Category Archives: 9th Circuit Court of Appeals

Terry Stop Held Unlawful

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In United States v. Brown, the Ninth Circuit Court of Appeals held that an anonymous tip that a person saw a black male with a gun does not provide reasonable suspicion to make a Terry stop in Washington, where possession of a firearm is presumptively lawful.

BACKGROUND FACTS

Mr. Brown, who is a black man, had the misfortune of deciding to avoid contact with the police. Following an anonymous tip that a black man was carrying a gun—which is not a criminal offense in Washington State—police spotted Brown, who was on foot, activated their lights, and pursued him by car, going the wrong direction down a one-way street. Before flashing their lights, the officers did not order or otherwise signal Brown to stop. Brown reacted by running for about a block before the officers stopped him at gunpoint.

Police pursued Brown for one block before stopping him and ordering him to the ground at gunpoint. The officers placed Brown in handcuffs and found a firearm in his waistband. A further search revealed drugs, cash, and other items.

Police seized Mr. Brown even though there was no reliable tip, no reported criminal activity, no threat of harm, no suggestion that the area was known for high crime or narcotics, no command to stop, and no requirement to even speak with the police.

Brown moved to suppress the evidence from the searches, arguing that the officers lacked reasonable suspicion to stop him under Terry v. Ohio. The district court disagreed and denied the motion.

ISSUE

Whether police officers were justified in briefly stopping and detaining Mr. Brown.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that an an officer may only conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot.  Illinois v. Wardlow.

“Here, the lack of facts indicating criminal activity or a known high crime area drives our conclusion. The Metro officers who stopped Brown took an anonymous tip that a young, black man “had a gun”—which is presumptively lawful in Washington—and jumped to an unreasonable conclusion that Brown’s later flight indicated criminal activity. At best, the officers had nothing more than an unsupported hunch of wrongdoing.”

With that, the court reasoned that the circumstances of this case fails to satisfy the standard established by Terry and Wardlow. “The combination of almost no suspicion from the tip and Brown’s flight does not equal reasonable suspicion.”

Furthermore, the Court reasoned that in Washington State, it is lawful to carry a gun. Although carrying a concealed pistol without a license is a misdemeanor offense in Washington,  the failure to carry the license is simply a civil infraction.

Additionally, the Court of Appeals downplayed Brown running from police. “No one disputes that once the Metro officer activated his patrol car lights, Brown fled,” said the Court. “But the Supreme Court has never endorsed a per se rule that flight establishes reasonable suspicion. Instead, the Court has treated flight as just one factor in the reasonable suspicion analysis, if an admittedly significant one. “Notably, the officers did not communicate with Brown, use their speaker to talk with him, or tell him to stop before they flashed their lights and then detained him,” said the Court. “Under these circumstances, Brown had no obligation to stop and speak to an officer.”

My opinion? Good decision. Please contact my office if you, a friend or family member are charged with a crime under circumstances where the police may have conducted an unlawful search or seizure. Hiring competent defense is the first and best step toward gaining justice.

Unlawful Vehicle Stops

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In United States v. Landeros, the Ninth Circuit Court of Appeals held that law enforcement officers may not extend a lawfully initiated vehicle stop because a passenger refuses to identify himself, absent reasonable suspicion that the individual has committed a criminal offense.

BACKGROUND FACTS

Early in the morning of February 9, 2016, police officer Baker pulled over a car driving 11 miles over the speed limit. The stop occurred on a road near the Pascua Yaqui Indian Reservation. Defendant Alfredo Landeros sat in the front passenger seat next to the driver. Two young women were in the back seat. The driver apologized to Officer Baker for speeding and provided identification.

Officer Baker wrote in his incident report and testified that he smelled alcohol in the car. The two women in the backseat appeared to him to be minors, and therefore subject to the underage drinking laws.  The two women—who were 21 and 19 years old—complied.

Officer Baker did not believe that Landeros was underage, and he was not. Nonetheless, Officer Baker commanded Landeros to provide identification.

Landeros refused to identify himself, and informed Officer Baker that he was not required to do so. Officer Baker then repeated his demand to see Landeros’s ID.” Landeros again refused. As a result, Officer Baker called for back-up, prolonging the stop. Officer Romero then arrived, and he too asked for Landeros’s identification. The two officers also repeatedly commanded Landeros to exit the car because he was not being compliant.

Landeros eventually did leave the car. At least several minutes passed between Officer Baker’s initial request for Landeros’s identification and his exit from the car. As Landeros exited the car, he saw for the first time pocketknives, a machete, and two open beer bottles on the floorboards by the front passenger seat. Under Ariz. Rev. Stat. Ann. § 4-251, Arizona prohibits open containers of alcohol in cars on public highways. Officer Baker then placed Landeros under arrest.

Landeros was arrested both for possessing an open container and for “failure to provide his true full name and refusal to comply with directions of police officers under Ariz. Rev. Stat. Ann. § 13-2412(A). Under that statute, it is unlawful for a person, after being advised that the person’s refusal to answer is unlawful, to fail or refuse to state the person’s true full name on request of a peace officer who has lawfully detained the person based on reasonable suspicion that the person has committed, is committing or is about to commit a crime.”

The officers handcuffed Landeros as soon as he exited the car. Officer Romero asked Landeros if he had any weapons. Landeros confirmed that he had a knife in a pocket. Officer Romero requested consent to search Landeros’s pockets, and Landeros agreed. During that search, Officer Romero found a smoking pipe and six bullets in Landeros’s pockets.

Landeros was federally indicted for possession of ammunition by a convicted felon, 18 U.S.C. §§ 922(g)(1), 924(a)(2). He moved to suppress the evidence based on the circumstances of the stop, however, the lower federal district court denied the motion. Landeros then entered into a plea agreement that preserved his right to appeal the denials of the two motions. The district court accepted the agreement and sentenced Landeros to 405 days in prison and three years of supervised release. He appealed.

COURT’S ANALYSIS & CONCLUSIONS

The Ninth Circuit held that law enforcement officers may not extend a lawfully initiated vehicle stop because a passenger refuses to identify himself, absent reasonable suspicion that the individual has committed a criminal offense.

The Court reasoned held that because the lower court mistakenly approved the duration of the stop in this case based on United States v. Turvin and wrongfully disregarded Rodriguez v. United States.

“Applying Rodriguez, we shall assume that Officer Baker was permitted to prolong the initially lawful stop to ask the two women for identification, because he had reasonable suspicion they were underage. But the several minutes of additional questioning to ascertain Landeros’s identity was permissible only if it was (1) part of the stop’s “mission” or (2) supported by independent reasonable suspicion.”

The Ninth Circuit also held that any extension of the traffic stop to investigate those matters was an unlawful seizure because there was no evidence that the officer had a reasonable suspicion that the defendant was out past his curfew or drinking underage. As a result, the record does not demonstrate that Officer Baker had a reasonable suspicion that Landeros was out past his curfew or drinking underage. Any extension of the traffic stop to investigate those matters was an unlawful seizure under the Fourth Amendment.

Furthermore, the Ninth Circuit rejected the government’s arguments that the defendant’s refusal to identify himself provided reasonable suspicion of the additional offenses of failure to provide identification and failure to comply with law enforcement orders.

The Court reasoned that here, the officers insisted several times that Landeros identify himself after he initially refused, and detained him while making those demands. “At the time they did so, the officers had no reasonable suspicion that Landeros had committed an offense,” said the Ninth Circuit. “Accordingly, the police could not lawfully order him to identify himself. His repeated refusal to do so thus did not, as the government claims, constitute a failure to comply with an officer’s lawful order . . .” Consequently, reasoned the Ninth Circuit, there was therefore no justification for the extension of the detention to allow the officers to press Landeros further for his identity.

The Ninth Circuit concluded that there was therefore no justification for the extension of the detention to allow the officers to press the defendant further for his identity. It reasoned that the bullets the defendant was convicted of possessing cannot be introduced at trial because he was ordered from the car as part of the unlawfully extended seizure and subsequently consented to a search of his pockets. Furthermore, because the stop was no longer lawful by the time the officers ordered the defendant to leave the car, the validity (or not) of the police officer’s order to exit the vehicle did not matter.

Good opinion.

Right to Confront Victim Witnesses At Trial

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In  United States v. Carter, the Ninth Circuit Court of Appeals held that a victim’s testimony from her hospital bed in Minnesota via two-way video violated the defendant’s  Sixth Amendment right to confrontation.

BACKGROUND FACTS

Mr. Carter was convicted of forcing seven minor girls into prostitution and trafficking them across state lines. The crimes took place over a ten-year period from 2003 to 2013. For each of the seven victims, Carter was charged with one count of violating 18 U.S.C. § 1591 (sex trafficking of a minor or by force, fraud, or coercion), and one count of violating 18 U.S.C. § 2423(a) (transportation of a minor in interstate commerce to engage in prostitution), for a total of fourteen counts.

One week before Carter’s April 2016 trial, the Prosecution anticipated bringing the testimony of J.C., the victim for Counts 13 and 14. J.C., who was by then an adult living in Minnesota, was seven months pregnant with a due date in June. The government explained that J.C. had been hospitalized for complications with her pregnancy and that her doctor had instructed her not to travel from Minnesota to California.

Accordingly, the government sought to have her testify during trial from Minnesota via live two-way video conference.

Carter opposed on Confrontation Clause grounds. Nevertheless, the federal district court granted the government’s application to use two-way video, and the case proceeded to trial. On the second day of trial, Carter again objected to the two-way video procedure. Again, the federal district court denied Carter’s motion.

J.C. testified by two-way video at trial. She stated that she met Carter in 2013, when she was 16 years old. She was living in Minnesota at the time, and Carter bought her a bus ticket to Los Angeles under an alias because she was underage. When she arrived in Los Angeles, Carter picked her up and took her to a motel room. There, he photographed her in lingerie and used the photographs in an advertisement on Backpage, a website used to advertise sexual services. She then worked as a prostitute for Carter for approximately two weeks. She testified that Carter kept all of her earnings, dictated how much she should charge and what she should wear, and threatened to beat her if she did not comply.

Carter was ultimately convicted on all fourteen counts. He appealed.

COURT’S ANALYSIS & CONCLUSIONS

The Ninth Circuit Court of Appeals held that a defendant’s right to physically confront an adverse witness cannot be compromised by permitting the witness to testify by video unless use of the remote video procedure is necessary and the reliability of the testimony is otherwise assured.

The Court reasoned that the victim’s inability to travel to the trial location was due to a temporary pregnancy-related condition. Therefore, a continuance of the trial was a more appropriate solution. Furthermore, testimony from a remote location requires proof that the witness is not being coached or influenced during testimony, that the witness is not improperly referring to documents, that the witness has an adequate view of the courtroom, and that the jury has an adequate view of the witness.

Here, none of those proof conditions were met. Because alternatives were available for obtaining a victim-witness’s testimony that would have preserved the defendant’s right to physical confrontation, the use of a remote video was not necessary in this case, and violated the defendant’s Sixth Amendment right to confront the witnesses against him.

Consequently, the Court vacated the defendant’s convictions  on one count of violating 18 U.S.C. § 1591 (Sex Trafficking of a Minor) and remanded for re-sentencing on remaining counts as to which the panel affirmed the defendant’s convictions in a concurrently-filed memorandum disposition.

My opinion? Despite Mr. Carter’s terrible charges, allegations and fact pattern, the Ninth Circuit made the correct decision on his behalf. The Sixth Amendment’s right to face-to-face confrontation ensures the integrity of the fact-finding process and forms the core of the values furthered by the Confrontation Clause.

Although exceptions to the Confrontation Clause rightfully exist – for example, if the testifying victim is a child who would suffer significant emotional trauma from being in the same room as their offender – these exceptions are narrow. Remote two-way video cameras can be used and substituted for face-to face contact upon a case-specific finding that (1) the denial of physical confrontation is necessary to further an important public policy, and (2) the reliability of the testimony is otherwise assured.

Please contact my office if you, a friend or family member face criminal charges. It’s imperative to hire experienced and effective defense counsel as soon as possible.

“Ruse” Searches Held Unconstitutional.

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In Whalen v. McMullen, the Ninth Circuit Court of Appeals held that an officer’s warrantless entry into a home via a ruse such as by asking the homeowner for assistance in a fictitious criminal investigation, violates the Fourth Amendment. A “ruse” entry is when a known government agent misrepresents his purpose in seeking entry.

FACTUAL BACKGROUND

While investigating Kathleen Whalen for fraud related to her application for social security benefits, Washington State Patrol officer McMullen gained both her cooperation and entrance into her home by requesting her assistance in a fictitious criminal investigation. During his investigation, McMullen secretly videotaped Whalen both outside and inside her home. No criminal charges were ever lodged against Whalen, but the Washington Disability Determination Services division (“DDS”) of the Washington Department of Social and Health Services (“DSHS”) used at her social security hearing the footage surreptitiously filmed inside her home.

Whalen brought suit against McMullen under 42 U.S.C. § 1983, alleging that McMullen’s entry into her home without a warrant and under false pretenses violated her Fourth Amendment right to be free from unreasonable searches and seizures.

LEGAL ISSUES

(1) whether McMullen’s warrantless entry into Whalen’s home under false pretenses was an unreasonable search under the Fourth Amendment, and (2) whether it was clearly established that such an entry was a Fourth Amendment violation.

COURT’S ANALYSIS AND CONCLUSIONS

The Ninth Circuit held that McMullen violated Whalen’s Fourth and Fourteenth Amendment rights, but agreed with the lower federal district court that McMullen had qualified immunity from suit because the right was not clearly established.

A. Whether the Officer’s Conduct Violated the Constitution.

The Ninth Circuit explained that the Fourth Amendment, made applicable to the states through the Due Process Clause of the Fourteenth Amendment, instructs that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.

“Without question, the home is accorded the full range of Fourth Amendment protections,” said the Court, citing Lewis v. United States. “Indeed, at the very core’ of the Fourth Amendment ‘stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”

Furthermore, the Court reasoned that a Fourth Amendment “search” occurs when a government agent obtains information by physically intruding on a constitutionally protected area. The Court distinguished between “undercover” entries, where a person invites a government agent who is concealing that he is a government agent into her home, and “ruse” entries, where a known government agent misrepresents his purpose in seeking entry. The former does not violate the Fourth Amendment, as long as the undercover agent does not exceed the scope of his invitation while inside the home.

However, it also reasoned that a ruse entry – one when the suspect is informed that the person seeking entry is a government agent but is misinformed as to the purpose for which the agent seeks entr – cannot be justified by consent. This is because access gained by a government agent, known to be such by the person with whom the agent is dealing, violates the Fourth Amendment’s bar against unreasonable searches and seizures if such entry was acquired by affirmative or deliberate misrepresentation of the nature of the government’s investigation.

In this case, McMullen identified himself as a law enforcement officer and requested Whalen’s assistance in a fictitious investigation, gaining entry into her home using this ruse.

“McMullen appealed to Whalen’s trust in law enforcement and her sense of civic duty to assist him in his “identity theft” investigation. McMullen’s description of an identity theft investigation was perfectly plausible, and Whalen readily agreed to cooperate. But there was no identify theft investigation underway. McMullen lied to Whalen about his real purpose—to investigate her for possible social security fraud. Whalen’s consent to McMullen’s entry into her home is vitiated by his deception.”

Consequently, reasoned the Court, it was entirely immaterial that McMullen could have lawfully searched Whalen’s home by securing her consent without using a ruse. “His argument is akin to justifying a warrantless search on the ground that a warrant would have been issued if one had been sought,” said the Court. Regardless of whether Whalen would have consented to McMullen’s entry into her home if he had not used a ruse, she did not validly consent here.

“Once we add to this the fact that McMullen videotaped his entire visit, any illusion that this was not a Fourth Amendment search evaporates. McMullen had two cameras running while he was talking with Whalen, and at least one of the cameras captured his entire visit inside her home. Of course it was a search: not only was McMullen there to observe Whalen, but he had also been asked specifically to seek evidence concerning Whalen’s use of an electric wheelchair, how wheelchair accessible the house was, were the wheelchairs used, were clothes on them, etc.”

With that, the Ninth Circuit concluded that McMullen’s entry into Whalen’s home without consent or a warrant in the course of a civil fraud investigation related to Whalen’s benefits claim was an unreasonable search under the Fourth Amendment.

B. Whether the Violation Was “Clearly Established.”

Here, the Ninth Circuit reasoned that in order to hold McMullen personally liable under § 1983, Whalen’s right to be free from a search in this context must have been clearly established. To be clearly established, the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.

“The right Whalen asserts was not clearly established,” said the Court. “Therefore, officer McMullen was entitled to qualified immunity from this suit.”

My opinion? Good decision, mostly. I’m happy to see the Ninth found that the officer’s ruse violated Ms. Whalen’s constitutional rights. And although I would’ve liked to see the Ninth Circuit award Ms. Whalen damages for the violation of her rights, the reality is that it’s extremely difficult to succeed on suing police for misconduct.

Jury Bias

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In United States v. Kecheczian, the Ninth Circuit Court of Appeals decided a trial court mistakenly  allowed a juror to decide an aggravated identity theft and possession of unauthorized access devices case, when the juror admitted during jury selection that she had her social security number previously stolen and she was unable to explicitly state that she could put her personal biases aside.

BACKGROUND FACTS

After receiving a tip that Mr. Kechedzian was linked to a fugitive operating a large credit card fraud ring, federal agents conducted a trash pull from Kechedzian’s residence. In his trash, they found two counterfeit credit cards and, based on this, the agents obtained a search warrant. The resulting search of Kechedzian’s residence and cars uncovered two USB drives containing 1,451 stolen credit card numbers in text files, a Bluetooth-enabled “skimming device” commonly used to steal credit card information from gas station pumps, and several cards with stolen data re-encoded on the magnetic strips. Bank records revealed that many of the stolen card numbers had been used fraudulently at gas stations and other retail establishments across the United States.

Kechedzian was charged with two counts of possession of 15 or more Unauthorized Access Devices and two counts of Aggravated Identity Theft. The case proceeded to trial. At the beginning of jury selection, the federal district court judge read a general statement of the case, laying out the charges against Kechedzian. The judge then asked the following:

“Does anyone feel, just based on the charges in this case, based on what this case is about, that they could not be fair and impartial to both sides? Does anyone feel that way at this point in time?”

Juror # 3 raised her hand. From there, she informed the court she was a past victim of identity fraud. Furthermore, she did not know whether she could put aside her biases. Later, at sidebar, defense counsel sought to have Juror # 3 excused for cause. However, the judge denied the motion.

“I think at the end of the day she confirmed or committed to the principles of the presumption of innocence and burden of proof,” said the judge. “I would deny the motion.” Consequently, Juror # 3 sat on Kechedzian’s jury.

The jury ultimately returned a guilty verdict, and Kechedzian was sentenced to 65 months in prison followed by three years of supervised release. The district court also ordered $114,134.76 in restitution. Kechedzian timely appealed.

COURT’S ANALYSIS & DECISION

The Court of Appeals began by saying the Sixth Amendment guarantees criminal defendants a verdict by an impartial jury, and the bias or prejudice of even a single juror is enough to violate that guarantee. Accordingly, the presence of a biased juror cannot be harmless. The error requires a new trial without a showing of actual prejudice.  And any doubts regarding bias must be resolved against the juror. One important mechanism for ensuring impartiality is voir dire, which enables the parties to probe potential jurors for prejudice. After voir dire, counsel may challenge a prospective juror for cause, and a partial or biased juror should be removed if there is a showing of either implied or actual bias.

“Here, Kechedzian alleges bias under both theories,” said the Court.

Actual Bias Analysis

It explained that actual bias is the more common ground for excusing jurors for cause. Actual bias is the existence of a state of mind that leads to an inference that the person will not act with entire impartiality. Actual bias involves an inability to act impartially or a refusal to weigh the evidence properly It can be revealed through a juror’s express answers during voir dire, but it can also be revealed by circumstantial evidence during questioning.

The Court said that in contrast, implied bias is presumed only in extraordinary cases. “In analyzing implied bias, we look to whether an average person in the position of the juror in controversy would be prejudiced.”

Implied Bias Analysis

This Court described “implied bias” as applying to those extreme situations where the relationship between a prospective juror and some aspect of the litigation is such that it is highly unlikely that the average person could remain impartial in his deliberations under the circumstances.  Furthermore, the implied bias inquiry is an objective one. Even if a juror states or believes that she can be impartial, the court may find implied bias based on the circumstances.

The Court noted that here, although Juror # 3 was previously a victim of identity theft, this is not the type of “extreme” situation where we find implied bias. “Thus, we focus our analysis on the actual bias inquiry,” said the Court.

The Court reasoned that Juror #3 was ultimately asked if she could set aside her feelings, and act impartially and fairly to both sides of the case. She responded: “I believe so, yes.” The Court said that statement—“I believe so, yes”—appears somewhat equivocal. However, none of Juror #3’s equivocal statements could be understood as affirmative statements of impartiality. The Court reasoned that here, Juror #3 explicitly noted that she was unsure if she could put her personal biases aside.

“A juror can understand the presumption of innocence and burden of proof, yet still let personal prejudice infect her ability to be impartial.”

“When a juror is unable to state that she will serve fairly and impartially despite being asked repeatedly for such assurances, we can have no confidence that the juror will lay aside her biases or her prejudicial personal experiences and render a fair and impartial verdict,” said the Court. “Because this is precisely what occurred here, the district court was obligated to excuse Juror #3 for cause under an actual bias theory.”

Accordingly, the Court of Appeals reversed and remanded for a new trial.

My opinion? Good decision. In my trial experience, potential jurors who have suffered as victims of crime tend to be pro-prosecution. A potential juror who does not know if they can be fair or impartial should be excused for cause. Period.

Inventory Searches of Cars

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In United States v. Johnson, the Ninth Circuit Court of Appeals held that a suspicionless inventory search is only proper when it is performed to secure and to protect an arrestee’s property and to protect the police department against fraudulent claims of lost or stolen property. Evidence removed from the defendant’s car could not be justified under the inventory-search doctrine where the officers explicitly admitted that they seized the items in an effort to search for evidence of criminal activity.

BACKGROUND FACTS

On April 10, 2014, Multnomah County Sheriff’s deputies located Mr. Johnson—who had an outstanding warrant for his arrest based on a post-prison supervision violation—at the Clackamas Inn, just south of Portland, Oregon. The deputies followed Johnson to a residence in the nearby town of Gladstone and called Portland Police Bureau (PPB) Officers Corona and Ables for assistance in arresting him.

The officers did not approach Johnson at the residence, but instead waited outside. After about 20 minutes, Johnson left, and again the officers followed him. At a nearby intersection, the officers finally stopped Johnson by loosely boxing in his car; one car approached Johnson from behind while another approached from the front, effectively blocking Johnson’s ability to drive away. The cars all came to a stop within a few feet of each other, and although there was enough room for Johnson to pull his car to the side of the road, he instead parked in the lane of traffic, disrupting the flow of passing cars. When approached by the officers, Johnson could not provide proof of insurance for the car, which he was borrowing, nor could he give anything other than the first name of the car’s owner. Johnson did not know how the police could contact the owner.

The officers arrested Johnson on the outstanding warrant. After the arrest, the officers searched Johnson and found a folding knife in his front pocket, $7,100 in cash in $20 and $100 denominations in his rear pants pocket, and $150 in cash in his wallet. Johnson said that he had recently inherited the $7,100 and that he planned to purchase a car with it.

Because Johnson’s car was blocking traffic and because Johnson could not provide contact information for the car’s owner, the officers ordered it to be towed and impounded, pursuant to PPB policy. Prior to the tow, the officers conducted an inventory search of the car, again pursuant to local policy. From the interior of the car, the officers collected a combination stun gun and flashlight, a glass pipe with white residue, a jacket, and two cellphones. From the trunk, the officers collected a backpack and a duffel bag. Officer Corona testified that, when he moved the backpack and duffel in order to search for other items in the trunk, the bags felt heavy and the backpack made a metallic “clink” when he set it down on the pavement. PPB stored each of the seized pieces of property in the County property and evidence warehouse, and the $7,100 was taken into custody by the County Sherriff’s Office. Officer Corona recorded each item seized on an accompanying arrest report; the Sheriff’s Office prepared a property receipt for the $7,100 in seized cash.

A week later, Officer Corona submitted an affidavit to secure a warrant to search the seized backpack, duffel bag, and cell phones. The affidavit referred to a 2009 police report (which Corona read after arresting Johnson) that stated Johnson had previously been found with cash, weapons, and drugs in a safe concealed in his vehicle. Officer Corona’s affidavit stated that, based on the circumstances of Johnson’s recent arrest, he had probable cause to believe the bags seized from the trunk would contain similar lockboxes, and that the phones would contain evidence of drug dealing.

A warrant was duly signed by a local magistrate judge, and a search of the backpack revealed a small safe containing two bags of methamphetamine, drug-packaging materials, syringes, and a digital scale. The duffel bag contained Johnson’s personal items, and one of the cellphones contained text messages regarding drug trafficking.

Johnson was indicted on one charge of possession with intent to distribute methamphetamine in an amount of 50 grams or more, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii).

Before trial, Johnson moved to suppress the evidence found in the car and on his person at arrest. Primarily, Johnson challenged the evidence supporting the warrant to search the backpack and cellphones, arguing that it did not amount to probable cause. Johnson also argued that the officers unlawfully manipulated the bags they seized from the car in order to get a sense for what they might contain and that the inventory search of his car was invalid.

The federal district court denied the motion, concluding that there was probable cause to stop and to arrest Johnson on the outstanding warrant, the officers validly impounded Johnson’s car because it was blocking traffic, the subsequent inventory of the vehicle was “lawful because PPB mandates officers to conduct an inventory of impounded vehicles,” and the search warrant was supported by probable cause.

At trial, the government introduced the evidence found in Johnson’s car and on his person, with a particular focus on the items of evidence found in the backpack, the messages from the cellphone, and the $7,100 in cash. The jury found him guilty.

Approximately four months later, Johnson filed a motion for new trial on the basis of, among other things, two pieces of supposedly newly discovered evidence: (1) evidence showing that Johnson had indeed recently received an inheritance; and (2) a receipt from the private company that towed and impounded his car, which stated that they found various additional items of property in the car that were not listed in Officer Corona’s arrest report. After a hearing, the district court denied the motion for a new trial upon the conclusion that none of the supposedly new evidence would have resulted in a likely acquittal.

Johnson was sentenced to 188 months in prison, and he now timely appeals.

LEGAL ISSUE

Whether the trial court erred in failing to suppress evidence that was seized by City of Portland police officers during their inventory search of a criminal defendant and the car he was driving at the time of his arrest.

COURT’S ANALYSIS & CONCLUSIONS

Johnson argued that the officers’ inspection of his car exceeded the constitutionally permissible bounds for an inventory search.

The Ninth Circuit reasoned that as an exception to the warrant requirement of the Fourth Amendment to the United States Constitution, police may, without a warrant, impound and search a motor vehicle so long as they do so in conformance with the standardized procedures of the local police department and in furtherance of a community caretaking purpose, such as promoting public safety or the efficient flow of traffic. The purpose of such a search is to produce an inventory of the items in the car, in order to protect an owner’s property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger. Florida v. Wells, 495 U.S. 1, 4 (1990). Thus, the purpose of the search must be non-investigative; it must be conducted on the basis of something other than suspicion of evidence of criminal activity. The search cannot be “a ruse for a general rummaging in order to discover incriminating evidence.” Wells, 495 U.S. at 4.

The Court of Appeals further reasoned that an administrative search may be invalid where the officer’s subjective purpose was to find evidence of crime. However, the mere presence of a criminal investigatory motive or a dual motive—one valid, and one impermissible— does not render an administrative stop or search invalid. Instead, the issue is whether the challenged search or seizure would have occurred in the absence of an impermissible reason.

“We thus must determine whether Johnson has produced evidence that demonstrates the officers would not have searched and seized items from the car he was driving but for an impermissible motive,” said the Court of Appeals.

“Under our circuit’s law, a suspicionless inventory search does not permit officers to search or to seize items simply because they believe the items might be of evidentiary value,” said the Court.  It reasoned that as explained above, the purpose of such a search must be unrelated to criminal investigation; it must function instead to secure and to protect an arrestee’s property, and likewise to protect the police department against fraudulent claims of lost or stolen property.

“Thus, the officers’ statements directly admitting that they searched and seized items from Johnson’s car specifically to gather evidence of a suspected crime are sufficient to conclude that the warrantless search of the car was unreasonable,” said the Court, citing Orozco; a case where the Ninth Circuit found pretext where the police officers admitted that their subjective purpose was to find evidence of crime.

The Ninth Circuit concluded that the officers’ search and seizure of such evidence cannot be justified under the inventory-search doctrine:

“In the face of such evidence, it is clear to us that the officers’ decision to seize the money, bags, and cellphones from Johnson and his car would not have occurred without an improper motivation to gather evidence of crime.”

Furthermore, the Ninth Circuit reasoned that because the government has not offered any justification for the seizure of such property other than the inventory-search doctrine, the district court erred in denying Johnson’s motion to suppress. Therefore, evidence gathered from Johnson and his vehicle was inadmissible.

With that, the Ninth Circuit ruled that the federal district court’s denial of Johnson’s motion to suppress the evidence found on his person and in the car he was driving at the time of his arrest is reversed, his conviction and sentence are vacated, and the case is remanded back to the district court for further proceedings.

My opinion? Good decision. Clearly, the search conducted by police officers in this case went beyond the scope of a lawful inventory search. Please contact my office if you, a friend of family member face criminal charges involving a questionable search. The evidence might be suppressible under a well-argued pretrial motion.

Supreme Court Makes it Harder to Deport Legal Immigrants Who Commit Crimes.

In this Feb. 7, 2017, photo released by U.S. Immigration and Customs Enforcement, foreign nationals are arrested during a targeted enforcement operation conducted by U.S. Immigration and Customs Enforcement (ICE) aimed at immigration fugitives, re-entrants and at-large criminal aliens in Los Angeles. (Charles Reed/U.S. Immigration and Customs Enforcement via AP, File)

In Sessions v. Dimaya, the United States Supreme Court held that 18 U. S. C. §16(b), which defines “violent felony” for purposes of the Immigration and Nationality Act’s removal provisions for non-citizens, was unconstitutionally vague.

BACKGROUND FACTS

Respondent James Dimaya is a lawful permanent resident of the United States with two convictions for first-degree burglary under California law. After his second offense, the Government sought to deport him as an aggravated felon. An Immigration Judge and the Board of Immigration Appeals held that California’s first-degree burglary is a “crime of violence” under §16(b). While Dimaya’s appeal was pending in the Ninth Circuit, the U.S. Supreme Court held that a similar residual clause in the Armed Career Criminal Act (ACCA)—defining “violent felony” as any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another,” 18 U. S. C. §924(e)(2)(B)—was unconstitutionally “void for vagueness” under the Fifth Amendment’s Due Process Clause. Relying on Johnson v. United States, the Ninth Circuit held that §16(b), as incorporated into the INA, was also unconstitutionally vague.

COURT’S ANALYSIS & CONCLUSIONS

Justice Kagan delivered the majority opinion of the Court and concluded that §16(b)’s “crime of violence” clause was unconstitutionally vague.

The Court’s opinion began by explaining that The Immigration and Nationality Act (INA) virtually guarantees that any alien convicted of an “aggravated felony” after entering the United States will be deported. See 8 U. S. C. §§1227(a)(2)(A)(iii), 1229b(a)(3), (b)(1)(C). An aggravated felony includes “a crime of violence for which the term of imprisonment is at least one year.

Justice Kagan explained that Section 16’s definition of a crime of violence is divided into two clauses—often referred to as the elements clause, §16(a), and the residual clause, §16(b). The residual clause, the provision at issue here, defines a “crime of violence” as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

To decide whether a person’s conviction falls within the scope of that clause, courts apply the categorical approach. This approach has courts ask not whether the particular facts underlying a conviction created a substantial risk; but whether “the ordinary case” of an offense poses the requisite risk.

Justice Kagan reasoned that ACCA’s residual clause created grave uncertainty about how to estimate the risk posed by a crime because it tied the judicial assessment of risk to a speculative hypothesis about the crime’s ordinary case, but provided no guidance on how to figure out what that ordinary case was. Compounding that uncertainty, ACCA’s residual clause layered an imprecise “serious potential risk” standard on top of the requisite “ordinary case” inquiry. “The combination of indeterminacy about how to measure the risk posed by a crime and indeterminacy about how much risk it takes for the crime to qualify as a violent felony resulted in more unpredictability and arbitrariness than the Due Process Clause tolerates,” said Justice Kagan.

Justice Kagan further reasoned that Section 16(b) suffers from those same two flaws. He explained that similar to the ACCA’s residual clause, §16(b) calls for a court to identify a crime’s ordinary case in order to measure the crime’s risk but offers no reliable way to discern what the ordinary version of any offense looks like. Additionally, its “substantial risk” threshold is no more determinate than ACCA’s “serious potential risk” standard. “Thus, the same two features that conspired to make ACCA’s residual clause unconstitutionally vague also exist in §16(b), with the same result,” said Justice Kagan.

Next, Justice Kagan raised and dismissed numerous arguments from the Government that §16(b) is easier to apply and thus cure the constitutional infirmities. “None, however, relates to the pair of features that Johnson found to produce impermissible vagueness or otherwise makes the statutory inquiry more determinate,” said Justice Kagan.

With that, the majority Court concluded that §16(b)’s “crime of violence” clause was unconstitutionally vague.

The Court was deeply divided. Justice Kagan’s opinion was joined by Justice Ginsburg, Justice Breyer, and Justice Sotomayor. Justice Gorsuch filed an opinion concurring in
part and concurring in the judgment. Justice Roberts filed a dissenting
opinion, in which Justices Kennedy, Thomas, and Alito joined.

Interestingly, it was Justice Gorsuch — a Trump nominee who sided with the four liberal-leaning justices in the ruling — who was the swing vote in this case. Despite his surprise vote, he explicitly left the door open to Congress to act, saying it should be up to lawmakers and not the courts to be explicit about the crimes that deserve automatic deportation for even legal immigrants.

My opinion? This decision is very good for legal immigrants facing crimes which are questionably deportable as crimes of moral turpitude and/or crimes of violence under today’s immigration laws. It’s incredibly difficult to navigate the criminal justice system, and even more so for defendants who are not citizens. Therefore, it’s imperative for legal immigrants charged with crimes to hire competent defense counsel when charged with crimes which may essentially result in deportation. Please contact my office if you, a friend or family member are legal immigrants facing felonies and/or domestic violence crimes.

Excessive Force?

Image result for gun at head

In Thompson v. Copeland, the Ninth Circuit Court of Appeals held that a police officer uses excessive force when he points a gun at a suspect’s head and threatens to kill the suspect after the suspect, who was arrested for a felony, has already been searched, is calm and compliant, and is being watched over by a second armed deputy.

BACKGROUND FACTS

In December, 2011, Pete Copeland, a deputy in the King County Sheriff’s Office (“KCSO”), was on patrol in the City of Burien, Washington. After watching Lawrence Thompson commit “multiple traffic violations,” Copeland pulled him over. Thompson apologized to Copeland but failed to provide a driver’s license, although he did offer up some mail addressed in his name.

When Copeland ran Thompson’s identifying information, he discovered that Thompson had a suspended license for an unpaid ticket, that Thompson was a convicted felon, and that his most recent felony conviction was for possessing a firearm. Copeland decided to arrest Thompson for driving with a suspended license, and to impound Thompson’s car, as required by a City of Burien ordinance.

Copeland had Thompson exit the vehicle and patted him down for weapons. Finding none, Copeland radioed for backup, and had Thompson sit on the bumper of Copeland’s patrol car. Copeland then conducted an inventory search of Thompson’s vehicle. During his search, Copeland saw a loaded revolver sitting in an open garbage bag on the rear passenger-side floorboard. After seeing the gun, Copeland decided to arrest Thompson for Unlawful Possession of a Firearm.

Thompson continued to sit on the bumper of Copeland’s police cruiser, watched over by another deputy who had arrived for backup on the scene. Thompson was about 10–15 feet from the gun in the backseat of his car, and was not handcuffed. Copeland signaled to the deputy watching over Thompson, then drew his gun.

What happened next is disputed by the parties. Copeland claims he unholstered his firearm and assumed a low-ready position, with his gun clearly displayed but not pointed directly at Thompson. By contrast, Thompson claims that Copeland pointed his gun at Thompson’s head, demanded Thompson surrender, and threatened to kill him if he did not.

Copeland directed Thompson to get on the ground, facedown, so that he could be handcuffed. Thompson complied and was cuffed without incident. Copeland arrested Thompson for being a felon in possession of a firearm. The State of Washington charged Thompson with Unlawful Possession of a Firearm. However, the charges were dismissed after determining that the evidence against Thompson had been gathered in violation of the Washington State Constitution.

Thompson sued Officer Copeland and King County under 42 U.S.C. § 1983, alleging violations of his Fourth Amendment rights. Specifically, Thompson alleged that Officer Copeland used excessive force in pointing his gun at Thompson and threatening to kill him.

In recommending dismissal of this claim, the federal Magistrate Judge  found that the degree of force used on Thompson was reasonable given that Officer Copeland was conducting a felony arrest of a suspect who was not secured, who was in relatively close proximity to a weapon, who was taller and heavier than him, and who had a prior felony conviction for unlawfully possessing a firearm. The Magistrate Judge concluded that Officer Copeland’s minimal use-of-force in effectuating Thompson’s arrest was objectively reasonable, and did not violate Thompson’s Fourth Amendment rights.

The Magistrate Judge also granted Copeland’s motion to dismiss under summary judgment on the basis of qualified immunity. Later, The federal district court adopted the Magistrate Judge’s Report and Recommendation, and dismissed Thompson’s claims with prejudice. Thompson appealed.

ISSUE

In the course of a felony arrest, may a police officer point a loaded gun at an unarmed suspect’s head, where that suspect had already been searched, was calm and compliant, was watched over by a second armed deputy, and was seated on the bumper of a police cruiser 10–15 feet away from a gun found in the suspect’s car? And if not, was the police officer entitled to qualified immunity from future lawsuits for police misconduct?

COURT’S ANALYSIS & CONCLUSIONS

The Ninth Circuit held that pointing a loaded gun at the suspect’s head in these circumstances constitutes excessive force under the Fourth Amendment, but that the officers here are entitled to qualified immunity because the law was not clearly established at the time of the traffic stop.

“Our analysis involves two distinct steps,” said the Court of Appeals. “Police officers are not entitled to qualified immunity if (1) the facts taken in the light most favorable to the party asserting the injury show that the officers’ conduct violated a constitutional right, and (2) the right was clearly established at the time of the alleged violation.”

  1. Violation of a Constitutional Right.

The Court reasoned that Officer Copeland’s use of force in arresting Thompson was not objectively reasonable. Officer Copeland pointed the gun at Thompson’s head and threatened to kill him if he did not surrender. This type and amount of force can hardly be characterized as minor, reasoned the Court. Furthermore, Thompson had no weapon and had already been searched. He was sitting on the bumper of a squad car, watched over by an armed deputy. He was not actively resisting arrest or attempting to evade arrest by
flight.

“Reviewing the totality of the circumstances, the force used against Thompson was excessive when balanced against the government’s need for such force. In the end, pointing guns at persons who are compliant and present no danger is a constitutional violation.”

         2. No Clearly Established Right.

Here, the Court reasoned that although the use of excessive force violated Thompson’s constitutional rights, Officer Copeland is entitled to qualified immunity because Thompson’s right not to have a gun pointed at him under the circumstances here was not clearly established at the time the events took place.

“Looking to the particular setup here, we cannot say that every reasonable officer in Copeland’s position would have known that he was violating the constitution by pointing a gun at Thompson,” said the Court of Appeals. “Thompson’s nighttime, felony arrest arising from an automobile stop, in which a gun was found, coupled with a fluid, dangerous situation, distinguishes this case from our earlier precedent.”

The Court reasoned that, more specifically, Copeland was conducting a felony arrest at night of a suspect who was not handcuffed, stood six feet tall and weighed two hundred and sixty-five pounds, was taller and heavier than Copeland, and had a prior felony conviction for unlawfully possessing a firearm. “Although Thompson was cooperative, the situation was still critical in terms of potential danger to the officers, especially given that a loaded gun was only 10–15 feet away,” said the Court. “Copeland did not violate a “clearly established” right as that concept has been elucidated by the Supreme Court in the excessive force context.”

The Court of Appeals concluded that because the law was not clearly established within the parameters dictated by the Supreme Court, Officer Copeland was entitled to qualified immunity. Therefore, the lower district court’s grant of summary judgment was AFFIRMED.

   3. Dissenting Opinion.

My opinion? Respectfully, I disagree with the Court of Appeals’ majority decision and agree with Justice Christen’s dissenting opinion.

“This decision squarely conflicts with the clear directive our court issued in Robinson v. Solano County, a case involving facts that, if distinguishable at all, posed a greater threat to officer safety,” said Justice Christen. Ultimately, she reasoned that Robinson recognized the critical distinction between pointing a gun at someone’s head and holding it in the “low ready” position.

“Deputy Copeland was justified in displaying some degree of force, but accepting the allegations in the complaint as true, he unquestionably used excessive force when he aimed his gun at Thompson’s head and threatened that if Thompson moved, he’d be dead.,” said Justice Christen. “Because that rule was clearly established long before Thompson was arrested, I respectfully dissent.”

Please contact my office if you, a friend or family member believe police used excessive force in any given situation. Police officers have difficult tasks. In recent years, however, the use of force by police officers making traffic stops has flared into a national debate of renewed importance. It’s imperative to seek legal counsel with knowledge and competence in this debate, and who may recover damages from the police officer’s liability.

Forced & Warrantless Entry

Image result for police smash door

In Bonivert v. City of Clarkston, the Ninth Circuit Court of Appeals held that police officers responding to a “physical domestic” call violated the Fourth Amendment by entering the locked house without a warrant after the suspect, who was the lone occupant of the home by the time the police arrived, refused repeated requests to come to the door. Under the facts of the case, the forced entry could not be upheld under consent, emergency doctrine or exigent circumstances.

BACKGROUND FACTS

This case starts with a domestic dispute call to the police from the home of Ryan Bonivert. During an evening gathering with friends, Bonivert reportedly argued with his girlfriend, Jessie Ausman, when she attempted to leave with the couple’s nine-month old daughter. By the time police arrived, the disturbance was over: Ausman, the baby, and the guests had safely departed the home, leaving Bonivert alone inside. At that point, there was no indication that Bonivert had a weapon or posed a danger to himself or others. Nor does the record suggest that Ausman intended to reenter the house or otherwise asked police to accompany her inside. When Bonivert failed to respond to repeated requests to come to the door, the officers decided they needed to enter the house. No attempt was made to obtain a search warrant.

Though Bonivert locked the door to his house and refused police entreaties to talk with them, the police broke a window to unlock and partially enter the back door. Even then, Bonivert tried to shut the door, albeit unsuccessfully. Although Ausman consented to the officers entering the house, Bonivert’s actions were express—stay out.

Nevertheless, the officers forced their way in, throwing Bonivert to the ground, and then drive-stunned him with a taser several times, handcuffed him, and arrested him. Bonivert was arrested for assaulting an officer, resisting arrest, and domestic violence assault in the fourth degree.

Bonivert brought civil rights claims under 42 U.S.C. § 1983 against the City, the County, Combs, Purcell, Gary Synder, and Joseph Synder, alleging warrantless entry and excessive force in violation of Bonivert’s constitutional rights. The district court granted summary judgment in favor of the defendants on the basis of qualified immunity.

For those who don’t know, qualified immunity protects a government official from lawsuits alleging that the official violated a plaintiff’s rights. It only allows suits where officials violated a “clearly established” statutory or constitutional right. When determining whether or not a right was “clearly established,” courts consider whether a hypothetical reasonable official would have known that the defendant’s conduct violated the plaintiff’s rights.

COURT’S ANALYSIS & CONCLUSIONS

In short, the Ninth Circuit concluded that the warrantless entry into Bonivert’s home violated the Fourth Amendment as none of the lawful exceptions to the warrant requirement applied. The officers are not entitled to qualified immunity.

The Police Officers Were Not Entitled to Qualified Immunity.

The Court reasoned that police officers are not entitled to qualified immunity if (1) the facts taken in the light most favorable to the party asserting the injury show that the defendants’ conduct violated a constitutional right and (2) the right was clearly established at the time of the alleged violation.

In other words, the question is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.

Fourth Amendment

The Court of Appeals explained that the Fourth Amendment protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.

“It has long been recognized that the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed,” reasoned the Court. “This special protection of the home as the center of the private lives of our people reflects an ardent belief in the ancient adage that a man’s house is his castle to the point that the poorest man may in his cottage bid defiance to all the forces of the Crown.” Consequently, the Court reasoned it is a basic principle of Fourth Amendment law that warrantless searches of the home or the curtilage surrounding the home are presumptively unreasonable.

“Taken in the light most favorable to Bonivert,  . . . the facts demonstrate that the officers violated Bonivert’s constitutional right because no exception to the Fourth Amendment’s warrant requirement justified the officers’ entry into Bonivert’s home.”

Warrantless Entry: Officer are Not Entitled to Entry Under the “Consent” Exception.

The Court explained that although the consent exception ordinarily permits warrantless entry where officers have obtained consent to enter from a third party who has common authority over the premises, Georgia v. Randolph held that an occupant’s consent to a warrantless search of a residence is unreasonable as to a co-occupant who is physically present and objects to the search.

“Such is the situation here,” said the Court of Appeals. “Even though the officers secured
Ausman’s (his girlfriend’s) consent, Bonivert was physically present inside and expressly refused to permit the officers to enter on two different occasions.”

The court explained that Bonivert expressly refused entry when he locked the side door to his house. During the initial “knock and talk,” Combs and Purcell knocked and attempted to open the front and back doors to the house, but found them to be locked. As the officers circled the house to approach the side door, Bonivert realized it was unlocked and locked it as Combs was approaching. Combs heard the door lock and informed Purcell.

Bonivert also expressly refused entry when he attempted to close the back door on the officers after Combs broke in. Once the officers decided to enter the home by force, Combs used his flashlight to shatter a window pane in the back door, reached through the opening, and unlocked the door. At that point, Bonivert partially opened the door and confronted the officers, which prompted the officers to fire their tasers in dart mode. All parties agree that after the darts failed to make contact, Bonivert tried to shut the door, placing it between himself and the officers, but ultimately was prevented from doing so when Officer Combs rushed through with such force that he threw Bonivert to the other side of the room.

“Based on the foregoing, we hold that the officers are not entitled to qualified immunity under the consent exception to the Fourth Amendment’s warrant requirement. Simply put, a reasonable officer would have understood that no means no.”

Warrantless Entry: Officers Are Not Entitled to Entry Under the “Emergency” Exception.

The Court reasoned that the emergency aid exception permits law enforcement officers to enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.  An entry pursuant to the emergency aid exception is reasonable under the Fourth Amendment, regardless of the individual officer’s state of mind, as long as the circumstances, viewed objectively, justify the action. However, the police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests, because the emergency exception is narrow and rigorously guarded.

“Viewing the facts in the light most favorable to Bonivert, there were simply no circumstances pointing to an actual or imminent injury inside the home,” said the Court. By the time the officers arrived, both Ausman and the child were safely outside, surrounded by four other adults intent on protecting them from harm. During the entire time that the officers spoke to the witnesses, circled and attempted to enter the home from various points, and called on Deputies Gary and Joseph Snyder for backup, the house was silent. Ausman further assured the officers that there were no weapons in the house and that Bonivert did not pose a danger to himself. Consequently, the Court rejected arguments that an emergency existed which allowed warrantless entry into the house.

Warrantless Entry: Officers Are Not Entitled to Entry Under the “Exigent Circumstances” Exception.

The Court explained that the exigency exception permits warrantless entry where officers have both probable cause to believe that a crime has been or is being committed and a reasonable belief that their entry is necessary to prevent the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.

Here, the Court reasoned that Bonivert, who was inside his home when the alleged domestic assault occurred and remained there even after the officers broke into his back door, was never a “fleeing suspect.” The officers never articulated any other legitimate law enforcement justification for entry under the exigency exception.

The Lower Court Improperly Denied Bonivart’s Excessive Force Claims.

Taken in the light most favorable to Bonivert, the evidence reflects that Bonivert remained inside the home at all times; that Bonivert did not threaten or advance toward the officers; that Bonivert posed no immediate threat to the officers; that Combs threw Bonivert across the back room; that Bonivert did not resist arrest; and that Combs tasered Bonivert several times in drive-stun mode notwithstanding Bonivert’s compliance. The evidence does not justify the district court’s conclusion that “no reasonable jury could find the use of force within the home excessive.

With that, the Ninth Circuit reversed the district court’s grant of summary judgment on qualified immunity grounds on the Fourth Amendment claims for unlawful entry
and excessive force.

Excellent decision.

Excessive Tasing

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In Jones v. Las Vegas Metropolitan Police Dept., the Ninth Circuit Court of Appeals held that any reasonable officer would have known that continuous, repeated, and simultaneous tasings could only be justified by an immediate or significant risk of serious injury or death to officers or the public. However, such force generally cannot be used on a prone suspect who exhibits no resistance, carries no weapon, is surrounded by sufficient officers to restrain him and is not suspected of a violent crime.

BACKGROUND FACTS

In the early morning of December 11, 2010, Officer Mark Hatten of the Las Vegas Metropolitan Police Department pulled over Anthony Jones for a routine traffic stop. Hatten ordered Jones out of the car so he could pat him down for weapons. Jones obeyed at first but then started to turn toward Hatten. Scared of the much larger Jones, Hatten drew his firearm, pointed it at Jones and ordered him to turn back around. Instead, Jones sprinted away.

Hatten called for backup and pursued Jones. Hatten didn’t believe deadly force was necessary because Jones hadn’t threatened him and didn’t appear to have a weapon.

As he waited for other officers to arrive, Hatten used his taser to subdue Jones. Hatten fired his taser twice, causing Jones’s body to “lock up” and fall to the ground face down with his hands underneath him. Hatten proceeded to kneel on Jones’s back in an attempt to handcuff Jones, keeping his taser pressed to Jones’s thigh and repeatedly pulling the trigger.

Hatten continued to tase Jones even after backup arrived. Backup consisted of four officers: Richard Fonbuena on Hatten’s right side, who helped handcuff Jones; Steven Skenandore, who controlled Jones’s legs and feet; Timothy English at Jones’s head, who applied a taser to Jones’s upper back; and Michael Johnson, who arrived last and ordered the tasing to stop. Johnson wanted his officers to “back off on the tasers so that Jones’s muscles would relax.” According to Johnson, Jones “didn’t look like he was physically resisting” and there were “enough officers” to take Jones into custody.

In all, Jones was subjected to taser shocks for over ninety seconds: Hatten tased Jones essentially nonstop that whole time—with some applications lasting as long as nineteen seconds—and, for ten of those seconds, English simultaneously applied his taser.

Once the officers stopped tasing Jones, his body went limp. They sat him up but Jones was nonresponsive and twitching; his eyes were glazed over and rolled back into his head. The officers tried and failed to resuscitate him. Jones was pronounced dead shortly thereafter. The coroner’s report concluded that “police restraining procedures”—including the tasings—contributed to Jones’s death.

Jones’s parents sued the Las Vegas Metropolitan Police Department and all of the officers involved in restraining Jones. They alleged Fourth and Fourteenth Amendment violations as well as various state law torts. However, the lower district court granted summary judgment for the defendants on all claims. The plaintiff’s appealed.

LEGAL ISSUE

Whether police officers are entitled to qualified immunity when they’re alleged to have caused the death of a suspect by using tasers repeatedly and simultaneously for an extended period.

COURT’S ANALYSIS & CONCLUSIONS

As a preliminary matter, the Court of Appeals held that under Fed. R. Civ. P. 17, the lower district court abused its discretion by failing to give plaintiffs a reasonable opportunity to substitute the proper party and thus cure the defective complaint.

Next, the Court of Appeals addressed the issue of whether the officers were reasonable in the degree of force they deployed. They held that the officers’ repeated and simultaneous use of tasers for over ninety seconds was unreasonable and that a jury could reasonably conclude that the officers knew or should have known that these actions created a substantial risk of serious injury or death:

” . . . any reasonable officer would have known that continuous, repeated, and simultaneous tasings could only be justified by an immediate or significant risk of serious injury or death to officers or the public.”

The Court also reasoned that that such force generally cannot be used on a prone suspect who exhibits no resistance, carries no weapon, is surrounded by sufficient officers to restrain him and is not suspected of a violent crime. Furthermore, it reasoned that given that there was clearly established Fourth Amendment law and a jury could reasonably conclude that the officers used excessive force, the question of qualified immunity must proceed to trial.

Furthermore, the Court held that the plaintiff’s state law battery and negligence claims were triable, and should not have been dismissed by the lower district court. It said that while there was no evidence that any of the officers acted out of hostility or improper motive, there was a factual dispute as to whether the repeated and simultaneous tasings were so excessive under the circumstances that they amounted to willful or deliberate disregard of Jones’s rights. The Court of Appeals therefore remanded plaintiffs’ battery and negligence claims.

In a twist, however, The Court of Appeals affirmed the lower district court’s dismissal of the
Fourteenth Amendment claim. It said that even assuming all the facts Plaintiffs alleged, there was no evidence that the officers acted with a purpose of harming Jones that was unconnected to a legitimate law enforcement objective.

In another twist, the Court of Appeals held that the Plaintiffs’ false arrest and false imprisonment claims failed because there was no evidence that the decision to arrest Jones lacked justification, let alone that it was made in bad faith. The Court of Appeals therefore affirmed the dismissal of that claim.

My opinion? A well-reasoned, good decision. Although the Court of Appeals upheld the dismissal of some of the Plaintiffs’ claims due to lack of evidence, the Court was ultimately convinced that the officers’ repeated and simultaneous use of tasers for over ninety seconds was unreasonable. Good decision.