Friday, June 29, 2007

This Guy Was REALLY Good At Pretending He Wasn't Home

UNITED STATES v. DIAZ, USCA-9 No. 06-30029, 2007 U.S.App. LEXIS 14839, on appeal from USDC-DID, before USCJs Farris, Clifton, Bea, filed 22 June 2007.

LONG STORY SHORT: Arrest warrant subject was usually at home during the day, and agents observed no affirmative evidence that he was away, giving agents reasonable belief to force entry, and incriminating evidence they saw in plain view once they were inside would not be suppressed. Binding in AK, AZ, CA, GU, HI, ID, MP, MT, OR, WA.

FACTS: Defendant lived in his house, where he also repaired motor vehicles for a living, on the Fort Hall Indian Reservation in Idaho. Defendant was the subject of an arrest warrant, which government agents [Note: the opinion does not say which agencies or tribal police they were with] went to his home one afternoon to serve. Agents had visited him at home during the day three or four times over the previous 18 months, and Defendant told them he was usually at home in the daytime. On one occasion, he took 45 minutes to answer a knock on the door. This day, the agents drove past several times, and did not see Defendant's black SUV but saw two people standing next to a red SUV. When it drove off, only one person seemed to be in it, and agents reasoned that the other person had stayed in the house.

Defendant had dogs and security cameras protecting his property, which discouraged the agents from approaching very closely. They watched the house for 90 minutes, seeing no activity, before approaching. They could not see inside because of blankets over the windows. Knocking on the door produced no response, so the agents forced entry through the door. No one was home; agents later found Defendant at a nearby casino and arrested him. While looking through the house for Defendant, an agent saw what looked like illegal drugs in a plastic baggie in plain view. The agents withdrew from the house, swore out a search warrant, and found a bag of methamphetamine and drug equipment.

PROCEDURE: The United States had already indicted Defendant in U.S. District Court for the District of Idaho on one count each of possessing a firearm while a drug user and while a convicted felon, hence the arrest warrant. Defendant moved to suppress all evidence found in his house, arguing that the agents had exceeded the authority of an arrest warrant by entering his house when they had no reason to believe he was there. The trial court ruled that Defendant had established a pattern of being home during the day, which the agents knew, but Defendant's cameras and dogs and blankets made it impossible to determine he was not at home. MOTION TO SUPPRESS DENIED. A jury convicted Defendant on both counts, and Defendant appealed to the U.S. Court of Appeals for the Ninth Circuit.

DECISION: Arrest warrants give government agents limited authority to enter the subject's home and arrest him if they have reasonable belief (aka "reason to believe," "reasonable grounds for believing") that he is there. The Ninth Circuit had decided few cases elaborating on what reasonable belief really was. Commonsense evaluation of the totality of the circumstances is key to reasonableness.

Here, the Ninth Circuit ruled that the agents' experience of consistently finding him at home during the day, Defendant's own statement that he was usually home then, and the fact that Defendant did his mechanic work at home, gave the agents reasonable cause to think he would be home on an ordinary day. On one previous occasion, Defendant took 45 minutes to answer the door, so the fact that knocking produced no immediate response did not mean by itself that he was not home. Also, they had seen two people next to the red SUV but only one had driven off in it. The agents reasonably inferred that Defendant was home, and needed no direct evidence, especially since Defendant's own dogs, cameras, and blanketed windows hampered the agents' efforts to decide whether he was really there. DENIAL OF SUPPRESSION AFFIRMED.

EDITORIAL: This is one of those deals that you'd think comes up all the time on appeal, but according to the Ninth, I guess not, even with eight states and two, uh, whatever Guam and the Marshall Islands are. You often hear people say "but the evidence was only circumstantial." What they mean is, the evidence is just plain weak. Here we see that circumstantial evidence works just fine to support a reasonable conclusion. Dude needs to hide his drugs better, or at all.

Thursday, June 28, 2007

Four Officers Get Out Of A Crown Vic 7 Yards Away And Approach You--But That's Not A Seizure?

UNITED STATES v. GODDARD, USCA-DC No. 05-3080, 2007 U.S.App. LEXIS 14828, on appeal from USDC-DC, before Chief USCJ Ginsburd, USCJs Tatel, Brown, opinion per curiam, concurrence by Tatel, dissent by Brown, filed 22 Jun 2007.

LONG STORY SHORT: Four officers in casual dress with openly carried badges and weapons getting out of an unmarked Crown Vic near four black men and approaching them was not a seizure, and when one man immediately held his hand at his right side, officers had reasonable suspicion to yell "Gun" and detain him. Binding in DC.

FACTS: Four DC Metropolitan PD officers were patrolling after sunset in an unmarked Ford Crown Victoria, the most numerous and well-recognized type of police car, when they heard a radio report of a 5'8" 180-pound black male wearing a black coat and blue jeans running away from police after attempted unauthorized use of a vehicle. Minutes later and two blocks away, the officers saw four black men talking among themselves at a gas station. All were wearing black coats and blue jeans. One was 5'6", another was between 5'6" and 6'0", and the other two, including Defendant, were over 6'0". The officers parked in the entrance to the parking lot 15 to 20 feet away from the group. As the officers got out of the Crown Vic wearing MPD logo jackets, badges, handcuffs, and holstered sidearms, one of the men (who testified the officers "jumped out") began moving away from the group, and Defendant held his hand to the right side of his waistband. As the officers approached the group, one officer overheard Defendant say he had a gun, and yelled "Gun." The officers told the man walking away to come back, which he did. Two officers handcuffed Defendant and found a gun inside his waistband. After officers placed him under arrest but before they read him Miranda, Defendant said he had the gun because he had been shot lately and had just gotten out of jail.

PROCEDURE: The United States indicted Defendant in U.S. District Court for the District of Columbia on one count of possessing a firearm while a convicted felon. Defendant moved to suppress the gun, arguing that the officers' actions amounted to a seizure at the time they parked and got out, but without reasonable suspicion to support it. The trial court agreed that the act of parking an obvious police car 20 feet away and having four officers get out and approach was a seizure, but noted that Defendant and his colleagues were close in space and time to the reported offense and were wearing what the suspect was, and one at least was the same height as the suspect. Though a close case, the trial court ruled that reasonable suspicion existed and a Terry stop was justified. MOTION TO SUPPRESS DENIED. Defendant pleaded guilty, reserving his right to appeal the denial of suppression to the U.S. Court of Appeals for the District of Columbia circuit.

DECISION: Two questions of law had to be answered: just when the stop happened, and whether the officers had reasonable suspicion at the time. A stop is complete when an officer, by force or show of authority, has in some way restrained the liberty of a citizen. An officer may just walk up to a person in public without that being a seizure. Here, at the time they got out of the Crown Vic, the officers had not been driving aggressively and did not block the mens' escape. Display of police logos, badges, and holstered hardware by four officers approaching at a walk did not transform the encounter into a stop; indeed, one man began to walk away. If, say, the officers had gotten out and run aggressively toward the men, a reasonable person might have taken that as a sign to do what the police said. But that did not happen, and in the totality of circumstances here, the trial court's ruling that the stop began with the Crown Vic parking was erroneous.

Instead, the DC Circuit ruled, the stop did not begin until the officers yelled "Gun" and ordered the man who walked away to return. At that point, a reasonable innocent citizen in any of the mens' places would not have felt free to leave. But at that point, the officers had reasonable suspicion of criminal activity, because Defendant clamped his hand to his waistband and mentioned that he was carrying a gun, which is generally illegal in DC. DENIAL OF SUPPRESSION AFFIRMED.

The concurrence expressed great concerns about the same issues as the dissent, but because of well-established precedent governing Terry stops, believed the panel to be bound to the result in the per curiam opinion. The dissent disputed the finding that all four men were wearing the same thing as the suspect in the original radio call, and noted that the neighborhood was predominantly African-American, making the sighting of a black man there unremarkable. Defendant's admission that he had a gun evidenced an expectation of imminent search. Neither was it clear that the man who walked away was called back only after police yelled "Gun." In the totality of circumstances, Defendant was seized as soon as the Crown Vic parked. The social costs of Fourth Amendment violations and harsher police behavior in minority neighborhoods needed reexamining even against the social costs of high crime in those same neighborhoods.

The dissent would have reversed the denial of suppression.

EDITORIAL: Not so easy, is it? Now I'm going 51 to 49% with the dissent, because I think the stop happened when the Crown Vic pulled right up and four officers all got out. I wouldn't have felt free to leave whether they were moseying, sprinting, or in between, right at me and my homeys from only seven yards away. That means the officers had to have reasonable suspicion then and there, but objectively, they didn't. Four black men in a black neighborhood in DC--how unusual. I somehow suspect they weren't all wearing the exact same thing either, and the dissent correctly figured that out from the record.

You can tell that this panel was probably at each other's throats in those secret conferences, because even though there's a concurrence and a dissent, the main opinion is per curiam, or "of the court" instead of signed by any one judge, not even the Chief Judge of the DC Circuit. In this context, it means that the panel could get two out of three to agree only on the basic facts, reasoning, and result, but those two out of three could not agree enough to go into any more detail. Indeed, the opinion does come across as wishy-washy in places, and fudges on some facts that the dissent brought out.

We can generally agree that convicted felons shouldn't be walking around with concealed handguns. The one government program you can get both the NRA and the Brady Bunch both to support is CrimeStrike, which has made a point of prosecuting cases exactly like these. But how badly do we want this result? Should the police just be able to go around dogging people who are more likely than average to be illegally armed, so long as the police are guessing accurately? If you want and need more community cooperation with law enforcement, what is the balance point between proactive policing, and ticking off innocent people so badly that they don't want to talk? I don't know. I'll leave it to police and citizens and courts in each community. In my community (and seriously, it may not work in yours), you can get pretty far with treating people extremely fairly and listening a lot more than you talk.

I Sense A Disturbance In The Force ... Chancellor Palpatine, Please Call Your Office

Today's discussion with a bill collector whose firm committed about 55 violations of consumer protection law against my client went something like this:

Him: "I've seen your website. It's disgusting."

Me: "I guess we come at it from different points of view. So I guess if you were Anakin Skywalker, you'd be saying, 'From my point of view, the Jedi are evil!'"

Him: [puzzled] "Who's Anakin?"

[incredulous pause while I process this ... he can't possibly mean ... no, it's inconceivable ...]

Me: "You mean you have not seen Star Wars Episode III: Revenge Of The Sith?"

Him: "Nope."

Me: "Then I suppose you would not recognize the allusion to one of the final scenes ... oh well, just a little attempt at humor ..."

This exchange answers some questions, such as how in the world do these people get to be the way they are? One way, we now know, is that they have not seen the right sort of movies. George Lucas' laughable dialogue and Marin County leftism aside, the Star Warses (that's the plural: one Star Wars, six Star Warses) are absolute must-see films for all good Americans. Perhaps our bill collector friend is enamored of, say, Boiler Room; some stockbrokers think this was a training film. Or more likely, Brokeback Mountain ... no, I didn't say that! read on ...

But it raises more questions than it answers. Can you be a Sith Apprentice and not know it? The guy was definitely from the Dark Side, which Yoda tells us is "easier, quicker, more seductive, far more profitable," and the Sith use the Force for attack, never for defense. Jedi are selfless; the Sith seek only more power for themselves. Sound familiar?

Then again, the guy was more like those obedient clones they grow on Kamino, in half the normal time. Well, since settlement talks were fruitless, we'll sue them and see if the reward will be, oh, "more wealth than YOU can imagine." "I dunno, I can imagine quite a bit."

And since I'm sure he's reading this blog: Dude, if you think my website is disgusting, just read this next case about the cops pulling dope out of this dealer's boody! ...

Wednesday, June 27, 2007

Well, Where Else Would You Expect To Find CRACK!? QI Saves Officer From Suit

RICHMOND v. CITY OF BROOKLYN CENTER, USCA-8 Nos. 05-3770, 05-3771, 2007 U.S.App. LEXIS 14710, on appeal from USDC-MND, before USCJs Melloy, Smith, Gruender, opinion by Gruender, dissent by Smith, filed 21 Jun 2007.


LONG STORY SHORT: It was not clear to officer who strip-searched arrestee and removed a small package containing cocaine from arrestee's rectum that his actions violated established constitutional rights, and arrestee could not recover. Binding in AR, IA, MN, MO, ND, NE, SD.

FACTS: Brooklyn Center, Minnesota police got an anonymous tip that drugs were being sold at three particular rooms of a motel. Officers, including Defendant, knocked on Plaintiff's room, and Plaintiff partially opened the door. Plaintiff gave a false name in response to questions about drug sales. Officers learned his real name, and he admitted there was a warrant for his arrest. Officers came in and arrested Plaintiff, finding $1,300 in currency, cell phones, pagers, tear-offs (corners of baggies for tying up small amounts of drugs), and a little marijuana. Officers checked Plaintiff's real name again, discovering an extensive history of drug dealing. All officers present were male.

Defendant told Plaintiff he believed that Plaintiff had more drugs on him, and was going to check Plaintiff's "crotch area." Officer Flesland held Plaintiff while Defendant removed Plaintiff's pants, then lowered Plaintiff's boxer shorts. Defendant observed that Plaintiff was clenching his buttocks, and (accounts of the participants differed) either told Plaintiff to bend over and he complied, or forcibly bent Plaintiff over a table. Defendant saw a piece of tissue sticking out of Plaintiff's buttocks, put on a latex glove, and (again, accounts differed) either quickly swiped the tissue out and let it fall on the floor, or inserted two or three fingers into Plaintiff's rectum and probed around, to the point that Plaintiff felt he was being raped. The tissue contained 3.7g of cocaine.

PROCEDURE: The state criminal court ruled the officers' search illegal, suppressed the cocaine, and dismissed all charges. Plaintiff sued Defendant in U.S. District Court for the District of Minnesota per 42 U.S.C. § 1983 for violating his Fourth Amendment right against unreasonable search and excessive force. Defendant moved for summary judgment on qualified immunity grounds, but the trial court ruled that material facts as to the alleged body cavity search were still in dispute. QUALIFIED IMMUNITY DENIED. A jury found that the police did not use excessive force, and the body cavity search did not occur, and would have been reasonable if it had occurred. However, the jury found that Defendant did not conduct the strip search in a reasonable manner, and awarded Plaintiff $35,000 nominal damages, since the search caused him no actual injury. The trial court denied all defense posttrial motions, except to reduce the damages to $1. Defendant appealed to the U.S. Court of Appeals for the Eighth Circuit.

DECISION: The Fourth Amendment reasonableness of a strip search turns on the scope of a particular intrusion, the way it is done, the justification for starting it, and the place where it is done. Defendant did not dispute on appeal the jury's finding that the search was unreasonable, meaning that the first half of qualified immunity did not help him, so the Eighth Circuit would go to the second half. Whether a right is clearly established is a matter of law for the court, and the trial court erred by putting that question to the jury.

When the incident happened, it was not clear to a reasonable officer in Defendant's position that a strip search of a subject, supported by reasonable suspicion, in the subject's private motel room, using a latex glove, and probably not forcibly bending the subject over, was a violation of the subject's Fourth Amendment rights. Though the police could have transported Plaintiff to the police station and searched him there, police do not have to use the absolute least intrusive means possible, and also Plaintiff might have disposed of the evidence on the way there. Defendant was entitled to qualified immunity and all other questions were moot. VACATED AND REMANDED for entry of judgment in Defendant's favor.

The dissent would have ruled that Plaintiff's right to be free from strip searches of this type to have been clearly established. Field strip searches are very rare and certainly are not justified simply as incident to arrest. Objectively reasonable officers should have known that it was unreasonable and illegal to forcibly restrain Plaintiff and strip off his clothes for inspection of his privates.

EDITORIAL: I've heard of pulling victory out of one's behind, but this is the first time I've seen it happen. If it was me there, and I saw this guy had a tissue probably containing drugs sticking out from where the sun don't shine, I'd be inclined to tell him HE CAN KEEP IT, with my compliments. But if dope could be there, so could a razor blade, or a handcuff key, or a toothbrush shank, and with his hands cuffed in back and a few minutes' ride back to the station, he could do something bad. I don't know if I would have done the same thing these officers did, but I garontee, I would have done SOMEthing.

51 to 49%, I agree with the result. It was just luck of the draw to get two judges on the case who did too. It could easily have gone the other way.

Tuesday, June 26, 2007

Reasonable Suspicion Was Enough To Save Trooper From Million-Dollar Lawsuit

WILDER v. TURNER, USCA-10 No. 06-1092, 2007 U.S.App. LEXIS 13728, on appeal from USDC-COD, before USCJs Kelly, Baldock, Gorsuch, opinion by Baldock, filed 12 June 2007.

LONG STORY SHORT: Trooper had objectively reasonable suspicion to ask a motorist who showed objective signs of alcohol consumption to take field sobriety tests, and probable cause to arrest him upon refusal; $1 million jury verdict in motorist's favor would be reversed. Binding in CO, KS, NM, OK, UT, WY.

FACTS: Defendant, a Colorado highway patrolman, stopped Plaintiff for driving 57 in a 50. Defendant smelled alcohol on Plaintiff's breath, and Plaintiff admitted he had drunk a glass of wine 10 or 15 minutes before. Defendant heard Plaintiff speak unusually slowly and deliberately, and saw that Plaintiff's face was flushed and his eyes watery. Defendant asked Plaintiff to step out of the vehicle and walk to the rear, which he did without unsteadiness. Explaining that he had observed certain indicia of intoxication, Defendant asked Plaintiff to submit to field sobriety tests, but Plaintiff declined, asking "what did I do to deserve this?" Defendant asked again for Plaintiff to submit to tests, Plaintiff refused again, and Defendant arrested Plaintiff for driving under the influence. Plaintiff disclosed that he had a licensed handgun in his car. Defendant searched the car and found on the front passenger seat a half-empty open single-serving wine bottle that Plaintiff had covered up with newspapers before stopping. Defendant charged Plaintiff with DUI and illegal possession of a weapon while intoxicated, but subsequent blood tests established Plaintiff's blood alcohol content at less than .02, well under the legal limit of .08. The criminal court dismissed all charges against Plaintiff.

PROCEDURE: Plaintiff sued Defendant in U.S. District Court for the District of Colorado per 42 U.S.C. § 1983 for violating his Fourth Amendment right to be free from unreasonable seizure, specifically that Defendant arrested and charged him and seized his handgun without probable cause. After discovery, Defendant moved for summary judgment on qualified immunity grounds, arguing that he had objective reasons for asking Plaintiff to submit to field sobriety tests, and probable cause to arrest Plaintiff upon his refusal. The trial court ruled that under Colorado Supreme Court precedent interpreting Colorado's DUI statute, Defendant had only reasonable suspicion, not probable cause, of intoxication. Since under Colorado law a field sobriety test is a full search requiring probable cause, a reasonable jury could find that Defendant unlawfully seized Plaintiff. QUALIFIED IMMUNITY DENIED.

A jury rendered a verdict in Defendant's favor, Plaintiff taking nothing. The trial court granted Plaintiff's motion for a new trial on grounds that Defendant's counsel had acted so improperly in front of the jury that the trial court was convinced that Plaintiff had not received a fair trial. Defendant renewed his summary qualified immunity motion, but the trial court denied it as late. At the second trial, the jury awarded Plaintiff $1,000,000. The trial court denied all of Defendant's posttrial motions, ruling that Defendant was not entitled to qualified immunity. Defendant appealed to the U.S. Court of Appeals for the Tenth Circuit.

DECISION: If an officer has probable cause to believe that a person has committed even a very minor criminal offense in his presence, the officer may arrest the person immediately without violating the Fourth Amendment. Probable cause is only a fair probability considering all the facts and circumstances, and needs no prima facie evidence of guilt.

Since Plaintiff sued for violation of federal law, Defendant could assert the federal defense of qualified immunity. Plaintiff had to show that Defendant was liable under Fourth Amendment standards, not state law. The trial court erroneously applied state law to a federal constitutional question. Under the Fourth Amendment, a field sobriety test is a minor intrusion on a driver, and requires only reasonable suspicion of intoxication. Here, Defendant observed a moderate smell of alcohol, pinkish and watery eyes, flushed face, and unusually slow and deliberate speech and movements. These would give a reasonable officer in Defendant's place reasonable suspicion to detain Plaintiff for further investigation, and probable cause to arrest Plaintiff upon refusal to submit to tests. Any other rule would allow motorists to refuse cooperation and drive away, still smelling of alcohol. DENIAL OF QUALIFIED IMMUNITY REVERSED; cause REMANDED for entry of judgment in Defendant's favor.

EDITORIAL: This is one of those cases where the answer is so clear, but only after somebody shows it to you. That was a brilliant analysis, and a correct result. In Section 1983 cases, it's all too easy for trial courts to get bogged down in questions of state law instead of remembering that the federal constitution governs. The confusion stems, of course, from the fact that 1983 covers state-actor violations of the constitution and laws of the United States, typically while enforcing state law. Now the state law does define the crime--but not the search and seizure related to the crime, at least not when suing under 1983. The Fourth Amendment is very often less restrictive than plaintiffs wish it were.

Good on the Colorado AG's appeal team, and fooey on the defense lawyer at the first trial who got caught ridin' dirty in the courtroom. They put everybody through a whole other trial and appeal, and left their poor trooper client under a million-dollar sword of Damocles for the year or so that it took to get the judgment reversed. Not the way to go, guys.

Monday, June 25, 2007

Necessary Roughness? Or Just The Not-So-Great Raid? 9th Circuit Backs Up The Police This Time

UNITED STATES v. ANKENY, USCA-9 No. 05-30457, 2007 U.S.App. LEXIS 14350, on appeal from USDC-DOR, before USCJs Reinhardt, Tashima, Graber, opinion by Graber, dissent by Reinhardt, filed 19 Jun 2007.

LONG STORY SHORT: Forced entry involving tactical team, battering rams, rubber bullets, flash-bangs, and over $10,000 in property damage to serve a search warrant did not have a causal relationship to the evidence found, and the Fourth Amendment did not require suppression. Binding in AK, AZ, CA, GU, HI, ID, MP, MT, OR, WA.

FACTS: Defendant's long-term girlfriend/baby-mother told Portland, Oregon police that Defendant had choked and kicked her, and that he was probably armed and using methamphetamine. Officer Rhodes ran a background check and found that Defendant had numerous convictions for drug dealing and violent crimes, and some outstanding warrants. Police decided that traffic-stopping him or arresting him on the street would be too risky to bystanders. Instead, they obtained a search warrant for the rental house where Defendant was living, and 44 officers led by the Special Emergency Response Team arrived at 0530 one morning and announced "police, search warrant" at the front door.

About one second later, officers began hitting the front door with a battering ram while others fired rubber bullets through windows, making numerous holes in walls and ceilings. As officers broke through the front door, Defendant stood up from the recliner where he had been sleeping, only to have an officer order him to show his hands and get on the floor. Another officer threw a flash-bang distraction device that detonated close enough to Defendant to cause first- and second-degree burns on his upper body. Officers threw a second flash-bang into the second story, igniting a mattress in which a couple were lying. Officers threw the mattress out the window before it could set fire to the structure.

After Defendant was in custody, officers found a 9mm pistol in the chair where Defendant had been sitting; another pistol in a chair next to him; and a sawed-off shotgun, two rifles, ammunition, drugs and paraphernalia, and $3,000 in other parts of the house. The homeowner estimated the damage inflicted by police activity would cost $14,000 to fix, but he accepted $10,000 from the city.

PROCEDURE: The United States indicted Defendant in U.S. District Court for the District of Oregon for possession of firearms and ammunition while a convicted felon, and for possession of an unregistered short-barreled shotgun. Defendant moved to suppress all evidence as the fruit of an unreasonable search, arguing that police had effectively failed to knock and announce before entering, and that they had used grossly excessive force, evidenced by expensive property damage and serious injury to Defendant. The trial court ruled that even though the entry was no-knock, the officers did have a warrant and would have inevitably found the evidence, making the reasonableness of the search irrelevant. MOTION TO SUPPRESS DENIED. Defendant pleaded guilty, reserving the right to appeal the denial of suppression to the U.S. Court of Appeals for the Ninth Circuit.

DECISION: While the case was on appeal, the Supreme Court ruled in Hudson v. Michigan, 126 S.Ct. 2159 (2006) that unauthorized no-knock entries do not justify suppression of evidence, both because of excessive social costs of suppression and the inevitability of discovering evidence whether or not officers knock and announce first. Consequently, the Ninth Circuit ruled that even if the officers did not knock or announce when searching Defendant's house, evidence would not be suppressed on that ground.

Whether the search was unreasonable was a close question. In favor of the officers' actions were the facts of Defendant's violent history and the discovery of two pistols within his reach. Reasonable officers would use surprise and considerable force to bring someone like Defendant under control before he could react, and some amount of property damage and injury could be expected. Also, the officers searched and seized no more than what the warrant authorized.

Against the officers' actions were the serious injury to Defendant and great damage to the house resulting from special weapons including two flash-bangs. However, officers would have found the weapons, ammunition, and other items whether or not they used little force or great force. The method of search had no causal connection to the discovery of the evidence. Therefore, the Ninth Circuit did not need to decide the reasonableness of the search. DENIAL OF SUPPRESSION AFFIRMED. The trial court did err in some of Defendant's convictions and sentences, which would be reversed or vacated and remanded as appropriate.

The dissent agreed that no-knock violations can no longer justify suppression, but would have held the search otherwise grossly unreasonable and would have granted suppression. The military-style invasion of Defendant's home was causally related to the discovery of evidence, and no intervening lawful search occurred to change that. Tossing two flash-bangs into occupied rooms was, without more, enough to establish unreasonableness. Officers later exchaged flippant text messages such as "fun had by all ... well except for the guy who laid on the flashbang" and "good time had by all." The social costs of suppression in this case would be well worth the deterrence value. The officers could just as well have run a reasonable, lawful search instead of an unreasonable, unlawful search, especially in the sanctity of someone's home.

EDITORIAL: I wasn't there and I'm no SWAT guy. Knowing the little that I know, I must say that if I had to serve warrants on a guy like that, I would be inclined to do about what the Portland police did here. The majority is right, as far as I can tell. And also as far as I can tell, the dissent is out to lunch on all levels. What does Judge Reinhardt want the police to do--give the violent woman-battering bad guys a fair chance to fight back? What does Judge Reinhardt know about proper deployment of flash-bangs? Who is to blame for giving this lefty a platform for inflicting such judicial buffoonery upon thinking people since 1980? Answers: sure looks like it, obviously nothing, and Jimmy Carter (who else?). This is not the first or last flat-out anti-police pro-criminal opinion from Judge Reinhardt, who has won numerous awards from criminal defense and plaintiff lawyer groups. You don't get those for being conservative. Remember, I am a former criminal defender and current consumer advocate, so I know.

Hey, did you notice something else? The bad guy was indeed so surprised and overwhelmed that he didn't even have time or thought to reach for his guns. No police officers or innocent people got hurt at all. I guess the bad guy can sue for his second-degree burns, but it's a classic case of "better judged by 12 than carried by 6." Do try to resist the urge for funny texts, though. The "judged by 12" part may go easier.

Sunday, June 24, 2007

SCOTUS: Brief Nudity For Officer Safety's Sake Is Permissible During High-Risk Warrant Service

LOS ANGELES COUNTY v. RETTELE, SCOTUS No. 06-605, 127 S.Ct. 1989, 2007 U.S. LEXIS 5900, on writ of certiorari to USCA-9, opinion per curiam, concurrence by Stevens, dissent from grant of certiorari by Souter, filed 21 May 2007.

LONG STORY SHORT: Officers who mistakenly served a search warrant on the wrong house could order a naked couple out of bed and not allow them to dress for two minutes until officers determined that the couple had no weapons within reach. Binding in the United States.

FACTS: Defendant, a deputy of the Los Angeles County Sheriff's Department, investigated a fraud and identity theft ring and developed four African-American suspects, one of whom was the registered owner of a 9mm Glock pistol. Defendant researched many records to find where the suspects lived, and obtained search warrants for two houses and arrest warrants for three suspects. Defendant did not discover that three months before, one of the houses had been sold to Plaintiffs, an unmarried heterosexual couple who lived there with the woman's 17-year-old son. All of them were Caucasian-American.

Defendant and six other deputies knocked and announced at 0715 one morning, and the 17-year-old answered. The deputies ordered him to the floor and entered Plaintiffs' bedroom. Despite Plaintiffs' pleas that they were naked, the deputies ordered them out of bed at gunpoint and did not let them get dressed for one or two minutes while the deputies determined that no immediate threat was present. Then the deputies allowed Plaintiffs to dress, after which they sat down in the living room for about four minutes. By this time, the deputies had determined they had made a mistake, apologized profusely, and departed to search the other house on the warrant, where they found and arrested the three suspects.

PROCEDURE: Plaintiffs, for themselves and as guardian ad litem for the 17-year-old, sued Defendant and others in U.S. District Court for the Central District of California per 42 U.S.C. § 1983 for, among other causes, unreasonable search and detention in violation of the Fourth Amendment. After discovery, Defendant moved for summary judgment, arguing that he was entitled to qualified immunity. The trial court ruled that the search warrant was valid and properly obtained and that the search and detention were not unreasonable, and in the alternative, that it would not have been clear to a reasonable officer in Defendant's position that he was violating the Constitution. QUALIFIED IMMUNITY GRANTED.

Plaintiffs appealed to the U.S. Court of Appeals for the Ninth Circuit, which noted that even though the warrant was valid, the fact of Plaintiffs being white and the suspects being black was immediate proof of a mistake. A reasonable jury could find that Defendant knowingly violated Plaintiffs' Fourth Amendment rights by holding them at gunpoint naked when they were clearly not the suspects on the warrant. GRANT OF QUALIFIED IMMUNITY REVERSED. Defendant petitioned for and received a writ of certiorari from the Supreme Court of the United States.

DECISION: Probable cause to obtain a warrant is far from absolute certainty, and in an imperfect world, the perfectly innocent will sometimes get searched under a valid warrant. Courts will not punish officers for reasonably executing a mistaken warrant. A reasonable officer in our diverse society, even though searching for African-American subjects, will wisely account for the possibility that Caucasian-Americans may be working with them. Particularly when Defendant and the other deputies knew one of the subjects of the warrant to be armed, they had to assume that anyone in the house might be armed and of a mind to resist.

In executing a search warrant, officers may take objectively reasonable action to secure the premises and to ensure their own safety and the efficacy of the search. To these ends, officers may detain all persons on the premises while conducting a proper search. Objectively unreasonable actions include excessive force or restraints that cause unnecessary pain or last too long. In some circumstances, the Supreme Court has approved of subjects being handcuffed for up to three hours during a search.

Holding naked citizens at gunpoint is not to be done lightly, but here, the Supreme Court ruled that this was reasonable and perhaps necessary. Some criminals keep guns and other weapons under pillows and in bedclothes, meaning that officers need not turn their backs for modesty's sake, but instead should take total control of the situation until a threat-free environment is established. Here, Plaintiffs were in this extremely awkward state for at most two minutes, after which the deputies allowed, indeed urged, them to get dressed. Defendant did not act as an unreasonable officer would have done, did not violate the Fourth Amendment, and was entitled to qualified immunity. REVERSED AND REMANDED for further consistent proceedings.

Justice Souter would have denied certiorari.

Justice Stevens, joined by Justice Ginsburg, concurred in the judgment, but would have reversed the Ninth Circuit on grounds that Plaintiffs' rights were not clearly established, and thereby avoided directly ruling whether Defendant's conduct was constitutional.

EDITORIAL: This would make a perfect Southwest Airlines "Wanna get away?" commercial--on both sides. Not funny at all to the poor undraped bemused couple, though. I'm sure the deputies in question now check very thoroughly as to who owns the house they'd like to search. I agree with the result, and I can only imagine the relief of the deputies as they found out they won the Supreme Lottery by being the less that 1% of cert petitions that get granted.

I don't agree with the concurrence, which is the latest hint of a movement among the Powers that Be to do away with the first half of the qualified immunity test. The traditional Constitutional Two-Step goes: first, did the police violate the Constitution, and second, would reasonable officers in that situation have known they were violating the Constitution? Sounds just peachy to me, but some are saying that if you can get rid of the case by doing the second step first, then don't bother with the first part. I am not alone in saying that you can't clearly establish violations (second step) without some caselaw that decides what is a violation (only comes from doing the first step as often as possible). Would somebody explain why we should now begin to wander around in an ever-deepening constitutional swamp of "not clearly a violation" instead of deciding the law when we need to?

SCOTUS: Seize A Car, Seize Everybody In It

BRENDLIN v. CALIFORNIA, SCOTUS No. 06-8120, 127 S.Ct. 2400, 2007 U.S. LEXIS 7897, on writ of certiorari to CA, opinion by Justice Souter, filed 18 Jun 2007.

LONG STORY SHORT: When an officer stops a vehicle, everyone in it is seized for Fourth Amendment purposes, and any passenger or driver has standing to challenge the stop. Binding in the United States.

FACTS: Deputy Brokenbrough drove by a parked car and noticed that the registration had expired, but learned from dispatch that the owner had applied for renewal. Later in the shift, Deputy Brokenbrough saw the same car on the road, displaying an apparently valid temporary operating permit. There was nothing unusual about the permit or its display, but Deputy Brokenbrough decided to stop the car and see if the permit matched it.

While checking the driver's license, Deputy Brokenbrough noticed that the passenger was Defendant, whom he believed to be a parole violator. Deputy Brokenbrough checked with dispatch again and verified that Defendant had a warrant for parole violations. After calling for backup, he arrested Defendant and found a syringe cap on him. Patdown of the driver produced green leafy substance and syringes, for which she was arrested. Search of the car incident to arrest discovered items used for methamphetamine production.

PROCEDURE: California charged Defendant with possession and manufacture of methamphetamine. Defendant moved to suppress all evidence from the search incident to arrest, arguing that no reasonable suspicion supported the initial stop, and consequently the seizure of his person was unreasonable and illegal under the Fourth Amendment. The trial court ruled that the stop was legal and that Defendant was not seized until Deputy Brokenbrough ordered him out of the car and arrested him. MOTION TO SUPPRESS DENIED. Defendant pleaded guilty and was sentenced to four years, reserving his right to appeal the denial of suppression.

Defendant appealed to the California Court of Appeal, which ruled the stop illegal and also held that Defendant was seized for Fourth Amendment purposes at the time of the stop. DENIAL OF SUPPRESSION REVERSED. California appealed to the Supreme Court of California, conceding that the stop was illegal, but arguing that Defendant, as a passenger and not the driver, was not seized. The Supreme Court of California ruled that the driver was the exclusive target of the traffic stop, and not only did Defendant have no ability to submit to Deputy Brokenbrough's authority, but also he could have walked away and gone about his business as soon as the car stopped. Consequently, Defendant was never seized. REVERSAL OF DENIAL OF SUPPRESSION REVERSED. Defendant petitioned for and received a writ of certiorari from the Supreme Court of the United States.

DECISION: A person is seized, and thereby entitled to challenge the seizure, under the Fourth Amendment when an officer of the government terminates or restrains the person's freedom of movement by means of physical force or show of authority, through means intentionally applied. Accidental collisions are not seizures. Persons who do not submit to authority or force are not seized. In ambiguous situations, a seizure occurred if a reasonable person, in view of all of the circumstances surrounding the incident, would not have felt free to leave.

Without question, the driver of a traffic-stopped vehicle has submitted to authority and has been seized. However, the Supreme Court had never directly answered the question of whether the passengers of that vehicle have also been seized. Contrary to the California high court's decision, the Supreme Court held that reasonable passengers in a stopped vehicle do not feel free to leave. Driver and passengers alike have been diverted from the stream of traffic and subjected to police scrutiny, presumably because of the driver's wrongdoing, but possibly because of a passenger's action, e.g., not wearing a seat belt. Reasonable passengers will consider themselves at least suspicious by close association, and would expect the stopping officer to object to their leaving without explanation.

Furthermore, the Supreme Court has ruled that officers at a traffic stop may, for officer safety reasons and without reasonable suspicion, order vehicle occupants to remain inside or to get out at the officers' discretion. These rulings have built a societal expectation that everybody in a stopped vehicle, at least a small vehicle as opposed to a bus, must obey the officer or else. Defendant submitted to Deputy Brokenbrough's authority by remaining in the car and not running away.

Here, California conceded that no reasonable suspicion supported the stop, since the car's operating permit appeared to be valid and properly displayed. Defendant's seizure began not with his arrest, but from the moment of the vehicle stop. Defendant's seizure was, to that extent, unreasonable and in violation of the Fourth Amendment. Any contrary policy would encourage police to stop vehicles illegally and seize passengers, knowing the passengers could not challenge police actions. VACATED AND REMANDED for further proceedings not inconsistent with the foregoing.

EDITORIAL: I suppose I have to agree. This was a unanimous decision, meaning that even Scalia, Thomas, Alito, and the Dread Chief Justice Roberts ("I Am Here For Your Soooouuul") went along. But all you have to do, as ever, is follow the vehicle around until the driver DOES commit a definite, substantial, and clear-cut traffic infraction. This will happen sooner rather than later if the occupants are suffering from a guilty conscience and then see that a nice policeman is riding their bumper, at a safe distance of course.

Tuesday, June 12, 2007

"Gone In Sixty Seconds" Scam Is OK This Once, But Not Necessarily Ideal

UNITED STATES v. ALVEREZ-TEJADA, USCA-9 No. 06-30289, 2007 U.S.App. LEXIS 13378, on appeal from USDC-WAED, before USCJs Kozinski, Fisher, Tallman, opinion by Kozinski, concurrence by Fisher, filed 08 Jun 2007.

LONG STORY SHORT: Police-staged accident and theft of suspect's vehicle, leading to discovery of controlled substances, was not outrageous enough to require suppression, but was not a recommended procedure. Binding in AK, AZ, CA, GU, HI, ID, MP, MT, OR, WA.

FACTS: DEA agents developed information indicating that the leader of a drug conspiracy was letting Defendant use his car to transport illegal drugs. Undercover officers had bought drugs from persons in that car, and on the day in question, surveillance and intercepted phone calls gave police probable cause to believe contraband was in it. DEA and local police in eastern Washington State decided to stage an incident to gain access to the car Defendant was driving.

An officer pretending to be a drunk truck driver lightly bumped the car from behind at a traffic light while Defendant and his girlfriend were in it. The car sustained no damage and Defendant and Girlfriend were totally uninjured. Local officers arrested the truck driver for DWI while other officers told Defendant and Girlfriend to park in a parking lot and leave the keys in the car. When Defendant and Girlfriend got into a police car for processing, another officer pretending to be a car thief drove off in their car, with marked units in pursuit. Police told Defendant and Girlfriend that their car had gotten away, and dropped them off at a hotel. In fact, police were obtaining a search warrant, and when the warrant issued, police found cocaine and methamphetamine in the car Defendant had been driving. Later, police returned some of Defendant's and Girlfriend's property to them, claimed that the thief had thrown the items out of the window during the pursuit.

PROCEDURE: The United States indicted Defendant in the U.S. District Court for the Eastern District of Washington [Note: the opinion does not say what exactly he was indicted for]. Defendant moved to suppress all evidence from the car as the fruit of an unreasonable seizure in violation of the Fourth Amendment. The trial court ruled that the government's conduct was outrageous and unconstitutional. MOTION TO SUPPRESS GRANTED. The United States took an interlocutory appeal to the U.S. Court of Appeals for the Ninth Circuit.

DECISION: Defendant agreed that the police could lawfully have seized the car under civil forfeiture statutes without a warrant, because the police had probable cause to believe that it contained contraband. Defendant's complaint was that the method of seizure was unreasonable, and reasonableness is the benchmark of the Fourth Amendment. The Ninth Circuit, after careful consideration of all the circumstances, could not conclude that the government's conduct was unreasonable.

Courts accept that police may and must run some operations undercover. Here, the police needed to keep their operation secret, and also had the lawful power to seize the car, so it was not a case of officers using deception to get to a place where they had no right to be. Neither did police use excessive force, only a light tap on the bumper sufficient to get Defendant's attention and get him out of the car. The staged chase was perhaps not the safest thing to do, but Defendant could not assert others' rights to be free from government-created danger absent a showing of extreme, outrageous, or shocking behavior, which he could not do. About the only stress that Defendant experienced was that of any car theft victim, although the Ninth Circuit estimated that what really alarmed him was having to face his boss after losing all those drugs in the car. GRANT OF SUPPRESSION REVERSED; cause REMANDED for further proceedings.

The concurrence expressed considerable concern about the unorthodox police conduct here, particularly that it involved the apparently innocent girlfriend. The ruse was definitely pushing the envelope, and should not become a model for future police action.

EDITORIAL: Which means that every narc who hears about this case will now want to go out and try it themselves. Maybe they should, especially seeing as how the guy had no chance or occasion to fight back or deploy weapons. I don't see how a staged pursuit can be terribly dangerous if all vehicles involved obey all traffic laws. There's nothing illegal or dangerous about two vehicles in a convoy going below the speed limit and stopping for all red lights, even if one of them happens to have emergency lights and sirens on. OJ led a slooow chase; why can't everybody? The only part I don't like is that the guy's girlfriend was in the car. This case, instead of pushing the envelope, is instead a great example of thinking out of the box.

Good Thing The Waterbed Caught Fire Before The Fireworks Did

Blog 2007-05-25

UNITED STATES v. BUCKMASTER, USCA-6 No. 06-3954, 2007 U.S.App. LEXIS 10776, on appeal from USDC-OHND, before USCJs Merritt, Martin, USDJ-KYED Forester by designation, opinion by Martin, filed 07 May 2007.

LONG STORY SHORT: Burning waterbed in a home required firefighter intervention, and the public safety exception made the firefighters’ discovery of unlicensed explosives reasonable under the Fourth Amendment. Binding in KY, OH, TN, WI.

FACTS: Firefighters of Madison Township, Ohio responded to a fire at Defendant’s three-story home and evacuated everyone there, then went inside and put out the fire. Firefighters could see that the fire originated in the wooden headboard of Defendant’s waterbed on the top floor, and by the time the fire was extinguished, fragments from a broken mirror on the headboard had punctured the mattress. Meanwhile, fire investigator Sergeant Byers of the Madison PD who knew of a history of complaints regarding Defendant setting off fireworks, arrived and asked Defendant if there were any fireworks in the house. When Defendant admitted so, Sergeant Byers and Investigator Perko of the fire department went inside to investigate the nature and origin of the fire. By this time, large vent fans were in place and running to clear the air, and the firefighters on the top and middle floors had already removed their breathing apparatus, indicating that they did not think there was any immediate carbon monoxide danger.

Water from the waterbed was still not contained, so the investigators began checking the rest of the house for carbon monoxide and for spilled water that could cause structural damage and electrical short circuits. When they got to the basement, the investigators saw water raining from the ceiling and pouring out of outlets, requiring tarps to control flooding and the utilities to be turned off. Investigators also noticed in plain view boxes marked 1.3G and 1.4G containing 1,250 pounds of commercial-grade fireworks sitting ten feet from the furnace.

PROCEDURE: The United States indicted Defendant in U.S. District Court for the Northern District of Ohio for unlicensed 1.3G fireworks and improperly storing 1.4G fireworks. Defendant moved to suppress the fireworks, arguing that their discovery was a pretextual search for suspected fireworks, and unreasonable under the Fourth Amendment, given that the fire originated on the top floor and was already out when the investigators entered his basement without a search warrant. MOTION TO SUPPRESS DENIED. Defendant pleaded guilty, reserving the right to appeal the denial of suppression to the U.S. Court of Appeals for the Sixth Circuit.

DECISION: For obvious reasons, firefighters may constitutionally enter burning buildings by force, without warrants, consent, or announcement. Firefighters may also stay until the fire is out and they are satisfied that it will not restart, and to investigate the cause. Once they have learned the fire’s cause and origin and determined that people may safely reenter, further investigation of the rest of the premises requires probable cause and a search warrant.

Here, firefighters had two concerns—water damage including electrical short circuits that could start another fire, and carbon monoxide pockets. The firefighters and investigators acted very reasonably in controlling these dangers before letting Defendant back inside. Whether or not the firefighters and investigators might also have been keeping an eye out for illegal fireworks was irrelevant. The Sixth Circuit cautioned that this opinion was not a future license to search all through a house just because of a carbon monoxide hazard, especially where, as here, large vent fans were blowing and the firefighters above the basement were no longer wearing air packs. However, since there was also a water danger and the investigators had made no more than a brief sweep of the basement when they happened to see fireworks in plain view, no Fourth Amendment problems occurred here. DENIAL OF SUPPRESSION AFFIRMED.

EDITORIAL: This sounds like something that should have happened in South Carolina! 1.3G explosives, according to the American Pyrotechnic Association, used to be called Class B special fireworks, which need licenses to possess and are for commercial displays, not for amateurs to be keeping in basements. 1.4G explosives ARE the normal amateur-type fireworks, but you still have to store them safely. This guy had 1,250 pounds of them. That's a lot of fireworks to be keeping unsecured in the basement. He got a whole year in Club Fed for that--might be fair.

The rule we usually hear about warrantless fire investigations is that you better get them done before the firetruck leaves. This was a good use of that rule. I'll leave the carbon monoxide explorations to the professionals, thank you.

Thursday, June 7, 2007

But Defending Yourself Against Aggravated Assault Is Legal And NOT Suable

DELEON v. CITY OF CORPUS CHRISTI, USCA-5 No. 05-41301, 2007 U.S.App. LEXIS 12640, on appeal from USDC-TXSD, before Chief USCJ Jones, USCJs Higginbotham, Clement, opinion by Higginbotham, filed 31 May 2007.

LONG STORY SHORT: Plaintiff's deferred adjudication for aggravated assault amounted to a conviction that prevented him from suing the officer who shot him during the incident. Binding in LA, MS, TX.

FACTS: [Note: This is only the plaintiff's side of things.] Plaintiff's wife called the police during an argument with Plaintiff. Defendant, an officer of the Corpus Christi, TX PD, responded to their house, by which time they had calmed down. Defendant insisted that Plaintiff leave the house, and when Plaintiff protested, Defendant sprayed mace [Note: "Mace" is a registered trademark of Mace Security International, Inc., one of many manufacturers of OC aerosol sprays for defense and LE; wish people would quit calling all sprays "mace"] in Plaintiff's face and swung a baton at him. Plaintiff defended himself by grabbing Defendant's baton, and they struggled with the baton until Plaintiff's wife took it away. The fight carried all three to the kitchen, where Plaintiff got Defendant in a bear hug but then let him go and backed up against the pantry door, clearly unarmed and hands raised. Plaintiff's two-year-old was by his knee, and Plaintiff's wife was between him and Defendant, who drew his pistol. As Plaintiff asked "are you going to shoot me?" Defendant did so, four times.

PROCEDURE: Plaintiff was charged with the Texas offense of aggravated assault of a police officer. He pleaded guilty, and after the judge heard evidence including Plaintiff's sworn confession, decided to defer adjudication, meaning that if Plaintiff followed the terms of his community supervision, eventually the charge would be dismissed.

Plaintiff sued Defendant in U.S. District Court for the Southern District of Texas per 42 U.S.C. § 1983 for illegal search and seizure and use of excessive force. [Note: The opinion did not specify Fourth Amendment, but that's what it has to be.] Defendant moved to dismiss per Rule 12(b)(6) for failure to state a claim, arguing that Plaintiff's deferred adjudication for aggravated assault was the same as a conviction for purposes of suing for excessive force. The trial court ruled that the deferred adjudication meant that Plaintiff in fact did commit aggravated assault against Defendant, and allowing Plaintiff to sue for Defendant's use of force would impugn the validity of Plaintiff's conviction. MOTION TO DISMISS GRANTED, WITH PREJUDICE. Plaintiff appealed to the U.S. Court of Appeals for the Fifth Circuit.

DECISION: Texas statute requires criminal trial judges to hear evidence and find that it substantiates the defendant's guilt before deciding to defer adjudication and place the defendant on community supervision. This means that a Texas deferred adjudication is not just a conviction in name only; it is a judicial finding of fact that the defendant really did the offense. SCOTUS precedent requires that any subsequent civil suit must respect the result of a prior conviction unless and until the conviction gets reversed on appeal, vacated by habeas corpus or executive pardon, or expunged. This is the "favorable termination doctrine" of Heck v. Humphrey, 512 U.S. 477 (1994).

There are two ways of looking at this requirement, and the Circuits are split over them. One is that Heck should apply only when habeas corpus is not available to the would-be plaintiff. The other, which prevails in the Fifth Circuit, is that Heck reflects the tort law as of 1871 when Section 1983 was enacted, which was that tort actions are not the proper and logical way of attacking criminal convictions. Under this rule, a Texas deferred adjudication is a conviction for Heck purposes because it requires a judicial finding that the defendant committed the crime, even if there is no adjudication of guilt yet. Whether Plaintiff could sue AFTER dismissal of his charge was not a question yet, and remained undecided.

Neither could Plaintiff claim that Defendant used excessive force after the need for doing so had passed, because the whole incident here was one continuous transaction. Defendant's use of force was inseparable from Plaintiff's alleged defense against it. Plaintiff's civil complaint contradicted his sworn confession in Texas criminal court and could not stand against it. However, Plaintiff correctly argued that the trial court erred in dismissing his case simply "with prejudice" when it should have dismissed with leave to refile if and when Plaintiff met Heck conditions, and the trial court would be ordered to modify the judgment accordingly. AFFIRMED AS MODIFIED.

EDITORIAL: "I didn't do NOTHIN and this mean cop just busted up in my house and pepper-sprayed me and whooped on me with a baton, and then SHOT me for NO REASON AT ALL right in front of my wife and kid." eeeyup. You're sure you didn't do NOTHIN even though you swore out a confession to doing NOTHIN? "Well maybe I DID do NOTHIN but it was in self-defense." okeydoke.

Guys, this is why the Constitution gives you the right to trial by jury. If indeed you didn't do NOTHIN--or if, in the alternative, you didn't DO nothin--or if, in an abundance of caution, you didn't do nothin WRONG--then go to trial and the jury will agree with you. At absolute worst, cop an Alford plea and make some kind of record that you STILL don't think you did nothin even though you are sort of admitting to it.

Once again, this is an appeal from an early stage of the case where the officer didn't yet have his chance to tell his side of the facts. The courts, in a motion to dismiss, have to take all but the totally impossibly stupidest things in a complaint as true. It's not the plaintiff's lawyer's job to be FAIR or to tell the whole story. Here, I suspect that a whole lotta story got left out, such as what exactly inspired the officer to shoot the guy in front of his wife and kid. Dollars to donuts, there was some pretty fine reason to do so--if in fact it really was in front of his wife and kid--which begs the question, why were YOU pounding on a cop in front of your wife and kid anyway?

Again, will everybody quit calling all defensive sprays "Mace"! To me, the term implies the old-timey CS/CN tear gas joke of a spray, which is Glade Air Freshener compared to OC pepper spray. Mace Security International has indeed gotten the memo about that, and mostly sells pepper spray. I like the ASP (why didn't they call the baton an "asp" so long as we're overapplying registered trademarks?) low-profile keychain/kubotan-looking dealie myself.

Good show to appellate lawyer Nancy M. Simonson of Canales & Simonson, Corpus Christi. She killed the dragon before it got out of its cave, and that's what civil defense law is all about.

Wednesday, June 6, 2007

Excessive Force After Subject Resists Violently May Still Be Illegal And Suable

DYER v. LEE, USCA-11 No. 06-14680, 2007 U.S.App. LEXIS 12941, on appeal from USDC-FLMD, before USCJs Barkett, Kravitch, USCJ-1 Stahl by designation, opinion by Stahl, filed 05 Jun 2007.

LONG STORY SHORT: Conviction for resisting arrest with violence does not always foreclose suit against arresting officers for excessive force, especially when some of the events complained of occurred after arrest. Binding in AL, FL, GA.

FACTS: [Note: This is the plaintiff's version of events. The deputies may disagree.] Restaurant manager in Naples, FL called the Collier County Sheriff's Office to ensure that Plaintiff, who had just left drunk, did not drive home. The four Defendants, all Collier County deputies, arrived at the parking lot to find Plaintiff sitting behind the wheel of her boyfriend's car. Deputies Lee and Tutt asked for her license, but she said she didn't have it, wasn't going to drive anyway, and was just waiting for her boyfriend to come get her because she knew she was drunk. Deputy Humann tried to administer field sobriety tests, but she refused and said "just go ahead and arrest me." Deputy Humann handcuffed her behind her back, despite her request to be cuffed in front because of an arm injury, told her she was under arrest, and read the Florida implied consent notice. Plaintiff protested loudly that she wasn't going to drive, so Deputy Humann put his hand over her mouth so he could continue reading the implied consent notice. Plaintiff kicked Deputy Humann in the leg, whereupon Defendants told her she was under arrest for battery on a LEO, and installed her in the back seat of a patrol car.

Plaintiff's boyfriend showed up, and about this time, Deputy Truitt noticed that Plaintiff had slipped her wrists under her feet so that her hands were in front. Deputy Humann extracted her from the patrol car and Defendants shoved her against the car, slammed her head into the car, kneed her in the leg and lower back, and pepper-sprayed her while recuffing her with an unauthorized and very painful technique. Defendants put her back in the patrol car and her boyfriend testified that they again pepper-sprayed her.

PROCEDURE: Defendants charged Plaintiff with DUI, resisting arrest with violence, and three counts of battery on a LEO. Eventually, Plaintiff pleaded no contest to one count of resisting with violence and went on probation, but violated it and was adjudicated guilty of resisting with violence, a felony. The charging document [Note: Florida charges most noncapital felonies by "information," which is like an indictment, but signed only by a prosecutor who has heard sworn testimony in secret, instead of a grand jury. Sort of cuts out the middleman.] read that she had resisted arrest "by offering or doing violence to the person of said officer," but the judgment of conviction did not specify any further findings of fact.

Plaintiff sued Defendants in U.S. District Court for the Middle District of Florida per 42 U.S.C. § 1983 for excessive force in violation of her Fourth, Fifth, and Fourteenth Amendment rights. Defendants moved for summary judgment, arguing that since Plaintiff stood convicted of resisting with violence, a judgment against Defendants for excessive force would imply the conviction was invalid, which federal courts could not do. The trial court agreed. SUMMARY JUDGMENT GRANTED. Plaintiff appealed to the U.S. Court of Appeals for the Eleventh Circuit.

DECISION: While a lawful arrest, followed by a conviction for resisting arrest, may foreclose an action for illegal arrest, that was not quite the case presented here. Plaintiff was suing for excessive use of force, and it is entirely possible for police to use too much force even when overcoming unlawful resistance to a lawful arrest. Here, Plaintiff was already under arrest when she slipped the cuffs to her front, meaning that what happened after Defendants pulled her out of the car and supposedly roughed her up while recuffing her was not part of the arrest. In the Eleventh Circuit, suing for excessive force under these facts would not imply that her conviction for resisting arrest was invalid. Therefore, a § 1983 suit and a criminal conviction could coexist in this particular logical universe. Indeed, any other rule would imply that police can beat resisting subjects to their hearts' content without civil lawsuit worries. SUMMARY JUDGMENT REVERSED and cause REMANDED for entry of denial of summary judgment.

EDITORIAL: Well, if all this is true, as we have to ass-u-me for summary judgment, I have to agree with the decision. Somehow, though, I would guess that not all was as the young lady would have us believe. She didn't manage to complete probation (the opinion calls it "parole" but there is no parole in Florida anymore), which only habitual losers can't do, and shouldn't have resisted in the first place, of course.

In the deputies' place, I might not have been so ready to charge her with drunk driving if she was only sitting in the driver's seat with no key and the engine off. Which makes me think that maybe she was doing MORE than just sitting there. For sure, I wouldn't have put my hand over her mouth. That's a good way to get bitten! Which again, makes me doubt that part of her story, because most people would allow their fear of getting bit to overcome their instinct to shut her up. I say, if she doesn't want to hear the implied consent statement, she doesn't have to ... but she does have to do what it says anyway.

Armed & Potty-Mouthed: IRS Agent Arrested For Incident HE Started, Sues And Loses

FOX v. DESOTO, USCA-6 No. 06-5930, 2007 U.S.App. LEXIS 12847, on appeal from USDC-KYWD, before USCJs Guy, Cole, McKeague, opinion by Guy, filed 04 Jun 2007.

LONG STORY SHORT: Airport security officer had probable cause to arrest a federal agent who appeared to be reaching for a weapon after having been thrown off an airliner for swearing at another passenger. Binding in KY, MI, OH, TN.

FACTS: Plaintiff, an Internal Revenue Service Special Agent who was authorized to fly armed, boarded a Southwest Airlines airliner at the Louisville, KY airport. Plaintiff tried unsuccessfully to fit his carryon bag into an overhead bin. Passenger told him it wasn't going to fit and he was blocking the aisle. Plaintiff admitted that he told her to "f*** off," and there was testimony that Plaintiff said the same to her fiance after he took up for her. A flight attendant immediately informed the captain, who ordered Plaintiff off the airliner and informed TSA that an armed purported IRS agent would be waiting in the gate area.

Defendant, a police officer of the Regional Airport Authority, and two other officers responded to where Plaintiff was sitting and asked Plaintiff for identification several times. Plaintiff refused and insisted on speaking to Southwest's Ground Security Coordinator, per IRS procedure when encountering problems while flying armed. A Southwest employee approached and identified herself as the duty GSC and offered to book him on another flight, but Plaintiff would not talk to her either (later testifying that she did not identify herself as a GSC). Because people were beginning to gather around the scene, Defendant asked Plaintiff to come with him, and took Plaintiff's arm. Plaintiff stood up and reached for his right side. Defendant took Plaintiff to the floor with an arm-bar hold and put his knee on the back of Plaintiff's head while other officers assisted him in handcuffing Plaintiff, who sustained a cut and bruise. Defendant removed Plaintiff's weapon and spare magazines and arrested him for disorderly conduct and resisting arrest. Plaintiff later testified that he was only reaching for his credentials, but also admitted he kept his weapon on that side.

PROCEDURE: Plaintiff went to trial on the disorderly conduct and resisting arrest charges, where the trial court directed a verdict of acquittal. More than two years after the airport incident, Plaintiff sued Defendant in U.S. District Court for the Western District of Kentucky per 42 U.S.C. § 1983 for arresting him without probable cause and with excessive force in violation of the Fourth Amendment, and also for state torts including malicious prosecution. After discovery, Defendant moved for summary judgment, arguing that Plaintiff's suit was filed after Kentucky's one-year statute of limitations had run, and also that Defendant was entitled to qualified immunity. Plaintiff responded that the SOL did not start running until after the state trial court had acquitted him, and that Defendant had illegally arrested him. The trial court ruled that the limitations period for all but the malicious prosecution claim had begun on the date of Plaintiff's arrest and that the suit was time barred; alternatively, Defendant had not violated Plaintiff's Fourth Amendment rights and did not maliciously prosecute him. SUMMARY JUDGMENT GRANTED. Plaintiff appealed to the U.S. Court of Appeals for the Sixth Circuit.

DECISION: Generally, citizens may not sue under § 1983 when the desired result would imply the invalidity of a state court judgment. Malicious prosecution claims do not accrue until the underlying proceeding has terminated in the citizen's favor, and that is also when any limitations period begins to run. However, claims of excessive force and false arrest can be sued upon as soon as they happen, because they do not depend on the result of the underlying prosecution, especially when the citizen never gets prosecuted at all after arrest. Here, except for malicious prosecution, Plaintiff's claims accrued when he was arrested. Under Kentucky's statute of limitations, he had to sue no later than one year afterward, so his claims were time-barred and correctly dismissed.

In the alternative, Defendant acted as a reasonable officer would have in the circumstances. Plaintiff had been thrown off an airliner for causing a disturbance; was known to be armed but would not show his credentials to anyone; would not identify himself even to Defendant and the GSC; and his conduct was attracting a lot of attention in the terminal. Plaintiff then reached for his right side, where weapons are usually carried. This met the elements of Kentucky's disorderly conduct statute, and together with the apparent danger of Plaintiff deploying a weapon in the croweded terminal, gave Defendant ample reason for taking Plaintiff to the floor immediately and handcuffing and disarming him. Since Defendant had probable cause for arresting Defendant, he could not have been liable for malicious prosecution either. SUMMARY JUDGMENT AFFIRMED in all respects.

EDITORIAL: "An armed society is a polite society." Right, Mr. Heinlein, but only when the arms are more or less evenly distributed. I would guess that the T-Man in question was either very new on the job, or having an extremely bad day, or shouldn't have been an agent in the first place, and maybe all three. Responsible gunbearers know that when you take your carry piece out of the gun safe, you take all the chips off your shoulder and lock THEM up. Armed citizens and officers must be MORE even-tempered and restrained than everyone else. Walk, no run, away from provocation whenever possible. Lose all traces of attitude and self-righteousness. And for petesakes, if you are armed in the presence of officers who don't know you, then you do exactly as they tell you to, and give them no cause to think you may be about to misuse your weapon. The life you save may be your own.

Good show to Officer DeSoto for quick, decisive, and correct action to shut down a hair-raising situation. I hope I would have responded as competently.