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.
Monday, August 20, 2007
FDCPA Short Note: Class Certified Against Encore For "HSB/" Dunning Letters
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.
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.
Saturday, August 11, 2007
Always Signal Your Lane Change When Carrying Meth
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.
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.
Friday, June 29, 2007
This Guy Was REALLY Good At Pretending He Wasn't Home
UNITED STATES v. DIAZ, USCA-9 No. 06-30029, 2007 U.S.App. LEXIS 14839, on appeal from USDC-DID, before USCJs Farris, Clifton, Bea, filed 22 June 2007.
LONG STORY SHORT: Arrest warrant subject was usually at home during the day, and agents observed no affirmative evidence that he was away, giving agents reasonable belief to force entry, and incriminating evidence they saw in plain view once they were inside would not be suppressed. Binding in AK, AZ, CA, GU, HI, ID, MP, MT, OR, WA.
FACTS: Defendant lived in his house, where he also repaired motor vehicles for a living, on the Fort Hall Indian Reservation in Idaho. Defendant was the subject of an arrest warrant, which government agents [Note: the opinion does not say which agencies or tribal police they were with] went to his home one afternoon to serve. Agents had visited him at home during the day three or four times over the previous 18 months, and Defendant told them he was usually at home in the daytime. On one occasion, he took 45 minutes to answer a knock on the door. This day, the agents drove past several times, and did not see Defendant's black SUV but saw two people standing next to a red SUV. When it drove off, only one person seemed to be in it, and agents reasoned that the other person had stayed in the house.
Defendant had dogs and security cameras protecting his property, which discouraged the agents from approaching very closely. They watched the house for 90 minutes, seeing no activity, before approaching. They could not see inside because of blankets over the windows. Knocking on the door produced no response, so the agents forced entry through the door. No one was home; agents later found Defendant at a nearby casino and arrested him. While looking through the house for Defendant, an agent saw what looked like illegal drugs in a plastic baggie in plain view. The agents withdrew from the house, swore out a search warrant, and found a bag of methamphetamine and drug equipment.
PROCEDURE: The United States had already indicted Defendant in U.S. District Court for the District of Idaho on one count each of possessing a firearm while a drug user and while a convicted felon, hence the arrest warrant. Defendant moved to suppress all evidence found in his house, arguing that the agents had exceeded the authority of an arrest warrant by entering his house when they had no reason to believe he was there. The trial court ruled that Defendant had established a pattern of being home during the day, which the agents knew, but Defendant's cameras and dogs and blankets made it impossible to determine he was not at home. MOTION TO SUPPRESS DENIED. A jury convicted Defendant on both counts, and Defendant appealed to the U.S. Court of Appeals for the Ninth Circuit.
DECISION: Arrest warrants give government agents limited authority to enter the subject's home and arrest him if they have reasonable belief (aka "reason to believe," "reasonable grounds for believing") that he is there. The Ninth Circuit had decided few cases elaborating on what reasonable belief really was. Commonsense evaluation of the totality of the circumstances is key to reasonableness.
Here, the Ninth Circuit ruled that the agents' experience of consistently finding him at home during the day, Defendant's own statement that he was usually home then, and the fact that Defendant did his mechanic work at home, gave the agents reasonable cause to think he would be home on an ordinary day. On one previous occasion, Defendant took 45 minutes to answer the door, so the fact that knocking produced no immediate response did not mean by itself that he was not home. Also, they had seen two people next to the red SUV but only one had driven off in it. The agents reasonably inferred that Defendant was home, and needed no direct evidence, especially since Defendant's own dogs, cameras, and blanketed windows hampered the agents' efforts to decide whether he was really there. DENIAL OF SUPPRESSION AFFIRMED.
EDITORIAL: This is one of those deals that you'd think comes up all the time on appeal, but according to the Ninth, I guess not, even with eight states and two, uh, whatever Guam and the Marshall Islands are. You often hear people say "but the evidence was only circumstantial." What they mean is, the evidence is just plain weak. Here we see that circumstantial evidence works just fine to support a reasonable conclusion. Dude needs to hide his drugs better, or at all.
LONG STORY SHORT: Arrest warrant subject was usually at home during the day, and agents observed no affirmative evidence that he was away, giving agents reasonable belief to force entry, and incriminating evidence they saw in plain view once they were inside would not be suppressed. Binding in AK, AZ, CA, GU, HI, ID, MP, MT, OR, WA.
FACTS: Defendant lived in his house, where he also repaired motor vehicles for a living, on the Fort Hall Indian Reservation in Idaho. Defendant was the subject of an arrest warrant, which government agents [Note: the opinion does not say which agencies or tribal police they were with] went to his home one afternoon to serve. Agents had visited him at home during the day three or four times over the previous 18 months, and Defendant told them he was usually at home in the daytime. On one occasion, he took 45 minutes to answer a knock on the door. This day, the agents drove past several times, and did not see Defendant's black SUV but saw two people standing next to a red SUV. When it drove off, only one person seemed to be in it, and agents reasoned that the other person had stayed in the house.
Defendant had dogs and security cameras protecting his property, which discouraged the agents from approaching very closely. They watched the house for 90 minutes, seeing no activity, before approaching. They could not see inside because of blankets over the windows. Knocking on the door produced no response, so the agents forced entry through the door. No one was home; agents later found Defendant at a nearby casino and arrested him. While looking through the house for Defendant, an agent saw what looked like illegal drugs in a plastic baggie in plain view. The agents withdrew from the house, swore out a search warrant, and found a bag of methamphetamine and drug equipment.
PROCEDURE: The United States had already indicted Defendant in U.S. District Court for the District of Idaho on one count each of possessing a firearm while a drug user and while a convicted felon, hence the arrest warrant. Defendant moved to suppress all evidence found in his house, arguing that the agents had exceeded the authority of an arrest warrant by entering his house when they had no reason to believe he was there. The trial court ruled that Defendant had established a pattern of being home during the day, which the agents knew, but Defendant's cameras and dogs and blankets made it impossible to determine he was not at home. MOTION TO SUPPRESS DENIED. A jury convicted Defendant on both counts, and Defendant appealed to the U.S. Court of Appeals for the Ninth Circuit.
DECISION: Arrest warrants give government agents limited authority to enter the subject's home and arrest him if they have reasonable belief (aka "reason to believe," "reasonable grounds for believing") that he is there. The Ninth Circuit had decided few cases elaborating on what reasonable belief really was. Commonsense evaluation of the totality of the circumstances is key to reasonableness.
Here, the Ninth Circuit ruled that the agents' experience of consistently finding him at home during the day, Defendant's own statement that he was usually home then, and the fact that Defendant did his mechanic work at home, gave the agents reasonable cause to think he would be home on an ordinary day. On one previous occasion, Defendant took 45 minutes to answer the door, so the fact that knocking produced no immediate response did not mean by itself that he was not home. Also, they had seen two people next to the red SUV but only one had driven off in it. The agents reasonably inferred that Defendant was home, and needed no direct evidence, especially since Defendant's own dogs, cameras, and blanketed windows hampered the agents' efforts to decide whether he was really there. DENIAL OF SUPPRESSION AFFIRMED.
EDITORIAL: This is one of those deals that you'd think comes up all the time on appeal, but according to the Ninth, I guess not, even with eight states and two, uh, whatever Guam and the Marshall Islands are. You often hear people say "but the evidence was only circumstantial." What they mean is, the evidence is just plain weak. Here we see that circumstantial evidence works just fine to support a reasonable conclusion. Dude needs to hide his drugs better, or at all.
Thursday, June 28, 2007
Four Officers Get Out Of A Crown Vic 7 Yards Away And Approach You--But That's Not A Seizure?
UNITED STATES v. GODDARD, USCA-DC No. 05-3080, 2007 U.S.App. LEXIS 14828, on appeal from USDC-DC, before Chief USCJ Ginsburd, USCJs Tatel, Brown, opinion per curiam, concurrence by Tatel, dissent by Brown, filed 22 Jun 2007.
LONG STORY SHORT: Four officers in casual dress with openly carried badges and weapons getting out of an unmarked Crown Vic near four black men and approaching them was not a seizure, and when one man immediately held his hand at his right side, officers had reasonable suspicion to yell "Gun" and detain him. Binding in DC.
FACTS: Four DC Metropolitan PD officers were patrolling after sunset in an unmarked Ford Crown Victoria, the most numerous and well-recognized type of police car, when they heard a radio report of a 5'8" 180-pound black male wearing a black coat and blue jeans running away from police after attempted unauthorized use of a vehicle. Minutes later and two blocks away, the officers saw four black men talking among themselves at a gas station. All were wearing black coats and blue jeans. One was 5'6", another was between 5'6" and 6'0", and the other two, including Defendant, were over 6'0". The officers parked in the entrance to the parking lot 15 to 20 feet away from the group. As the officers got out of the Crown Vic wearing MPD logo jackets, badges, handcuffs, and holstered sidearms, one of the men (who testified the officers "jumped out") began moving away from the group, and Defendant held his hand to the right side of his waistband. As the officers approached the group, one officer overheard Defendant say he had a gun, and yelled "Gun." The officers told the man walking away to come back, which he did. Two officers handcuffed Defendant and found a gun inside his waistband. After officers placed him under arrest but before they read him Miranda, Defendant said he had the gun because he had been shot lately and had just gotten out of jail.
PROCEDURE: The United States indicted Defendant in U.S. District Court for the District of Columbia on one count of possessing a firearm while a convicted felon. Defendant moved to suppress the gun, arguing that the officers' actions amounted to a seizure at the time they parked and got out, but without reasonable suspicion to support it. The trial court agreed that the act of parking an obvious police car 20 feet away and having four officers get out and approach was a seizure, but noted that Defendant and his colleagues were close in space and time to the reported offense and were wearing what the suspect was, and one at least was the same height as the suspect. Though a close case, the trial court ruled that reasonable suspicion existed and a Terry stop was justified. MOTION TO SUPPRESS DENIED. Defendant pleaded guilty, reserving his right to appeal the denial of suppression to the U.S. Court of Appeals for the District of Columbia circuit.
DECISION: Two questions of law had to be answered: just when the stop happened, and whether the officers had reasonable suspicion at the time. A stop is complete when an officer, by force or show of authority, has in some way restrained the liberty of a citizen. An officer may just walk up to a person in public without that being a seizure. Here, at the time they got out of the Crown Vic, the officers had not been driving aggressively and did not block the mens' escape. Display of police logos, badges, and holstered hardware by four officers approaching at a walk did not transform the encounter into a stop; indeed, one man began to walk away. If, say, the officers had gotten out and run aggressively toward the men, a reasonable person might have taken that as a sign to do what the police said. But that did not happen, and in the totality of circumstances here, the trial court's ruling that the stop began with the Crown Vic parking was erroneous.
Instead, the DC Circuit ruled, the stop did not begin until the officers yelled "Gun" and ordered the man who walked away to return. At that point, a reasonable innocent citizen in any of the mens' places would not have felt free to leave. But at that point, the officers had reasonable suspicion of criminal activity, because Defendant clamped his hand to his waistband and mentioned that he was carrying a gun, which is generally illegal in DC. DENIAL OF SUPPRESSION AFFIRMED.
The concurrence expressed great concerns about the same issues as the dissent, but because of well-established precedent governing Terry stops, believed the panel to be bound to the result in the per curiam opinion. The dissent disputed the finding that all four men were wearing the same thing as the suspect in the original radio call, and noted that the neighborhood was predominantly African-American, making the sighting of a black man there unremarkable. Defendant's admission that he had a gun evidenced an expectation of imminent search. Neither was it clear that the man who walked away was called back only after police yelled "Gun." In the totality of circumstances, Defendant was seized as soon as the Crown Vic parked. The social costs of Fourth Amendment violations and harsher police behavior in minority neighborhoods needed reexamining even against the social costs of high crime in those same neighborhoods.
The dissent would have reversed the denial of suppression.
EDITORIAL: Not so easy, is it? Now I'm going 51 to 49% with the dissent, because I think the stop happened when the Crown Vic pulled right up and four officers all got out. I wouldn't have felt free to leave whether they were moseying, sprinting, or in between, right at me and my homeys from only seven yards away. That means the officers had to have reasonable suspicion then and there, but objectively, they didn't. Four black men in a black neighborhood in DC--how unusual. I somehow suspect they weren't all wearing the exact same thing either, and the dissent correctly figured that out from the record.
You can tell that this panel was probably at each other's throats in those secret conferences, because even though there's a concurrence and a dissent, the main opinion is per curiam, or "of the court" instead of signed by any one judge, not even the Chief Judge of the DC Circuit. In this context, it means that the panel could get two out of three to agree only on the basic facts, reasoning, and result, but those two out of three could not agree enough to go into any more detail. Indeed, the opinion does come across as wishy-washy in places, and fudges on some facts that the dissent brought out.
We can generally agree that convicted felons shouldn't be walking around with concealed handguns. The one government program you can get both the NRA and the Brady Bunch both to support is CrimeStrike, which has made a point of prosecuting cases exactly like these. But how badly do we want this result? Should the police just be able to go around dogging people who are more likely than average to be illegally armed, so long as the police are guessing accurately? If you want and need more community cooperation with law enforcement, what is the balance point between proactive policing, and ticking off innocent people so badly that they don't want to talk? I don't know. I'll leave it to police and citizens and courts in each community. In my community (and seriously, it may not work in yours), you can get pretty far with treating people extremely fairly and listening a lot more than you talk.
LONG STORY SHORT: Four officers in casual dress with openly carried badges and weapons getting out of an unmarked Crown Vic near four black men and approaching them was not a seizure, and when one man immediately held his hand at his right side, officers had reasonable suspicion to yell "Gun" and detain him. Binding in DC.
FACTS: Four DC Metropolitan PD officers were patrolling after sunset in an unmarked Ford Crown Victoria, the most numerous and well-recognized type of police car, when they heard a radio report of a 5'8" 180-pound black male wearing a black coat and blue jeans running away from police after attempted unauthorized use of a vehicle. Minutes later and two blocks away, the officers saw four black men talking among themselves at a gas station. All were wearing black coats and blue jeans. One was 5'6", another was between 5'6" and 6'0", and the other two, including Defendant, were over 6'0". The officers parked in the entrance to the parking lot 15 to 20 feet away from the group. As the officers got out of the Crown Vic wearing MPD logo jackets, badges, handcuffs, and holstered sidearms, one of the men (who testified the officers "jumped out") began moving away from the group, and Defendant held his hand to the right side of his waistband. As the officers approached the group, one officer overheard Defendant say he had a gun, and yelled "Gun." The officers told the man walking away to come back, which he did. Two officers handcuffed Defendant and found a gun inside his waistband. After officers placed him under arrest but before they read him Miranda, Defendant said he had the gun because he had been shot lately and had just gotten out of jail.
PROCEDURE: The United States indicted Defendant in U.S. District Court for the District of Columbia on one count of possessing a firearm while a convicted felon. Defendant moved to suppress the gun, arguing that the officers' actions amounted to a seizure at the time they parked and got out, but without reasonable suspicion to support it. The trial court agreed that the act of parking an obvious police car 20 feet away and having four officers get out and approach was a seizure, but noted that Defendant and his colleagues were close in space and time to the reported offense and were wearing what the suspect was, and one at least was the same height as the suspect. Though a close case, the trial court ruled that reasonable suspicion existed and a Terry stop was justified. MOTION TO SUPPRESS DENIED. Defendant pleaded guilty, reserving his right to appeal the denial of suppression to the U.S. Court of Appeals for the District of Columbia circuit.
DECISION: Two questions of law had to be answered: just when the stop happened, and whether the officers had reasonable suspicion at the time. A stop is complete when an officer, by force or show of authority, has in some way restrained the liberty of a citizen. An officer may just walk up to a person in public without that being a seizure. Here, at the time they got out of the Crown Vic, the officers had not been driving aggressively and did not block the mens' escape. Display of police logos, badges, and holstered hardware by four officers approaching at a walk did not transform the encounter into a stop; indeed, one man began to walk away. If, say, the officers had gotten out and run aggressively toward the men, a reasonable person might have taken that as a sign to do what the police said. But that did not happen, and in the totality of circumstances here, the trial court's ruling that the stop began with the Crown Vic parking was erroneous.
Instead, the DC Circuit ruled, the stop did not begin until the officers yelled "Gun" and ordered the man who walked away to return. At that point, a reasonable innocent citizen in any of the mens' places would not have felt free to leave. But at that point, the officers had reasonable suspicion of criminal activity, because Defendant clamped his hand to his waistband and mentioned that he was carrying a gun, which is generally illegal in DC. DENIAL OF SUPPRESSION AFFIRMED.
The concurrence expressed great concerns about the same issues as the dissent, but because of well-established precedent governing Terry stops, believed the panel to be bound to the result in the per curiam opinion. The dissent disputed the finding that all four men were wearing the same thing as the suspect in the original radio call, and noted that the neighborhood was predominantly African-American, making the sighting of a black man there unremarkable. Defendant's admission that he had a gun evidenced an expectation of imminent search. Neither was it clear that the man who walked away was called back only after police yelled "Gun." In the totality of circumstances, Defendant was seized as soon as the Crown Vic parked. The social costs of Fourth Amendment violations and harsher police behavior in minority neighborhoods needed reexamining even against the social costs of high crime in those same neighborhoods.
The dissent would have reversed the denial of suppression.
EDITORIAL: Not so easy, is it? Now I'm going 51 to 49% with the dissent, because I think the stop happened when the Crown Vic pulled right up and four officers all got out. I wouldn't have felt free to leave whether they were moseying, sprinting, or in between, right at me and my homeys from only seven yards away. That means the officers had to have reasonable suspicion then and there, but objectively, they didn't. Four black men in a black neighborhood in DC--how unusual. I somehow suspect they weren't all wearing the exact same thing either, and the dissent correctly figured that out from the record.
You can tell that this panel was probably at each other's throats in those secret conferences, because even though there's a concurrence and a dissent, the main opinion is per curiam, or "of the court" instead of signed by any one judge, not even the Chief Judge of the DC Circuit. In this context, it means that the panel could get two out of three to agree only on the basic facts, reasoning, and result, but those two out of three could not agree enough to go into any more detail. Indeed, the opinion does come across as wishy-washy in places, and fudges on some facts that the dissent brought out.
We can generally agree that convicted felons shouldn't be walking around with concealed handguns. The one government program you can get both the NRA and the Brady Bunch both to support is CrimeStrike, which has made a point of prosecuting cases exactly like these. But how badly do we want this result? Should the police just be able to go around dogging people who are more likely than average to be illegally armed, so long as the police are guessing accurately? If you want and need more community cooperation with law enforcement, what is the balance point between proactive policing, and ticking off innocent people so badly that they don't want to talk? I don't know. I'll leave it to police and citizens and courts in each community. In my community (and seriously, it may not work in yours), you can get pretty far with treating people extremely fairly and listening a lot more than you talk.
I Sense A Disturbance In The Force ... Chancellor Palpatine, Please Call Your Office
Today's discussion with a bill collector whose firm committed about 55 violations of consumer protection law against my client went something like this:
Him: "I've seen your website. It's disgusting."
Me: "I guess we come at it from different points of view. So I guess if you were Anakin Skywalker, you'd be saying, 'From my point of view, the Jedi are evil!'"
Him: [puzzled] "Who's Anakin?"
[incredulous pause while I process this ... he can't possibly mean ... no, it's inconceivable ...]
Me: "You mean you have not seen Star Wars Episode III: Revenge Of The Sith?"
Him: "Nope."
Me: "Then I suppose you would not recognize the allusion to one of the final scenes ... oh well, just a little attempt at humor ..."
This exchange answers some questions, such as how in the world do these people get to be the way they are? One way, we now know, is that they have not seen the right sort of movies. George Lucas' laughable dialogue and Marin County leftism aside, the Star Warses (that's the plural: one Star Wars, six Star Warses) are absolute must-see films for all good Americans. Perhaps our bill collector friend is enamored of, say, Boiler Room; some stockbrokers think this was a training film. Or more likely, Brokeback Mountain ... no, I didn't say that! read on ...
But it raises more questions than it answers. Can you be a Sith Apprentice and not know it? The guy was definitely from the Dark Side, which Yoda tells us is "easier, quicker, more seductive, far more profitable," and the Sith use the Force for attack, never for defense. Jedi are selfless; the Sith seek only more power for themselves. Sound familiar?
Then again, the guy was more like those obedient clones they grow on Kamino, in half the normal time. Well, since settlement talks were fruitless, we'll sue them and see if the reward will be, oh, "more wealth than YOU can imagine." "I dunno, I can imagine quite a bit."
And since I'm sure he's reading this blog: Dude, if you think my website is disgusting, just read this next case about the cops pulling dope out of this dealer's boody! ...
Him: "I've seen your website. It's disgusting."
Me: "I guess we come at it from different points of view. So I guess if you were Anakin Skywalker, you'd be saying, 'From my point of view, the Jedi are evil!'"
Him: [puzzled] "Who's Anakin?"
[incredulous pause while I process this ... he can't possibly mean ... no, it's inconceivable ...]
Me: "You mean you have not seen Star Wars Episode III: Revenge Of The Sith?"
Him: "Nope."
Me: "Then I suppose you would not recognize the allusion to one of the final scenes ... oh well, just a little attempt at humor ..."
This exchange answers some questions, such as how in the world do these people get to be the way they are? One way, we now know, is that they have not seen the right sort of movies. George Lucas' laughable dialogue and Marin County leftism aside, the Star Warses (that's the plural: one Star Wars, six Star Warses) are absolute must-see films for all good Americans. Perhaps our bill collector friend is enamored of, say, Boiler Room; some stockbrokers think this was a training film. Or more likely, Brokeback Mountain ... no, I didn't say that! read on ...
But it raises more questions than it answers. Can you be a Sith Apprentice and not know it? The guy was definitely from the Dark Side, which Yoda tells us is "easier, quicker, more seductive, far more profitable," and the Sith use the Force for attack, never for defense. Jedi are selfless; the Sith seek only more power for themselves. Sound familiar?
Then again, the guy was more like those obedient clones they grow on Kamino, in half the normal time. Well, since settlement talks were fruitless, we'll sue them and see if the reward will be, oh, "more wealth than YOU can imagine." "I dunno, I can imagine quite a bit."
And since I'm sure he's reading this blog: Dude, if you think my website is disgusting, just read this next case about the cops pulling dope out of this dealer's boody! ...
Wednesday, June 27, 2007
Well, Where Else Would You Expect To Find CRACK!? QI Saves Officer From Suit
RICHMOND v. CITY OF BROOKLYN CENTER, USCA-8 Nos. 05-3770, 05-3771, 2007 U.S.App. LEXIS 14710, on appeal from USDC-MND, before USCJs Melloy, Smith, Gruender, opinion by Gruender, dissent by Smith, filed 21 Jun 2007.
LONG STORY SHORT: It was not clear to officer who strip-searched arrestee and removed a small package containing cocaine from arrestee's rectum that his actions violated established constitutional rights, and arrestee could not recover. Binding in AR, IA, MN, MO, ND, NE, SD.
FACTS: Brooklyn Center, Minnesota police got an anonymous tip that drugs were being sold at three particular rooms of a motel. Officers, including Defendant, knocked on Plaintiff's room, and Plaintiff partially opened the door. Plaintiff gave a false name in response to questions about drug sales. Officers learned his real name, and he admitted there was a warrant for his arrest. Officers came in and arrested Plaintiff, finding $1,300 in currency, cell phones, pagers, tear-offs (corners of baggies for tying up small amounts of drugs), and a little marijuana. Officers checked Plaintiff's real name again, discovering an extensive history of drug dealing. All officers present were male.
Defendant told Plaintiff he believed that Plaintiff had more drugs on him, and was going to check Plaintiff's "crotch area." Officer Flesland held Plaintiff while Defendant removed Plaintiff's pants, then lowered Plaintiff's boxer shorts. Defendant observed that Plaintiff was clenching his buttocks, and (accounts of the participants differed) either told Plaintiff to bend over and he complied, or forcibly bent Plaintiff over a table. Defendant saw a piece of tissue sticking out of Plaintiff's buttocks, put on a latex glove, and (again, accounts differed) either quickly swiped the tissue out and let it fall on the floor, or inserted two or three fingers into Plaintiff's rectum and probed around, to the point that Plaintiff felt he was being raped. The tissue contained 3.7g of cocaine.
PROCEDURE: The state criminal court ruled the officers' search illegal, suppressed the cocaine, and dismissed all charges. Plaintiff sued Defendant in U.S. District Court for the District of Minnesota per 42 U.S.C. § 1983 for violating his Fourth Amendment right against unreasonable search and excessive force. Defendant moved for summary judgment on qualified immunity grounds, but the trial court ruled that material facts as to the alleged body cavity search were still in dispute. QUALIFIED IMMUNITY DENIED. A jury found that the police did not use excessive force, and the body cavity search did not occur, and would have been reasonable if it had occurred. However, the jury found that Defendant did not conduct the strip search in a reasonable manner, and awarded Plaintiff $35,000 nominal damages, since the search caused him no actual injury. The trial court denied all defense posttrial motions, except to reduce the damages to $1. Defendant appealed to the U.S. Court of Appeals for the Eighth Circuit.
DECISION: The Fourth Amendment reasonableness of a strip search turns on the scope of a particular intrusion, the way it is done, the justification for starting it, and the place where it is done. Defendant did not dispute on appeal the jury's finding that the search was unreasonable, meaning that the first half of qualified immunity did not help him, so the Eighth Circuit would go to the second half. Whether a right is clearly established is a matter of law for the court, and the trial court erred by putting that question to the jury.
When the incident happened, it was not clear to a reasonable officer in Defendant's position that a strip search of a subject, supported by reasonable suspicion, in the subject's private motel room, using a latex glove, and probably not forcibly bending the subject over, was a violation of the subject's Fourth Amendment rights. Though the police could have transported Plaintiff to the police station and searched him there, police do not have to use the absolute least intrusive means possible, and also Plaintiff might have disposed of the evidence on the way there. Defendant was entitled to qualified immunity and all other questions were moot. VACATED AND REMANDED for entry of judgment in Defendant's favor.
The dissent would have ruled that Plaintiff's right to be free from strip searches of this type to have been clearly established. Field strip searches are very rare and certainly are not justified simply as incident to arrest. Objectively reasonable officers should have known that it was unreasonable and illegal to forcibly restrain Plaintiff and strip off his clothes for inspection of his privates.
EDITORIAL: I've heard of pulling victory out of one's behind, but this is the first time I've seen it happen. If it was me there, and I saw this guy had a tissue probably containing drugs sticking out from where the sun don't shine, I'd be inclined to tell him HE CAN KEEP IT, with my compliments. But if dope could be there, so could a razor blade, or a handcuff key, or a toothbrush shank, and with his hands cuffed in back and a few minutes' ride back to the station, he could do something bad. I don't know if I would have done the same thing these officers did, but I garontee, I would have done SOMEthing.
51 to 49%, I agree with the result. It was just luck of the draw to get two judges on the case who did too. It could easily have gone the other way.
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.
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