whose practice consisted largely of FCRA plaintiff work, and considered counsel very competent to run the case. However, even though the burden to show adequacy of named plaintiff is very light--understand the basic facts underlying the complaint, and participate in discovery--this one did not qualify. The same counsel had represented her in 11 other actions filed in the same U.S. District Court in the previous year, but at Plaintiff's deposition, she denied filing them, and counsel did not attempt to clarify. Also, when presented with the loan solicitation letter over which she was suing, she said it "looks like a loan," and she did not know the status of the current lawsuit. Regardless of the reason for her inadequate answers in deposition, Plaintiff gave the impression of being uninterested and unconcerned, and such a shadow plaintiff could not adequately represent the class. No representative means no class can exist, and all other questions were moot. CLASS CERTIFICATION DENIED.
Plaintiff sued Defendant under the Fair Credit Reporting Act, particularly 15 U.S.C. § 1681b, for accessing her consumer credit report without extending a firm offer of credit and without her consent or any other lawful reason to do so. Plaintiff also sought to represent a class of plaintiffs similarly situated, and moved to certify such a class per Fed.R.Civ.P. 23.
Class certification requires adequate representation, both of counsel and of named plaintiff. The court was well familiar with Plaintiff's counsel, whose practice consisted largely of FCRA plaintiff work, and considered counsel very competent to run the case. However, even though the burden to show adequacy of named plaintiff is very light--understand the basic facts underlying the complaint, and participate in discovery--this one did not qualify. The same counsel had represented her in 11 other actions filed in the same U.S. District Court in the previous year, but at Plaintiff's deposition, she denied filing them, and counsel did not attempt to clarify. Also, when presented with the loan solicitation letter over which she was suing, she said it "looks like a loan," and she did not know the status of the current lawsuit. Regardless of the reason for her inadequate answers in deposition, Plaintiff gave the impression of being uninterested and unconcerned, and such a shadow plaintiff could not adequately represent the class. No representative means no class can exist, and all other questions were moot. CLASS CERTIFICATION DENIED.
Sunday, April 8, 2007
4A 4C 2006 Short Note: Private Prison Employees Cannot Be Sued Under Bivens, But It's Open Season In State Court
HOLLY v. SCOTT, 434 F.3d 287 (4th Cir. 2006), No. 05-6287, 2006 U.S.App. LEXIS 685, on appeal from USDC-NCED, filed 12 Jan 2006.
Plaintiff, an inmate serving a federal sentence, claimed that the warden and a physician of the prison were deliberately indifferent to his serious medical needs as a diabetic. The warden and the doctor were employees of GEO Group, Inc., which operated the prison under a contract with the federal Bureau of Prisons. After exhausting his administrative remedies, Plaintiff sued the warden and the doctor per Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) for violating his Eighth Amendment right to be free from cruel and unusual punishment. Defendants moved to dismiss for failure to state a claim, but the trial court held that private contractors of BOP could be liable under Bivens for violating inmates' civil rights. MOTION TO DISMISS DENIED.
The Fourth Circuit reasoned that Defendants' only connection with the federal government was their employer's contract to run the prison. Really, then, Defendants were private actors, not government officials, and Defendants' actions could not be fairly attributed to the federal government. Also Plaintiff had other ways to get compensation, such as state negligence law--arguably an even better remedy because negligence is easier to show than deliberate indifference, and Defendants' employer could be liable under respondeat superior. Congress neither expressly provided nor expressly forbade monetary damages for misdeeds of private prison contractors, so the Fourth Circuit would neither extend the judge-made Bivens doctrine to private contractors nor preclude inmates' state tort lawsuits. REVERSED AND REMANDED for entry of dismissal.
EDITORIAL: Okay, so it's not really a Fourth Amendment case, but Bivens was, and Bivens and Section 1983 are only means to the end of getting some kind of payback from somebody for doing something wrong. Also, I have run a few inmate medical civil rights suits, so I think this is just plain interesting. I'm not totally comfortable with the Fourth Circuit's holding that prisons are different if they're privately run, even if they're still just like government prisons with slightly different uniforms.
But then, the result is pretty good for inmates--now you don't have to run through all your grievances, or prove deliberate action, you can just sue away like any other citizen, and the contractors are liable for actuals, punitives, and respondeat superior, like any other business. I think the shade of ol' King Pyrrhus is probably rolling on the ground of Hades, laughing at GEO Group's hollow victory.
Plaintiff, an inmate serving a federal sentence, claimed that the warden and a physician of the prison were deliberately indifferent to his serious medical needs as a diabetic. The warden and the doctor were employees of GEO Group, Inc., which operated the prison under a contract with the federal Bureau of Prisons. After exhausting his administrative remedies, Plaintiff sued the warden and the doctor per Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) for violating his Eighth Amendment right to be free from cruel and unusual punishment. Defendants moved to dismiss for failure to state a claim, but the trial court held that private contractors of BOP could be liable under Bivens for violating inmates' civil rights. MOTION TO DISMISS DENIED.
The Fourth Circuit reasoned that Defendants' only connection with the federal government was their employer's contract to run the prison. Really, then, Defendants were private actors, not government officials, and Defendants' actions could not be fairly attributed to the federal government. Also Plaintiff had other ways to get compensation, such as state negligence law--arguably an even better remedy because negligence is easier to show than deliberate indifference, and Defendants' employer could be liable under respondeat superior. Congress neither expressly provided nor expressly forbade monetary damages for misdeeds of private prison contractors, so the Fourth Circuit would neither extend the judge-made Bivens doctrine to private contractors nor preclude inmates' state tort lawsuits. REVERSED AND REMANDED for entry of dismissal.
EDITORIAL: Okay, so it's not really a Fourth Amendment case, but Bivens was, and Bivens and Section 1983 are only means to the end of getting some kind of payback from somebody for doing something wrong. Also, I have run a few inmate medical civil rights suits, so I think this is just plain interesting. I'm not totally comfortable with the Fourth Circuit's holding that prisons are different if they're privately run, even if they're still just like government prisons with slightly different uniforms.
But then, the result is pretty good for inmates--now you don't have to run through all your grievances, or prove deliberate action, you can just sue away like any other citizen, and the contractors are liable for actuals, punitives, and respondeat superior, like any other business. I think the shade of ol' King Pyrrhus is probably rolling on the ground of Hades, laughing at GEO Group's hollow victory.
Saturday, April 7, 2007
4A 4C 2006: A Cry For Help, In The Form Of Planted Pipe Bombs
UNITED STATES v. UZENSKI, 434 F.3d 690 (4th Cir. 2006), No. 04-4136, 2006 U.S.App. LEXIS 827, on appeal from USDC-NCED, before USCJs Niemeyer, Gregory, Shedd, opinion by Gregory, filed 13 Jan 2006.
LONG STORY SHORT: Devices that a detective planted were unregistered NFA firearms, and minor discrepancies in the warrant affidavit and seizure of some unauthorized items were not grounds for a blanket suppression of all evidence. Binding in MD, NC, SC, VA, WV.
FACTS: Defendant, a detective with a municipal police department in North Carolina, was walking along the shoulder of a road when he found what looked like a pipe bomb. Agents with the State Bureau of Investigation bomb squad used a special gun to disable the device, and turned the pieces over to the Bureau of Alcohol, Tobacco, Firearms, and Explosives. Defendant told ATF agents that he had found the device while on routine foot patrol. The next day, Defendant and his Chief of Police and two ATF agents drove out to the site and found a second apparent pipe bomb, three yards away from where the first one had been. SBI agents shot the end cap off of it, scattering a powdery substance to the winds. ATF investigated a nearby hardware store for purchases of materials to make such devices. The store turned over its surveillance videotape showing that Defendant bought pipe and end caps two days before he reported finding the first device. A local officer told ATF that Defendant had described making bombs as a teenager, and Defendant said the same thing to an ATF agent over lunch three days later.
About a month after that, an ATF agent asked Defendant to meet with him at the SBI office to discuss the case, and when Defendant and his Chief arrived, they were not allowed to bring in their weapons. An SBI agent took Chief aside to discuss the case, and another agent directed Defendant to a conference room, where an agent asked him if he wanted any refreshments. The agent then had Defendant watch a video, which turned out to be the store surveillance tape of Defendant buying pipes and end caps. Defendant's neck veins bulged and he began hyperventilating. The agent asked why Defendant had done it, but Defendant said he had bought light bulbs and bug spray, not bomb components. The agent then presented Defendant with a copy of a search warrant that SBI had obtained, authorizing a search of Defendant's apartment and car for bomb-making materials. Defendant could not see that the issuing magistrate had stricken out a request to seize his computers. The agent asked Defendant to sign a consent to search and seizure of his computers, which Defendant signed at about 10:15am.
Defendant was free to leave and his Chief was allowed to join him in the conference room. At about that hour, SBI agents executed the search warrant, finding plaid shirts similar to the one Defendant was wearing in the surveillance video and light bulbs matching the description of those Defendant had bought. An ammunition box had police evidence stickers on it, indicating that it was probably stolen from an evidence locker, and inside were controlled substances with evidence stickers on the packaging. Agents also seized bug spray, and papers indicating that Defendant lived there. Upon hearing from the SBI office that Defendant had consented to seizure of his computers, they took those too. At 12:15pm, SBI agents arrested and cuffed Defendant, still in the SBI office.
ATF experts later identified the powder from the pipe bombs as Red Dot smokeless gunpowder, a product intended for handloading pistol and shotgun cartridges. Red Dot is a very fast-burning powder that could have detonated simply if the pipe's end caps were unscrewed. The first device incorporated 9-volt batteries, a mercury tilt switch, and an igniter intended for model rockets. When wired into a circuit, the device could have detonated when tilted. The second device had no electrical components, but ATF experts determined that it could still have exploded if the end caps were unscrewed, and amateur bombmakers had done just that on prior occasions.
PROCEDURE: The United States indicted Defendant in U.S. District Court for the Eastern District of North Carolina on two counts of manufacturing and two counts of possessing unregistered National Firearms Act firearms. [Note: NFA dates from 1933 and defines "firearms" as machine guns, sawed-off rifles and shotguns, silencers, destructive devices, and ordnance bigger than .50-caliber. NFA requires registration and taxation of "firearms" and is actually part of the Internal Revenue Code.] Defendant moved to suppress his pre-arrest statements as involuntary, and all evidence seized from his home as the fruit of an illegal blanket search beyond what the warrant allowed.
The trial court found that Defendant had given a general consent to search of his apartment, and that made all items in his apartment within plain view, regardless of whether the warrant specifically mentioned them. The incriminating nature of the plaid shirts and light bulbs was immediately apparent. Also, Defendant specifically consented to seizure of his computers. Furthermore, his pre-arrest statements were voluntary and he was free to leave until his arrest. MOTION TO SUPPRESS DENIED to that extent; but since the bug spray and papers were neither on the search warrant nor apparently incriminating, MOTION TO SUPPRESS GRANTED as to them.
At trial, Defendant moved for judgment of acquittal, arguing that ATF expert testimony did not establish that the devices could have exploded, and therefore the government failed to prove that they were NFA firearms. The trial court denied such relief. The jury convicted Defendant as charged, and the trial court sentenced Defendant to 60 months. Defendant appealed his convictions and sentences to the U.S. Court of Appeals for the Fourth Circuit.
DECISION: Defendant voluntarily went to the SBI office and accepted the condition that he could not go inside armed. Defendant was free to leave when he was at the SBI office, and SBI agents told him so. Agents offered him refreshments, let him use the restroom, and allowed his Chief to visit Defendant. Anything he said up until his arrest was of his own free will. His consent to seizure of his computers was valid for the same reasons.
In the Fourth Circuit, the plain view exception to the warrant requirement applies if the police have a legal right to be there, and a legal right of access to the object in question, and if the incriminating nature of the object is immediately apparent. Here, the first two elements were present because the warrant and Defendant's permission gave the SBI agents the right to be there and right of access. Agents also knew that the plaid shirts and particularly described light bulbs incriminated Defendant by placing him in the hardware store where he could also have bought bomb components. The ammunition box appeared to be stolen, as did the controlled substances inside. On the other hand, the bug spray and evidence of residence were not on the warrant and did not look incriminating. The trial court ruled correctly on everything Defendant presented to it.
On appeal, Defendant argued that the warrant affidavit listed wrong dimensions for the pipe segments to be seized, which was such a grave misrepresentation that all evidence should be suppressed. The Fourth Circuit ruled that this, even combined with the evidence wrongly seized and suppressed, was nowhere near the level of unconstitutionality that would support a blanket suppression of all evidence. SUPPRESSION RULINGS AFFIRMED in all respects.
As to the devices, ATF experts testified that the mere act of unscrewing the end caps could detonate the Red Dot powder within, and if the pipes were from one-quarter to two-thirds full, the explosion would fragment the pipes and wound or kill anyone nearby. Even though the devices were partly destroyed when SBI shot and disarmed them, this was unavoidable, and the statute defines "destructive device" as either a working device or a combination of parts sufficient to assemble a working device. The devices had no use other than as weapons, and the jury could reasonably have found Defendant guilty of violating the statute. CONVICTIONS AFFIRMED. However, while the case was on appeal, the Fourth Circuit had decided a sentencing issue in Defendant's favor, and under that law, his sentence was excessive. SENTENCE VACATED and remanded for resentencing.
EDITORIAL: I think I'll get carpal tunnel just from writing up this opinion. Man, that was long! And all to arrive at a pretty obvious conclusion. My condolences to this guy's former department, which I don't see any point in identifying. If this opinion is any guide, this guy was a scandal waiting to happen, and it did. Lucky nobody got hurt. I think this guy wanted to get caught, based on all the obvious mistakes that a detective should have known about.
The only thing he could have done to make it more obvious was to use Bullseye powder instead of Red Dot, since it burns even faster. I use Bullseye in my .45 target loads because it's accurate, even though it's dirty and requires thorough cleaning after every match. They don't give prizes for the cleanest gun; only for the most accurate shots. If you ever read the book The Mormon Murders, the bomber there used Bullseye in his bombs to murder a couple people, and almost blew himself up when he ADed his own bomb on the way to kill yet another victim. Unfortunately, he survived and more or less got away with it. So don't play with these things, kids, even though it may seem fun at first. It's dangerous and unlawful, and ATF will find you out.
LONG STORY SHORT: Devices that a detective planted were unregistered NFA firearms, and minor discrepancies in the warrant affidavit and seizure of some unauthorized items were not grounds for a blanket suppression of all evidence. Binding in MD, NC, SC, VA, WV.
FACTS: Defendant, a detective with a municipal police department in North Carolina, was walking along the shoulder of a road when he found what looked like a pipe bomb. Agents with the State Bureau of Investigation bomb squad used a special gun to disable the device, and turned the pieces over to the Bureau of Alcohol, Tobacco, Firearms, and Explosives. Defendant told ATF agents that he had found the device while on routine foot patrol. The next day, Defendant and his Chief of Police and two ATF agents drove out to the site and found a second apparent pipe bomb, three yards away from where the first one had been. SBI agents shot the end cap off of it, scattering a powdery substance to the winds. ATF investigated a nearby hardware store for purchases of materials to make such devices. The store turned over its surveillance videotape showing that Defendant bought pipe and end caps two days before he reported finding the first device. A local officer told ATF that Defendant had described making bombs as a teenager, and Defendant said the same thing to an ATF agent over lunch three days later.
About a month after that, an ATF agent asked Defendant to meet with him at the SBI office to discuss the case, and when Defendant and his Chief arrived, they were not allowed to bring in their weapons. An SBI agent took Chief aside to discuss the case, and another agent directed Defendant to a conference room, where an agent asked him if he wanted any refreshments. The agent then had Defendant watch a video, which turned out to be the store surveillance tape of Defendant buying pipes and end caps. Defendant's neck veins bulged and he began hyperventilating. The agent asked why Defendant had done it, but Defendant said he had bought light bulbs and bug spray, not bomb components. The agent then presented Defendant with a copy of a search warrant that SBI had obtained, authorizing a search of Defendant's apartment and car for bomb-making materials. Defendant could not see that the issuing magistrate had stricken out a request to seize his computers. The agent asked Defendant to sign a consent to search and seizure of his computers, which Defendant signed at about 10:15am.
Defendant was free to leave and his Chief was allowed to join him in the conference room. At about that hour, SBI agents executed the search warrant, finding plaid shirts similar to the one Defendant was wearing in the surveillance video and light bulbs matching the description of those Defendant had bought. An ammunition box had police evidence stickers on it, indicating that it was probably stolen from an evidence locker, and inside were controlled substances with evidence stickers on the packaging. Agents also seized bug spray, and papers indicating that Defendant lived there. Upon hearing from the SBI office that Defendant had consented to seizure of his computers, they took those too. At 12:15pm, SBI agents arrested and cuffed Defendant, still in the SBI office.
ATF experts later identified the powder from the pipe bombs as Red Dot smokeless gunpowder, a product intended for handloading pistol and shotgun cartridges. Red Dot is a very fast-burning powder that could have detonated simply if the pipe's end caps were unscrewed. The first device incorporated 9-volt batteries, a mercury tilt switch, and an igniter intended for model rockets. When wired into a circuit, the device could have detonated when tilted. The second device had no electrical components, but ATF experts determined that it could still have exploded if the end caps were unscrewed, and amateur bombmakers had done just that on prior occasions.
PROCEDURE: The United States indicted Defendant in U.S. District Court for the Eastern District of North Carolina on two counts of manufacturing and two counts of possessing unregistered National Firearms Act firearms. [Note: NFA dates from 1933 and defines "firearms" as machine guns, sawed-off rifles and shotguns, silencers, destructive devices, and ordnance bigger than .50-caliber. NFA requires registration and taxation of "firearms" and is actually part of the Internal Revenue Code.] Defendant moved to suppress his pre-arrest statements as involuntary, and all evidence seized from his home as the fruit of an illegal blanket search beyond what the warrant allowed.
The trial court found that Defendant had given a general consent to search of his apartment, and that made all items in his apartment within plain view, regardless of whether the warrant specifically mentioned them. The incriminating nature of the plaid shirts and light bulbs was immediately apparent. Also, Defendant specifically consented to seizure of his computers. Furthermore, his pre-arrest statements were voluntary and he was free to leave until his arrest. MOTION TO SUPPRESS DENIED to that extent; but since the bug spray and papers were neither on the search warrant nor apparently incriminating, MOTION TO SUPPRESS GRANTED as to them.
At trial, Defendant moved for judgment of acquittal, arguing that ATF expert testimony did not establish that the devices could have exploded, and therefore the government failed to prove that they were NFA firearms. The trial court denied such relief. The jury convicted Defendant as charged, and the trial court sentenced Defendant to 60 months. Defendant appealed his convictions and sentences to the U.S. Court of Appeals for the Fourth Circuit.
DECISION: Defendant voluntarily went to the SBI office and accepted the condition that he could not go inside armed. Defendant was free to leave when he was at the SBI office, and SBI agents told him so. Agents offered him refreshments, let him use the restroom, and allowed his Chief to visit Defendant. Anything he said up until his arrest was of his own free will. His consent to seizure of his computers was valid for the same reasons.
In the Fourth Circuit, the plain view exception to the warrant requirement applies if the police have a legal right to be there, and a legal right of access to the object in question, and if the incriminating nature of the object is immediately apparent. Here, the first two elements were present because the warrant and Defendant's permission gave the SBI agents the right to be there and right of access. Agents also knew that the plaid shirts and particularly described light bulbs incriminated Defendant by placing him in the hardware store where he could also have bought bomb components. The ammunition box appeared to be stolen, as did the controlled substances inside. On the other hand, the bug spray and evidence of residence were not on the warrant and did not look incriminating. The trial court ruled correctly on everything Defendant presented to it.
On appeal, Defendant argued that the warrant affidavit listed wrong dimensions for the pipe segments to be seized, which was such a grave misrepresentation that all evidence should be suppressed. The Fourth Circuit ruled that this, even combined with the evidence wrongly seized and suppressed, was nowhere near the level of unconstitutionality that would support a blanket suppression of all evidence. SUPPRESSION RULINGS AFFIRMED in all respects.
As to the devices, ATF experts testified that the mere act of unscrewing the end caps could detonate the Red Dot powder within, and if the pipes were from one-quarter to two-thirds full, the explosion would fragment the pipes and wound or kill anyone nearby. Even though the devices were partly destroyed when SBI shot and disarmed them, this was unavoidable, and the statute defines "destructive device" as either a working device or a combination of parts sufficient to assemble a working device. The devices had no use other than as weapons, and the jury could reasonably have found Defendant guilty of violating the statute. CONVICTIONS AFFIRMED. However, while the case was on appeal, the Fourth Circuit had decided a sentencing issue in Defendant's favor, and under that law, his sentence was excessive. SENTENCE VACATED and remanded for resentencing.
EDITORIAL: I think I'll get carpal tunnel just from writing up this opinion. Man, that was long! And all to arrive at a pretty obvious conclusion. My condolences to this guy's former department, which I don't see any point in identifying. If this opinion is any guide, this guy was a scandal waiting to happen, and it did. Lucky nobody got hurt. I think this guy wanted to get caught, based on all the obvious mistakes that a detective should have known about.
The only thing he could have done to make it more obvious was to use Bullseye powder instead of Red Dot, since it burns even faster. I use Bullseye in my .45 target loads because it's accurate, even though it's dirty and requires thorough cleaning after every match. They don't give prizes for the cleanest gun; only for the most accurate shots. If you ever read the book The Mormon Murders, the bomber there used Bullseye in his bombs to murder a couple people, and almost blew himself up when he ADed his own bomb on the way to kill yet another victim. Unfortunately, he survived and more or less got away with it. So don't play with these things, kids, even though it may seem fun at first. It's dangerous and unlawful, and ATF will find you out.
4A 4C 2006: Mistaken Dorm Room Raid Is Not Unreasonable
MAZUZ v. MARYLAND, 442 F.3d 217 (4th Cir. 2006), No. 05-1463, 2006 U.S.App. LEXIS 7660, on appeal from USDC-MDD, before USCJs Widener, Shedd, USDJ-VAED Kelley by designation, opinion by Shedd, concurrence by Kelley, filed 29 Mar 2006.
LONG STORY SHORT: Police took reasonable measures to ensure that they searched the correct dorm room, and students in the room that police mistakenly raided were not subject to an unreasonable search or seizure. Binding in MD, NC, SC, VA, WV.
FACTS: Detective Tou of the University of Maryland PD was investigating illegal drug sales on campus, including an armed robbery in dorm Ellicott Hall room 5107. The investigation revealed that one of the students involved in illegal drug sales had a knife and would use it on police if necessary. Detective Tou, who had obtained and served over 100 search warrants while with UMPD, personally visited the dorm and looked at the exterior of the rooms, then obtained search warrants for rooms 5105 and 5110, and arrest warrants for the residents of rooms 5105 and 5107. Detective Tou and his warrant team approached the rooms at 10:30pm, in hopes of better results at night instead of day. Detective Tou did not have copies of the warrants, which particularly described the rooms' exteriors, with him, even though doing so would have reduced the possibility of mistakes.
Detective Tou was to enter room 5110, but because the room numbers were beside the doors instead of on them and he was staying close to the wall, he mistook room 5108 for 5110. Plaintiff heard the knock and announce, but did not know it was a police officer until he opened the door to see Detective Tou, in tactical blacks and balaclava, pointing a firearm at him. Officers entered the room and ordered Plaintiff and his roommate to the floor and handcuffed them. Detective Tou soon determined that something was amiss, and rechecked the room number. Upon noticing his mistake, he uncuffed Plaintiff and his roommate, apologized, and led his team to search room 5110. The whole incident occupied 1 to 2 minutes. Plaintiff failed a test the next day and suffered from PTSD long after.
PROCEDURE: Plaintiff sued Maryland and Detective Tou in U.S. District Court for the District of Maryland per 42 U.S.C. § 1983 for violating his Fourth Amendment right to be free from unreasonable search and seizure. Detective Tou moved for summary judgment on qualified immunity grounds, arguing that his entry into Plaintiff's room was reasonable under the circumstances. The trial court ruled that although a close case, Detective Tou had been to the rooms' area before and should have known better, and a jury would have to decide. QUALIFIED IMMUNITY DENIED. Detective Tou appealed to the U.S. Court of Appeals for the Fourth Circuit.
DECISION: § 1983 exists to deter state officials from violating constitutional rights; failing that, it provides relief for victims of deliberate violations, but not if any violations were the products of reasonable mistake. Without question, Detective Tou's actions amounted to a warrantless search of Plaintiff's home, which is normally an unreasonable search under the Fourth Amendment. However, the Fourth Circuit ruled, on these specific facts, Detective Tou's mistakes were reasonable as a matter of law. He visited the rooms beforehand, which showed due diligence, but the trial court's ruling implicity penalized him for that, since if he had never visited them, a claim of mistake would have been even more plausible. Though carrying copies of the warrants with him might have been preferable, no court has ever required that, and the Fourth Circuit would not hold Detective Tou to what was not required. Once in the room, Detective Tou was entitled to take reasonable protective measures, such as display of weapons and handcuffing occupants, which he discontinued as soon as he realized his error. Plaintiff suffered neither unreasonable search nor excessive force. DENIAL OF QUALIFIED IMMUNITY REVERSED; cause remanded for further consistent proceedings.
The concurrence agreed with the result and the reasoning, but wrote separately to emphasize that the trial court incorrectly intended to submit qualified immunity to the jury, when in fact qualified immunity is supposed to immunize defendants from trial as well as liability.
EDITORIAL: What a wuss--PTSD from once being incorrectly searched for a minute? Oh please. Get a grip! Get a life! Well, what do you expect when college kids have been told for the last 40 years that the only thing in the entire universe that matters is YOUR PERSONAL RIGHTS and the police stay up nights thinking of new ways to violate them. It was a mistake--get over it. If you have to sue SOMEbody, go sue the morons who put the room numbers on the wall and not on the doors.
Hope the rest of the op turned out all right. Even in the academic ivory tower, drug deals and other bad things need police attention before they turn violent.
LONG STORY SHORT: Police took reasonable measures to ensure that they searched the correct dorm room, and students in the room that police mistakenly raided were not subject to an unreasonable search or seizure. Binding in MD, NC, SC, VA, WV.
FACTS: Detective Tou of the University of Maryland PD was investigating illegal drug sales on campus, including an armed robbery in dorm Ellicott Hall room 5107. The investigation revealed that one of the students involved in illegal drug sales had a knife and would use it on police if necessary. Detective Tou, who had obtained and served over 100 search warrants while with UMPD, personally visited the dorm and looked at the exterior of the rooms, then obtained search warrants for rooms 5105 and 5110, and arrest warrants for the residents of rooms 5105 and 5107. Detective Tou and his warrant team approached the rooms at 10:30pm, in hopes of better results at night instead of day. Detective Tou did not have copies of the warrants, which particularly described the rooms' exteriors, with him, even though doing so would have reduced the possibility of mistakes.
Detective Tou was to enter room 5110, but because the room numbers were beside the doors instead of on them and he was staying close to the wall, he mistook room 5108 for 5110. Plaintiff heard the knock and announce, but did not know it was a police officer until he opened the door to see Detective Tou, in tactical blacks and balaclava, pointing a firearm at him. Officers entered the room and ordered Plaintiff and his roommate to the floor and handcuffed them. Detective Tou soon determined that something was amiss, and rechecked the room number. Upon noticing his mistake, he uncuffed Plaintiff and his roommate, apologized, and led his team to search room 5110. The whole incident occupied 1 to 2 minutes. Plaintiff failed a test the next day and suffered from PTSD long after.
PROCEDURE: Plaintiff sued Maryland and Detective Tou in U.S. District Court for the District of Maryland per 42 U.S.C. § 1983 for violating his Fourth Amendment right to be free from unreasonable search and seizure. Detective Tou moved for summary judgment on qualified immunity grounds, arguing that his entry into Plaintiff's room was reasonable under the circumstances. The trial court ruled that although a close case, Detective Tou had been to the rooms' area before and should have known better, and a jury would have to decide. QUALIFIED IMMUNITY DENIED. Detective Tou appealed to the U.S. Court of Appeals for the Fourth Circuit.
DECISION: § 1983 exists to deter state officials from violating constitutional rights; failing that, it provides relief for victims of deliberate violations, but not if any violations were the products of reasonable mistake. Without question, Detective Tou's actions amounted to a warrantless search of Plaintiff's home, which is normally an unreasonable search under the Fourth Amendment. However, the Fourth Circuit ruled, on these specific facts, Detective Tou's mistakes were reasonable as a matter of law. He visited the rooms beforehand, which showed due diligence, but the trial court's ruling implicity penalized him for that, since if he had never visited them, a claim of mistake would have been even more plausible. Though carrying copies of the warrants with him might have been preferable, no court has ever required that, and the Fourth Circuit would not hold Detective Tou to what was not required. Once in the room, Detective Tou was entitled to take reasonable protective measures, such as display of weapons and handcuffing occupants, which he discontinued as soon as he realized his error. Plaintiff suffered neither unreasonable search nor excessive force. DENIAL OF QUALIFIED IMMUNITY REVERSED; cause remanded for further consistent proceedings.
The concurrence agreed with the result and the reasoning, but wrote separately to emphasize that the trial court incorrectly intended to submit qualified immunity to the jury, when in fact qualified immunity is supposed to immunize defendants from trial as well as liability.
EDITORIAL: What a wuss--PTSD from once being incorrectly searched for a minute? Oh please. Get a grip! Get a life! Well, what do you expect when college kids have been told for the last 40 years that the only thing in the entire universe that matters is YOUR PERSONAL RIGHTS and the police stay up nights thinking of new ways to violate them. It was a mistake--get over it. If you have to sue SOMEbody, go sue the morons who put the room numbers on the wall and not on the doors.
Hope the rest of the op turned out all right. Even in the academic ivory tower, drug deals and other bad things need police attention before they turn violent.
Friday, April 6, 2007
First Amendment Short Note: Feeling Of Insecurity Is Not Enough To Forbid Inmate Preaching
SPRATT v. RHODE ISLAND DEPARTMENT OF CORRECTIONS, USCA-1 No. 06 2038, http://www.ca1.uscourts.gov/pdf.opinions/06-2038-01A.pdf , on appeal from USDC-RID, before USCJs Toruella, Lynch, Lipez, opinion by Toruella, filed 06 Apr 2007.
Plaintiff is serving a life sentence for murder. In 1995 he became a Christian and impressed the chaplains enough that they began allowing him to preach during inmate services. The Universal Life Church ordained him a minister in 2000. No disciplinary problems resulted from Plaintiff's preaching. In 2003, a new warden took over and invoked a state policy that required chaplains, not inmates, to supervise and direct religious services, and the director of RIDOC denied Plaintiff's appeal. Plaintiff pro se sued RIDOC and its director under what is now the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc et seq., seeking enforcement of his First and Fourteenth Amendment rights. RIDOC moved for summary judgment, filing an affidavit from a RIDOC official that letting inmates preach (expound upon religious writings and principles, instead of only reading scriptures) made them perceived leaders, which constituted a security threat, as Texas experienced when they allowed inmate trustees to have authority. The trial court agreed. SUMMARY JUDGMENT GRANTED to RIDOC. Plaintiff appealed, with help from ACLU.
The U.S. Court of Appeals for the First Circuit noted that prison officials know infinitely more about their institutions than any outsider could, and their judgment calls would receive great respect in the courts. However, under RLUIPA, once an inmate shows a substantial burden on his religious exercise, the government has to show that the burden furthers a compelling governmental interest and that the burden is the least restrictive means of achieving it. The First Circuit had not had occasion before to define "substantial burden," but the total ban on preaching certainly was one. RIDOC's comparison of the Texas trustee system, actually a building tender system where armed inmates supervised and abused other inmates, to inmate preaching was radically different from an inmate offering weekly sermons. RIDOC could show no disciplinary problems from Plaintiff's activities or other similar situations. The First Circuit, on such thin evidence, could neither rubber-stamp RIDOC's policy nor give Plaintiff what he wanted. Further evidence was necessary as to whether RIDOC's ban on preaching was the least restrictive means that would achieve the goal. Experience and policies of the federal system suggested that the blanket ban was not the only way to do it. GRANT OF SUMMARY JUDGMENT REVERSED; cause remanded for further proceedings.
There, see, ACLU is not as useless as some of my colleagues would have you believe. I don't see how this policy can possibly hold up under the First Amendment, and I'm the first to tell you to beware of inmate preachers. They aren't all as reformed as they seem.
Plaintiff is serving a life sentence for murder. In 1995 he became a Christian and impressed the chaplains enough that they began allowing him to preach during inmate services. The Universal Life Church ordained him a minister in 2000. No disciplinary problems resulted from Plaintiff's preaching. In 2003, a new warden took over and invoked a state policy that required chaplains, not inmates, to supervise and direct religious services, and the director of RIDOC denied Plaintiff's appeal. Plaintiff pro se sued RIDOC and its director under what is now the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc et seq., seeking enforcement of his First and Fourteenth Amendment rights. RIDOC moved for summary judgment, filing an affidavit from a RIDOC official that letting inmates preach (expound upon religious writings and principles, instead of only reading scriptures) made them perceived leaders, which constituted a security threat, as Texas experienced when they allowed inmate trustees to have authority. The trial court agreed. SUMMARY JUDGMENT GRANTED to RIDOC. Plaintiff appealed, with help from ACLU.
The U.S. Court of Appeals for the First Circuit noted that prison officials know infinitely more about their institutions than any outsider could, and their judgment calls would receive great respect in the courts. However, under RLUIPA, once an inmate shows a substantial burden on his religious exercise, the government has to show that the burden furthers a compelling governmental interest and that the burden is the least restrictive means of achieving it. The First Circuit had not had occasion before to define "substantial burden," but the total ban on preaching certainly was one. RIDOC's comparison of the Texas trustee system, actually a building tender system where armed inmates supervised and abused other inmates, to inmate preaching was radically different from an inmate offering weekly sermons. RIDOC could show no disciplinary problems from Plaintiff's activities or other similar situations. The First Circuit, on such thin evidence, could neither rubber-stamp RIDOC's policy nor give Plaintiff what he wanted. Further evidence was necessary as to whether RIDOC's ban on preaching was the least restrictive means that would achieve the goal. Experience and policies of the federal system suggested that the blanket ban was not the only way to do it. GRANT OF SUMMARY JUDGMENT REVERSED; cause remanded for further proceedings.
There, see, ACLU is not as useless as some of my colleagues would have you believe. I don't see how this policy can possibly hold up under the First Amendment, and I'm the first to tell you to beware of inmate preachers. They aren't all as reformed as they seem.
Thursday, April 5, 2007
Mentally Ill Man's Tragic Death By Police Gunfire Must Go To Jury
MEADORS v. ERMEL, USCA-5 No. 05-20764, 2007 U.S.App. LEXIS 7592, on appeal from USDC-TXSD, before USCJs Reavley, DeMoss, and Benavides, opinion by DeMoss, filed 02 Apr 2007.
LONG STORY SHORT: Disputes of fact as to who shot a screwdriver-armed mentally ill man with what type projectile, and when, did not allow pretrial qualified immunity for officers involved in the shooting. Binding in LA, MS, TX.
FACTS: Decedent suffered from severe mental illness, which the 9/11 attacks aggravated. By 29 Oct 2001, Decedent was paranoid and delusional, but his prior experience in secure mental health care did not incline him toward getting help. Decedent's Sister called 911 to get help, making it clear that she was not reporting a crime. An EMS unit and Officers Ermel, Kominek, Dalton, and Martin of City of La Porte, TX PD responded. Sister briefed them on Decedent's bizarre behavior and cautioned them that Decedent was 6'2" and 203 pounds, very strong, and had tools that could be dangerous.
Officers found Decedent in his backyard, sitting in a swing and wearing four to six baseball caps and a tool belt that had a stuffed animal dangling from it. Officer Kominek announced himself, and Decedent stood up, holding a large screwdriver. The officers believed that Decedent was a threat to himself and others, and they could not just let him leave. After instructing two other officers to prepare to restrain Decedent, Officer Ermel fired a beanbag round into Decedent's thigh. Decedent ran over to a dog pen, jumped over the fence, and stood on the doghouse. Officer Ermel hit Decedent with a second beanbag, without result, and fired a third beanbag. Decedent jumped or fell off the doghouse, but an expert would later testify that a bullet, not a beanbag, hit him. Decedent, with his screwdriver in a stabbing grip, ran toward a door near which Officer Kominek was standing, and the officer all believed Decedent was attacking Officer Kominek. He and Officers Dalton and Martin fired a total of 23 rounds from their service sidearms, hitting Decedent 14 times and killing him.
PROCEDURE: Decedent's estate sued the officers in U.S. District Court for the Southern District of Texas per 42 U.S.C. § 1983 for excessive use of force and for numerous state-law claims. After extensive discovery, Defendants all moved for summary judgment on qualified immunity grounds. The trial court ruled that since all officers had acted in unison, their actions should be analyzed collectively. In that light, material facts were still in dispute and had to go to the jury. Also, Officer Ermel argued that since he fired only beanbags, he should not be liable, but the trial court ruled that beanbags were deadly force for Fourth Amendment purposes. QUALIFIED IMMUNITY DENIED in all respects. Defendants appealed to the U.S. Court of Appeals for the Fifth Circuit.
DECISION: The trial court erroneously applied a novel theory of collective action to the officers. There is simply no such legal test; courts must consider each officer's action individually, even if one or more officers' actions turn out to be indistinguishable from each other. On remand, the trial court was not to repeat the error.
Appellate courts have no jurisdiction to review facts surrounding qualified immunity, or even to review trial courts' holdings that issues of fact are genuine. Whether the genuine issues of fact are relevant to qualified immunity, however, is a legal question reviewed de novo. Here, the dispute about whether Decedent received a bullet while still on top of the doghouse armed only with a screwdriver was relevant, because a jury could find that Decedent was not an imminent threat then, and should not have been shot. Officer Ermel's contention that a beanbag round is not deadly force was also an issue of fact and unreviewable at this stage. Just when and why Defendants fired at Decedent were material questions of fact as to which each side had its account. Furthermore, Decedent was mentally ill, not a criminal, and that fact diminished the government interest in use of force. Which side would ultimately prevail, the Fifth Circuit knew not. DENIAL OF QUALIFIED IMMUNITY AFFIRMED; cause remanded for trial.
EDITORIAL: What a tragedy, and probably unavoidable. Lord's peace on all concerned. All we can do is wait for the jury. Well, except to take issue with the ruling that beanbags (stun projectiles fired from a shotgun) are deadly force. If so, why not just stick with buckshot and lead slugs? Something wrong there.
LONG STORY SHORT: Disputes of fact as to who shot a screwdriver-armed mentally ill man with what type projectile, and when, did not allow pretrial qualified immunity for officers involved in the shooting. Binding in LA, MS, TX.
FACTS: Decedent suffered from severe mental illness, which the 9/11 attacks aggravated. By 29 Oct 2001, Decedent was paranoid and delusional, but his prior experience in secure mental health care did not incline him toward getting help. Decedent's Sister called 911 to get help, making it clear that she was not reporting a crime. An EMS unit and Officers Ermel, Kominek, Dalton, and Martin of City of La Porte, TX PD responded. Sister briefed them on Decedent's bizarre behavior and cautioned them that Decedent was 6'2" and 203 pounds, very strong, and had tools that could be dangerous.
Officers found Decedent in his backyard, sitting in a swing and wearing four to six baseball caps and a tool belt that had a stuffed animal dangling from it. Officer Kominek announced himself, and Decedent stood up, holding a large screwdriver. The officers believed that Decedent was a threat to himself and others, and they could not just let him leave. After instructing two other officers to prepare to restrain Decedent, Officer Ermel fired a beanbag round into Decedent's thigh. Decedent ran over to a dog pen, jumped over the fence, and stood on the doghouse. Officer Ermel hit Decedent with a second beanbag, without result, and fired a third beanbag. Decedent jumped or fell off the doghouse, but an expert would later testify that a bullet, not a beanbag, hit him. Decedent, with his screwdriver in a stabbing grip, ran toward a door near which Officer Kominek was standing, and the officer all believed Decedent was attacking Officer Kominek. He and Officers Dalton and Martin fired a total of 23 rounds from their service sidearms, hitting Decedent 14 times and killing him.
PROCEDURE: Decedent's estate sued the officers in U.S. District Court for the Southern District of Texas per 42 U.S.C. § 1983 for excessive use of force and for numerous state-law claims. After extensive discovery, Defendants all moved for summary judgment on qualified immunity grounds. The trial court ruled that since all officers had acted in unison, their actions should be analyzed collectively. In that light, material facts were still in dispute and had to go to the jury. Also, Officer Ermel argued that since he fired only beanbags, he should not be liable, but the trial court ruled that beanbags were deadly force for Fourth Amendment purposes. QUALIFIED IMMUNITY DENIED in all respects. Defendants appealed to the U.S. Court of Appeals for the Fifth Circuit.
DECISION: The trial court erroneously applied a novel theory of collective action to the officers. There is simply no such legal test; courts must consider each officer's action individually, even if one or more officers' actions turn out to be indistinguishable from each other. On remand, the trial court was not to repeat the error.
Appellate courts have no jurisdiction to review facts surrounding qualified immunity, or even to review trial courts' holdings that issues of fact are genuine. Whether the genuine issues of fact are relevant to qualified immunity, however, is a legal question reviewed de novo. Here, the dispute about whether Decedent received a bullet while still on top of the doghouse armed only with a screwdriver was relevant, because a jury could find that Decedent was not an imminent threat then, and should not have been shot. Officer Ermel's contention that a beanbag round is not deadly force was also an issue of fact and unreviewable at this stage. Just when and why Defendants fired at Decedent were material questions of fact as to which each side had its account. Furthermore, Decedent was mentally ill, not a criminal, and that fact diminished the government interest in use of force. Which side would ultimately prevail, the Fifth Circuit knew not. DENIAL OF QUALIFIED IMMUNITY AFFIRMED; cause remanded for trial.
EDITORIAL: What a tragedy, and probably unavoidable. Lord's peace on all concerned. All we can do is wait for the jury. Well, except to take issue with the ruling that beanbags (stun projectiles fired from a shotgun) are deadly force. If so, why not just stick with buckshot and lead slugs? Something wrong there.
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