Fourth Amendment and FDCPA

FDCPA Short Note: Failure To Dispute Within 30 Days Does Not Make Invalid Debts Valid

2007-08-20T08:11:00.000-07:00

WHITAKER v. HUDSON & KEYSE, LLC, USDC-INSD No. 1:05-CV-1597-JDT-WTL, 2007 U.S.Dist. LEXIS 57706, before USDJ Tinder, filed 06 Aug 2007. Not binding anywhere but may be persuasive.

Plaintiff did not repay a Bank One, now Chase Bank, credit card debt of $3,558.96. A collection agency sent him a dunning letter seeking $4,726.89, and Plaintiff paid them about $1,200 in installments. Chase later sent him a letter stating that his account was reduced from $3,326.89 to $2,236.07, having been improperly stated before. American Coradius, another collection agency, dunned Plaintiff two months later for $2,436.07, which Plaintiff disputed and demanded cease-comm (and then American Coradius illegally sent him another dunning letter, but is not a defendant here). Finally, Defendant Hudson & Keyse, another collection agency, mailed Plaintiff a dunning letter demanding $4,802.37, which was the figure that Chase Bank had given them. Plaintiff did not dispute this amount with Defendant.

Plaintiff sued Defendant in U.S. District Court for the Southern District of Indiana per 15 U.S.C. § 1692e, alleging that Defendant had falsely represented the amount of the debt. Defendant moved for summary judgment, arguing that Plaintiff's failure to dispute the debt within 30 days allowed Defendant to assume the debt was valid per 15 U.S.C. § 1692g(a)(3), and also it was entitled to the bona fide error defense per 15 U.S.C. § 1692k(c) because its client had given it wrong information, contrary to its service agreement with its client. Plaintiff cross-moved for summary judgment.

The trial court noted that in the Seventh Circuit, collection agencies do not have to independently investigate accounts that their clients give them to collect. Also, it did not appear that Defendant had deliberately misrepresented anything to Plaintiff. However, in this case, the error was possibly due to miscalculation of interest, and Defendant had not produced enough evidence to show that its interest calculation procedures were adequate to establish a good faith error defense before trial. Defendant sent a dunning letter with an incorrect alleged amount of debt, even if not intentionally, which would be a violation absent the good faith error defense. PLAINTIFF'S SUMMARY JUDGMENT MOTION GRANTED IN PART and the jury would be instructed that the amount of debt was misstated, but DENIED in all other respects. DEFENDANT'S SUMMARY JUDGMENT MOTION DENIED, and it would have to prove its good faith error defense before the jury.

EDITORIAL: Makes sense to me. I have occasionally heard debt collector defense lawyers claim that you have to dispute the debt within 30 days or else you can never again say it was invalid. Well, if the letter already went out, the law has already been violated. Sorry, bill collectors, but the dispute thingie is NOT a tool for you to make a lie into the truth! Also, why in the doodle can't people compute interest correctly anymore? If these guys had only done so, they wouldn't have been sued. I predict this one will settle and we won't hear anything more about it.

FDCPA Short Note: Class Certified Against Encore For "HSB/" Dunning Letters

2007-08-20T07:14:00.000-07:00

BLAREK v. ENCORE RECEIVABLE MANAGEMENT, INC., USDC-WIED No. 06-C-420, 2007 U.S.Dist. LEXIS 58182, before USMJ Callahan, filed 08 Aug 2007.

Plaintiff owed a debt to Citibank USA, N.A. that she discharged in bankruptcy. Later, she received a mass-mailed form dunning letter from Encore that attempted to collect the same debt. The letter claimed that Plaintiff owed the debt to creditor "HSB/" instead of Citibank. Plaintiff sued Encore in U.S. District Court for the Eastern District of Wisconsin per 15 U.S.C. §§ 1692e and 1692g(a)(2) for misrepresenting the name of the creditor. Plaintiff also moved to certify a class of similarly situated plaintiffs.

The trial court considered the four prerequisites of federal class certification: (1) numerosity, which Encore did not dispute, and a class of 40 or more is clearly numerous; (2) commonality, or common nucleus of operative fact, which was present because Encore sent the same "HSB/" letter to all class members; (3) typicality, which was present because each class member's claim rested on the same legal theory that Encore's "HSB/" representation was confusing and deceptive, regardless of whether Plaintiff had an additional FDCPA claim for Encore's trying to collect a bankrupted debt; and (4) adequacy of representation, which was present because Plaintiff only needed to give a deposition and did not have to know much if anything about the case, and Plaintiff's class counsel was very experienced in consumer class actions.

Then the trial court had to rule whether class action was superior to any other way of resolving the case. Statutory damages would be $100 to $1,000 for each plaintiff, probably not enough to inspire individual actions, and class actions exist primarily to enable many together to do what one or few could not. Legal and factual questions of whether "HSB/" confused an unsophisticated consumer, which did not depend on whether class members were actually confused or even if they read the letter, were common to all. CLASS CERTIFICATION GRANTED.

EDITORIAL: Another greedy junk debt buyer learns a slightly expensive lesson in compliance. Does nobody at Encore even read these stupid letters? Wouldn't it have cost less to get the name of the creditor right instead of getting sued? There are dozens of entities under the HSBC empire, some of whom lend money, but none of them is called "HSB/" and from "HSB/" it is impossible to tell which, if any, of HSBC's tentacles is supposed to be owed. Putting a nonexistent company name on dunning letters is plain premeditated carelessness. Good job to Ademi & O'Reilly LLP of Cudahy, Wisconsin for sticking a well-deserved pin into Encore Receivable Management, Inc.

Always Signal Your Lane Change When Carrying Meth

2007-08-11T09:28:00.000-07:00

STATE v. STYLES, NCApp No. COA06-684, on appeal from Swain Co. Superior Court, before CJ Martin, Js Steelman, Stephens, opinion by Steelman, dissent by Stephens, filed 07 Aug 2007.

LONG STORY SHORT: Officer had probable cause to stop a motorist who was directly in front of him and did not signal before changing lanes. Binding in NC unless reversed by the NC Supreme Court.

FACTS: At 0100 one morning, Officer Jones of Bryson City PD was traveling on a three-lane road in the same direction as Defendant. Two lanes ran in their same direction, and the third ran opposite. Defendant's vehicle was directly in front of Officer Jones' vehicle. Without signaling his intent beforehand, Defendant changed lanes. Officer Jones stopped Defendant and smelled marijuana on Defendant's person. Defendant did not consent to a search of his vehicle, so Officer Jones deployed his K9 partner to sniff the air around Defendant's vehicle. The K9 alerted, and Officer Jones found a small amount of marijuana and a pipe inside Defendant's vehicle. A search incident to arrest found methamphetamine on Defendant's person.

PROCEDURE: North Carolina indicted Defendant in Swain County Superior Court for possession of schedule II controlled substances, paraphernalia, and marijuana. Defendant moved to suppress all evidence, on grounds that that North Carolina statute required him to signal lane changes only when "the operation of any other vehicle may be affected by such movement." Defendant argued that since Officer Jones' vehicle could not have been affected, there was no traffic violation and therefore no readily observable probable cause to stop him. The trial court ruled that since Officer Jones was right behind Defendant, the operation of Officer Jones' vehicle may have been affected, and an investigatory stop was proper. MOTION TO SUPPRESS DENIED. Defendant pleaded guilty, reserving his right to appeal the denial of suppression to the Court of Appeals of North Carolina.

DECISION: The trial court found as fact that Defendant was directly in front of Officer Jones when he changed lanes without signaling. This was a readily observable traffic violation, and Officer Jones had probable cause to stop Defendant. In one respect, the trial court did err, in that the stop was not "investigatory;" readily observable traffic violations need no further "investigation," as would a suspected violation, such as driving while impaired. Probable cause exists whenever a reasonable officer readily observes a traffic violation, which Officer Jones did, so Defendant suffered no violation of any constitutional right. DENIAL OF SUPPRESSION AFFIRMED.

The dissent would have reversed the trial court's probable cause ruling. A careful reading of the trial court's findings of fact and Officer Jones' brief testimony did not clearly indicate that Defendant was "immediately" in front of him, just somewhere in front of him. At that late hour, no one else was on the road, and Defendant's lane change could not have affected any other vehicle's operation.

EDITORIAL: I dunno. Probably the guy WAS right in front of the officer, but the dissent's attention to detail does leave me a bit disquieted. Sure enough, there was no direct testimony as to how close or far away the guy was. I would have remanded it for further factfinding, and all the officer would have to do is testify truthfully that the guy was right in front of him. The NC Supreme Court recently took some of the elastic out of "the operation of any other vehicle may be affected by such movement," so remember to hold off on the blue lights if you have any doubt. At worst, you can follow him around until he commits another violation.

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

2007-06-29T18:39:00.000-07:00

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.

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

2007-06-28T19:22:00.000-07:00

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

2007-06-28T17:51:00.000-07:00

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! ...

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

2007-06-27T05:59:00.000-07:00

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.

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

2007-06-26T07:01:00.000-07:00

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.

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

2007-06-25T17:55:00.000-07:00

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.

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

2007-06-24T18:28:00.000-07:00

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

2007-06-24T11:22:00.000-07:00

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.

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

2007-06-12T14:01:00.000-07:00

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

2007-06-12T13:42:00.000-07:00

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.

But Defending Yourself Against Aggravated Assault Is Legal And NOT Suable

2007-06-07T18:24:00.000-07:00

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.

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

2007-06-06T13:56:00.000-07:00

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

2007-06-06T11:21:00.000-07:00

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.

Collector Suggests Profitable Group Sex

2007-05-10T12:52:00.000-07:00

I cannot make this stuff up. Yesterday, in a case against an extremely shady and slimy agency (I have them on tape committing many violations), I was conferring with a manager who gave me a fake name and copped the usual attitude that THEIR holy firm could NEVER have done ANYthing wrong. He also said he was going to turn in a 1099-C to IRS for the amount of the (nonexistent) debt (which according to one rep was an Aspire Visa, and another rep was a College Classic Visa), whereupon I indicated that this would be illegal, and did I mention that I happen to hold a master's in taxation, so don't try that again. Eventually, it became clear to him that I was not going away, and that not only would he never collect any money from us, he would furthermore be giving up money TO us for violating about a thousand debt collection laws.

So he said, "you'd make a lot more money if you got in bed with us."

eeeeewww.

Dear readers, who doth know me so well, I leave it to you to pick which one of the following entirely appropriate responses I actually said.

(a) I just threw up in my mouth a little bit.
(b) It's very sweet of you to offer, but I'm waiting for marriage.
(c) I sleep quite well doing what I do already, thank you.
(d) Sorry, I already have numerous girlfriends, and I must stay faithful to all of them.

I think he got the message.

The call ended with my indication that there seemed to be nothing left to do but sue. He wished me good luck with the worthless default judgment I would get. As I was explaining how I collected the last default judgment from a collector--in full--after he wasted a few thousand bucks on a big stuffy law firm that never had any chance against ME--he hung up. Oh well, he'll find out all about it soon enough

Don't Lie In Court, Don't Lie To Consumers' Lawyers: Wolpoff & Abramson Gets Another Pie In The Face

2007-05-09T13:03:00.000-07:00

SAYYED v. WOLPOFF & ABRAMSON, USCA-4 No. 06-1458, http://pacer.ca4.uscourts.gov/dailyopinions/opinion.pdf/061458.P.pdf , on appeal from USDC-DMD, before Chief USCJ Wilkins, USCJs Wilkinson, Motz, opinion by Wilkinson, filed 09 May 2007.

LONG STORY SHORT: Debt collectors' false statements in court papers and false statements to consumers' counsel are violations of FDCPA, which overrides any common-law litigation immunity. Binding in MD, NC, SC, VA, WV.

FACTS: Wolpoff & Abramson, a collection law firm [Note: NOT! They are a lawyer-owned collection agency, not a law firm as respectable folk understand the term, because most of their collectors are rude, insolent, unprofessional NONlawyers who call up and demand payment, typically violating FDCPA any way they can for a buck. This case is a relatively rare one in which Wolpoff & Abramson actually sued somebody--but as will be seen, perhaps they should not have.], sued Plaintiff in Maryland state court for an alleged Discover Bank credit card on which Plaintiff allegedly defaulted.

Wolpoff & Abramson served interrogatories on Plaintiff that failed to disclose that they were communications from a debt collector. The interrogatories also falsely stated the court date, did not inform Plaintiff that any denials had to be under oath in order to be effective, and did not disclose that the state court could default Plaintiff if he did not serve answers within 30 days. Wolpoff & Abramson moved for summary judgment against Plaintiff, who claimed that the written motion misstated the amount of the debt, and also tried to collect 15% attorney fees that Wolpoff & Abramson was not entitled to.

PROCEDURE: Plaintiff filed a counterclaim in that case [Note: it's not clear from the opinion what he was claiming], whereupon Discover Bank fired Wolpoff & Abramson from the case, obtained new counsel, and settled with Plaintiff. Plaintiff also sued Wolpoff & Abramson in U.S. District Court for the District of Maryland for violating the following provisions of the Fair Debt Collection Practices Act: 15 U.S.C. § 1692e(2)(A) forbidding false statement of the amount of the debt in Wolpoff & Abramson's summary judgment motion; §§ 1692e(2)(B) and 1692f(1) forbidding collection of unauthorized attorney fees; § 1692e(10) forbidding misrepresentations, including the false trial date, the nondisclosure that interrogatory answers had to be under oath, and the failure to warn that Plaintiff could be defaulted for not serving answers within 30 days; and § 1692e(11) requiring that the interrogatories disclose that they were communications from a debt collector.

Wolpoff & Abramson moved to dismiss for failure to state a claim per Rule 12(b)(6), arguing that attorneys enjoy absolute immunity to suit for statements made in the course of litigation; Wolpoff & Abramson served the interrogatories not on Plaintiff directly, but on Plaintiff's counsel, whom FDCPA did not protect; and that any false statements in the summary judgment motion stemmed from reasonable reliance on their clients' representations. Taking all of Plaintiff's statements as true for purposes of the motion, the trial court mentioned "witness immunity" and ruled that absolute common law immunity protected Wolpoff & Abramson from any claims based on statements made in litigation, and that a 15% attorney fee was reasonable, then went on to state that commercial litigation could not proceed if FDCPA were applicable to cases like these. MOTION TO DISMISS GRANTED; case closed. Plaintiff appealed to the U.S. Court of Appeals for the Fourth Circuit.

DECISION: Wolpoff & Abramson is definitely a "debt collector" under FDCPA and must obey it, even in the course of litigation. Wolpoff & Abramson was essentially arguing for absolute immunity in disregard of FDCPA's plain language. This the Fourth Circuit could not do. Congress wrote no blanket FDCPA exception for debt collection attorneys' litigation activities and the Supreme Court has refused to read any such exception into it. Congress did amend FDCPA to exempt formal pleadings § 1692(11), but not from the rest of FDCPA.

Neither is there any exception for communications to a consumer's counsel, because "communications" are "the conveying of information regarding a debt directly or indirectly to any person through any medium." Again, the Supreme Court has read no exception into "indirectly" that would immunize communications to counsel. Wolpoff & Abramson further argued [Note: it's not clear from the opinion whether the trial court ruled on this] that 42 U.S.C. § 1983, the civil rights statute under which people can sue government officials for violating the U.S. Constitution or federal laws, preserves common-law immunities for such officials, and therefore FDCPA does the same for debt collectors. The Fourth Circuit found flaws in that analogy, partly that Wolpoff & Abramson identified no immunity that would have protected them in this case, but mostly because § 1983 is a bare-bones paragraph from the Reconstruction era, while FDCPA is a comprehensive regulatory scheme meant to overwrite, not incorporate, the common law.

The trial court's concern that commercial litigation could not proceed if FDCPA applied to court proceedings was misplaced. This was a consumer collection case, not a commercial one. Neither did the case have anything to do with witness immunity. Plaintiff sued over false statements in Wolpoff & Abramson's summary judgment motion, not in the affidavits attached to it, and if Plaintiff could prove that violation, he could recover under FDCPA. Wolpoff & Abramson could still avoid liability by proving the statements true, or by proving the good faith error defense per § 1692k(c), but that was not a matter suitable for resolution on motion to dismiss. Lastly, neither side had fully briefed or argued two of Plaintiff's claims--unauthorized attorney fees and nondisclosure that the interrogatories were from a debt collector--so the Fourth Circuit expressed no opinion on them. The trial court needed to consider them in the light of this opinion. DISMISSAL REVERSED; cause remanded for further proceedings.

EDITORIAL: The hooligans of Wolpoff & Abramson take a well-deserved pimp-slap from Richmond! Tell the truth--what's so hard about that? Write "This is from a debt collector. This is an attempt to collect a debt." in the footer of every page--what's so hard about that? Put down the right court date--what's so hard about that? Now Wolpoff & Abramson is on notice that courts will not tolerate their shenanigans on grounds that, well, it was in court so we can do anything we want. Great decision, Fourth Circuit! Ernest P. Francis of Arlington, who won this appeal, is hereby awarded the FDCPA Blog Legion of Merit. Good show, Ernest. Wolpoff & Abramson's only comfort is, oh, the 8 kazillion dollars a day they make from unsuspecting consumers who don't know they're being illegally stomped on.

Wolpoff & Abramson: Don't lie to ME again. You are warned.

Second Amendment Update: DC Circuit Denies En Banc Hearing (translation: good news!)

2007-05-09T12:04:00.000-07:00

After the Parker v. District of Columbia decision came down firmly in favor of an individual right to keep and bear arms under the Second Amendment to the U.S. Constitution, Mayor Fenty and his fellow professional gun haters requested that all ten judges of the D.C. Circuit review the three-judge panel's decision. This is officially called a petition for rehearing en banc, and it's the only way to get a panel decision reversed, other than going to the Supreme Court. Also, an en banc decision can recede from (translation: change the court's mind) prior panel decisions. Appellate courts hardly ever grant these requests, and this one was no exception. The D.C. Circuit voted 6-4 to leave the panel opinion standing.

Those voting to secure our Second Amendment rights were Circuit Judges Ginsburg, Sentelle, Henderson, Brown, Griffith, and Kavanaugh. Those voting to put our Second Amendment rights in jeopardy were Circuit Judges Randolph, Rogers, Tatel, and Garland.

Now that the collective brain of the D.C. Circuit has come to its senses about constitutional plain language, not to mention the District of Columbia's willful idiocy of denying arms to the law-abiding while criminals buy or steal any weapon they want, the only thing Fenty and Comrades can do is to take it to the Supremes. I'm not sure whether we should want that or not. True, the Supremes commonsensically ruled the ban on revolting partial-birth abortions constitutional--but before that, they nonsensically let their religious belief in global warming dictate their ruling in the EPA case. Wish we could wait and see if Justice Stevens retires before Bush 43 has to. As the Capital Steps' parody of that West Side Story song goes--"Scaliaaaah! Oh, give me just one more Scalia!"

Officer Jerk Would Rather Arrest People Than Move His Car, For Which He'll Pay

2007-05-08T19:44:00.000-07:00

SKOP v. CITY OF ATLANTA, USCA-11 No. 06-14294, 2007 U.S.App. LEXIS 10341, on appeal from USDC-GAND, before USCJs Hull, Marcus, U.S. Court of International Trade Judge Barzilay by designation, opinion by Marcus, filed 03 May 2007.

LONG STORY SHORT: When a citizen reasonably requested an officer to move his car so that she could enter her own driveway, the officer then illegally arrested her without probable cause and would be denied pretrial qualified immunity. Binding in AL, FL, GA.

FACTS: Defendant, an Atlanta PD officer, was doing some paperwork and observing the scene while parked in his patrol car on a residential street where an afternoon thunderstorm had knocked down a large tree 110 feet away from him. At the other end of the block were some downed power lines. Plaintiff drove home from work and saw that the rear quarter of Defendant's patrol car was blocking her driveway. Defendant did not respond to her turn signal or horn. Plaintiff walked up to Defendant's window and tapped, whereupon Defendant lowered the window and yelled that Plaintiff was in a dangerous area. Defendant closed his window before Plaintiff had a chance to ask him to move his car a little bit. Plaintiff tapped again, with the same result. Defendant later testified that he told Plaintiff to park her car at the curb and walk to her house, but Plaintiff never heard him say that, and if he had said it, Plaintiff would have obeyed.

Plaintiff mouthed a request for Defendant's name and badge number, and at last Defendant jumped out of his patrol car. As Plaintiff explained that this was her home and Defendant only needed to move up a foot, Defendant threatened "Do you realize I can arrest you for obstruction?" and then did exactly that, as Plaintiff called for help from a neighbor. Defendant cuffed Plaintiff and installed her in the back of his patrol car. While he was awaiting a tow truck to impound Plaintiff's car (and refused to let a neighbor take custody of her car), Defendant kept yelling at Plaintiff, claiming she had obstructed him. Defendant also conferred with the shift sergeant, who suggested that Defendant also charge Plaintiff with refusing to obey an officer directing traffic. Another neighbor approached Defendant to ask about Plaintiff's abandoned car, and Defendant said "I may arrest you next." Defendant later admitted that he had the discretion to let Plaintiff go with a citation, but that he believed it was in his own self-interest to keep her under arrest for departmental liability reasons.

When the tow truck arrived, Defendant pulled his patrol car into Plaintiff's driveway--though he would later testify that he believed it was unsafe for Plaintiff to pull her own car into the same spot--and then took Plaintiff to jail, where she stayed until 3:00 in the morning. Charges were dropped over a year later, but Plaintiff lost her job because of the arrest record. Plaintiff suffered two herniated disks and a torn rotator cuff from being restrained during arrest. Atlanta PD investigated the incident and suspended Defendant for two days without pay, and entered a written reprimand against him for abusing his authority as to Plaintiff, and another written reprimand for discourtesy to the neighbor whom he had threatened to arrest.

PROCEDURE: Plaintiff sued Defendant, his supervisor, and Atlanta in U.S. District Court for the Northern District of Georgia per 42 U.S.C. § 1983 for arresting her without probable cause and for malicious prosecution, violating the Fourth Amendment. After discovery and mediation, Defendant moved for summary judgment on qualified immunity grounds, arguing that he had probable cause to arrest Plaintiff for obstruction and failure to obey. The trial court agreed, finding that Defendant did not know he was blocking Plaintiff's driveway, and also found no basis for any claim that Defendant and his supervisor had conspired to suggest the failure to obey charge in order to cover lack of probable cause for obstruction. QUALIFIED IMMUNITY GRANTED; case dismissed. Plaintiff appealed to the U.S. Court of Appeals for the Eleventh Circuit.

DECISION: The first step in qualified immunity analysis is to determine whether there was some constitutional violation. Arresting someone without probable cause is illegal, but not suable if the officer made a good faith mistake. The Georgia obstruction statute requires willful obstruction of a law enforcement officer in the lawful discharge of his official duties. Here, far from obstructing Defendant, Plaintiff was only asking Defendant to discharge his duties, to wit, assisting stranded motorists. Defendant's claim that Plaintiff's request to help, made politely and not while Defendant was in a threatening situation, amounted to obstruction was utterly devoid of merit and without foundation in the law. Plaintiff's criticism of Defendant was classic First Amendment protected speech and as a matter of law was not a crime. No probable cause or arguable probable cause existed to arrest Plaintiff for obstruction.

Failing to obey the order of an officer directing traffic was a matter still in factual dispute. Plaintiff said she never heard Defendant tell her to park her car and walk, which a jury could credit as evidence that Defendant in fact never told her any such thing but instead later concocted it as a defense. Defendant's claim that he arrested her to protect her from going down the block toward the downed power lines was inconsistent with his claim that he told her to park her car and walk down the block--toward the downed power lines. A reasonable jury could find that Defendant had no probable cause to arrest Plaintiff for failing to obey traffic directions.

The second part of qualified immunity analysis is whether a reasonable officer in Defendant's place would have recognized that his conduct was violating the Constitution. Arresting someone without arguable probable cause is illegal according to clearly established law. Also, such an arrest will support a claim for unconstitutional malicious prosecution in the Eleventh Circuit. Plaintiff was entitled to a jury, and the trial court erred in denying her the same. GRANT OF QUALIFIED IMMUNITY REVERSED.

EDITORIAL: Good gravy, this knucklehead is a dumbass, a smartass, and an asshole all at once! Boy, would I take this case on contingency. Black mark on the district judge, who either completely misread the record, or completely misread the record. Mention in Despatches to this poor lady's appellate lawyer, and I wish I knew who s/he was; too bad they didn't put counsel's names in the opinion. I'll find out later. Anyway, this is NOT why police officers are allowed to have power. Police are supposed to serve and protect, not snarl and snap at people to make them Respect Mah Authori-ta. This officer needs seeeerious anger management counseling, and if that doesn't work (and it probably won't) he needs to change careers. I hope he goes to a collection agency and cops that same attitude with one of MY clients, and then I'll get to sue him good.

Don't Do Any Part Of The Crime In Front Of The Man

2007-05-06T15:40:00.000-07:00

UNITED STATES v. MCNEILL, USCA-4 Nos. 06-4444, 06-4449, 2007 U.S.App. LEXIS 10140, on appeal from USDC-MDD, before USCJs Widener, Niemeyer, Motz, opinion by Niemeyer, filed 02 May 2007.

LONG STORY SHORT: Fourth Amendment probable cause justifying a warrantless arrest for a misdemeanor committed "in the officer's presence" does not require all elements of the offense to occur in front of the officer. Binding in MD, NC, SC, VA, WV.

FACTS: Girlfriend got a Maryland state court to issue a protective order against Defendant. A few hours later, Girlfriend was at a convenience store in Baltimore and called 911 to ask for police protection from Defendant. Officer arrived at the store to see Defendant standing next to Girlfriend and her children. Officer separated them and tried to talk to Girlfriend first, who said Defendant was following her and messing with her. Defendant kept interfering, to the point that Officer had to instruct Defendant to "chill." When Girlfriend told Officer about the protective order, Defendant heard her and said "I'm going to get you, bitch, for this." Officer arrested Defendant for what Officer called "assault by threat," but there is no such offense under Maryland law, although Defendant's conduct did amount to the misdemeanor of harassment. Officer checked with dispatch to confirm the protective order, but dispatch could not find it; neither knew that the protective order was so recent that it was not in the system yet. Officer took Defendant in, where Defendant made statements that incriminated himself as to two recent bank robberies.

PROCEDURE: The United States indicted Defendant in U.S. District Court for the District of Maryland on two counts of bank robbery. Defendant moved to suppress his statements as the fruit of an unreasonable arrest in violation of the Fourth Amendment, on grounds that Officer had no probable cause to believe Defendant had committed harassment in Officer's presence. The trial court ruled that Defendant had committed no offense in Officer's presence, rendering Defendant's arrest illegal. Everything the police obtained as a result of the arrest, including Defendant's statements, were fruits of the poisonous tree. MOTION TO SUPPRESS GRANTED. The United States took an interlocutory appeal to the U.S. Court of Appeals for the Fourth Circuit.

DECISION: Police may generally arrest anyone for even very minor criminal offenses without violating the Fourth Amendment, so long as probable cause exists. It is long settled that officers may arrest for felonies not committed in the officer's presence, even without a warrant, but the Supreme Court has never ruled on whether the Fourth Amendment forbids warrantless arrests for misdemeanors not committed in the officer's presence. The Fourth Circuit's own precedent was not entirely clear either. However, that question proved to be moot, because upon closer inspection, Officer did indeed have probable cause to believe that Defendant committed a crime in his presence.

There is no such offense as "assault by threat" in Maryland, but so long as some actual crime occurred, Defendant gave Officer the power to arrest him. Maryland defines the misdemeanor offense of harassment, in pertinent part, as (1) following someone else around in a public place (2) with the intent to harass, alarm, or annoy the other, (3) after receiving a reasonable warning or request to stop by or on behalf of the other, and (4) without a legal purpose. Here, Girlfriend got a protective order, called 911, and complained to Officer that Defendant was harassing her, whereupon Defendant grew agitated and threatened Girlfriend. All of this gave Officer probable cause to believe that Defendant was continuing to commit harassment in front of him, even if he had begun his course of conduct some time before. Officer therefore had the power to arrest Defendant without offending any in-the-presence requirement or the Fourth Amendment. SUPPRESSION REVERSED.

EDITORIAL: If this relationship took its typical course, I'm sure Girlfriend has seen the error of her ways, and gone to see this turkey every day in the federal detention center, with as many of her kids in tow as the Bureau of Prisons will allow. When he catches 20 years for bank robbery, she'll probably come to her senses. But I digress.

Know your crimes, folks. Try not to threaten people with nonexistent crimes; such is considered--to invoke the ultimate British term of reproach--bad form. If nothing else, since the officer had to tell the guy to "chill" and stop interfering with his investigation, you could probably hook him up for obstruction. In North Carolina, we have about 30 different kinds of assault and threat, anything from ordinary common-law assault ("assault assault") to assault with a deadly weapon with intent to kill inflicting serious injury (AWDWWITKISI or "the alphabet crime"), with all sorts of specific situations like assault on a sports official and cyberstalking. I wish we'd do like Florida and just have assault, aggravated assault, battery, and aggravated battery. Anyway, I predict that if this issue ever does come up before SCOTUS, they'll find no in-the-presence requirement for misdemeanors.

Wolpoff & Abramson Refuses To Read Law Books, Attacks FDCPA Champion, Gets Smacked

2007-05-01T19:30:00.000-07:00

CROW v. WOLPOFF & ABRAMSON, LLP, USDC-MND Civil No. 06-3228, 2007 U.S.Dist. LEXIS 31356, before USMJ Mayeron, filed 19 Apr 2007. LONG STORY SHORT: Collection agency's self-designated affirmative defense seeking attorney fees under Rule 11, Section 1927, and FDCPA bad-faith provision was not an affirmative defense at all, and would be stricken. Not binding anywhere but may be persuasive. FACTS: Defendant, a lawyer-owned collection agency with a nationwide business, mailed a dunning letter dated 15 May 2006 to Plaintiff, who was out of town on a job site and then at his lake house, and did not receive the letter until 30 May 2006. Plaintiff mailed a validation request to Defendant on 22 June 2006, within the 30-day time limit after receiving the dunning letter. Instead of validating the alleged debt, Defendant responded only with a "Notice of Intent to Sue" letter dated 28 June 2006. PROCEDURE: Plaintiff sued Defendant in U.S. District Court for the District of Minnesota per 15 U.S.C. § 1692g for proceeding with collection efforts before validating the debt. Apparently unaware that Plaintiff had in fact requested validation within the 30-day limit, Defendant included in its answer the following, designated Sixth Affirmative Defense (hereinafter SAD): "Plaintiff and Plaintiff's counsel's pursuit of Defendant is in bad faith and solely to harass and annoy, entitling Defendant to any award of attorney's fees, as well as their costs and disbursements incurred herein as sanctions, and that if Plaintiff and Plaintiff's counsel continues to prosecute or further this litigation or fails to immediately dismiss this lawsuit, will be in violation of Fed. R. Civ. P. 11, 28 U.S.C. § 1927 and 15 U.S.C. § 1692k(a)(3) and will be liable for Defendant's attorneys fees and costs for multiplying the proceedings in this cases unreasonable and vexatiously, asserting claims solely to harass and annoy Defendant and in asserting claims contrary to the applicable law in this area." Plaintiff's counsel, well-known FDCPA consumer advocate Thomas J. Lyons Jr., emailed Defendant's in-house lawyer Jill N. Brown to explain the apparent delay in responding, and asked that Defendant withdraw SAD. Instead, Defendant chose to disbelieve Plaintiff, and refused to withdraw SAD. Plaintiff moved per Rule 12(f) to strike SAD as legally insufficient and scandalous. Defendant argued that even if SAD was not an affirmative defense, the trial court should treat SAD as a counterclaim. DECISION: Rule 12(f) motions to strike are disfavored, but are appropriate when an affirmative defense is either scandalous or legally insufficient. Affirmative defenses are supposed to raise issues outside the scope of a plaintiff's pleadings. If true, an affirmative defense will defeat a plaintiff's claim even if what the plaintiff says is also true. Instead, SAD was just a denial of Plaintiff's pleaded facts, to wit, that he did not get the letter until less than 30 days before he requested validation. Rule 11 requires a separate motion, and cannot be raised by affirmative defense or counterclaim. [Note: If W&A actually pulled out Rule 11 and read it, they would know this.] Therefore, the SAD request for Rule 11 sanctions was procedurally insufficient. 1692k(a)(3) and Section 1927 fees are not counterclaims either, because counterclaims are independent grounds for relief, whereas bad faith and vexatiousness depend on resolution of the original action. Here, facts as to when Plaintiff got Defendant's letter needed to be resolved before addressing any question of bad faith. Plaintiff's argument that SAD was scandalous, meaning that it unnecessarily reflected on the character of an individual or stated anything in repulsive language that detracted from the dignity of the court, was superfluous. SAD was legally insufficient as an affirmative defense or counterclaim, so the trial court would not address whether it was also scandalous. MOTION TO STRIKE GRANTED. EDITORIAL: Score one for the good guys against the functionally illiterate hooligans of Wolpoff & Abramson. THEY accuse Tom Lyons of harassment and annoyance? Talk about the snowflake calling the bedsheet white! Wolpoff & Abramson refers to itself as a law firm, but it is nothing better than a few hundred nonlawyer bill collectors underneath a fistful of arrogant jerks with law licenses. Naturally, the nonlawyer bill collectors take this as permission to abuse and terrorize consumers, cruelly delighting in their fraudulent power. You think I'm making this up? I've had the displeasure of negotiating the maze of Wolpoff & Abramson's massive phone system, trying to talk to a real lawyer about my clients' cases. What, real lawyers work at Wolpoff & Abramson? You'd never know it from calling them. I was handed off from one clueless cretin to another, having to re-explain myself every time. I finally arrived at some petty manager's desk, and among other things he told me "You are the debtor! You don't tell US what to do!" Hmmm ... watch me. At length, a more mild-mannered drone personally promised me that Mr. Ronald Abramson Esq. himself would be calling by the end of the day. That was last year, and I'm still waiting. We see from this case that nothing changes at Wolpoff & Abramson. How about pulling out a law book and reading it sometime? Isn't that what REAL LAWYERS do? It seems that like real men don't ask directions, real lawyers don't read statutes, rules, or cases. Well, Wolpoff & Abramson are nearly billionaires now, so I guess at some level it works. Keep up this foolishness, Wolpoff & Abramson, and I'll retire off of you.

SCOTUS Sez If You Drive Fast & Furious, Police Can Constitutionally Wreck You Out

2007-04-30T20:25:00.000-07:00

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.

Yes, You CAN Get Sued If You Carry Double-Action Pistols Without Manual Safeties

2007-04-28T18:17:00.000-07:00

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.

Can I See You With My Flash Suppressor? Not In The 10th Circuit

2007-04-27T09:15:00.000-07:00

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.

OIS Of Apparently Unarmed, Fleeing Teen Must Go To Jury--But Media Gets It Wrong As Usual

2007-04-21T18:29:00.000-07:00

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.

Premature Eviction: Deputy Shouldn't Have Stripped Sexual Harasser Of His House, But QI Renders Lawsuit Impotent

2007-04-21T13:04:00.000-07:00

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!

Leaving A Cul-De-Sac After 911 Hangup, Even Early In The Morning, Isn't Reasonably Suspicious

2007-04-15T07:08:00.000-07:00

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!

Inventory Search Of Arrestee's Bags Was Regular, Even If It Was Kind Of Irregular

2007-04-13T19:11:00.000-07:00

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.

RJM Acquisitions Escapes FDCPA Liability For Bona Fide Bankruptcy Boo-Boo

2007-04-13T08:22:00.000-07:00

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.

Fraudulent Podiatrist Puts Foot In Mouth; Trial Court Doesn't Step On Him Hard Enough

2007-04-12T17:44:00.000-07:00

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.

I Hear You Knocking But You Can't Reach In--And Next Time, You'll Pay

2007-04-12T09:08:00.000-07:00

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.

4th Cir Short Note: Bend Over And Take It Like A Man, Dorrance; And Shame On UNC

2007-04-09T13:52:00.000-07:00

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.

FCRA Short Note: If The Named Plaintiff Lied, Class Certification Will Get Denied

2007-04-09T08:07:00.000-07:00

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.

4A 4C 2006 Short Note: Private Prison Employees Cannot Be Sued Under Bivens, But It's Open Season In State Court

2007-04-08T16:16:00.000-07:00

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.

4A 4C 2006: A Cry For Help, In The Form Of Planted Pipe Bombs

2007-04-07T17:43:00.000-07:00

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.

4A 4C 2006: Mistaken Dorm Room Raid Is Not Unreasonable

2007-04-07T13:07:00.000-07:00

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.

First Amendment Short Note: Feeling Of Insecurity Is Not Enough To Forbid Inmate Preaching

2007-04-06T12:46:00.000-07:00

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.

Mentally Ill Man's Tragic Death By Police Gunfire Must Go To Jury

2007-04-05T22:36:00.000-07:00

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.

Verbally Abusive Nutcases With 25 Pens And Pencils Have Rights Too

2007-04-05T20:38:00.000-07:00

WINTERROWD v. NELSON, USCA-9 No. 04-35855, 2007 U.S.App. LEXIS 7400, on appeal from USDC-AKD, before USCJs Kozinski, Berzon, Tallman, opinion by Kozinski, filed 30 Mar 2007.

LONG STORY SHORT: Motorist's long history of traffic infractions, belligerent attitude, opinion that the state could not make him register his vehicle, verbal abuse of officers, and possession of 25 pens and pencils did not justify pushing him onto hood and pulling injured arm. Binding in AK, AZ, CA, GU, HI, ID, MP, MT, NV, OR, WA.

FACTS: Four Alaska State Troopers stopped Plaintiff's vehicle because they suspected his license plate was invalid. At least one Trooper was familiar with Plaintiff's long history of traffic infractions and knew of Plaintiff's belief that Alaska had no legal power to require him to register his vehicle. Indeed, after stopping, Plaintiff could produce no valid registration for his vehicle. Troopers ordered Plaintiff out of his vehicle so they could put him in a patrol car and talk to him there. Troopers removed some 25 pens and pencils from Plaintiff, but he did not seem to have any weapons on him. At some point, Plaintiff called Troopers "jackbooted thugs," "armed mercenaries," and "cowards."

For officer safety, Troopers decided to conduct a pat-down for weapons, and got Plaintiff away from his vehicle. They had him face toward the patrol car and told him to put his hands behind his back. According to Plaintiff, even though he told them his arm was injured and he could not comply, Troopers forced him onto the hood and one Trooper grabbed his injured arm and forced it up. Plaintiff screamed in pain but the Trooper increased pressure on his arm and pumped it up and down, then released his arm and allowed him to fall on the ground. Troopers later admitted that a subject may hold his arms out to the side or over his head instead of absolutely having to put his arms behind his back.

PROCEDURE: Plaintiff, representing himself, sued Troopers in U.S. District Court for the District of Alaska per 42 U.S.C. § 1983 for excessive use of force in violation of the Fourth Amendment. Troopers moved for summary judgment on grounds of qualified immunity. The trial court ruled that, since it had to take Plaintiff's statements under penalty of perjury as true, Troopers used excessive force under the totality of the circumstances, and no reasonable officer could have believed otherwise. QUALIFIED IMMUNITY DENIED. Troopers appealed to the U.S. Court of Appeals for the Ninth Circuit.

DECISION: No matter how verbally abusive Plaintiff was, the First Amendment protected his speech, and all the more so because the object of his protest was law enforcement, who must show greater restraint in the face of provocation than the ordinary person might. None of his traffic infractions were of a violent nature. Neither was his (unjustified) belief that the state cound not force him to register his vehicle. Possession of 25 pens and pencils indicated eccentricity, but not necessarily violent tendencies, since pens and pencils have other uses besides weapons.

None of the facts available to Troopers added up to an articulable belief that Plaintiff was particularly violent, but they still could pat him down before installing him in a patrol car. Neither were Troopers expected to put themselves in greater danger by crediting Plaintiff's claim of injury. What they could have done was to have him hold his arms out to the side or other alternative pat-down procedure that did not involve Plaintiff putting his hands behind his back. No reasonable officer could have believed otherwise. Troopers gave a much different account of the events, but that would all have to go before a trier of fact. DENIAL OF QUALIFIED IMMUNITY AFFIRMED.

EDITORIAL: Oy vey ... 25 pens and pencils, you can't make me register my vehicle, gitcha hands off me ya fascist pig, owwww my arm, file suit pro se ... somebody's not wrapped too tight. I know the type all too well. Good thing the dash-cam video will prove him wrong ... ahhh, you DID get this on video, didn't you? Wait ... the opinion never mentions video, or at least audio of what was said after they went out of frame. Don't tell me there WASN'T a video. Well, Alaska can use the money it saved by not buying a dash-cam, or not buying new tapes for the one already there, to pay about one-tenth of the costs of defending this suit.

Tape or not, I would bet about a hundred million dollars that he won't survive trial, but then again he might. Poor troopers. If they win, as they ought, this fruitcake needs to go down hard for perjury. But he won't.

Supreme Court Short Note: Convert To Global Warming Religion Or Die

2007-04-02T20:31:00.000-07:00

A gang of blue states and enviro-whacko groups have decided that American automobile emissions, even though they admit that these emissions account for only 4 percent of alleged greenhouse gases, simply MUST be regulated by EPA. As liberals always do when they lose in the political and scientific process, they turn to the courts for some bench legislation, and this time they have hit the big one. SCOTUS has officially established global warming voodoo as the state religion.

In a long opinion that reads like a transcript of a sermon by Grand High Llama Algore, the Supremes cherry-pick the facts they like, mash them up with enviro-propaganda and laughable Chicken Littleisms ("These rising seas have already begun to swallow Massachusetts' coastal land."), and apply this muddle to the ever-elastic Clean Air Act. Then they claim that all they are ordering the Environmental Protection Agency to do is "decide whether greenhouse gases cause or contribute to environmental change" and they don't care whether or not "EPA must make an endangerment finding, or whether policy concerns can inform EPA's actions in the event that it makes such a finding"--but their wholesale endorsement of absolutely everything the enviro-whackos say or write leaves no doubt that if EPA does not prostrate itself before the new state religion, they will be right back in front of the Nine Robed in Black, who will then order them to Believe, and to Do Something. Justice Stevens wrote this travesty, and in his sway are Kennedy, Souter, Ginsburg, and Breyer. You could NOT have knocked me over with a feather.

It's left to the Dread Chief Justice Roberts ("I Am Here For Your Souuuuul"), Scalia, Thomas, and Alito to point out that EPA already HAS looked at this stuff many times before and respectfully declined to substitute religion for science, seeing as how the earth has been blowing hot and cold by for squillions of years without human intervention, and "this Court has no business substituting its own desired outcome for the reasoned judgment of the responsible agency." What a concept. Scalia, in the second dissent, even said "flatulence" (if only in a footnote), to the delight of Real Men everywhere. But seriously folks, Roberts observes that now the reach of redressability extends to this case, where 80 percent of greenhouse gases come from OUTSIDE the United States and only 4 percent of GHGs come from American cars, to confer Article III standing on Taxachusetts because the ocean is now swallowing Martha's Vineyard or something. (Hey, somebody tell Ted Kennedy it'll also submerge those offshore windmills!) "The Court ignores the complexities of global warming, ... using the dire nature of global warming itself as a bootstrap for finding causation and redressability." That's it in a nutshell.

Anybody who wants to read this, please do so at http://www.supremecourtus.gov/opinions/06pdf/05-1120.pdf . It's 66 pages, so brew a pot of fair trade coffee and pour in some cream from non-flatulent cows and sugar harvested by union labor. Also, bring your brain.

How A 911 Tip, String Of Robberies, Loitering SUV Occupied 4 Times, Paroled Felon, And Chair Bag Can All Work Together

2007-03-30T19:42:00.000-07:00

UNITED STATES v. LINDSEY, USCA-11 No. 05-11273, 2007 U.S.App. LEXIS 7062, on appeal from USDC-FLSD, before Chief USCJ Edmondson, USCJs Barkett, Cox, opinion by Edmondson, dissent by Barkett, filed 27 Mar 2007.

LONG STORY SHORT: Anonymous tip that reported four black males loading guns into a white SUV at a specific location, coupled with police knowledge of a pattern of robberies in the area and reasonably mistaking a chair bag for a rifle container, amounted to probable cause to search SUV. Binding in AL, FL, GA.

FACTS: Someone calling himself Davis reported to Palm Beach County 911 that behind a Mobil gas station across from a Wachovia bank branch were four black males loading firearms and putting them in a white SUV. The West Palm Beach, FL PD knew of a string of bank robberies wherein three to four black males arrived in a large white SUV and displayed assault-type weapons. [Note: Courts generally have no idea what "assault-type weapons" are, other than any gun that the news media doesn't like.] Also, that same Wachovia branch had twice recently experienced robberies perpetrated by two black males.

Sergeant Tierney, first to arrive, saw a large white SUV parked in the reported place, and as he watched, the SUV suddenly left, apparently in reaction to his arrival, and drove to the front of the Mobil station and stopped at a gas pump. Four black males got out; one raised the SUV's hood and the other three walked toward the station. Sergeant Tierney, believing a robbery was imminent, stopped the subjects at shotgun point and ordered them to get on the ground. Defendant, one of the three who had been heading to the station, asked "what did I do" before lying down and submitting to handcuffs. As responding officers put the subjects in police vehicles, an armored car pulled up to the bank and security personnel left the bank carrying satchels of cash. Mobil employees told police that the SUV had been parked there for two hours.

All four subjects were convicted felons, but none had any outstanding warrants. However, Defendant was the registered owner of the SUV and was on parole for armed bank robbery. After releasing the other three subjects, police kept Defendant to investigate possible parole violations (one of his conditions was that he not associate with convicted felons) and to confirm or disconfirm their suspicion that weapons were in the SUV. Defendant refused permission to search his vehicle. Inside it, police saw in plain view a pair of binoculars and a black canvas bag that looked like a rifle bag.

Police arrested Defendant for being a felon in possession of firearms, towed the SUV, and swore out a search warrant based on the 911 call and what they had learned. The bag turned out to be an empty bag for a folding chair, but in the center console was a .38 revolver loaded with two live rounds. At about the same time, Defendant waived his Miranda rights and admitted to buying the revolver and to owning all items in the SUV.

PROCEDURE: The United States indicted Defendant in U.S. District Court for the Southern District of Florida for possessing firearms and ammunition while a convicted felon, and for being an armed career criminal. Defendant moved to suppress the items seized and his post-arrest statements, arguing that police did not verify the anonymous tip and had no reasonable suspicion of criminal activity being afoot before they stopped him, had no probable cause to obtain a warrant, and had no probable cause to arrest him. The trial court ruled that on the totality of circumstances, police articulated reasonable suspicion and appropriately dealt with a potentially deadly situation as efficiently as they could. SUPPRESSION DENIED. A jury convicted Defendant as charged and the trial court sentenced him to 300 months. Defendant appealed his convictions and sentence to the U.S. Court of Appeals for the Eleventh Circuit.

DECISION: Police were able to confirm the anonyous tip, as far as it went. Their recent experiences with three to four black males in a white SUV using guns to rob banks, and the two robberies at that same Wachovia branch, made their suspicions more particular. When the SUV suddenly drove off as Sergeant Tierney's vehicle came into view, suspicion increased. Police had more than a hunch that a robbery was about to go down.

Then, the armored car showed up within minutes, and there appeared to be a rifle bag in the vehicle that the caller had reported guns being loaded into, and police found that Defendant was a convicted felon. This added up to probable cause to arrest him for felon in possession.

The Eleventh Circuit did not consider whether the search warrant was valid, because it was unnecessary. The automobile exception to the warrant requirement applies if the vehicle is readily mobile (it was) and if police have probable cause to search it, that is, a fair probability that evidence or contraband will be found. From the facts already known, police had probable cause. DENIAL OF SUPPRESSION AFFIRMED. Defendant also raised issues of unfair trial, but they were without merit. CONVICTIONS AND SENTENCE AFFIRMED in all respects.

The dissent would have ruled Defendant's initial seizure at gunpoint to have been without reasonable suspicion. The anonymous tip was not reliable and at least its prediction that more than one gun would be in the SUV was incorrect. The recent robberies had nothing in common with Defendant and his companions other than they were four black males in a large white SUV, not an uncommon sight in West Palm Beach. Police held Defendant too long for a Terry stop and never saw any suspicious bulges consistent with concealed weapons on the subjects. All evidence and statements should have been suppressed.

EDITORIAL: Here's a rare event--the Eleventh Circuit publishes one of its Fourth Amendment cases! Good catch by West Palm Beach PD, but I can't totally disagree with the dissent. Judge Barkett is a known liberal and will resolve any doubt in favor of turning loose criminals. Here, she had something of a point. Three or four black guys in a white SUV is, indeed, not uncommon in West Palm and many other places. The more I learn about police work, the less inclined I am to assume that a group of black males MUST be up to no good. What's more, I can assure you that I can tell the difference between a chair bag and a rifle case, because I carry BOTH items to highpower rifle matches! Had I been there, I would have had to point that out, reluctantly.

Judge Barkett also seemed upset with the display of weapons by eight officers, and I suppose that people who know nothing about weapons and their proper use would not like that. However, you ensure peace and non-resistance by a sudden "excessive" show of force, making it abundantly clear that resistance will not be a good career move. Giving dangerous people a fair chance is extremely UNfair to officers and innocents.

This is an honestly debatable case, but what pushed it over the edge for me was that the SUV was parked for two hours in position to surveil a bank, and as soon as the police popped up, suddenly remembered an urgent need for gasoline and preventive maintenance. This is NOT ordinary behavior no matter how many occupants of whatever color and gender are involved. It was also a good gesture for police to go get a warrant even when they didn't need one. This is not the mark of a rush to judgment. With only one revolver and two rounds, these guys may not have meant to rob anybody right then, but it wouldn't have been long before they did. See you again in a couple decades, fella.

Officers On The Scene Of A Beating Can't Hide In The Crowd, Not In The 11th

2007-03-30T10:55:00.000-07:00

VELAZQUEZ v. CITY OF HIALEAH, USCA-11 No. 05-13157, 2007 U.S.App. 5821, on appeal from USDC-FLSD, before USCJs Tjoflat, Carnes, Hill, opinion per curiam, filed 14 Mar 2007.

LONG STORY SHORT: Officers who admit to being at the scene of a beating and do not intervene may be liable for the harm and are not entitled to summary judgment. Binding in AL, FL, GA.

FACTS: Two officers of the Hialeah, FL PD, stopped Plaintiff for driving under the influence. After the officers handcuffed him, Plaintiff received a beating amounting to excessive force. Plaintiff did not see exactly who beat him, but both officers admitted to being present at the time.

PROCEDURE: Plaintiff sued the City of Hialeah and numerous Hialeah officers in U.S. District Court for the Southern District of Florida per 42 U.S.C. § 1983 for excessive force under the Fourth Amendment. Hialeah moved for summary judgment, arguing that even if Hialeah officers beat Plaintiff, he could not identify which ones did so and could not properly assign liability. The trial court agreed. SUMMARY JUDGMENT GRANTED. Plaintiff appealed to the U.S. Court of Appeals for the Eleventh Circuit.

DECISION: Plaintiff testified that he was beaten and both officers admitted to being on the scene. In the Eleventh Circuit, an officer who stands aside and lets other officers use excessive force will be liable for his nonfeasance. Because the law prohibits both the excessive use of force and the failure to intervene, the officers' presence at the scene permits a reasonable jury to infer that one or both of them either beat up Plaintiff or let it happen. Were the law otherwise, officers could throw a bag over anyone's head and do what they wished. While the officers may well testify at trial that neither of them used excessive force and therefore neither of them needed to intervene, a jury would have to decide. GRANT OF SUMMARY JUDGMENT REVERSED and cause remanded for further proceedings.

EDITORIAL: What!? Hialeah officers might have beat somebody up? Oh, heavens no, that's not possible. Everybody around Miami knows that Hialeah is the very model of a modern, progressive, enlightened, and incorruptible local government. The police there practically NEVER do ANYthing wrong or even appear to.

(perhaps my well-informed sarcasm is not coming through)

Then again, there are such things as professional plaintiffs. I don't know what the deal is here, but I do agree with the Eleventh that if you were more or less all right just before you got arrested, but seem rather the worse for wear shortly after, then somebody should be liable.

Misdemeanor Citations Aren't Seizures, But We Can Arrest You If You Really Want

2007-03-30T07:59:00.000-07:00

MARTINEZ v. CARR, USCA-10 No. 06-2069, 2007 U.S.App. LEXIS 7074, on appeal from USDC-NMD, before USCJs Briscoe, Ebel, Gorsuch, opinion by Gorsuch, filed 27 Mar 2007.

LONG STORY SHORT: An officer's demand that a subject sign a misdemeanor citation promising to appear in court, or else be arrested, is not a Fourth Amendment seizure. Binding in CO, KS, NM, OK, UT, WY.

FACTS: Plaintiff was at the New Mexico State Fair and saw several police officers walking in his direction, one of whom was looking at him. Plaintiff asked the officers if there was a problem, and some level of verbal exchange ensued, during which Plaintiff said "what the f*** are the police doing here?" and an officer threatened to ban him from the fair. The officers radioed Defendant, a New Mexico State Police officer, to come over, and when he arrived, he saw that an officer had Defendant in a wristlock. Defendant accompanied Plaintiff and the officers to the central law enforcement station at the fair. Defendant wrote a citation for resisting, evading, or obstructing an officer, a New Mexico state misdemeanor, and told Plaintiff to either (1) sign the citation and thereby promise to appear in court, or (2) be arrested, as New Mexico law provided. Plaintiff willingly signed, and officers escorted him off the premises. Defendant never physically touched Plaintiff.

PROCEDURE: Plaintiff sued Defendant in state court, which Defendant removed to the U.S. District Court for the District of New Mexico, per 42 U.S.C. § 1983 for unreasonable seizure under the Fourth Amendment. Defendant moved for summary judgment on qualified immunity grounds, arguing that issuing a citation in lieu of arrest is not a Fourth Amendment seizure. The trial court ruled that Defendant did seize Plaintiff, and clearly unlawfully, which any reasonable officer would have known. QUALIFIED IMMUNITY DENIED. Defendant appealed to the U.S. Court of Appeals for the Tenth Circuit.

DECISION: To defeat a qualified immunity defense, Plaintiff had to show first that Defendant violated one or more of his constitutional rights, and second that a reasonable officer in Defendant's place would have known that the complained-of conduct was illegal. Plaintiff acknowledged that Defendant wrote the citation but never touched him, and no officer who did touch him was before the court. The only question left was the purely legal one of whether a citation in lieu of arrest was a seizure for Fourth Amendment purposes.

Relatively recently, states have been providing officers with discretion to issue citations, tickets, or summonses for misdemeanors, instead of arrest. Detaining a subject long enough to write a ticket is much closer to a Terry stop than to an arrest. Officers cannot take the person to jail or conduct a search incident to an arrest. No court in America has held that a citation, summons, bail arrangement, or pretrial travel restriction is a Fourth Amendment seizure. In fact, giving Plaintiff the choice of being arrested or signing a citation, the Tenth Circuit opined, was very nearly the opposite of a seizure. Though Plaintiff could have been arrested for failing to appear, no seizure occurs until that happens, and it never did. DENIAL OF QUALIFIED IMMUNITY REVERSED; cause remanded for entry of judgment in Defendant's favor.

EDITORIAL: I like it. Maybe some better crisis management skills would have headed the whole thing off; maybe not; but it ended well. The opinion went into some oddities of arrest v. citation, e.g., even though a motorist could be arrested for a traffic misdemeanor and have his person and car interior searched incident to the arrest, there is no such thing (yet) as "search incident to traffic ticket." An officer tried that once, and the Supreme Court busted his chops, so don't try it again, folks.

How many times have you heard "aw forget it, just take me to jail"? Some wise guys will say that (and their wish invariably is granted). Otherwise, everybody should be rooting for incentives to write citations, not arrest reports, especially in counties where there are just not enough beds in the jail. Also, watch your mouth when at the State Fair.

4A 4C 2006: Drug Warrants, Like Breakfast At Denny's, Can Be Served Anytime

2007-03-29T19:12:00.000-07:00

UNITED STATES v. RIZZI, 434 F.3d 669 (4th Cir. 2006), No. 05-4240, 2006 U.S.App. LEXIS 450, on appeal from USDC-DMD, before USCJ Niemeyer, SrUSCJ Hamilton, USDJ-WDNC Conrad by designation, opinion by Niemeyer, filed 09 Jan 2006.

LONG STORY SHORT: Statute specifically authorizing search warrants for drugs to be served at night prevailed over criminal procedure rule generally requiring search warrants to be served only in the daytime, and the statute was not unconstitutional under the Fourth Amendement. Binding in MD, NC, SC, VA, WV.

FACTS: During an ongoing drug activity investigation at a particular bar, Baltimore PD officers saw Defendant apparently selling drugs out of his vehicle and in the bar's restroom. The officers found cocaine residue on abandoned trash bags from Defendant's home, and learned from federal LE that Defendant was a convicted felon and therefore not allowed to have firearms. Baltimore officers swore out a search warrant from state court directing them "forthwith" to search Defendant's house and vehicle for drugs, firearms, money, records, and drug paraphernalia. At 0430 (before sunrise) two days later, 24 federal, state, and Baltimore officers knocked and announced at Defendant's front door. They waited 15 to 20 seconds before forcing entry, arresting Defendant as he was walking up the stairs from where he had been asleep in the basement. Officers found no drugs, but after they Mirandized Defendant, he directed them to firearms in the basement.

PROCEDURE: The United States indicted Defendant in U.S. District Court for the District of Maryland for possessing firearms while a convicted felon. Defendant moved to suppress the firearms, arguing that Federal Rule of Criminal Procedure 41(e) required all warrants to specify daytime execution unless the issuing judge authorized otherwise for good cause. The United States conceded that good cause did not preexist, but argued that 21 U.S.C. § 879 prevailed, because it specifically authorized that warrants relating to controlled substance offenses "may be served at any time of the day or night if the judge or United States magistrate issuing the warrant is satisfied that there is probable cause to believe that grounds exist for the warrant and for its service at such time."

The trial court ruled that the warrant, since it did not authorize service at night, fell under Rule 41(e), and § 879 began after Rule 41(e) ended, and thus did not control. SUPPRESSION GRANTED. The United States appealed to the U.S. Court of Appeals for the Fourth Circuit, and Defendant argued for the first time that even if § 879 prevailed, it amounted to a blanket exemption to the daytime search requirement for a class of cases, violating the Fourth Amendment.

DECISION: As a rule, specific laws trump general laws on the same subject. Here, Rule 41 covers search warrants generally and requires a special showing for night service, but § 879 specifically addresses drug warrants. Supreme Court precedent and the plain language "may be served at any time of the day or night" so long as the issuing court "is satisfied" that probable cause exists, and § 879's expression of congressional drug policy meant that it took away all Rule 41 authority over search warrants involving drug crimes. In the Fourth Circuit, therefore, search warrants involving violations of drug laws may be served anytime, so long as probable cause supports the warrant itself.

As to Defendant's Fourth Amendment argument, the Fourth Circuit addressed it as part of the review of the trial court's rejection of § 879, even though Defendant did not raise the issue below. Statutes may not except a class of searches from component protections of the Fourth Amendment. For example, the Supreme Court has held the knock-and-announce rule to be a simple and universal Fourth Amendment protection, subject only to case-by-case exceptions. However, the Supreme Court has never held daytime-only searches to be a Fourth Amendment rule, not least because that issue is much more complicated than knock-and-announce. Some people work during the day and sleep at night, and some days are holidays when searches would be more disruptive than on a regular night. § 879's recognition of law enforcement's special need for advantages against drug dealers did not fall below Fourth Amendment minimums and was within the government's police power. SUPPRESSION REVERSED; cause remanded.

EDITORIAL: Though I think 21 U.S.C. § 879 could have been better drafted--in fact, on first reading it, I thought Defendant had a good point--the Fourth Circuit is right that if the Supremes haven't implanted a particular requirement into the Fourth Amendment, it's fair game for legislation. It was news to me that a state warrant could be subject to federal law if the case went federal. Well, now I know.

Predictably, this guy pleaded to the charge and accepted a year and a day in prison, on condition that he could appeal the suppression again. He argued, among other things, that 24 police officers were just too many to be constitutional. On 12 Mar 2007, the Fourth Circuit flushed it in an unpublished opinion, noting that no court has ever ruled a search unreasonable on grounds that there were just too many cops present. If the excessive armed warm bodies had tried to intimidate him into confessing, that would have been another matter. Also, 15 to 20 seconds was plenty long to wait. Good job, Fourth.

4A 4C: Staying With Cooperating Witnesses Can Be Hazardous To Your Stealth

2007-03-29T17:14:00.000-07:00

UNITED STATES v. MORELAND, 437 F.3d 424 (4th Cir. 2006), 2006 U.S.App. LEXIS 4166, on appeal from USDC-WVSD, before Chief USCJ Wilkins, USCJ Luttig, USDJ-VAED Kelley by designation, opinion by Wilkins, filed 22 Feb 2006.

LONG STORY SHORT: Defendant's host, who happened to be a CI, consented to a search of the residence by opening the door to police when they knocked, and evidence seized during Defendant's arrest would not be suppressed. Binding in MD, NC, SC, VA, WV.

FACTS: A confidential informant tipped off West Virginia state troopers that someone named Bones would be coming to CI's house to sell cocaine base. Bones showed up, but instead of staying, dropped off Defendant, and CI invited Defendant to stay. At CI's request, Trooper Perdue drove to CI's house with Trooper Berry, who gave Defendant marked currency in exchange for 5.93g cocaine base.

At 0200 the following morning, officers including Trooper Perdue knocked on CI's door and announced their presence. CI could not understand them through the door, and opened it. Once he saw the officers there, he considered them welcome to come in. They did so, even though they did not expressly ask permission and CI did not expressly give permission; rather, they directed CI to stand aside and he complied. Officers arrested Defendant, who had 1.92g cocaine base and $420 in marked bills that Trooper Perdue had given him for the earlier purchase.

PROCEDURE: The United States indicted Defendant in U.S. District Court for the Southern District of West Virginia on two counts of possession with intent to distribute cocaine base. Defendant moved to suppress all evidence taken after his arrest, arguing that the officers had neither a warrant nor the homeowner's consent to search. The trial court held that CI's close relationship with police and his implied consent were enough to make a warrant unnecessary. MOTION TO SUPPRESS DENIED. The U.S. introduced the cocaine base and money as evidence at trial, and the jury convicted Defendant on both counts. The trial court departed downward from the guideline of 30 to life as a career offender, holding that a sentence that severe would overrepresent Defendant's criminal history, and imposed the statutory 10-year minimum. Defendant appealed his convictions, and the U.S. cross-appealed his sentence, to the U.S. Court of Appeals for the Fourth Circuit.

DECISION: The trial court made no clear factual errors in finding that CI had a close relationship with law enforcement and that he meant to consent to the officers' entry. Reasonable officers could have taken CI's voluntarily opening the door and not objecting to entry, combined with CI's cooperation in setting up the controlled buy earlier in the day, as a totality of circumstances establishing consent to entry and search for Defendant. DENIAL OF SUPPRESSION AFFIRMED. Since Defendant's trial was otherwise fair, his convictions would be affirmed as well.

However, while the trial court reasonably varied from the advisory guideline sentence, the amount of the variance was not reasonable. SENTENCE VACATED and remanded to the trial court for imposition of not less than 20 years.

EDITORIAL: Simple and sweet. I even agree with the sentencing decision. Gold star to whoever developed the CI here. The result was a dead-bang case and a safe, swift arrest.

Food-Fighting, Chair-Wrestling Spouses Tell Arresting Officers "We're Just Playing"; Unlikely, But Must Go To Jury

2007-03-29T09:24:00.000-07:00

WASHINGTON v. HAUPERT, USCA-7 No. 05-4225, 2007 U.S.App. LEXIS 7129, on appeal from USDC-INND, before USCJs Cudahy, Manion, Rovner, opinion by Cudahy, concurrence by Manion, filed 27 Mar 2007.

LONG STORY SHORT: Married couple arrested for domestic battery on each other claimed that they were only playing instead of fighting and sued for false arrest, and their account was different enough from the arresting officers' testimony to preclude qualified immunity before trial. Binding in IL, IN, WI.

FACTS: Plaintiffs are Husband and Wife, who were not living together at the time but both were staying that night at Wife's house after coming back from Wife's brother's funeral. Fort Wayne, IN's 911 center received a call from Wife requesting a car, and then the call was disconnected. The 911 operator called back and asked to talk to Wife, who said Husband was trying to fight her and had hung up the first 911 call, but Wife denied that Husband hit her. Later, Wife testified that she had only called 911 to tell Fort Wayne police she thought her brother had been murdered, and that she told 911 that there was no problem when 911 called back. Earlier, she and Husband had playfully thrown a little water and juice on each other, and Husband had raised a chair over his head, pretending he was going to hit her--but there was no real problem.

Both Defendants, who were Fort Wayne police officers, responded to Wife's house. Defendants testified that Wife said she and Husband were arguing and had thrown water and juice on each other; that Husband had grabbed and shoved her; and that she had taken up a chair in self-defense, which Husband used to pin and choke her. Defendants testified that Husband told them Wife had jumped on him, saying "you wanna fight mf" and scratched him on the back of the neck, of which the police took photographs. Husband also admitted they had been wrestling over a chair, and Defendants took photographs of an overturned chair on the kitchen floor. After a police supervisor arrived, Defendants arrested both Plaintiffs for domestic battery, which Indiana statute defines as knowingly or intentionally touching a spouse "in a rude, insolent, or angry manner that results in bodily injury."

Plaintiffs, though, testified that Husband was asleep when Defendants got there, and that Plaintiffs explained they were only playing with the juice and water; the overturned chair was an accident; Wife was depressed about her brother's death; and that nothing was wrong. When Defendants arrested Wife, Husband asked "you're not taking her to jail for this, are you?" and consequently was arrested too. Plaintiffs therefore considered any police report in support of their arrests to have been fabricated.

PROCEDURE: Plaintiffs sued Defendants per 42 U.S.C. § 1983 for false arrest in violation of the Fourth Amendment and for Indiana state torts. Defendants removed the case to the U.S. District Court for the Northern District of Indiana, and after discovery moved for summary judgment on qualified immunity grounds, arguing that Defendants had probable cause to arrest Plaintiffs for domestic battery, and that Plaintiffs' version of events was implausible. The trial court ruled that among other things, Plaintiffs' account of playfulness and accidentally dialing 911 were sufficient basis for a reasonable jury to find that Defendants had no probable cause to arrest either Plaintiff. QUALIFIED IMMUNITY DENIED. Defendants appealed to the U.S. Court of Appeals for the Seventh Circuit.

DECISION: To get past summary judgment on their claim of unreasonable seizure in violation of the Fourth Amendment, Plaintiffs had to present enough evidence for a reasonable fact finder to conclude that their arrests were without probable cause. Though the trial court did not rely on the photographs in its findings of fact, the Seventh Circuit could do so since the photos were in the record on appeal and no one disputed their authenticity. The photos showed some minor injuries to Husband and an overturned chair on the floor, but because Plaintiffs and Defendants materially differed as to the facts behind the pictures, Defendants could not show qualified immunity. Even if the photos of Husband's injuries were enough to make probable cause, Defendants could only have arrested Wife, unless they also had evidence other than what appeared in the photos.

Given that enough evidence was forecast to establish the constitutional violation of arrest without probable cause, the Seventh Circuit then had to rule whether that right was clearly established at the time of the events in question. As a matter of law, a reasonable officer in Defendants' position would have known that arrest without probable cause, and fabrication of a police report in support of same, was unconstitutional, because innumerable appellate cases had said so by then. Though Plaintiffs might not prevail ultimately, the Seventh Circuit was not in a position to resolve swearing contests between litigants and had to agree that summary judgment was not available. DENIAL OF QUALIFIED IMMUNITY AFFIRMED.

The concurrence agreed with the result, but would have accepted the trial court's recital of the facts wholesale, and not looked to the photographs, which the trial court did not consider in reaching its decision.

EDITORIAL: Another Seventh Circuit anti-police WTF! Last week a couple of Child Protective Chekists perpetrate a career-ending false accusation against an officer--and walked. This week Mr. & Mrs. Dingleberry forgot why they were separated and got in no doubt their five hundredth mutual pounding, then made up a whale of a fish story to win the lawsuit lottery--and take the green flag. Of course they'll lose at trial and on their next appeal, after wasting six figs in defense fees, which they can't pay back after the Rule 11 motion.

NO repeat NO reasonable fact finder could read that 911 transcript calling for a police car and reporting a domestic battery, and then believe the second version that they were just playing. And if facts really WERE in dispute, the Seventh Circuit should have dismissed the appeal for lack of jurisdiction. This is one of those times where I just have to throw up my hands and say I only work here, I don't ask questions.

FCRA Short Note: Court Cannot Order Compliance

2007-03-27T06:11:00.000-07:00

VARRICCHIO v. CAPITAL ONE SERVICES, USDC-FLSD No. 06-61860-CIV, 2007 U.S.Dist. LEXIS 20742, before USDJ Huck, order filed 23 Mar 2007. Not binding anywhere but may be persuasive.

Plaintiff, a private individual, sued several defendants, including Trans Union LLC, under the Fair Credit Reporting Act for inaccurate reporting of his credit information. Plaintiff asked for damages and for the court to order Trans Union to delete all inaccurate information. Trans Union moved to dismiss the application for injunction, arguing that FCRA did not provide for injunctive relief in private suits, only damages.

The U.S. District Court for the Southern District of Florida ruled that Congress gave power only to the Federal Trade Commission to "enforce" FCRA and to issue cease-and-desist orders. There was no provision for equitable relief in private cases, only provision for damages. In other words, courts in private FCRA cases can only punish noncompliance, not order compliance. If Congress had meant to allow private individuals to apply for injunctions, then FCRA would have said so. COMPLAINT DISMISSED IN PART.

Child Abuse Investigators Deliberately Violate Constitution, End Cop's Career, And Get Away With It

2007-03-26T17:58:00.000-07:00

BOYD v. OWEN, USCA-7 No. 05-3587, 2007 U.S.App. LEXIS 6603, on appeal from USDC-ILSD, before USCJs Cudahy, Manion, Rovner, opinion by Rovner, filed 22 Mar 2007.

LONG STORY SHORT: Child welfare investigators falsely and recklessly accused a police officer of child abuse, which cost him a career in law enforcement and violated his Fourteenth Amendment due process rights, but since that right was not clearly established at the time, the investigators were not legally liable. Binding in IL, IN, WI.

FACTS: Danny Knight, a friend of Mother, claimed that Plaintiff, an officer with Washington Park, IL PD, had beaten and bruised the buttocks of Mother's five-year-old Girl, whom Knight babysitted sometimes. Knight also claimed that Plaintiff had held a knife to Mother's throat and she was very afraid of him. Knight told this to crisis center worker Mary Free, who called the Illinois Department of Children and Family Services hotline. Three days later, DCFS supervisor Mickey Owen and investigator Leslie Foott visited Mother and observed Girl's bruises. Girl claimed Plaintiff had done it but Mother denied that, naming other possible offenders. Owen and Foott took Girl into protective custody and drove away with her.

In the car, when Foott asked Girl who did it, Girl again claimed Plaintiff had. Without any further investigation, Owen and Foott decided then and there to "indicate" Plaintiff (determine credible evidence existed to proceed against him). This was contrary to DCFS policy, which required further investigation. Foott called Free again, who insisted that Plaintiff was potentially dangerous, violent, and psychotic, based on nothing more than what Knight had told her. Later that day, Foott talked with another babysitter of Girl, who confirmed bruising but did not say who did it. No DCFS person got around to talking with Plaintiff himself for at least another month. Owen and Foott also disregarded Girl's psychiatric history.

Seven months later, Plaintiff got a part-time job with Maryville PD, which possibly could have led to full-time employment. However, a background check discovered DCFS's report of indicated child abuse, and Plaintiff resigned in lieu of being fired. Plaintiff was subsequently unable to find any other law enforcement job.

PROCEDURE: Plaintiff sued Owen and Foott in U.S. District Court for the Southern District of Illinois per 42 U.S.C. § 1983 for violating his Fourteenth Amendment right to due process, resulting in the indicated child abuse report and deprivation of his protected liberty interest in a law enforcement career. Owen and Foott moved for summary judgment on qualified immunity grounds, arguing that they had not deprived Plaintiff of any protected liberty interest, that they had allowed him due process, and that any right violated was not clearly established at the time. The trial court ruled that DCFS policies requiring investigation of alternative explanations and mitigating evidence amounted to a clearly established due process standard, and Owen and Foott decided not to follow them. QUALIFIED IMMUNITY DENIED. Owen and Foott appealed to the U.S. Court of Appeals for the Seventh Circuit.

DECISION: In their appellate briefs, Owen and Foott did not preserve their argument that their indicated child abuse report did not infringe on Plaintiff's protected liberty interest in a law enforcement career, so the Seventh Circuit assumed that Plaintiff did have such a protected interest. At any rate, state action can violate a liberty interest when it wrongfully ruins a person's good name, reputation, honor, or integrity to the point that the person cannot find work in his chosen field.

The trial court erroneously held DCFS policies to set the standard of Fourteenth Amendment due process in this case. Owen and Foott's actions had to be judged not by how closely they conformed to state policy, but by their obedience, or lack of it, to the Constitution. Here, since Owen and Foott decided to consider only inculpatory evidence, and to disregard or not even look for any exculpatory evidence, when they should have considered both equally, violated Plaintiff's due process rights.

However, since Plaintiff could find no reported court case that held similar behavior upon similar facts to be a constitutional violation, a reasonable child welfare investigator would not have been on notice that Plaintiff's rights had been clearly established. Plaintiff's cited cases either concerned Fourth Amendment issues, or were not clearly similar, or had been decided after the events of which Plaintiff complained. Plaintiff therefore did not meet his burden of clearly establishing his rights, and could not recover. DENIAL OF QUALIFIED IMMUNITY REVERSED; cause REMANDED to the trial court for entry of summary judgment in Owen and Foott's favor.

EDITORIAL: What the [he]ck, over!? Eternal shame on Mickey Owen and Leslie Foott. I know the type--they think they're so much better than you because they are here For The Children. They consider themselves always right, above the law, and untouchable. The only thing that saved their sorry behinds is the Seventh Circuit's utterly absurd requirement that you have to show some exact court case already decided, otherwise the poor darlings aren't on notice that their arrogance violates the Constitution that SOME of us are under oath to preserve, protect, and defend to the death.

No clearly established right? Horsefeathers. Everybody with any LE background knows you're supposed to, on every case, make like O.J. and find the REAL killer. You do not add double hearsay to the word of a mentally disturbed child that you just took away from her mother, and then permanently brand someone a child abuser. EVERYBODY KNOWS THAT. Ever hear of Brady, Giglio, etc., that law enforcement and prosecutors have to follow? Why don't child abuse investigators have to do that too? The only consolation prize is that the next time this happens in Illinois, Indiana, or Wisconsin, the miscreants will get mashed. As it is, this Seventh Circuit panel just gave Mickey Owen and Leslie Foott each a coupon good for one free ruined life. That's a hundred kinds of wrong. Will the Seventh Circuit en banc, or better yet the Supremes, puh-leeeeze find it in their hearts to serve up Mickey Owen and Leslie Foott's heads on a large platter.

Deputy's Alleged On-Duty Stalking Not Unconstitutional, But Might Be Tortious

2007-03-22T17:14:00.000-07:00

ALTY v. COUNTY OF BOONE, USCA-7 No. 04-4162, 2007 U.S.App. LEXIS 6451, on appeal from USDC-ILND, before Chief USCJ Easterbrook, USCJs Ripple, Kanne, opinion per curiam, dissent by Ripple, filed 21 Mar 2007.

LONG STORY SHORT: A deputy who was on duty, in uniform, and in a patrol car when he repeatedly surveilled and followed a dating couple did not search or seize them or deny them due process, and thereby did not violate the Constitution, but might still be liable in tort under state law. Binding in IL, IN, WI.

FACTS: Defendant took offense when Plaintiff, a Belvidere, IL police officer, arrested a friend of Defendant's for DWI. Defendant, a Boone County, IL deputy sheriff, began to use his duty time to harass, annoy, and intimidate Plaintiff and his girlfriend. Defendant abandoned calls for service and traffic stops to follow Plaintiffs around, or station his patrol car outside the girlfriend's workplace or other places that the couple happened to be. Eventually, Defendant provoked a personal confrontation with Plaintiff. Defendant went so far as to search a cell phone belonging to a friend of Plaintiff to see if they had called each other lately. Plaintiff filed numerous complaints with the Boone County Sheriff's Department regarding Defendant's behavior, without result.

PROCEDURE: Plaintiff and his girlfriend sued Defendant and Boone County in U.S. District Court for the Northern District of Illinois per 42 U.S.C. § 1983 for violating their First, Fourth, Fifth, and Fourteenth Amendment rights under color of state law, and for intentional infliction of emotional distress under Illinois law. Defendants moved to dismiss for failure to state a claim. The trial court ruled that even taking the complaint to be true, Plaintiffs had no legitimate expectation of privacy where Defendant stalked them, their relationship did not suffer, and Defendant's behavior was nowhere near as outrageous as Illinois tort law required to state a cause for IIED. COMPLAINT DISMISSED with prejudice. Plaintiffs appealed to the U.S. Court of Appeals for the Seventh Circuit.

DECISION: To invoke the protection of 42 U.S.C. § 1983, Plaintiffs had to show that Defendant, acting under color of state law, violated one or more of their constitutional rights. Defendant conceded that whatever his actions were, since he was on duty, in uniform, and in a patrol car at the time, they were under color of state law. However, that was all Plaintiffs could show, even taking the complaint as true.

Fourth Amendment liability requires an unreasonable search and/or seizure. A search is a state intrusion upon an individual's legitimate interest in privacy, which means that Plaintiffs had to show that they tried to keep private the object of the complained-of search. Here, Plaintiffs were on public roads when Defendant, on the same public roads, followed them. Plaintiffs were in businesses open to the public, and Defendant was himself in public places while he surveilled Plaintiffs. Though Defendant may well have searched a third person's cell phone in order to harass Plaintiffs, they had no standing to assert a reasonable expectation of privacy in someone else's cell phone.

A seizure may happen when police intentionally restrict the freedom of a person to move around in public. But Defendant, by doing no more than following and watching Plaintiffs, did not in any way keep them from going about their business, and Plaintiffs did not submit to any show of force. Defendant neither searched nor seized Plaintiffs or their property, and could not have violated the Fourth Amendment.

As to the other constitutional claims, Defendant did not interfere with Plaintiffs' right of intimate association, at least not to the point of shocking the conscience, which is the rare and high standard of relief necessary for substantive due process violations. Also, Plaintiffs could have sought a state restraining order, but never did. However disturbing his behavior was at some level, Defendant did not infringe Plaintiffs' First, Fifth, or Fourteenth Amendment rights. Consequently, neither could Boone County have violated Plaintiffs' constitutional rights. DISMISSAL AFFIRMED IN PART.

However, the Seventh Circuit ruled that the trial court incorrectly applied the stricter Illinois state pleading standards, instead of the more generous federal rule of notice pleading, and under the latter, Plaintiffs stated a cause for intentional infliction of emotional distress. With no federal question now pending, the trial court should relinquish supplemental jurisdiction over the state claims. DISMISSAL VACATED IN PART and cause remanded for further consistend proceedings.

The dissent concurred with much of the majority, but would have ruled that Defendant willfuly abused his governmental power for his own wrong purposes. His long-term and deliberate harassment of Plaintiffs deprived them of substantive due process to the point that it objectively shocked the conscience.

EDITORIAL: At least one of these people has too much time on his or her hands. I don't know what to think. It is mighty odd that a deputy could blow off calls and leave 10-61s to go bug somebody he's mad at, again and again, without any supervisor noticing. But stranger things have happened. If, on the other hand, this deputy was really NOT playing Fatal Attraction, then somebody needs to have a looong talk with the officer who brought this suit.

As I first started to read this case, I just looked at the basic facts and stopped to ruminate: Is following somebody around and waiting outside in your patrol car a search or seizure? (squeaking sounds of wheels turning) ummmm ... well no. That's how police can follow and watch bad guys, and pick up their trash with DNA on it, and run a K9 sniff, and lots of other tools in the toolbox, because when you and the police are both in public places, then it's a free-for-all. If you want privacy, go inside your house! SHOULD we have more privacy? Maybe we should, but we'd need to change the Bill of Rights. That is something that civil libertarians often don't understand; instead of judges making up law as they go along, or ignoring what they don't like, get the law changed by the democratic process so that we maintain a government of laws, not of courts.

Red Bull Gives You Reeeasonable Suspiciiion

2007-03-20T19:14:00.000-07:00

STATE v. EUCEDA-VALLE, NC Court of Appeals No. COA06-898, http://www.aoc.state.nc.us/www/public/coa/opinions/2007/060898-1.htm , on appeal from Vance County Superior Court, before Judges Levinson, McCullough, Bryant, opinion by Levinson, filed 20 Mar 2007.

LONG STORY SHORT: Along with several other well-recognized drug courier behaviors, numerous empty Red Bull cans on the floor added up to enough reasonable suspicion under the Fourth Amendment to detain motorists for a K9 sniff. Binding in NC unless reversed by the NC Supreme Court.

FACTS: Defendant, with one passenger, was doing 71 in a 65 and following too closely on I-85 when Officer Spence of Henderson, NC PD stopped him. Defendant had a valid license but the car was registered to someone else. Defendant and the passenger's hearts were beating so hard, their shirts were nearly bouncing off their chests. Only one key, not on a keychain, was in the ignition. Inside the car, Officer Spence could smell a strong odor of air freshener, consistent with an effort to mask the smell of drugs, and noticed several empty cans of Red Bull energy drink, consistent with a driver trying to stay alert on a long trip.

Officer Spence asked Defendant to sit with him in the patrol car. Defendant was so nervous that Officer Spence could see Defendant's carotid artery pulsing. Officer Spence asked for K9 backup and began writing a warning ticket for speeding. Defendant would not look at him, and claimed he had the car for two or three days and was going to Richmond. This was materially different from how the passenger described the trip. The K9 officer arrived as Officer Spence was finishing the warning ticket, and he detained Defendant long enough for the K9 to alert on Defendant's car. The officers found ten packages in the trunk totaling 4.98kg of cocaine, all wrapped in fabric softener sheets.

PROCEDURE: North Carolina indicted Defendant and the passenger in Vance County Superior Court for trafficking in cocaine by transporting more than 400g, conspiracy to traffic more than 400g, and maintaining a vehicle for controlled substances. Defendant moved to suppress the cocaine, arguing that the totality of the circumstances did not establish reasonable suspicion. The trial court entered extensive findings of fact and ruled that Officer Spence had articulable and reasonable suspicion that criminal activity, probably involving controlled substances, was afoot. MOTION TO SUPPRESS DENIED. Defendant went to trial and was convicted as charged. He appealed his convictions and sentences to the North Carolina Court of Appeals.

DECISION: Trial courts' rulings on motions to suppress are entitled to great deference on appeal, because the trial court was there to evaluate witness credibility. Defendant did not challenge any factual findings on appeal, leaving only questions of law. Under both the Fourth Amendment and the North Carolina Constitution, Article I Section 20, a K9 sniff that detects only contraband is not an unreasonable search. An officer may not detain a person just to conduct a K9 sniff unless the totality of circumstances establish reasonable suspicion of criminal activity. Here, there were enough hallmarks of drug activity--strong air freshener scent, extreme nervousness, non-owner driver, single key in the ignition, different stories, and evidence of heavy Red Bull consumption to stay awake--to support a reasonable and cautious LEO's suspicion that criminal activity is afoot. DENIAL OF SUPPRESSION AFFIRMED.

However, other than both men being nervous in the same car, there was no evidence of conspiracy to traffic. Had the passenger been armed, or possessed drugs or a large amount of cash, that might have made a difference, but here, not enough evidence existed for a reasonable jury to eliminate reasonable doubt, and the trial court should have acquitted Defendant of conspiracy as a matter of law. REVERSED IN PART.

EDITORIAL: Maybe you saw the Australian Grand Prix, where David Coulthard tried to cut inside Alexander Wurz on Turn Three and wrecked both of them. Well, at least Alex's onboard cam caught a bodacious shot of the Red Bull logo on DC's car as he bounced over Alex's front fuselage (and nearly decapitated poor Alex). Is that why they say "Red Bull Gives You Wiiings"? Now we see that Red Bull, through no fault of its own, might be the drink of choice for long-haul dope drivers. Happily, they also say "there is no such thing as bad publicity."

There's always more to learn about drug activity telltales. How about a lot of coffee cups to stay awake--and to mask drug smells more convincingly? The dryer sheets are really getting to be cliche.

4A 4C 2006: Plenty Of Reliable Intel Makes Lemonade From Dry Hole, But About That Crack/Powder Disparity ...

2007-03-19T18:24:00.000-07:00

UNITED STATES v. EURA, 440 F.3d 625 (4th Cir. 2006), NO. 05-4437, 05-4533, 2006 U.S.App. LEXIS 4535, on appeal from USDC-VAED, before USCJs Wilkinson, Michael, SrUSCJ Hamilton, opinion by Hamilton, concurrence by Michael, filed 24 Feb 2006.

LONG STORY SHORT: Even though the warranted search of Defendant's house turned up no drugs, the police already had enough reasonable suspicion for a K9 sniff of Defendant's vehicle without offending the Fourth Amendment. Binding in MD, NC, SC, VA, WV.

FACTS: Fredericksburg, VA PD's narcotics unit knew Defendant to be a crack dealer. Relying on a confidential source who had repeatedly bought crack cocaine there, DEA agents obtained a search warrant for Defendant's house in Fredericksburg, VA. DEA agents served the warrant at 2130, finding Defendant at home and handcuffing him for safety reasons. Agents discovered several "automatic" weapons, which Defendant admitted were his. An unidentified person said, and DMV checks confirmed, that two cars on the street were Defendant's. After Defendant refused consent to search the cars, a K9 unit walked around the cars, alerting to the presence of drugs in one of them. Agents opened the car and with K9 assistance found 11g crack, 26.6g ecstasy, and a loaded firearm. They never did find any drugs in Defendant's house.

PROCEDURE: The United States indicted Defendant in U.S. District Court for the Eastern District of Virginia for possession with intent to distribute 50g or more of crack, possession with intent to distribute 5g or more of crack, and possession of a firearm in furtherance of a drug trafficking offense. Defendant moved to suppress all evidence found in his car, arguing that once the warranted search of his house turned up empty, the Fourth Amendment required him to be left in peace. MOTION TO SUPPRESS DENIED. A jury acquitted Defendant of possessing 50g or more of crack, but convicted him of possessing 5g or more and of possessing a firearm in furtherance of a drug trafficking offense.

The trial court gave him 60 months for the crack conviction, which was the mandatory minimum and below the 78 months bottom guidelines, but consistent with the Sentencing Commission's repeated recommendations to narrow the 100:1 crack/powder ratio. Defendant also got 60 months minimum mandatory for the firearm count, which the trial court ran consecutively, for a total of 120 months. Defendant appealed his convictions and sentences to the U.S. Court of Appeals for the Fourth Circuit, arguing that the motion to suppress should have been granted. The United States cross-appealed the crack sentence as unreasonably not in keeping with congressional intent to sentence crack offenders to 100 times what the same amount of powder cocaine would justify.

DECISION: Agents needed reasonable suspicion that drugs might be found in Defendant's car in order to detain it long enough for a K9 sniff. Reasonable suspicion, though, is not reducible to a neat set of rules; it depends on common sense and practical considerations of everyday life. Less than probable cause, but at least a minimal level of objective justification, is the hallmark of reasonable suspicion. By no means may the police always search a subject's car in hopes of finding drugs that were not in his home, but neither does such a disappointment negate all of the information that established probable cause to issue the search warrant. Here, many pieces of reliable information about Defendant's drug dealing added up to reasonable suspicion for a K9 sniff. Once the K9 alerted to Defendant's car from the outside, the agents had probable cause, by Fourth Circuit standards at least, to open the car and search further. The trial court correctly denied Defendant's motion to suppress. CONVICTIONS AFFIRMED.

The trial court was not necessarily free to vary from the congressional intent of 100:1 crack/powder sentencing and substitute the Sentencing Commission's recommendations to bring crack and powder cocaine sentences closer together. While trial courts might be justified in thinking this treatment inequitable, some trial courts would fix it by reducing crack sentences, and others would increase powder sentences, leading to massive inconsistency. Trial courts may not categorically reject the 100:1 ratio because it seems unfair, but must identify individual aspects of each defendant's case that justify variance. Here, there were no facts about Defendant's case that removed it from the typical crack offense, so the trial court should not have dropped below the bottom of the advisory guidelines. SENTENCE VACATED as to the crack count and REMANDED for imposition of 78 months bottom guidelines, consecutive to 60 months for the firearm count.

The concurrence agreed with the suppression decision, but concurred only in the judgment of 78 months instead of 60, but extensively discussed the significant evidence for reduction of the 100:1 ratio as exaggerating the effects of crack over powder.

EDITORIAL: Another dry hole that became not so annoying after all. Now this dope-slinger knows that moving his stash off premises doesn't help him, because cars on a public street are much LESS protected than private homes on private lots are. Good on DEA for building a strong case before getting a warrant, and it saved their bacon. I put "automatic" weapon in quotes because they must have been only semi-automatic, otherwise this guy would have been charged with possession of unregistered machine guns.

Then there's those U.S. Sentencing Guidelines, which are supposed to be dead, but they rule us from their mass grave. Even when, for once, they seem to help the defendant, out they go, because of politics. Again, I'm uncomfortable with the government being allowed to appeal sentences for anything other than rank illegality. Crack is BAD but not 100 times badder. I'd increase the powder sentences to make things less unfair.

4A 4C 2006: Miranda Might Protect You At Trial, But Probably Not At Sentencing

2007-03-19T17:05:00.000-07:00

UNITED STATES v. NICHOLS, 438 F.3d 437 (4th Cir. 2006), No. 04-5020, 04-5021, 2006 U.S.App. LEXIS 5038, on appeal from USDC-NCWD, before Chief USCJ Wilkins, USCJs Michael, Traxler, opinion by Wilkins, filed 28 Feb 2006.

LONG STORY SHORT: The trial court could use Defendant's confession that he had carried a firearm during a bank robbery to increase his sentence, even though the trial court had already suppressed the confession on Miranda grounds. Binding in MD, NC, SC, VA, WV.

FACTS: Defendant walked into a bank in Charlotte, NC and presented the teller with a note reading "This is A Robbery Give up the money or I shoot." The teller complied. Defendant's father soon phoned the Charlotte-Mecklenburg PD to say that his son probably had committed the robbery, was ready to surrender, and wanted a lawyer. The detective who talked with him assured Defendant that he would get one. Defendant and his father met the detective at a prearranged location, where Defendant returned all the money that was left. Defendant again said he wanted a lawyer, and the detective agreed. After the detective took Defendant in to the police station, Defendant signed a Miranda form, initialing the box that he wanted to talk without an attorney present. He and the detective talked for about four hours, without any threats or coercion, and eventually confessed to carrying a concealed pistol during the bank robbery.

PROCEDURE: The United States indicted Defendant in U.S. District Court for the Western District of North Carolina for bank robbery, armed bank robbery, and carrying a firearm during a crime of violence. Defendant moved to suppress his confession to carrying a firearm during the robbery as in violation of his Fifth Amendment rights per Miranda. The detective denied ever hearing Defendant request counsel, but the trial court found Defendant's and his father's testimony more credible. MOTION TO SUPPRESS GRANTED. The United States dismissed the armed bank robbery and carrying a firearm charges, and Defendant pleaded to bank robbery. Defendant's presentence report omitted a recommendation for firearm enhancement under the advisory guidelines. The United States objected, arguing that suppressed evidence can still enter sentencing considerations. The probation officer who had prepared the PSR denied the request, on grounds that it would compound the constitutional violation, and the trial court agreed and sentenced Defendant to 46 months. The United States appealed the omission of firearm enhancement to the U.S. Court of Appeals for the Fourth Circuit.

DECISION: Trial courts have broad discretion to consider information relevant to sentencing, even if such facts depend on evidence inadmissible at trial. Only if misinformation of constitutional magnitude infects the sentencing decision will appellate courts intervene. In the Fourth Circuit, illegally obtained evidence is generally admissible for sentencing purposes, because the great interest in accuracy of sentencing outweighs the small deterrent value of suppression. The severe deterrent effect of not being able to use evidence during the government's case-in-chief at trial is enough to give effect to the Fourth and Fifth Amendments.

Suppression might still be appropriate when the government illegally seizes evidence for the purpose of enhancing a defendant's sentence, but this was not the case here. No one beat or tortured Defendant, or promised him anything in return; he just volunteered a probably reliable confession as part of a normal conversation with the detective. SENTENCE VACATED and cause REMANDED for resentencing consistent with the opinion.

EDITORIAL: This is not really a Fourth Amendment decision, but the same reasoning would apply to evidence gotten from an unreasonable search and seizure, so here it is. I'm still a tad uncomfortable with the guy's confession being the sole basis for concluding that he had a gun. Nobody else saw him armed, and no search turned up any gun. Also, I don't like the government being allowed to appeal anything but a blatantly illegal sentence. This is not one of those times.

4A 4C 2006: Good Faith Exception Applies To No-Knock Search Warrants

2007-03-19T16:01:00.000-07:00

UNITED STATES v. SINGLETON, 441 F.3d 290 (4th Cir. 2006), No. 04-4108, 2006 U.S.App. LEXIS 7201, on appeal from USDC-MDD, before USCJs Niemeyer, Motz, King, opinion by Motz, filed 23 Mar 2006.

LONG STORY SHORT: Police reasonably relied in good faith on a no-knock warrant even if exigent circumstances might no longer have justified not knocking and announcing, and evidence would not be suppressed. Binding in MD, NC, SC, VA, WV.

FACTS: Officers of the Edgewood, MD PD applied for a search warrant to seize evidence of drug sales from Defendant's home. Officers requested a no-knock warrant for safety reasons because Defendant had a number of prior arrests, including second-degree murder in 1987 (although he had only one minor arrest since then); Defendant's apartment was in an open air drug market with a history of shootings and other violence; and the only way to Defendant's apartment was over open ground, where other residents would see the officers and warn Defendant. The court granted the no-knock warrant, and officers executed it that way.

In a locked safe were a 42g crack cookie, three baggies of marijuana, $1,400 cash, and a loaded handgun. Defendant admitted that he lived there, took all responsibility for the gun and drugs in the safe, and assured officers (correctly) that no other contraband was in the house. Later, in jail, he told an officer "I can't believe I did something this stupid."

PROCEDURE: The United States indicted Defendant in U.S. District Court for the District of Maryland for possession of 5g crack with intent to distribute, possession of a firearm in furtherance of a drug trafficking crime, and possession of a firearm while a convicted felon. Defendant moved to suppress the fruits of the search, because no exigent circumstances justified a no-knock warrant and the officers could not have relied in good faith on such a warrant. MOTION TO SUPPRESS DENIED. The United States had the gun, drugs, and incriminating statements admitted over objection at trial, and the jury convicted Defendant as charged. Defendant appealed his conviction and sentence to the U.S. Court of Appeals for the Fourth Circuit.

DECISION: Police serving a search warrant must generally knock and announce before forcing entry, unless they have a particularized basis to reasonably suspect that knocking and announcing would be met with violent resistance. Here, the facts that Defendant was a suspected drug dealer and that neighbors could see the officers coming were not particular to Defendant's situation, and by themselves would not justify immediate entry. Defendant's violent arrest history was 14 years old and no contemporary evidence suggested beforehand that Defendant was armed.

Nonetheless, in a question of first impression in the Fourth Circuit, officers may reasonably rely on a judicially-issued no-knock warrant, even if it is not clearly necessary for officer safety, and the good faith exception will apply to keep the evidence from being excluded. Since police had applied in good faith and gotten a warrant, penalizing the officers executing it would not deter police misconduct. DENIAL OF SUPPRESSION AFFIRMED; CONVICTION AFFIRMED; but SENTENCE VACATED for unrelated reasons and Defendant should be resentenced.

EDITORIAL: Since then, of course, the Supremes have gone further and flatly said that no-knock violations are not grounds for suppression, on the same reasoning that it would not prevent police misconduct. Police will find the evidence anyway, and who's to say how long is not long enough--courts have enough to do without having to decide whether five seconds, or two, or ten, or thirty, is long enough to wait. Liberals have squalled about this, but they do not carefully read the rest of the Supreme Court opinion, which says that officers still may be SUED for not waiting long enough. Not that truth matters to liberals--John Whitehead, the Christian leftist who never met an American soldier or cop he liked, simply lied about what the Supreme Court said.
Now I'm not the world's expert on serving search warrants, but no-knock warrants are a tool in the toolbox, not the default choice. As the guys in Atlanta found out, the 93-year-old great-grandma inside has no way to know you're the police if you just start busting down the door in the middle of the night, and she may start a gunfight that can have no winners.

LP Falsely Accuses Customer Of Boosting $5 Drill, Could Be Liable For State Torts

2007-03-18T20:20:00.000-07:00

BOYKIN v. VAN BUREN TOWNSHIP, USCA-6 No. 06-1359, 2007 U.S.App. LEXIS 5830, on appeal from USDC-MIED, before USCJs Martin, Cole, Gilman, opinion by Martin, filed 14 Mar 2007.

LONG STORY SHORT: Store loss prevention officer who called police and had a customer arrested for shoplifting, only to discover that the customer had paid for the merchandise, was not acting in concert with the state for Fourth Amendment purposes, but could be liable for common-law torts; police were not liable at all. Binding in KY, MI, OH, TN.

FACTS: Plaintiff found a drill he wanted at a Meijer store in Belleville, MI. At the register, Plaintiff learned that the drill was only $5, so he paid for two drills and came back to the register with the additional drill. The cashier was busy with another customer and acknowledged Plaintiff with a nod as he left the store.

Meijer LP officer Chaney first caught sight of Plaintiff as Plaintiff picked up the second drill without checking the price or comparing it to other merchandise, and Chaney believed such "quick selection" not to be normal shopping behavior. Meijer LP policy required two LPOs to confront suspects, so as Plaintiff walked through an empty checkout lane, Chaney called LPO Youmans over. Plaintiff was already in his vehicle by the time Youmans responded, and Meijer LP policy forbade LPOs to approach suspects once they were in a vehicle. Youmans described Plaintiff and his vehicle and related Plaintiff's tag number to the Van Buren Township PD. Officers Hayes and Harrison arrived at Plaintiff's home and knocked on the door.

Plaintiff did not let the officers in, but spoke with them through the door. Dispatch advised the officers that Meijer LP wanted Plaintiff arrested for "good retail fraud," that is, where LP observes concealment of merchandise and walking out with it or attempting to. Plaintiff said he was calling a lawyer, and told his wife to videotape what was happening. Plaintiff opened the front door without letting the officers in, and they told him that Meijer was accusing him of retail fraud and claimed to have everything on videotape. Plaintiff professed innocence, but the officers would not let him go look for the receipt, and Plaintiff's wife could not find it. Plaintiff's wife's videotape recorded Officer Hayes saying: "I'm trying to avoid coming into your home and dragging you out of your home ... and we're going to do that if you don't listen to us." Plaintiff walked outside, where the officers cuffed him and took him, and a Meijer bag with two drills in it, back to the store. There, Chaney checked the register journal and talked with the cashier, confirming that Plaintiff had paid for everything. The officers uncuffed Plaintiff and drove him back home in a patrol car.

PROCEDURE: Plaintiff sued Meijer, Chaney, Youmans, the officers, Van Buren Township, and Van Buren PD in U.S. District Court for the Eastern District of Michigan on numerous causes of action, including per 42 U.S.C. § 1983 for violation of his Fourth Amendment rights. After discovery, the Township defendants moved for summary judgment, arguing that the officers had probable cause to arrest Plaintiff. The Meijer defendants also moved for summary judgment, arguing that all they did was call the police and report information, which was not action under color of state law for § 1983 purposes, and they had probable cause for doing even that, exonerating them of state tort liability. The trial court agreed, ruling that on the record before it, Chaney and Youmans had indisputable evidence suggesting that Plaintiff had stolen the drill, giving them and the police probable cause for their actions against Plaintiff. SUMMARY JUDGMENT GRANTED in all respects; case closed. Plaintiff appealed to the U.S. District Court for the Sixth Circuit.

DECISION: The information that police had when they went to Plaintiff's house was sufficient to make probable cause. Officers Hayes and Harrison had no reason to doubt its reliability, because they often received reliable information from store LP personnel, and Plaintiff was the person they were looking for but was unable to produce any evidence confirming his version of events. Since the officers did not violate the Constitution, neither could the Township or PD be liable under § 1983. Furthermore, since state tort liability for the Township defendants depended on lack of probable cause, Plaintiff had no claim against any of them. Also, merely calling the police and supplying information is not sufficient to convert a private security officer into a state actor, so neither Meijer nor its LPOs could be liable under § 1983. GRANT OF SUMMARY JUDGMENT AFFIRMED IN PART.

However, there was material conflict in the evidence of just what LPO Chaney saw, and when.
A finder of fact would have to sort out whether a reasonable person in Chaney's place would have had probable cause to try to get Plaintiff arrested. GRANT OF SUMMARY JUDGMENT REVERSED IN PART; cause REMANDED for further proceedings.

The Sixth Circuit offered two suggestions: (1) with all the federal claims gone and probably no diversity of citizenship, the trial court might be free to decline further jurisdiction and dismiss the complaint without prejudice to refiling in state court; and (2) Officer Hayes' show of force, i.e., threatening to enter Plaintiff's home by force when Officer Hayes knew he had plenty of time to get a search or arrest warrant, violated the Fourth Amendment and probably would have subjected Officer Hayes to § 1983 liability, but since Plaintiff did not raise that claim at trial or on appeal, then it was abandoned.

EDITORIAL: The "I-coulda-had-a-V8" feeling is all too well known to every litigator. I missed that one myself, until the Sixth Circuit pointed it out, but then they had months to review the record. Must be nice.

Upon first reading this case, I was all ready to tear the LPOs a new one, but after going over it thoroughly, I'm less inclined to be so judgmental. Let's let the jury hash it out. I do hope this shopper gets some major money from Meijer, on the simple principle that with great power comes great responsibility.

Parolee Can't Dodge Allowable Search Of His Home By Staying At His Girlfriend's House

2007-03-18T19:13:00.000-07:00

UNITED STATES v. TAYLOR, USCA-5 No. 06-60136, 2007 U.S.App. LEXIS 6048, on appeal from USDC-MSSD, before USCJs Reavley, Jolly, Benavides, opinion by Jolly, filed 15 Mar 2007.

LONG STORY SHORT: Parolees have the same right of privacy where they are overnight guests as they do when at home, but reasonable suspicion of criminal activity justifies a warrantless search of wherever the parolee is staying at the time. Binding in LA, MS, TX.

FACTS: Defendant went out on Earned Release Supervision from Mississippi state prison, and signed a consent to search of his person, residence, or vehicle by his Field Officer or any other LEO at any time. Acting on information from Defendant's Field Officer that Defendant had not reported as required and had acquired a handgun through his girlfriend, a team of MDOC officers, U.S. Marshals, and local police surrounded his girlfriend's apartment. The team had a misdemeanor criminal mischief arrest warrant for Defendant, but no search warrant. The team knocked on the door but no one responded. The team forced entry, found Defendant hiding in a back bedroom, and found a handgun in a dresser drawer in another bedroom.

PROCEDURE: The United States indicted Defendant in U.S. District Court for the Southern District of Mississippi for possessing a firearm while a convicted felon. Defendant moved to suppress the firearm, arguing that he only consented to warrantless search of his residence, not someplace where he happened to be an overnight guest, and no other exception to the warrant requirement applied. The trial court ruled that while overnight guests have the same reasonable expectation of privacy as they do in their homes, Defendant consented to search of his residence, which applied to wherever he was staying. MOTION TO SUPPRESS DENIED. Defendant pleaded guilty and received 21 months on condition that he could appeal the suppression to the U.S. Court of Appeals for the Fifth Circuit.

DECISION: Defendant was correct that he had a reasonable expectation of privacy, and Fourth Amendment standing to assert his right to be free from unreasonable search and seizure, at his girlfriend's residence while an overnight guest there. However, he had no greater right there than at his own home, and as a supervised releasee, any such rights were less than those of the average citizen. Though it was arguable that no suspicion at all is necessary to search a parolee's home, the police here had reasonable suspicion, based on the arrest warrant and the evidence that he possessed a firearm and failed to report, that Defendant was engaged in criminal conduct. The search may or may not have violated his girlfriend's right against unreasonable search of HER home, but Defendant would have been lawfully subject to the same search at HIS home. DENIAL OF SUPPRESSION AFFIRMED.

EDITORIAL: Nice try, wise guy. Well, at least you have a loyal girlfriend waiting for you when your silly self gets out of prison. Why don't any of MY girlfriends buy pistols for ME? Nothing says "I love you" more romantically than a matched pair of Larry Vickers custom 1911s in a velvet-lined presentation case ... hint hint ...

4A 4C 2006: When Subject Shot First, OIS Was Justified, Quack Expert Wasn't

2007-03-16T13:56:00.000-07:00

CARR v. DEEDS, 453 F.3d 593 (4th Cir. 2006), No. 05-1472, 05-2186, 2006 U.S.App. LEXIS 17461, on appeal from USDC-WVSD, before USCJs Traxler, Gregory, SrUSCJ Hamilton, opinion by Traxler, filed 21 Jul 2006.

LONG STORY SHORT: When decedent had credibly threatened to kill himself and others rather than go to jail or a mental hospital, was known to possess a handgun, and shot at officers instead of submitting to arrest, a trooper who shot at him was entitled to qualified immunity. Binding in MD, NC, SC, VA, WV.

FACTS: Defendant, a Trooper of the West Virginia State Police, arrested Decedent on 20 June 2001 on an arson warrant. Medical evaluation at the jail showed that Decedent had minor cuts and scrapes, which he claimed Defendant had inflicted. Decedent did not file any complaints about this incident.

Plaintiff, Decedent's mother, obtained a court order on 10 July 2001 for Decedent to be involuntarily committed for a mental health examination due to his addictions to alcohol and controlled substances, and because Decedent had said he would rather take a bullet in the head than go to jail again. Decedent, who also had two outstanding arrest warrants, was last seen leaving a friend's house, smoking marijuana and carrying a handgun, after telling them he would do what it took not to go back to jail.

Deputy Farmer of the Greenbrier County Sheriff's Office spotted Decedent's vehicle and pursued it. After a few miles, Decedent stopped in the middle of the road and ran away. Deputy Farmer ran after him, and Decedent fired twice at him and disappeared into the woods. Deputy Farmer called for assistance, and many officers including Defendant converged on the area. Over the radio, the officers heard that a gunman had tried to stop a motorist nearby.

Defendant and Trooper Bradley saw Decedent approach them in a crouched position, gun in hand. Trooper Bradley ordered Decedent to drop the weapon, but instead he dropped to the ground and began firing. Defendant fired his rifle and Trooper Bradley fired his shotgun while ordering Decedent to drop his weapon, but he kept firing until the lawmen killed him with more gunfire. A medical examiner's report indicated that multiple undetermined shotgun wounds to the head, back, abdomen, and upper and lower extremities were the cause of death, and there was no evidence of close range firing on the skin.

PROCEDURE: Plaintiff sued Defendant and others in U.S. District Court for the Southern District of West Virginia per 42 U.S.C. § 1983 for violating Decedent's Fourth Amendment right to be free from unreasonable seizure, both as to the 20 June arrest and the 10 July gunfight. Attached to the complaint were reports from a purported independent medical examiner from California who concluded that the officers had unlawfully executed Decedent by means of close-range handgun bullets to the head after the shotgun wounds had disabled and disarmed him. Defendants submitted their required disclosures as to their medical expert, but Plaintiff supplied no further information about theirs.

After discovery closed, Defendants moved for summary judgment on qualified immunity grounds, and also to exclude Plaintiff's expert. The trial court ruled that Decedent's injuries in the 20 June arrest were de minimis, and that his death on 10 July was justified. QUALIFIED IMMUNITY GRANTED. Also, since Plaintiff had more than a year to provide her expert disclosures, her expert would be excluded. Plaintiff appealed to the U.S. Court of Appeals for the Fourth Circuit.

DECISION: While the intrusiveness of a seizure by deadly force is unmatched, officers may use deadly force if they have probable cause to believe that a subject poses a threat of serious physical harm to the officers or others. Officers' decisions to use deadly force are not subject to the luxury of hindsight, and if the officer acted as a reasonable officer would have at that time, he will not be liable.

Here, Decedent had two warrants, a mental commitment order, a handgun, a history of threats to himself and others, and expressed intent not to be taken alive. He shot at the first officer he saw, and then when Defendant and his partner ordered him to disarm himself and surrender, he shot at them too. No record evidence contradicted this scenario. The Fourth Circuit had no trouble exonerating Defendant for shooting back.

Neither did the trial court abuse its discretion in excluding Plaintiff's expert, who provided the sole evidence for Plaintiff's contention that Defendant and others had executed Decedent after he was disarmed and no longer resisting. Expert disclosures are often the centerpiece of cases that depend on expert testimony, and the civil procedure rules requiring full and timely expert disclosure are to be taken very seriously. All Plaintiff did was attach dubious reports to her complaint, without listing his qualifications, prior cases, publications, or compensation, leaving Defendants unable to prepare for deposing him. Plaintiff did not show substantial justification for noncompliance with expert disclosure rules, so the trial court's discretion to exclude Plaintiff's expert would not be disturbed.

As to the 20 June arrest, Decedent's injuries were de minimis. No evidence showed that Defendant inflicted them maliciously or sadistically, or even (other than Decedent's claims to his family, which were hearsay) that Defendant inflicted them at all. The trial court's judgment was AFFIRMED in all respects.

EDITORIAL: I guess mothers are entitled to act this way, but assclown trial lawyers and their assclown quack doctors are not. No wonder they never provided any of his material, because it would have made them look even stupider than they already did. What's more, none of the gunshot wounds were rifle bullets, but what do they do? According to the opinion, they sue the officer with the RIFLE (despite the lack of rifle wounds) and don't get around to serving process on the officer with the SHOTGUN (despite the abundance of shotgun wounds). Who's picking on whom here?

Not only that, why didn't the Fourth Circuit or anybody else notice that since Trooper Deeds didn't even hit the guy, he should have walked on that basis alone! If you shoot at someone and neither hit him nor induce him to surrender, you haven't "seized" him and can't be liable--it's that simple.

Lord's peace on Troopers Deeds and Bradley for doing what they had to do in this tragedy.

4A 4C 2006: Looking Inside Bicycle Handlebar Is A Search Incident To Arrest

2007-03-16T12:06:00.000-07:00

UNITED STATES v. CURRENCE, 446 F.3d 554 (4th Cir. 2006), No. 05-4894, 2006 U.S.App. LEXIS 11090, on appeal from USDC-VAED, before Chief USCJ Wilkins and USCJs Williams, Shedd, opinion by Shedd, filed 04 May 2006.

LONG STORY SHORT: After arresting a person riding a bicycle, police may remove the end cap from the bicycle handlebars and look inside as a search incident to arrest. Binding in MD, NC, SC, VA, WV.

FACTS: A confidential informant contacted Richmond, VA police and relayed a detailed description of a man on a bicycle selling drugs at a particular street corner. Detectives approached the location and found Defendant, who matched the description. Defendant submitted to a frisk, which revealed only money, but when Defendant identified himself, detectives discovered an outstanding arrest warrant. While Defendant was under arrest pending confirmation of the warrant, a detective, aware that drug dealers sometimes hide drugs there, slid the end cap off of Defendant's bicycle's right handlebar without using tools. Inside the hollow handlebar were baggies containing a substance that looked like, and later tested to be, crack cocaine. Defendant, who remained close to his bicycle the whole time, then made incriminating statements.

PROCEDURE: The United States indicted Defendant in U.S. District Court for the Eastern District of Virginia for possession of crack cocaine with intent to distribute and possession of crack cocaine with intent to distribute in a school zone. Defendant moved to suppress the crack and his incriminating statements, arguing that a warrantless search incident to arrest could not include the inside of the handlebar. The trial court analogized the minimal disassembly of the end cap to a search of a car trunk, which is not within an arrestee's area of immediate control, and ruled the search unreasonable because its scope exceeded the purpose of searches incident to arrest. MOTION TO SUPPRESS GRANTED. The United States appealed to the U.S. Court of Appeals for the Fourth Circuit.

DECISION: Searches incident to arrest are an exception to the general warrant requirement, because arrestees might have weapons on or near them and also might want to hide or destroy evidence. Such searches may accompany any arrest, regardless of whether any particularized suspicion exists, and can include open or closed spaces or containers within the arrestee's lungeable area.

Defendant's arrest was reasonable as pursuant to an outstanding warrant, and the search of his handlebar was substantially contemporaneous with the arrest. His bicycle remained within his immediate area, but the question was whether removing the end cap and looking inside the structure was reasonable. The Fourth Circuit ruled that a detective's pulling off the easily removed end cap was less like opening a car trunk and more like opening a simple closed container such as a drawer or bag, which is allowed even if the container is locked. Though the Fourth Circuit cautioned that searches of all parts of a bicycle incident to arrest would not henceforth always be reasonable, under the specific facts of the case, the minimal intrusion into Defendant's handlebar was not unreasonable under the Fourth Amendment. GRANT OF SUPPRESSION REVERSED; cause remanded for further proceedings.

EDITORIAL: Good show. Also a bit of education, for me at least. Who'd a thunk to put your stash in the handlebar? I'd be more afraid of having it slip down the handlebar and then having to cut the handlebar open. I guess cocaine is more valuable than your average handlebar, though.

4A 4C 2006: Not-So-Happy Trail Over Private Property Was An Unreasonable Seizure

2007-03-15T18:22:00.000-07:00

PRESLEY v. CITY OF CHARLOTTESVILLE, 464 F.3d 480 (4th Cir. 2006), No. 05-2344, 2006 U.S.App. LEXIS 24048, on appeal from USDC-VAWD, before USCJs Motz, Traxler, Shedd, opinion by Motz, concurrence in part and dissent in part by Traxler, filed 22 Sep 2006.

LONG STORY SHORT: A city's official map showing a public walking trail over a nonconsenting, uncompensated person's property, resulting in numerous trespasses and significant damage, amounted to an unreasonable seizure and violated the Fourth Amendment, even if it was also a possible taking under the Fifth Amendment. Binding in MD, NC, SC, VA, WV.

FACTS: In 1998, the Rivanna Trails Foundation published a map showing a walking trail over Plaintiff's land, and the City of Charlottesville posted the map on its official website. Plaintiff was mostly occupied with caring for her husband in a rest home, and did not realize the extent of the problem until her husband died in 2001. She came home to find hikers constantly trespassing on her land of less than one acre, destroying property, and sometimes setting up overnight campsites. Plaintiff posted many "no trespassing" signs, regularly called the police, and eventually installed razor wire. The City passed an ordinance outlawing razor wire and prosecuted Plaintiff for breaking it, but the charges were dismissed. By 2005, Rivanna Trails Foundation had not changed the trail map, and it was still posted on the City's website.

PROCDEDURE: Plaintiff sued the City and RTF in U.S. District Court for the Western District of Virginia per 42 U.S.C. § 1983, alleging the facts above and arguing that Defendants had conspired to violate her Fourth Amendment right to be free from unreasonable seizure and her Fourteenth Amendment due process rights. Defendants moved to dismiss the complaint for failure to state a claim. The trial court had to take the facts alleged in the complaint as true for purposes of the motion, and acknowledged that under those facts there might have been a Fifth Amendment taking, but no violation of either the Fourth or Fourteenth Amendment. MOTION TO DISMISS GRANTED; case closed. Plaintiff appealed to the U.S. Court of Appeals for the Fourth Circuit.

DECISION: Motions to dismiss test only the legal sufficiency of the complaint's alleged facts. Defenses, evidence, and witness credibility are not a factor. Civil rights complaints are entitled to special care in the Fourth Circuit, and may be dismissed only if the facts suggest no plausible legal theory at all. Some government actions may violate more than one constitutional right at the same time. Unless a specific constitutional provision overrides another general principle, plaintiffs may sue for as many violations as the facts support.

The Fourth Amendment protects some real property--at least a home and its curtilage--against unreasonable seizure. As it happens, a seizure may sometimes also be a taking, and subject to Fifth Amendment regulation as well. The key difference is that a seizure must be unreasonable to violate the Fourth Amendment, and a taking must be without just compensation to violate the Fifth Amendment. Some seizures are not takings at all, such as civil forfeitures. However, a seizure need not be a complete deprivation of possession, but only a meaningful interference with possessory interests.

Only governments can violate constitutional rights, but here, a private foundation acted as a government agent or with the participation and knowledge of government officials to publish a knowingly erroneous map that encouraged people to walk over Plaintiff's land at will. This resulted in a veritable army of trespassers who annoyed Plaintiff and damaged her property, and sometimes camped out overnight, all of which was certainly a meaningful interference with possessory interests.

The Fourteenth Amendment due process claim could not stand because Virginia state law provided an inverse condemnation procedure whereby Plaintiff could have tried to obtain compensation. Neither could Plaintiff claim deprivation of substantive due process, because it fell under the rule that specific protections in the Fourth and Fourteenth Amendments cover more general notions of substantive due process. In the end, though, she did sufficiently allege a Fourth Amendment unreasonable seizure. DISMISSAL AFFIRMED IN PART as to the Fourteenth Amendment claims; DISMISSAL REVERSED IN PART as to the Fourth Amendment claims; cause remanded for further proceedings.

The dissent held that Plaintiff at most stated a Fifth Amendment takings claim and to allow a simultaneous Fourth Amendment seizure claim would undercut well-established jurisprudence under both Amendments. Also, governments would now be exposed to significantly more liability for what traditionally would have been no more than an inverse condemnation proceeding. The concurrence agreed that Plaintiff's Fourteenth Amendment claims could not survive.

EDITORIAL: This poor lady comes home, newly widowed, to find a parade of enviro-whackos so dedicated to disrespect for private property that not even a hundred No Trespassing signs will dissuade them. The City of Charlottesville not only won't prosecute them, but prosecutes HER for putting up razor wire (which is normal in Fayetteville) because they love the enviro-whackos so much. Yeah, it's sue time.

Unless, of course, maybe things are not as they seem. Remember, this is a 12(b)(6) motion to dismiss, and we all have to put our blinders on, or hold our noses, and pretend that all but the most utterly schizophrenic parts (like black helicopters mutilating cattle and spreading AIDS by mosquito) rank right up there with the Sermon on the Mount. Now I'll admit that governments are capable of astonishingly stupid constitutional violations, but I'll hold my opinion on this one until some more facts come out.

If this case is indeed somewhat as bad as it looks now, then I agree with the Fourth Circuit. If governments are now going to be looking at punitive damages for screwing with peoples' homes and curtilages, then that should discourage them from doing so. In the age where the Supremes think it's a "public purpose" for governments to confiscate private property and give it to developers so they can build subsidized for-profit establishments, we need all the punishment we can get to keep governments in line.

"Sir, Your Van Won't Start Because Of The Dope Compartment In The Gas Tank--That'll Be 30 Years Please"

2007-03-15T14:51:00.000-07:00

UNITED STATES v. SELDON, USCA-4 No. 04-4473, on appeal from USDC-MDD, before USCJs Widener, Michael, King, opinion by King, filed 15 Mar 2007.

LONG STORY SHORT: If auto mechanics discovered secret compartments while repairing a known drug dealer's van and called the police to investigate, and later the same officer stopped the same van for a traffic infraction and found additional evidence of drug trafficking in plain view, then the Fourth Amendment does not require suppression of cocaine found in the secret compartments. Binding in MD, NC, SC, VA, WV.

FACTS: Sergeant Lewis of the Maryland State Police was patrolling Route 50 in Annapolis when he observed a van doing 71 in a 55 and stopped it. On the van's windshield were several decals of charitable police organizations. As soon as Defendant rolled down the driver's window, Sergeant Lewis smelled a strong odor of air fresheners and fabric softeners. Defendant reached for his driver license and a large wad of cash came out with it. Defendant was breathing heavily, his carotid artery was visibly pulsating, and he would not keep eye contact.

As soon as Sergeant Lewis read Defendant's license, he remembered that nine months before, he had responded to a call for assistance from another officer, who was looking at that same van in a dealer's service bay. The owner had brought it in, as he often did, for hard starting and cutting off, and mechanics determined the fuel pump was probably the issue. However, when they examined the fuel tank, they found what looked like a secret compartment inside it, and a second compartment near the fuel tank. Sergeant Lewis, who was the MSP instructor on how to detect hidden drug compartments, watched as the mechanics opened the first secret compartment. He was unable to figure out how to open the second compartment. Sergeant Lewis took copies of the shop's paperwork and checked the van's owner's name with a local drug task force and found that he was a known dealer.

His memory thus refreshed, Sergeant Lewis called for backup and this time was able to open the second secret compartment, which contained 500g cocaine and 850g marijuana, wrapped in fabric softener sheets, plastic wrap, and clear packing tape. This evidence helped make probable cause for searches of other places where Defendant had privacy interests, and evidence from these searches appeared in subsequent prosecution.

PROCEDURE: The United States indicted Defendant in U.S. District Court for the District of Maryland for numerous drug, money laundering, and conspiracy offenses. Defendant moved to suppress all fruits of the searches, on grounds that Sergeant Lewis's original search at the dealer's service bay was unreasonable under the Fourth Amendment. The trial court ruled that it was reasonable for an officer to talk freely with mechanics who had seen the secret compartments, and learn from them who drove the van. This knowledge, independent of Sergeant Lewis's search of the secret compartments but together with what Sergeant Lewis had observed during the stop of the same van, amounted to probable cause to search after the traffic stop. MOTION TO SUPPRESS DENIED. Defendant pleaded guilty and received 360 months on condition that he could appeal the suppression to the U.S. Court of Appeals for the Fourth Circuit.

DECISION: Private citizens may happen to discover evidence of criminal activity, but that is not a Fourth Amendment search. Neither is it unreasonable for private citizens to tell law enforcement about what they found. Sergeant Lewis did nothing more than listen to the mechanics and look up information about the person they said was the driver.

When Sergeant Lewis happened to stop the same van later, his training and experience indicated that drug couriers use a lot of air fresheners, put a lot of pro-LE decals on their windows, pull out a lot of cash, and act very nervous. Combined with what the mechanics had freely told him, he had probable cause to search the van and open the secret compartment. It was not necessary to rule on the legality of Sergeant Lewis's search of the secret compartments at the dealership. DENIAL OF SUPPRESSION AFFIRMED.

EDITORIAL: Oh ... my ... goodness ... ROFLMAO! I pity da fool!! He seems not to have gotten the memo about all those air fresheners, better known as "Felony Forest," and all those PBA/FOP/Thin Blue Line stickers, "methinks the dope-slinger doth protest too much," being counterproductive. The cosmic justice of pulling over the same van out of the millions on the road, nine months later, is just too funny. Now he knows why you should set your cruise control at 68. The opinion also said his girlfriend, his mother, and his girlfriend's mother all went down too. Now THEY know why John Farnam keeps telling us "don't do stupid things, go to stupid places, or associate with stupid people."

"U Breaka Da Ankle, I Breaka U Bank Account"--$301,100 Plus Costs And Attorney Fees

2007-03-14T13:15:00.000-07:00

JENNINGS v. JONES, USCA-1 No. 05-2522, 2007 U.S.App. LEXIS 5268, on appeal from USDC-RID, before USCJs Toruella, Lynch, and Lipez, opinion by Lipez, dissent by Lynch, filed 07 Mar 2007.

LONG STORY SHORT: Defendant officer was not entitled to qualified immunity when the evidence tended to show that he kept twisting plaintiff's ankle until it broke, even after plaintiff stopped resisting arrest, and the $301,100 jury verdict would stand, because defendant abandoned on appeal his motions for remittitur and new trial. Binding in MA, ME, NH, PR, RI.

FACTS: Plaintiff, a member of the Narragansett Indian Tribe, was working at the Tribe's smoke shop in Charlestown, RI when the RI State Police dropped in to seize all the cigarettes in the shop, pursuant to a valid warrant. Plaintiff loudly and profanely protested, and eventually an officer told him to go outside. When Plaintiff did so, RISP video showed that some officers moved to arrest him. He resisted for several seconds while the officers wrestled with him and Defendant applied an ankle turn control technique. Plaintiff stopped resisting and said he had broken that ankle before and had just had surgery. Plaintiff kept yelling in pain as Defendant increased the force on Plaintiff's ankle until it broke.

PROCEDURE: Plaintiff sued Defendant in U.S. District Court for the District of Rhode Island, seeking damages for state-law battery and per 42 U.S.C. § 1983 for excessive force constituting an unreasonable seizure in violation of the Fourth Amendment. The case went to jury trial, where a number of other officers that Plaintiff had sued were exonerated one way or another. As to Defendant, his expert witness in the use of force testified that an officer must adjust his use of force during an arrest, based on the subject's resistance or lack of it. Two other witnesses testified that they saw Plaintiff cease resisting and heard him yell in pain just before Defendant broke his ankle. The jury found Defendant liable for excessive force and battery and awarded Plaintiff compensatory damages of $301,100.

Defendant moved for judgment as a matter of law after the verdict (aka jnov), and alternative motions for a new trial and remittitur. The trial court ruled that Plaintiff had not presented evidence supporting a reasonable finding of excessive force, and even if he had, the law was not clearly established that Defendant's ankle turn was unconstitutional. Defendant was entitled to qualified immunity. JNOV GRANTED in all respects. The trial court further ruled that Defendant's motions for new trial and remittitur were moot. Plaintiff appealed to the U.S. Court of Appeals for the First Circuit. Defendant did not cross-appeal or raise as an issue the trial court's denial of its motions for new trial and remittitur.

DECISION: Use of force is necessary and expected in order to effect arrests, but such force must be reasonable under the Fourth Amendment. The First Circuit uses a three-step procedure to determine qualified immunity. First, Plaintiff had to show the deprivation of an actual constitutional right. He did so by means of eyewitness testimony that he stopped resisting, after which Defendant increased the force on his ankle. Also, Defendant's own expert conceded that force must be adjusted according to the subject's behavior, which was not essential to the jury's verdict but could have helped their decision.

Second, the right in question had to be clearly established at the time of the incident. Plaintiff met this one as well, because even without prior similar caselaw, it would have been plain that use of increased force after a subject stops resisting is objectively unreasonable. Third, a reasonable officer in Defendant's position would have known he was violating Plaintiff's rights. In other words, an officer may be mistaken and not be liable for an intentional violation, but here, a reasonable officer in Defendant's position would not have believed that it was lawful to increase the force on Plaintiff's ankle after Plaintiff had stopped resisting.

Defendant was not entitled to qualified immunity. Furthermore, even though the trial court erroneously ruled that Defendant's motions for new trial and remittitur were moot, Defendant did not press for a conditional ruling. Neither did he mention them on appeal. Together, these factors constituted Defendant's abandonment of new trial or remittitur. JNOV VACATED; JURY VERDICT REINSTATED; costs to Plaintiff.

The dissent would have affirmed the trial court's JNOV on qualified immunity grounds, or at least would have remanded for a new trial.

EDITORIAL: Gotta go with the jury. It's easy to get "target fixation" in the heat of battle and keep doing what you were doing even when you shouldn't, but here, looks like the officer stepped over the line. Not only is he now stuck with a verdict even bigger than my student loan balance, there's all those depo transcripts and expert fees to pay. What's more, since this was a 1983 case, next will be a six-figure attorney fee motion. I hope somebody has insurance.

Detailed Anonymous Descriptions Can Justify Terry Stops, Which Then Justify Vehicle Searches

2007-03-13T19:08:00.000-07:00

UNITED STATES v. ELSTON, USCA-4 No. 05-5223, http://pacer.ca4.uscourts.gov/dailyopinions/opinion.pdf/055223.P.pdf , on appeal from USDC-VAWD, before USCJs Williams and King and SrUSCJ Hamilton, opinion by King, filed 13 Mar 2007.

LONG STORY SHORT: Detailed descriptions from personal observations of an anonymous tipster, especially when the subject has threatened to shoot people with a gun and ammunition the tipster knew he possessed, can amount to reasonable suspicion for a Terry stop, and police making the stop can briefly hold the subject at gunpoint until they can confirm or dispel their suspicions. Binding in MD, NC, SC, VA, WV.

FACTS: A caller to the Roanoke, VA 911 center described an intoxicated driver who had just left her home in a dark blue 2003 pickup as a black male wearing a light blue sweater, jeans, and white sneakers; gave his correct first name and correct tag number; noted that the truck had dark tinted windows and a silver toolbox; and warned that the driver kept a loaded 9mm with three loaded magazines in the truck and had expressed an intent to "let them off in somebody." The caller gave her name to the 911 operator but asked the operator not to pass her name along to the police, because she feared retaliation.

Roanoke PD officers received the description and threat to shoot someone over the radio and on their MDTs, but not the tipster's name. Minutes later, Officer Hicks found a truck matching the description parked near the tipster's housing project, and ordered Defendant out at gunpoint and cuffed him. Defendant matched the description and smelled strongly of alcohol. Officer Reed arrived and either opened the truck door or looked through the door that Defendant had left open (he could not remember which later) and could see a handgun grip in plain view. Officer Hicks learned from a dispatcher that Defendant was a convicted felon, and arrested Defendant.

PROCEDURE: The United States indicted Defendant in U.S. District Court for the Western District of Virginia for possessing a firearm while a convicted felon. Defendant moved to suppress the weapon from his truck, arguing that the 911 call was an anonymous tip because the officers never learned the caller's identity, and there was no reasonable suspcion to detain him or search his vehicle. The trial court agreed that the tip was anonymous, but since the description had indicia of reliability alerting the police to substantial public danger, the officers' initial detention of Defendant was a reasonable Terry stop and the search did not violate the Fourth Amendment. MOTION TO SUPPRESS DENIED. Defendant pleaded guilty on condition that he could appeal the suppression to the U.S. Court of Appeals for the Fourth Circuit.

DECISION: Because the tip contained so much detail from a contemporaneous personal observation, it was enough to generate reasonable suspicion and justify a Terry stop even if it was anonymous. Also, the subject had expressed an imminent intention to shoot someone, a factor not present in the usual anonymous tip situation. The Fourth Circuit left open the question of whether a tip is anonymous if only the 911 system, not the officers making the stop, knows the tipster's name.

The initial stop was not an arrest, even though Defendant, ordered out of the truck at gunpoint, did not feel free to leave. A brief detention, even at gunpoint (especially when the subject was reported armed and dangerous), is not enough in the Fourth Circuit to change a Terry stop into an arrest, so long as officers detain the subject long enough to find out whether their reasonable suspicion of criminal activity was correct. Here, the officers almost immediately found the gun, which gave probable cause for arrest. The search of Defendant's truck, whether by opening the door or by looking through the open door, was justified as a protective sweep incident to a Terry stop, because subjects might be released after a brief detention or escape arrest, and checking the subject's vehicle for weapons is only prudent. DENIAL OF SUPPRESSION AFFIRMED.

EDITORIAL: Very good illustration that pointing guns does not always equal arrest. Also a good illustration of appellate courts' tendency to duck questions when they can. I forecast that the next time somebody calls 911 and says "don't tell him I told you," the Fourth Circuit will be glad to rule that this is not anonymous, since the 911 dispatchers are part of the same machine as the police. For that matter, in our little county, a deputy is not unlikely to hear the actual call and the caller's name, because the 911 center is a popular hangout and lunchroom for deputies between calls--but you didn't hear that from me.

Only Parole Officers Can Search Parolees Without Warrants, If State Law Says So

2007-03-12T19:55:00.000-07:00

UNITED STATES v. FREEMAN, USCA-10 No. 05-3437, 2007 U.S.App. LEXIS 5453, on appeal from USDC-KSD, before USCJs Henry, Hollway, and McConnell, opinion by McConnell, filed 08 Mar 2007.

LONG STORY SHORT: Warrantless searches of parolees, unlike most searches, depend in part on state law for reasonableness, and when state law or policy requires parole officers to conduct such searches, regular police officers violate the Fourth Amendment if they do so themselves. Binding in CO, KS, NM, OK, UT, WY.

FACTS: Defendant, a known gang member, signed an agreement governing the conditions of his supervised release from a Kansas prison, allowing "a search by parole officer(s) of my person, residence, and any other person under my control." Defendant had been on parole for two years with only one curfew violation when he answered a 1:00am knock on his door to discover four Wichita PD officers and a representative of his day reporting center (a private contractor with Kansas DOC). An officer explained that they wanted to check his curfew compliance and the function of the monitoring bracelet on his ankle. Defendant invited them in, whereupon an officer said they would now search the house.

Defendant said they had no right to search, grew agitated, and said he had to tell his girlfriend, who was in bed. An officer followed him to ensure officer safety, and observed Defendant's girlfriend reach into the dresser. The officer entered the bedroom and Defendant's girlfriend left, so the officer began to search the room. A second officer came in and saw a handgun in plain view on the closet shelf, and more searching revealed body armor in the same closet and marijuana seeds and stems in the basement.

Defendant's day reporting center had chosen him and other parolees at random for a compliance check, but the same officers had gotten written consent from all other parolees they had searched that evening. No KDOC Special Enforcement Officer (SEO, parole officer) participated in the search of Defendant's home, contrary to KDOC's published internal policies for parolee searches.

PROCEDURE: The United States indicted Defendant in U.S. District Court for the District of Kansas for possession of a firearm while a convicted felon. Defendant moved to suppress all evidence from the search of his home, arguing that the search was warrantless and nonconsensual, and done by regular police instead of an SEO, contrary to state law and the Fourth Amendment. The trial court found that Defendant's agitation, his girlfriend's behavior, and Defendant's status as a felon and gang member added up to reasonable suspicion, which was the quantum of proof for police to search a parolee without a warrant or SEO, given a parolee's reduced expectation of privacy. MOTION TO SUPPRESS DENIED. Defendant appealed to the U.S. Court of Appeals for the Tenth Circuit.

DECISION: States need both to protect the public and rehabilitate parolees, justifying reduction in parolees' reasonable expectations of privacy compared to the general public. However, parolee searches must be related to parole issues, not a guise for general law enforcement. Furthermore, state parole laws create parolees' expectations when they agree to go on parole, marking one of the rare occasions when federal constitutional rights depend on state law. Consequently, states will be held to their laws of parole search, whether the parole agreement allows warrantless search by any peace officer (as in California) or whether a parole officer must conduct or at least direct the search (as in Kansas per KDOC's policy). What the police did to Defendant was general law enforcement, not anything pertaining to a special need of parole supervision, and they did not meet Defendant's reduced expectation of privacy.

Neither did Defendant's behavior (a reasonable person can be agitated when refusing to consent to an illegal search) or his girlfriend's behavior (a reasonable person upon waking will often reach into a nearby drawer for eyeglasses, clothing, etc., not necessarily a weapon) amount to reasonable suspicion that criminal activity was afoot. Defendant's criminal record was not enough either, since he had been on probation for two years with one minor violation. Defendant's girlfriend's behavior did not justify a protective sweep of her bedroom, and anyway, a protective sweep in the Tenth Circuit is only allowed as an incident to arrest. DENIAL OF SUPPRESSION REVERSED.

EDITORIAL: It's easy to criticize from a thousand miles away, but may I suggest (1) reading the dang search policy or state law--don't assume you can do what they can do in California--and (2) asking for permission, since it's a free country and people can and do consent to all kinds of crazy stuff, such as searches that will send them to prison for decades. Here in North Carolina, we learned from the Fourth Circuit just two weeks ago that our policy, very similar to Kansas', is entirely constitutional, so long as a probation or parole officer directs the warrantless search. Make friends with them!

Now we all know that this guy hadn't had his parole revoked yet only because he was such a competent criminal that he hadn't been caught. Maybe, maybe, this will scare him straight, or maybe his NEXT parole officer will watch him much more closely.

DC Circuit: "The Right Of The People To Keep And Bear Arms Shall Not Be Infringed!--This Means YOU, Fenty"

2007-03-09T12:47:00.000-08:00

PARKER v. DISTRICT OF COLUMBIA, USCA-DC No. 04-7041, 2007 U.S.App. LEXIS 5519, http://pacer.cadc.uscourts.gov/docs/common/opinions/200703/04-7041a.pdf , on appeal from USDC-DCD, before USCJs Henderson and Griffith and SrUSCJ Silberman, opinion by Silberman, dissent by Henderson, filed 09 Mar 2007.

LONG STORY SHORT: The Second Amendment to the United States Constitution confers a right to keep and bear arms upon individual citizens, not just a collective right of states to keep organized militias. Binding in DC.

FACTS: Four District of Columbia residents, contrary to D.C. Code § 7-2502.02(a)(4), wanted to possess handguns in their homes, and, contrary to D.C. Code § 22-4504, wanted to carry handguns from one room to another inside their homes for the purpose of lawful self-defense. A fifth DC resident owned a registered shotgun and, contrary to D.C. Code § 7-2507.02, wanted to keep it assembled and without a trigger lock in the home for purposes of lawful self-defense. A sixth DC resident, who as a DC special police officer was allowed to carry a handgun on duty at the Federal Judicial Center, applied for a registration certificate to keep a handgun at home for lawful self-defense, which DC denied.

PROCEDURE: Plaintiffs sued DC in the U.S. District Court for the District of Columbia, seeking declaratory and injunctive relief per 28 U.S.C. §§ 2201 and 2202 and per 42 U.S.C. § 1983 for DC's violation of their Second Amendment right to keep and bear arms. The trial court ruled that the Second Amendment at most protects an individual's right to bear arms for service in the militia, not an individual right to keep and bear arms. COMPLAINT DISMISSED in all respects for failure to state a claim. Plaintiffs appealed to the U.S. Court of Appeals for the District of Columbia Circuit.

DECISION: A plaintiff asserting deprivation of constitutional rights must first have standing to bring a case in court, else there is no Article III case or controversy and no jurisdiction. The sixth plaintiff here, having applied for and been denied a handgun registration certificate, had standing to raise a Section 1983 challenge, and the case could proceed to its merits.

The Second Amendment to the U.S. Constitution reads in full: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed." The second comma divides the Second Amendment into two clauses, the first being a prefatory statement of civic purpose. Many courts, notably excepting the Fifth Circuit, have seized upon this prefatory clause to hold that the Second Amendment only guarantees a collective right to each State and the District of Columbia to raise and arm its own organized militia, and leaves the federal and state governments free to regulate or ban all private ownership and possession of arms unless somehow such laws were to interfere with militia preparedness. The DC Circuit held this strained interpretation, along with the variation of sophisticated collective rights without remedies, to be incorrect.

On the other hand, the Second Amendment's operative clause clearly confers an individual right to keep and bear arms, subject only to reasonable regulation. An extensive survey of the meanings, then and now, of "militia," "state," "the people," "keep," "bear," and "arms," as well as the different "the states respectively, or to the people" wording of the Tenth Amendment, militated firmly in favor of reading "the right of the people to keep and bear Arms shall not be infringed" to apply to individuals, just as most other constitutional rights do. Indeed, the Second Amendment did not make up a new right, but only codified the well-established right of free people to possess firearms suitable for protection, hunting, and militia use. Furthermore, just as the First Amendment applies not just to quill pens but also to computers and mass media, the Second Amendment applies not just to muzzleloading muskets but also to modern handguns such as the militia would use. Whatever the civic purpose of the Second Amendment, the right is broader than it.

As a federal district, not a state, the Bill of Rights directly applies to DC, rendering the question of whether the Fourteenth Amendment incorporates the Second Amendment and binds it upon the States inapplicable. At least some of DC's contrary arguments were frivolous, but all of them were wrong. The statutes of which Plaintiffs complained were unconstitutional in violation of the Second Amendment right to keep and bear arms for hunting and self-protection. REVERSED AND REMANDED with instructions to grant summary judgment to Plaintiffs.

The dissent agreed with the collective right interpretation of the Second Amendment and declared most of the majority opinion to be dicta, however well-written and informative it might be. However, the dissent's key holding was that DC is not a "State" within the meaning of the Second Amendment, making the Second Amendment inapplicable to DC.

EDITORIAL: Words aren't enough to express the relief and jubilation that the federal courts have at last learned to read the plain language of the Constitution. This opinion may mark the beginning of the end of the bench legislation era. Now you see why electing the right President, who will appoint the right judges and justices, is so important. Once again, the dissenting judge illustrates the astonishing ability of professional gun haters to disregard facts, logic, history, and plain words with a straight face. See you on the firing line tomorrow!

Trash Might Be Abandoned Property, "Butt" Not If The Detective Kicks It Off The Patio

2007-03-07T09:02:00.000-08:00

STATE v. REED, N.C.App. No. COA06-400, http://www.aoc.state.nc.us/www/public/coa/opinions/2007/060400-1.htm , on appeal from Mecklenburg County Superior Court, before Judges Elmore, Hunter, and McCullough, opinion by Elmore, filed 06 Mar 2007.

LONG STORY SHORT: Defendant did not abandon his cigarette butt by tossing it into a trash pile on his own patio, rendering a detective's warrantless seizure of the butt unreasonable and requiring suppression of DNA results. Binding in NC unless reversed by the NC Supreme Court.

FACTS: Two detectives of the Charlotte-Mecklenburg PD visited Defendant at his apartment to investigate a recent burglary and sexual assault. Defendant voluntarily conversed with the detectives while they were all sitting on the patio shared by Defendant and three other tenants. Defendant smoked a cigarette and then tore apart the extinguished butt, mentioning that he watched CSI. Defendant smoked another cigarette while they all continued talking, and threw the still-smoking butt at a pile of trash on his patio. It bounced off and one of the detectives kicked it off the patio, where it landed in the grassy common area. As soon as Defendant went back inside the house, the detective snatched up the butt and took it in for DNA testing. Defendant's DNA matched that of a stain on the victim's shirt. At that apartment complex, tenants were individually responsible for taking their trash to a common dumpster.

PROCEDURE: North Carolina indicted Defendant in Mecklenburg County Superior Court for first-degree burglary, second-degree sexual offense, and common-law robbery (aka "strong-arm robbery"). Defendant moved to suppress the cigarette butt and DNA evidence as the fruit of an unreasonable warrantless and nonconsensual search in violation of the Fourth Amendment. MOTION TO SUPPRESS DENIED. North Carolina introduced the DNA evidence at trial and the jury convicted Defendant of burglary and sexual offense, acquitting him of robbery. Defendant appealed to the Court of Appeals of North Carolina, arguing that the trial court should have suppressed the DNA evidence.

DECISION: One of the few exceptions to the warrant requirement is a search and seizure of abandoned property. Trash placed outside the curtilage and ready for curbside pickup is pretty clearly "abandoned." Less so is trash left in an area where a person has a reasonable expectation of privacy. Here, the patio was part of Defendant's home even if three other tenants shared it, and he had a reasonable expectation of privacy. Precedent holding trash to be abandoned nearly always depended on the trash in question being at least placed where sanitation workers regularly picked it up, and preferably already in the truck, when police searched or seized it. Defendant had no such service at his apartment.

Though the detective picked up the butt after it landed in the common area outside Defendant's curtilage, Defendant did not throw it there. Defendant aimed for the trash pile and even though he missed it, the butt came to rest on his patio, where he had a reasonable expectation of privacy. Only then did the detective kick the butt out of the curtilage and furtively pick it up when he knew Defendant was not looking. This raises an inference that the detective knew Defendant would not consent to seizure of the butt and that seizure of anything still on the patio would be illegal. Property is not abandoned if the police move it from private to public areas. Defendant's constitutional right against unreasonable search and seizure was violated and the evidence should have been suppressed. NEW TRIAL.

EDITORIAL: This is a classic case of a criminal getting off on a technicality--except that it's not a technicality to be free from unreasonable search and seizure, it's part of the Constitution, and the only way to enforce this right is to have something bad happen to the state when they break it. And this criminal might not get off in the end. Now that Char-Meck KNOWS who did it, there are other ways of proving identity, such as the victim's testimony. That's how prosecutors worked for millions of years before DNA testing was around to help them. Hopefully, this guy will still go down, and we've learned a relatively painless lesson in when trash isn't all that trashy.

I don't blame the detectives for trying to help a dead cigarette get to where it needs to be, "butt" now that we know you can't do it that way, next time you can ask to keep the butt ("if you didn't do it, this will prove it for sure"). Based on the guy's CSI comment, you could also try for a search warrant, since he wouldn't have said that without some kind of guilty conscience. You can certainly follow the guy around until he leaves some legitimate trash. Come to think of it, Char-Meck can do that right now. If he's still in jail, it's even easier. Yeah, he'll go down.

A "Mention in Despatches" to Daniel J. Clifton for just-right appellate advocacy. He raised only one issue, unreasonable seizure, and argued it well, instead of drowning everybody in paper trying to argue eighteen crummy issues. And shazam, he won a unanimous reversal. Could be some relationship between good form and good result.

Alford Plea To Resisting Arrest Might Not Prevent Suit For Excessive Force (dang)

2007-03-01T18:45:00.000-08:00

ZINKAND v. BROWN, USCA-4 No. 05-2170, on appeal from USDC-MDD, before USCJs Widener, Williams, and Traxler, opinion by Traxler, dissent by Widener, filed 01 Mar 2007.

LONG STORY SHORT: Because Plaintiff took an Alford plea in which he did not admit to resisting arrest, Defendants could not assert judicial estoppel against him when he sued them for injuries sustained during his arrest. Binding in MD, NC, SC, VA, WV.

FACTS: Defendant, a detective with the Anne Arundel County, Maryland police, was part of a surveillance team watching an undercover drug transaction in a parking lot. Plaintiff drove up and another subject who had just received drug purchase money from the UC walked over to Plaintiff's car. Surveillance officers saw Plaintiff, whom they believed to be the stash man, pass an object to the subject, whereupon a number of officers ran up to Plaintiff's car. Defendant forcibly removed Plaintiff from his car and handcuffed him. In the process, Plaintiff hit his head, sustaining injury.

PROCEDURE: Maryland charged Plaintiff in state court with numerous Maryland drug offenses and resisting arrest. In return for dropping all drug charges and requesting the trial court for probation before judgment (Maryland law allows that), Plaintiff was allowed to tender an Alford plea to resisting arrest, in which he did not admit that he was guilty of resisting arrest but deemed it in his best interest to plead to the same. The trial court accepted Plaintiff's Alford plea and put him on probation before judgment.

A week later, Plaintiff sued Defendant, other officers, and Anne Arundel County in U.S. District Court for the District of Maryland for use of excessive force. After discovery, all Defendants moved for summary judgment, attaching among other papers Plaintiff's hospital records immediately after his arrest. Apparently because he did not want to continue with the case, Plaintiff's counsel did not file a response to the summary judgment motion. The trial court ruled, based only on the defense's evidence, that Defendant was the only one who touched Plaintiff, and Defendant's use of force, which Plaintiff precipitated, was fully justified and resulted only in a minor laceration. SUMMARY JUDGMENT GRANTED to all defendants.

Six days after that order, Plaintiff filed a pro se motion for reconsideration and for time to find new counsel, attaching police reports and other documents. When he was able to retain a new firm, they filed a more complete motion to alter or amend the judgment, attaching among other items a statement from Plaintiff's physician that Plaintiff had two herniated discs probably attributable to the use of force during his arrest. Defendants replied to this motion and the trial court held a Rule 59(e) hearing.

All parties and the trial court agreed that Plaintiff's forecast of medical evidence established a genuine issue of material fact, which normally would preclude summary judgment. However, the trial court looked to Plaintiff's original Alford plea, and ruled that even though Plaintiff had not acted in subjective bad faith or tried to deceive anyone, he was judicially estopped from claiming excessive force. MOTION TO ALTER OR AMEND DENIED. Plaintiff appealed to the U.S. Court of Appeals for the Fourth Circuit.

DECISION: Rule 59(e) allows motions to alter or amend judgments, essentially allowing trial courts to fix their own errors, but does not specify what grounds may justify such relief. Fourth Circuit precedent has established that one ground can be the discovery of new evidence not available at trial, and if the trial court has discretion to take new evidence if the moving party can justify why it did not present the evidence before. Defendants here did not object to the new evidence, ending the Fourth Circuit's review of that issue.

Judicial estoppel is only applicable to issues of fact, and has three elements: (1) the party tries to take a factual stand inconsistent with what it took in prior litigation; (2) the prior court must have accepted the prior position; and (3) the party intentionally misled the court to gain unfair advantage. This last bad faith element is the dispositive one. Here, the trial court expressly ruled that Plaintiff did not act in bad faith, and since Plaintiff did not plead straight up to resisting arrest, his Alford plea could not have been a prior inconsistent factual stand. The trial court made a clear error of law, in light of which its denial of the motion to alter or amend was an abuse of discretion. REVERSED AND REMANDED for further proceedings not inconsistent.

The dissent first focused on the trial court's original finding that Plaintiff suffered only a minor laceration, but also would have affirmed the trial court because Plaintiff precipitated the use of force and Defendant was entitled to qualified immunity. Lastly, the majority opinion could be read as an open door for Alford pleaders to sue the police, which they could not do if they admitted guilt.

EDITORIAL: I had to agree with the majority--right up until that last sentence of the dissent. Judge Widener doth speaketh most rightly. Now, all you have to do is pound on a cop, get a justified pounding in return, stand before the judge and say "I didn't do NOTHIN but I plead no contest," then sue away. Alford, by the way, is North Carolina v. Alford, 400 U.S. 25 (1970), where the Supremes established the right to consent to a judgment of guilty but not admit guilt, usually in the form of a nolo contendere or no contest plea, and can be useful as a last resort in, say, an iffy self-defense shooting to save face while limiting one's loss to a few years for manslaughter instead of going bye-bye for murder one.

I almost said to myself "so why didn't you try res judicata?" which is using a prior judgment to prevent your opponent from getting a later judgment that would contradict it. The answer was in the beginning of the opinion, which says that under Maryland law, there was no judgment yet! just probation. Maryland lawyers can correct me if I need it. (North Carolina has a "prayer for judgment continued," which is even better--you plead, pay costs, and BOTH the conviction AND the sentence are delayed to give you a chance to act right and get rid of the case.) Although I'd like to know more of the details, I would tend to take the police side in this case, because those who resist can get hurt even if the arresting officer is trying really hard not to permanently injure the resister. And I have to commend the Fourth for bending over backwards to be fair to the guy.

But for sure, the lawyers on the back cover of the phone book will use this opinion to open up a six-pack of dubious Section 1983 whoop-ass when prosecutors drop the ball and don't push for straight-up guilty pleas in resisting arrest cases. Furthermore, it's only common sense that even an Alford plea means that legally speaking, YOU DID IT and have to live with all the consequences. Yet this opinion says you get a do-over in civil court if you feel like suing the police. It rewards crooks for not accepting any responsibility for what they did. I hardly ever call for en banc reversals, but I think this opinion is a prime candidate for one.

North Carolina's Law Allowing Warrantless Searches of Probationers is VERY Constitutional

2007-02-26T15:49:00.000-08:00

UNITED STATES v. MIDGETTE, USCA-4 No. 05-4765, http://pacer.ca4.uscourts.gov/dailyopinions/opinion.pdf/054765.P.pdf , on appeal from USDC-NCED, before USCJs Niemeyer, Traxler, and Shedd, opinion by Niemyer, filed 26 Feb 2007.

LONG STORY SHORT: North Carolina statute allowing probation officers to search their probationers without a warrant is reasonable under the Fourth Amendment, and probation officers may request police assistance in such searches. Binding in MD, NC, SC, VA, WV.

FACTS: Defendant pleaded guilty to North Carolina state offenses and accepted suspended sentences and supervised probation. The judge at his sentencing ordered orally and in writing that a special condition of Defendant's probation was that he "submit at reasonable times to warrantless searches by a probation officer of the defendant's person, and of the defendant's vehicle and premises while the defendant is present, for the purposes which are reasonably related to the defendant's probation supervision." Two months later, SGT Wilcutt of the New Bern Police Department told Defendant's probation officer, PO Edwards, that he knew Defendant well and that Defendant had a reputation for carrying firearms, and that Defendant had retrieved firearms from the New Bern PD eight months before.

At Defendant's next regular meeting with PO Edwards, two New Bern officers searched Defendant without finding any contraband, then searched Defendant's vehicle, finding a pistol magazine loaded with ten live rounds of .40-caliber ammunition. PO Edwards then took Defendant and the officers over to Defendant's house, where she directed the officers to search for any other contraband. The officers found two shotguns and a pistol, all loaded, and 59.1g of marijuana. One of the shotguns had a barrel less than 18 inches long. The officers arrested Defendant on the spot.

PROCEDURE: The United States indicted Defendant for possessing firearms while a convicted felon, possession of an unregistered firearm (short-barreled shotguns are subject to registration and taxation under the National Firearms Act), and possession of marijuana. Defendant moved to suppress all the contraband, on grounds that only probation officers are allowed to conduct warrantless searches of probationers under NC law, and that no reasonable suspicion supported the search. A U.S. Magistrate Judge of the Eastern District of North Carolina heard the motion and recommended that it be denied. Defendant objected to the report, but not on grounds that the NC statute was unconstitutional or that no reasonable suspicion supported the search. The assigned U.S. District Judge overruled him and adopted the USMJ's report. MOTION TO SUPPRESS DENIED. Defendant pleaded guilty and received a 46-month sentence, on condition that he could appeal the denial of suppression to the U.S. Court of Appeals for the Fourth Circuit. On appeal, Defendant argued that the NC statute violated the Fourth Amendment and that no reasonable suspicion supported the search of Defendant's vehicle and house.

DECISION: Objections to a magistrate judge's report must be specific; a general objection will not suffice, because the district judge needs to have reasonable notice of what issues are not satisfactory, and the true grounds for such objections. Parties may not appeal issues in a report without specifically and timely objecting to them. Since Defendant did not tell the district court that he objected to the constitutionality of the warrantless serach statute or that no reasonable suspicion supported the search, he waived his right to appeal on those issues.

However, Defendant's arguments were meritless anyway. NC needs to be able to supervise probationers' compliance with their conditions of probation, both to promote probationers' rehabilitation and to protect the public. Though the statute did not require "individualized suspicion" as do some other states' laws that have survived constitutional review, the state's special need to supervise probationers justifies the reduced privacy expectations and rights of probationers. Searches conforming to NC's probation statutes are eminently reasonable under the Fourth Amendment.

In this case, reasonable suspicion, that is, a particularized and objective basis for suspecting criminal activity, was present because SGT Wilcutt was an experienced, knowledgeable, and trustworthy officer that PO Edwards was entitled to rely on, just as a court would have. Other courts have upheld searches of probationers without any suspicion at all. Though the statute requires probation officers to authorize and direct warrantless searches of probationers, regular police officers may suggest them in the first place, and may assist in the actual search. Probationers can be very dangerous people and probation officers need all the help they can get. DENIAL OF SUPPRESSION AFFIRMED.

EDITORIAL: Good decision, but since the Fourth Circuit started out by observing that this guy wasn't supposed to be appealing those issues at all, the next probationer who gets his house tossed is going to argue that this apparent papal blessing of NCGS § 15A-1343(b1)(7) really means nothing. The first thing to remember about a successful appeal is that it starts in the trial court. If you don't say something when it happens, then appellate courts figure it couldn't have been as bad as all that. At best/worst, appellate courts will say that if you didn't object at trial because you didn't want to look like a jerk in front of the jury, then doom on you if the jury recognized you as a jerk anyway.

This is yet another reminder to keep on the good side of probation officers no matter what side of the law you're on. For regular officers, taking a PO along can be a ticket to busting somebody you can't quite get a warrant on. Just make sure the PO is the one to decide on the search and asks you for help.

If You Barricade Yourself, Burn Your House, And Raise A Rifle, Then Getting Shot Is YOUR Fault

2007-02-14T13:29:00.000-08:00

LIVERMORE v. LUBELAN, USCA-6 No. 06-1465, 2007 U.S.App. LEXIS 2594, on appeal from USDC-MIWD, before USCJ-6 Batchelder and Griffin and USDJ-TNED Phillips, opinion by Griffin, filed 07 Feb 2007.

LONG STORY SHORT: The proximate cause of the subject's death was his threatening posture with a rifle after he had exhibited very violent behavior, and both the lieutenant who commanded the raid on his house and the sergeant who shot the subject were entitled to qualified immunity. Binding in KY, MI, OH, TN.

FACTS: Cass County, Michigan residents Crosslin and Rohm advocated marijuana production and use, and practiced what they preached at Rainbow Farms Compound, which Crosslin owned. On 31 Aug 2001, Rohm blew off a required court appearance, and he and Crosslin set fire to some outbuildings at Rainbow Farms, inspiring the Cass County Sheriff's Department to surround the premises and call for help from the Michigan State Police Emergency Services Team. Crosslin, visibly armed, refused officers entry and later that day fired at least one bullet into a news helicopter. The standoff continued for days.

On 03 Sep 2001, FBI agents found Crosslin while he was returning from a burglary, and had to shoot and kill him in self-defense. On 04 Sep, Rohm agreed by phone with MSPEST negotiators to surrender if he could talk with his son, but instead Rohm set fire to his house, took up a rifle, and hid between two trees in his backyard. MSPEST had received word that the house was rigged with explosives. A Light Armored Vehicle commanded by Lieutenant Ellsworth of MSPEST approached and by loudspeaker he ordered Rohm to surrender. To use their radios, the two MSPEST sergeants in the LAV with Lieutenant Ellsworth had to sit partially exposed in the open roof hatches, but still could not see Rohm in the early daylight and smoke.

MSPEST sharpshooter Sergeant Lubelan, 150 yards away in a concealed observation position, could see Rohm and his rifle, and testified that Rohm was in a left-handed firing position, appearing to track the LAV and preparing to shoot at the exposed officers. Sergeant Lubelan testified that he fired two shots at Rohm's back. However, autopsy and reconstruction showed that the first and fatal shot passed through Rohm's rifle stock and into his chest. The sergeants in the LAV testified that when they learned Rohm had been shot, they were back inside the LAV, but one sergeant testified that he was still exposed at the exact time Rohm was shot.

PROCEDURE: Plaintiff, Rohm's mother, sued Sergeant Lubelan and Lieutenant Ellsworth in U.S. District Court for the Western District of Michigan per 42 U.S.C. § 1983 for violating Rohm's Fourth Amendment right to be free from unreasonable seizure, and for liability under Michigan state law. Plaintiff claimed that Lieutenant Ellsworth had already ordered his sharpshooters to fire at Rohm if he aimed a rifle at the LAV, and presented expert testimony that police acted deliberately or recklessly to provoke Rohm's actions. After discovery, Defendants moved for summary judgment on grounds that as a matter of law they had not acted unreasonably, and were entitled to qualified immunity. The trial court ruled that the LAV sergeants' testimony that they were inside the LAV when they learned of the shooting, plus Rohm's stepfather's testimony that Rohm always fired rifles right-handed, together with Plaintiff's police practices expert's testimony, established a genuine issue of material fact as to both qualified immunity and Michigan state law liability. SUMMARY JUDGMENT DENIED in all respects. Defendants appealed immediately to the U.S. Court of Appeals for the Sixth Circuit.

DECISION: If any material facts affecting qualified immunity are still in dispute, no appellate court has jurisdiction. However, the Sixth Circuit held that even taking the facts in the light most favorable to Plaintiff, only issues of law remained, establishing appellate jurisdiction. Under these facts, the police did not make the trouble any more than any responding officer does when presented with lawbreaking or violence; in fact, police have a duty to intervene.

Whether or not Lieutenant Ellsworth ordered anyone to fire at Rohm if he raised a weapon at the LAV was immaterial. The two shots that Sergeant Lubelin fired at Rohm constituted the only "seizure" under the Fourth Amendment, and courts may only look at the split-second judgments of the officer who made the actual seizure. Under these facts, a supervisor such as Lieutenant Ellsworth could not be liable, and he was entitled to summary judgment.

Beyond dispute, Rohm was holding his rifle when he was shot, as evidenced by the bullet hole in it. Even if Sergeant Lubelin did not see Rohm point his rifle toward the LAV, a reasonable officer in Sergeant Lubelin's position had probable cause to believe that Rohm was about to do deadly harm. Rohm's violent behavior and the inherent dangerousness of a rifleman close to the LAV were justification for Sergeant Lubelin's well-aimed shots, and he was entitled to summary judgment. Furthermore, under Michigan law, Rohm's own behavior, not any police provocation or recklessness, proximately caused his own death, meaning that all officers were entitled to summary judgment. DENIAL OF SUMMARY JUDGMENT REVERSED.

EDITORIAL: Two great big thumbs up to the Sixth Circuit and Michigan Assistant Attorney General Margaret A. Nelson for a splendid job. Now that's what I call world-class appellate advocacy. I feel for the guy's mother, but nobody gets to raise a hand, much less a deadly weapon, to the law without severe consequence. Bravo Zulu to Sergeant Lubelin for fulfilling the police sharpshooting mission perfectly; righteous shots that hit only the guilty person, stop the fight, and save innocent lives.

4A4C 2006: Jury Must Decide Furtive Movement Shooting Of Wounded Man, But Unwounded Woman Wasn't "Seized"

2007-02-10T14:23:00.000-08:00

SCHULTZ v. BRAGA, USCA-4 No. 05-1604, 05-1610, 455 F.3d 470, 2006 U.S.App. LEXIS 19170, on appeal from USDC-MDD, before Circuit Judges Wilkinson and Traxler and USDJ-VAED Williams, opinion by Traxler, filed 31 July 2006.

LONG STORY SHORT: When an FBI agent mistook an innocent car passenger for a bank robber, and fired a shot him when he appeared to be reaching for a weapon, but the passenger and others testified that he made no such move, the firing agent was not entitled to qualified immunity, and a jury would have to resolve the conflicting testimony. However, the driver of the car had no claim because the agent did not use any force on her and could not have seized her under the Fourth Amendment. Binding in MD, NC, SC, VA, WV.

FACTS: FBI agents were surveilling a 7-Eleven, where Agent Bronson had told them they would see a male bank robbery suspect wearing a white baseball cap arrive in a red vehicle being driven by the suspect's red-haired girlfriend. The suspect, a career criminal and drug addict believed to be seeking suicide by cop, had confessed his involvement in the robbery to King, who told the suspect he would wait in the 7-Eleven to give the suspect clothes and money to help him escape. The suspect did not know that King was cooperating with FBI. As expected, the agents observed a red vehicle park beside the King's truck. A male wearing a white baseball cap got out of the red vehicle, entered the 7-Eleven where the CI was waiting, and returned to the red vehicle, driven by a red-haired female. The arrest team followed this red vehicle.

Agent Hanburger, commanding the arrest team, decided that probable cause existed to stop the red vehicle, and the arrest team executed a dynamic stop, exiting their vehicles yelling "Police," "FBI," "put your hands up," with rifles ready. Agent Kornek positioned himself forward of Harkum (driver), aiming his rifle at her. Agent Stowe, wearing an FBI vest, approached Plaintiff's (passenger) side from the front, aiming his rifle at Plaintiff while continuing to shout verbal commands. Defendant arrived behind Plaintiff, aiming his rifle [according to news reports, the rifle was a 5.56mm M4, the carbine version of the M16] at the back of Plaintiff's head, whereupon Agent Stowe shifted his aim to Harkum. Seconds later, Defendant fired one rifle bullet, which shattered Plaintiff's car window and fragmented on the D-ring of Plaintiff's seat belt, driving numerous metal and glass fragments into Plaintiff's face, seriously injuring him.

The agents extracted Plaintiff and Harkum from their vehicle and handcuffed them, just before Agent Brosnan and King arrived. King had been trying unsuccessfully to communicate to the agents that they were following the wrong red vehicle; the suspect and his girlfriend had driven by the 7-Eleven without stopping. Some blood drops and tiny fragments from Defendant's shot may have hit Harkum but did not injure her. She subsequently suffered from depression and PTSD.

Agent Stowe testified that he arrived first at the subject vehicle. Defendant arrived a second later and began ordering Plaintiff "show me your hands." Agent Stowe tried to open Plaintiff's (passenger) door, to find it locked, and then backpedaled a step, aiming his rifle at Harkum (driver) and ordering her to unlock the door, relying on Defendant to cover the "bank robber," actually Plaintiff. Plaintiff and Harkum testified that they were both focused on Agent Stowe. Harkum testified that she was looking right at Agent Stowe and therefore could see Plaintiff's hands raised up as ordered. Plaintiff testified that he kept his hands in view and began leaning to the right to unlock his door when Defendant's rifle discharged.

Defendant, however, testified that he ran up to the car as Agent Stowe was yelling "Police, FBI, get your hands up," but then Agent Stowe fell silent; Defendant never heard Agent Stowe order anyone to unlock a door. Defendant saw Plaintiff's hands still down, but after the fourth or fifth order from Defendant to raise his hands, Plaintiff instead turned to the left and reached down toward the center console. Since Plaintiff appeared to be trying to reach a weapon, Defendant fired one shot to stop him.

PROCEDURE: Plaintiff and Harkum sued Defendant and other agents in U.S. District Court for the District of Maryland per Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) for excessive force in violation of the Fourth Amendment. After discovery, Defendant moved for summary judgment on grounds of qualified immunity. The trial court ruled that material facts were still in dispute as to Plaintiff's claim; QUALIFIED IMMUNITY DENIED as to him. However, the trial court also ruled that Defendant did not seize Harkum for Fourth Amendment purposes and could not have violated her rights; QUALIFIED IMMUNITY GRANTED as to her. Defendant and Harkum appealed to the U.S. Court of Appeals for the Fourth Circuit.

DECISION: Qualified immunity protects LEOs from bad guesses in gray areas, but not those who choose to step over constitutional bright lines. While the intrusiveness of a seizure by means of deadly force is unmatched by any other type of seizure, courts must evaluate the officer's actions for objective reasonableness in light of the facts and circumstances he knew at the time of the incident, without any questions as to the officer's subjective intent and motive. Here, Defendant reasonably believed that the suspect was armed and dangerous and probably suicidal, and never mind that Plaintiff turned out not to be the suspect, a reasonable officer in Defendant's place would take appropriate defensive measures as the situation evolved.

However, Defendant and Plaintiff testified to virtually opposite facts. Defendant said he saw Plaintiff keep his hands down and then turn and reach toward the center console, where weapons could be hidden. Plaintiff said he raised his hands and began to lean away from the center console and toward the door lock as Agent Stowe was ordering him at gunpoint to do. A reasonable jury could credit the former witness and exonerate Defendant--or could credit the latter witness and find that Defendant shot Plaintiff with a highpower rifle for no good reason. DENIAL OF QUALIFIED IMMUNITY AFFIRMED in part.

As to Harkum, intentional acquisition of physical control must be present in order to constitute a seizure subject to Fourth Amendment regulation. Though the seizure may be of the wrong person or thing, the seizure must be willful. The classic example is of an officer shooting at a suspect, unintentionally missing the suspect, and unintentionally hitting an innocent bystander. The victim may claim negligence, but not wrongful seizure. A contrary example is an innocent motorist who suffers psychological injury from police gunfire aimed at her car and meant to stop her from driving off; the police achieved their goal of terminating her freedom of movement. Here, Defendant directed his force at Plaintiff, not Harkum, and if she was seized at all, it was when she submitted to a different agent's commands to raise her hands and unlock her door. Whether or not some blood drops or fragments may have struck her was irrelevant because Defendant did not mean to seize her. The Fourth Circuit would not stretch the Fourth Amendment to cover what was not a seizure. GRANT OF QUALIFIED IMMUNITY AFFIRMED in part.

EDITORIAL: What a mess, with only the slight consolation that the real suspect, Mike Blottenberger (must be a stage name), got caught not long after. Based on news reports, a Maryland grand jury got an earful about this case, including non-immunized testimony from the firing agent, and refused to indict the firing agent or any other agent. Astonishingly, to moi anyway, a lot of conservatives jumped all over the firing agent, saying he shouldn't be allowed to have a gun because this was the second time he shot an unarmed subject. Never mind that the other shoot was righteous by all accounts, some people just don't want federal agents running around armed.

I can't pass judgment at all, if this is all I know about it. I'll wait for the judge and jury to find the facts. Just to sort out what you see here took me about four hours! However, the Fourth Circuit should have not just affirmed the denial of qualified immunity, but should have dismissed that part of the appeal for lack of subject matter jurisdiction. As you and I know, appellate courts can only decide interlocutory appeals if they involve pure questions of law, and if any facts are still up in the air, no appellate court has the power to touch it. Maybe the Fourth Circuit does it a bit differently. I will also have to plumb the depths of just what is a seizure and what kind of crazy results are possible from the "intent to seize" rule. As I understand it, you walk if you misidentify an innocent man as a subject and shoot at him and miss, killing an innocent woman. That way, you get rewarded for both bad police work and bad marksmanship exercised simultaneously. I need an aspirin.

4A4C 2006: Dr. Feelgood's Dope-Slinging Justified Seizure Of All Patient Records

2007-02-06T20:52:00.000-08:00

UNITED STATES v. HURWITZ, USCA-4 No. 05-4474, 459 F.3d 463, 2006 U.S.App. LEXIS 21425, on appeal from USDC-VAED, before Circuit Judges Widener and Traxler and USDJ-SCD Currie, opinion by Traxler, dissent by Widener, filed 22 Aug 2006.

LONG STORY SHORT: Attachments to the search warrant affidavit did not have to accompany the officers who served the search warrant, and when the offense in question involves a physician overprescribing controlled substances to many patients, the business is so permeated with crime that all patient records were subject to seizure. Binding in MD, NC, SC, VA, WV.

FACTS: In 2002, an unusual number of people in the McLean, Virginia area were arrested for illegal sale of prescription opoids, and several arrestees named Defendant, a medical doctor, as the source of their products. High-dose opoid therapy normally allowed a patient 195mg of morphine or 100mg of Oxycontin daily, but investigation indicated that Defendant was prescribing median dosages of 2,000mg per day to his patients, and some patients received up to 10,000 pills per month. Defendant charged his patients $1,000 "initiation fees" and $250 monthly "maintenance fees." Cooperating arrestees secretly taped Defendant admitting that it was not inconceivable that some of his patients were selling their meds. Medical authorities had disciplined Defendant twice before for overprescribing controlled substances.

Agent Lucas of DEA swore to a search warrant affidavit setting forth those facts, and in the warrant application wrote "See Attachment A of Affidavit" for a description of the property to be seized. Attachment A specified items in Defendant's "medical practice which constitute evidence of [drug trafficking]" including "[p]atient medical and billing files," without identifying any individual patient files. The court issued the warrant and ordered Attachment A and the affidavit sealed. During the search of Defendant's office, federal agents seized all of Defendant's patients' files, and did not bring the affidavit or Attachment A with them when they searched.

PROCEDURE: The United States indicted Defendant for over 60 drug offenses in U.S. District Court for the Eastern District of Virginia. Defendant moved to suppress all evidence found in his office on grounds that the warrant was fatally overbroad and that it did not name the things to be seized with sufficient particularity. The trial court disagreed; SUPPRESSION DENIED. Defendant was convicted of most offenses at jury trial and received a 25-year sentence. He appealed to the U.S. Court of Appeals for the Fourth Circuit, arguing that the search warrant was invalid and that he had not gotten a fair trial.

DECISION: The Fourth Amendment requires that warrants particularly describe the things to be seized; otherwise, officers would be entitled to a general rummaging through peoples' property to find what they wanted. This particularity requirement applies to the warrant itself, not just the application for the warrant, but referenced documents can be made part of the warrant. Though other circuits might require both a reference in the warrant and attachment of the referenced document to the warrant, the Fourth Circuit only requires one or the other. The warrant in this case satisfied the requirement by referencing Attachment A to the warrant affidavit.

The fact (which Defendant asserted in the trial court and the United States did not contest, so it was a fact on appeal) that agents brought only the warrant with them, not Attachment A, was not a constitutional problem. Though the better practice is to bring the warrant and all referenced documents, not least because the searching officers can look at it to guide their actions, the Fourth Amendment does not require officers to bring the warrant with them, even if other rules or statutes might.

Neither was the warrant overbroad. Its supporting affidavit provided probable cause that Defendant was running a huge drug trafficking enterprise under the label of a medical practice. Defendant's prescribing practices were well in excess of medically excepted bounds and many of his patients were caught selling controlled substances that he prescribed to them. Defendant's business was so permeated with drug crime that officers needed to seize all patient records. DENIAL OF SUPPRESSION AFFIRMED.

However, Defendant's argument that his trial was unfair had merit. CONVICTIONS AND SENTENCE VACATED and remanded for new trial. The dissent related only to the issues at trial and not the motion to suppress.

EDITORIAL: Good decision in a hard case. I'm giving the guy every benefit of the doubt, because some of his patients at trial testified that he made their pain go away with lots of opoids, and being allergic to pain myself, I'm glad to hear that part. However, it looks like there was waaaay too much of a good thing going down. The feds sure can get carried away with these blanket seizures, though. When I was working the Payne Stewart crash case, I was one of the lowly associates going through boxes of documents (although there are far worse ways to spend a day, I tell you) that the FBI had just turned loose almost three years after swooping in and snatching essentially the entire charter business that had owned the unlucky Lear 35. There was no possible crime in that crash and they destroyed the business for nothing. I have no idea who had the political horsepower to order the FBI in on it. I'd sure like to know though.

SCOTUS: If The Inmate Didn't Exhaust His Grievances, Then Say So, Or YOU'LL Be Grieving

2007-02-06T11:23:00.000-08:00

JONES v. BOCK, SCOTUS Nos. 05-7058, 05-7152, 2007 U.S. LEXIS 1325, 75 USLW 4058, on certiorari from USCA-6, opinion by Chief Justice Roberts, filed 22 Jan 2007.

LONG STORY SHORT: The Prison Litigation Reform Act does not require inmates to plead exhaustion of administrative remedies when they file suit; exhausted claims may not be dismissed on grounds that other claims were not exhausted; and failure to exhaust is an affirmative defense that defendants must plead and prove. Binding in the United States.

FACTS: Three prisoners of the Michigan Department of Corrections alleged violations of their rights. Jones was in a traffic accident while in custody and suffered significant neck and back injuries. Months later, over his protests, he received a work assignment that aggravated his injuries, as corrections officials knew it would. Jones exhausted his administrative remedies against two officials, but also believed that several others were responsible. He eventually sued those two officials and the several others he thought liable.

Williams suffered from a painful and disfiguring condition in his right arm, for which a prison doctor recommended surgery, but corrections officials denied surgery and denied Williams' request for a one-man handicapped cell. Williams filed a grievance regarding his medical treatment, without naming any specific persons, and a grievance regarding his cell. All grievances and appeals were denied.

Walton assaulted a corrections officer and his punishment was an upper-slot restriction, that is, having to receive food and paperwork through the lower slot of his cell door. Later, Walton found out that two other inmates, who were white, had committed the same offense and gotten a three-month upper-slot restriction, but Walton's punishment was indefinite, and he believed that his race was a factor in this disparate treatment. Walton filed a grievance, naming only one specific person as a respondent. The grievance and all appeals were denied. He eventually sued the specific respondent and several other officials.

PROCEDURE: Jones, Williams, and Walton filed separate suits in U.S. District Courts, seeking damages per 42 U.S.C. Section 1983 for alleged violations of their Eighth Amendment rights to be free from cruel and unusual punishment. All three suits had to conform to PLRA, 42 U.S.C. Sec. 1997e et seq. All three complaints were DISMISSED under the Sixth Circuit's "total exhaustion" reading of PLRA, i.e., if a prisoner sued two or more defendants but had not exhausted his administrative remedies against one or more of them, then the whole suit was dismissed. All three prisoners appealed to the Sixth Circuit, which held that the district courts had correctly applied its precedent. Jones had not met the Sixth Circuit requirements of total exhaustion and heightened pleading. In reference to Williams and Walton, prisoners must specifically grieve against the persons they intend to sue. DISMISSALS AFFIRMED. All three prisoners petitioned for and received certiorari from the Supreme Court of the United States, and argued that the Sixth Circuit's legal reasoning was contrary to the Rules of Civil Procedure regarding pleadings and affirmative defenses, and not the majority view of federal courts.

DECISION: It is well known that inmates file a lot of lawsuits, most of which are meritless. Congress passed PLRA in 1996 to require among other things: "No action shall be brought with respect to prison conditions under [42 U.S.C. 1983], or any other federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." However, an inmate need do no more than what the procedures require or allow. Neither may courts use the general principle of "fewer and better prisoner suits" to read into statutes and rules any restrictions that are not already present.

In Williams' case, Michigan grievance procedures did not require him to name any specific person he intended to sue, even if that would be a better practice. PLRA does not make grievance rules; the corrections authorities do. Since he had been as specific as the procedures made him be, he had exhausted. The same went for Walton.

In Jones' case, the "no action shall be brought" language was congressional boilerplate and did not require dismissal of all claims, good and bad, when similar language in many other statutes did not require the same. For example, statutes of limitation are defenses to whatever discrete claims in a lawsuit are too old, but are not defenses to any timely commenced claims in the same suit, even though SOLs typically read "no action shall be brought." As dismaying as the prospect may be, courts must distill "not so much wheat from chaff as needles from haystacks," with the consolation prize that hopefully inmates will no longer have incentive to file several small suits against one or a few defendants each.

In all cases, PLRA exhaustion requirements do not override the Rules of Civil Procedure regarding affirmative defenses. Defendants have to plead and prove lack of exhaustion themselves; the courts may not do so for them. Inmates need not plead exhaustion, and courts may not dismiss their complaints on that basis. SCOTUS is aware that lower courts have plenty of work to do and that inmate litigation is a major difficulty, but lower courts are not free to invoke public policy on a case-by-case basis. Established rulemaking procedures are available and all interests should use them if they are displeased with this ruling.

EDITORIAL: Good show! The Dread Chief Justice Roberts ("I Am Here For Your SOOOOUL") seems not to be quite the inmate-torturing law 'n' order zealot that liberals assured us he was. He actually read the statute, compared it with other similar statutes, considered what other courts said about it, and evaluated the results in light of the fact that we are a government of laws and precedents, not of make-it-up-as-you-go-along "public policy" elasticity. Now THAT is what liberals fear--the courts telling you to go change the rules, not ignore them, when they collide with your lofty ideals. Note also, liberals, that with correct reasoning and logic, it's possible to come up with a unanimous pro-inmate decision, with even Nino Scalia and Quiet Man Thomas agreeing. It seems we have some leadership going on here.

Having run a few inmate civil rights lawsuits in my day, and having given up on that enterprise because it is very hard to pick the good cases out of the squillions of letters I used to get, I rather like this opinion. It makes corrections officials responsible for some of their own behavior. And CJOTUS Roberts gets off a good one now and then--"fewer and better prisoner lawsuits" is classic, as is the footnote about Walton's beef: "An upper slot restriction limits the inmate to receiving food and paperwork via the lower slot of the cell door. Presumably, this is less desirable than access through the upper slot; the record does not reveal how effective this particular sanction is in discouraging assaults on staff." Nor do I see how this amounts to cruel and unusual punishment, or lack of due process, at least enough to bother a federal court with, but you'd be amazed at what prisoners consider really important.