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.
Sunday, March 18, 2007
Parolee Can't Dodge Allowable Search Of His Home By Staying At His Girlfriend's House
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 ...
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 ...
Friday, March 16, 2007
4A 4C 2006: When Subject Shot First, OIS Was Justified, Quack Expert Wasn't
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.
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
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.
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.
Thursday, March 15, 2007
4A 4C 2006: Not-So-Happy Trail Over Private Property Was An Unreasonable Seizure
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.
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"
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."
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."
Wednesday, March 14, 2007
"U Breaka Da Ankle, I Breaka U Bank Account"--$301,100 Plus Costs And Attorney Fees
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.
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.
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