Category Archives: law enforcement

The Feds on Crime Under Jeff Sessions

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 of the Washington Post describes the dramatic and controversial changes in policy Jeff Sessions has made since becoming the Attorney General under President Trump months ago.
“From his crackdown on illegal immigration to his reversal of Obama administration policies on criminal justice and policing, Sessions is methodically reshaping the Justice Department to reflect his nationalist ideology and hard-line views — moves drawing comparatively less public scrutiny than the ongoing investigations into whether the Trump campaign coordinated with the Kremlin.”
Apprently, Sessions has even adjusted the department’s legal stances in cases involving voting rights and lesbian, gay, bisexual and transgender issues in a way that advocates warn might disenfranchise poor minorities and give certain religious people a license to discriminate.
“The Attorney General is committed to rebuilding a Justice Department that respects the rule of law and separation of powers,” Justice Department spokesman Ian Prior said in a statement, adding, “It is often our most vulnerable communities that are most impacted and victimized by the scourge of drug trafficking and the accompanying violent crime.”

Immigration
Zapotsky and Horwitz write that unlike past attorneys general, Sessions has been especially aggressive on immigration. He served as the public face of the administration’s rolling back of a program that granted a reprieve from deportation to people who had come here without documentation as children, and he directed federal prosecutors to make illegal-immigration cases a higher priority. The attorney general has long held the view that the United States should even reduce the number of those immigrating here legally.

Zapotsky and Horwitz said that in an interview with Breitbart News in 2015, then-Sen. Sessions (R-Ala.) spoke favorably of a 1924 law that excluded all immigrants from Asia and set strict caps on others.

“When the numbers reached about this high in 1924, the president and Congress changed the policy and it slowed down immigration significantly,” Sessions said. “We then assimilated through 1965 and created really the solid middle class of America, with assimilated immigrants, and it was good for America.”

According to Zapotsky and Horwitz, Vanita Gupta, the head of the Justice Department’s civil rights division in the Obama administration who now works as chief executive of the Leadership Conference on Civil and Human Rights, said Sessions seems to harbor an “unwillingness to recognize the history of this country is rooted in immigration.”

“On issue after issue, it’s very easy to see what his worldview is of what this country is and who belongs in this country,” she said, adding that his view is “distinctly anti-immigrant.”

 

Police Oversight & Sentencing

Zapotsky and Horwitz write that questions about Sessions’s attitudes toward race and nationality have swirled around him since a Republican-led Senate committee in 1986 rejected his nomination by President Ronald Reagan for a federal judgeship, amid allegations of racism. In January, his confirmation hearing to become attorney general turned bitter when, for the first time, a sitting senator, Cory Booker (D-N.J.), testified against a colleague up for a Cabinet position. Booker said he did so because of Sessions’s record on civil rights.

Sessions ultimately won confirmation on a 52-to-47 vote, and he moved quickly to make the Justice Department his own. Two months into the job, he told the department’s lawyers to review police oversight agreements nationwide, currying favor with officers who often resent the imposition of such pacts but upsetting those who think they are necessary to force change.

Zapotsky and Horwitz also said that Sessions imposed a new charging and sentencing policy that critics on both sides of the aisle have said might disproportionately affect minority communities and hit low-level drug offenders with stiff sentences.

“Allies of Sessions say the policy is driven not by racial animus but by a desire to respond to increasing crime,” write Zapotsky and Horwitz. “The latest FBI crime data, for 2016, showed violent crimes were up 4.1 percent over the previous year and murders were up 8.6 percent — although crime remains at historically low levels. The Bureau of Prisons projects that — because of increased enforcement and prosecution efforts — the inmate population will increase by about 2 percent in fiscal 2018, according to a Justice Department inspector general report.”

Zapotsky and Horwitz wrote that Larry Thompson, who served as deputy attorney general in the George W. Bush administration and is a friend of Sessions, said that although he disagrees with the attorney general’s charging policy, he believes Sessions was “motivated by his belief that taking these violent offenders off the streets is the right way to address the public safety issues.”

Civil Rights & Hate Crimes

According to Zapotsy and Horwitz, Sessions’s moves to empower prosecutors have led to a concerted focus on hate-crimes prosecutions — a point his defenders say undercuts the notion that he is not interested in protecting the rights of minorities or other groups. Prosecutors have brought several such cases since he became attorney general and recently sent an attorney to Iowa to help the state prosecute a man who was charged with killing a gender-fluid 16-year-old high school student last year. The man was convicted of first-degree murder.

But while civil rights leaders praised his action in that case, Kristen Clarke, president and executive director of the national Lawyers’ Committee for Civil Rights Under Law, said that it “stands in stark contrast to his overall efforts” to roll back protections for transgender people.

Shortly after he became attorney general, Sessions revoked federal guidelines put in place by the Obama administration that specified that transgender students have the right to use public school restrooms that match their gender identity. In September, the Justice Department sided in a major upcoming Supreme Court case with a Colorado baker, Jack Phillips, who refused to bake a wedding cake for a same-sex couple because he said it would violate his religious beliefs.

Sessions recently issued 20 principles of guidance to executive-branch agencies about how the government should respect religious freedom, including allowing religious employers to hire only those whose conduct is consistent with their beliefs. About the same time, he reversed a three-year-old Justice Department policy that protected transgender people from workplace discrimination by private employers and state and local governments.

The Justice Department has similarly rolled back Obama administration positions in court cases over voting rights.

In February, the department dropped its stance that Texas intended to discriminate when it passed its law on voter identification. And in August, it sided with Ohio in its effort to purge thousands of people from its rolls for not voting in recent elections — drawing complaints from civil liberties advocates.

At a recent congressional hearing, Sessions said the department would “absolutely, resolutely defend the right of all Americans to vote, including our African American brothers and sisters.”

According to Zapotsky and Horwitz, critics say that Sessions’ record shows otherwise. “We are seeing a federal government that is pulling back from protecting vulnerable communities in every respect,” Clarke said. “That appears to be the pattern that we are seeing with this administration — an unwillingness to use their enforcement powers in ways that can come to the defense of groups who are otherwise powerless and voiceless.”

My opinion? Watching the actions of the feds – and especially the top federal prosecutor for the United States – gives us a litmus test which defines the shape of things to come on a more local level. The reason why it’s important to watch the movements of federal prosecutions is because they impress upon – and persuade – the priorities of state prosecutions.

Let’s see what happens.

Poll: 6 In 10 Black Americans Say Police Unfairly Stopped Them Or A Relative

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News article by Joe Neel  of NPR says that a new poll out this week finds that 60 percent of black Americans say they or a family member have been stopped or treated unfairly by police because they are black. In addition, 45 percent say they or a family member have been treated unfairly by the courts because they are black. The poll is a collaboration between NPR, the Robert Wood Johnson Foundation and the Harvard T.H. Chan School of Public Health.

The poll reveals the consequences of these stops for black Americans personally and across society — 31 percent of poll respondents say that fear of discrimination has led them to avoid calling the police when in need. And 61 percent say that where they live, police are more likely to use unnecessary force on a person who is black than on a white person in the same situation.

Previous polls have asked similar questions, but ours is unique in that it’s the first to ask about lifetime experiences with policing. It’s part of NPR’s ongoing series “You, Me and Them: Experiencing Discrimination in America.”

Pew Research poll in 2016 asked whether people had been unfairly stopped by police because of race or ethnicity in the previous 12 months and found that 18 percent of black people said yes. A 2015 CBS News/New York Times poll asked whether this had ever happened and found 41 percent of black people said yes.

Neel reports that the NPR poll differs from Pew in that NPR asked not only about a much longer period but also whether people had been unfairly stopped or treated because of their race or ethnicity. Also the NPR poll differ from CBS in that NPR included the word “unfairly.” Finally, the NPR poll differs from both the Pew and CBS polls because NPR asked whether a person or a family member had had this experience, which gives a better sense of the presence of these experiences in respondents’ life and surroundings.

Neel also reports that the black American data from our poll, released Tuesday, were compiled from 802 black Americans as part of a large national representative probability survey of 3,453 adults from Jan. 26 to April 9. The margin of error for the full black American sample is plus or minus 4.1 percentage points.

It is imperative to contact a competent attorney if you, a friend or family member were pulled over, searched and/or seized by police under suspicious circumstances. Please contact my office for a free consultation.

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.

Don’t Search My Tent!

Image result for police search tent homeless

In State v. Pippin, the WA Court of Appeals held that a person has a constitutional privacy interest in a tent that is unlawfully erected on public property.

BACKGROUND

Mr. Pippin was a homeless man, living in a tent-like structure on public land in Vancouver. As part of an attempt to notify individuals of a new camping ordinance which prohibits camping on public land without permission, police officers approached Pippin’s tent and requested that he come out. Because Pippin did not come out after an uncertain amount of time and because of noises they heard in the tent, the officers felt they were in danger. One officer lifted a flap of Pippin’s tent to look inside. In the tent, the officers observed a bag of methamphetamine. Pippin was charged with unlawful possession of a controlled substance.

He moved to suppress the evidence derived from the officer basically lifting the flap and looking into the tent, arguing that it was an unconstitutional search under the Fourth and Fourteenth Amendments of the United States Constitution and article I, section 7 of the Washington Constitution. The Court granted his motion and dismissed  the charge.

The State appealed on arguments that (1) the trial court erred in determining that Pippin had a privacy interest in his tent under the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution, and (2) if Pippin’s tent is entitled to constitutional privacy protection, the trial court erred in concluding that the officers’ act of opening and looking into the tent was not justified as a protective sweep or through exigent circumstances based on officer safety.

COURT’S ANALYSIS AND CONCLUSIONS

In the published portion of this opinion, the Court of Appeals held that Pippin’s tent and its contents were entitled to constitutional privacy protection under article I, section 7 of the WA Constitution.

The Court reasoned that Article I, section 7 of the WA Constitution mandates that “no person shall be disturbed in his private affairs, or his home invaded, without authority of law.” It then analyzed different cases under the WA Supreme Court. In short, prior opinions have held that the State unreasonably intruded into a person’s private affairs when it obtained long distance telephone toll records through a pen register, examined the contents of a defendant’s trash placed on the curb for pickup, randomly checked hotel registries to determine who were guests at a hotel, attached a global positioning system tracking device to a defendant’s vehicle, and read through text messages on a cell phone.

The Court’s analysis focused on (1) the historical protections afforded to the privacy interest, (2) the nature of information potentially revealed from the intrusion, and (3) the implications of recognizing or not recognizing the asserted privacy interest.

“Pippin’s tent allowed him one of the most fundamental activities which most individuals enjoy in private—sleeping under the comfort of a roof and enclosure. The tent also gave him a modicum of separation and refuge from the eyes of the world: a shred of space to exercise autonomy over the personal. These artifacts of the personal could be the same as with any of us, whether in physical or electronic form: reading material, personal letters, signs of political or religious belief, photographs, sexual material, and hints of hopes, fears, and desire. These speak to one’s most personal and intimate matters.”

The Court further reasoned that the temporary nature of Pippin’s tent does not undermine any privacy interest, nor does the flimsy and vulnerable nature of an improvised structure leave it less worthy of privacy protections. “For the homeless, those may often be the only refuge for the private in the world as it is,” said the Court.

Under the case law above, Pippin’s tent was the sort of closed-off space that typically shelters the intimate and discrete details of personal life protected by article I, section 7.

The court concluded by saying that all three examined factors—the historical protections, the intimate details revealed from a search, and the implications of recognizing the interest—weigh in favor of finding that Pippin’s tent functioned as part of his private affairs worthy of protection from unreasonable intrusions.

“Accordingly, we hold that Pippin’s tent and its contents fell among those “privacy interests which citizens of this state . . . should be entitled to hold, safe from governmental trespass absent a warrant. As such, Pippin’s tent and contents are protected under article I, section 7 of the Washington Constitution.”

In the unpublished portion of the opinion, the Court held that because the State failed to show that an arrest was taking place, the protective sweep exception does not apply.

My opinion? Excellent decision. The homeless have rights, too. Just because one lives in a tent without a front door to knock on, doesn’t mean that police can intrude on one’s public affairs. There was no “exigent circumstance” or “officer safety issue” justifying the intrusion. Good opinion.

Should Police Always Be Allowed to Shoot?

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Great article from Lawyer Monthly on the issue of whether police should be allowed to use deadly and lethal force under various circumstances.

It wrote that according to civil rights attorney Rodney Diggs with Ivie, McNeill & Wyatt, “The LAPD faces a need for systemic change”. In May 2017, the LA police commission unanimously approved 25 new recommendations, after discovering alarming findings in the LAPD’s first ever, Use of Force Report.

Diggs, who has handled multiple wrongful death lawsuits stemming from officer-involved shootings and individuals with mental disabilities, believes these recommendations are a step in the right direction.

 

“Over the years I have practiced, I have seen [approximately] 50-60% increase in wrongful death cases related to individuals suffering from mental disabilities/illness.”

According to the article, Lawyer Monthly surmised that such a vast increase of wrongful deaths is cause for huge concern. Therefore, what accounts towards this increase?

“The changes are due to the officer’s lack of being trained and dealing with individuals who suffer from mental illnesses,” says Diggs. “Conventional police training directly clashes with effective tactics for resolving a typical mental health crisis. Unfortunately, much of that training relies on a command-and-control approach that can lead to dangerous escalations in the use of force.”

HANDLING CITIZENS WITH MENTAL HEALTH ISSUES

“It’s more of a lack of training,” said Diggs. “Proper training takes time and money and the reason to why departments may not choose to use resources needed to train officers, is because the value may be hard to quantify. Once departments realize that it may cost money upfront for training but ultimately will save money and lives, they will see the return on investment.”

Training ought to enhance the public’s trust and to lessen the cases we are seeing involving mishandling alleged perpetrators. Rodney says: “Training will teach officers that they do not have to approach a situation and take action right away.  But in a medical emergency, slowing it down, getting additional resources and perhaps even stepping back should be the norm.

“When the public sees that someone’s life is saved because an officer properly assessed a situation and now that family doesn’t have to lose a loved one, then the public will trust that the police are equipped to handle these situations.”

MEDIA

“Additionally, the media plays a big role in the perception of its viewers,” said Diggs. He elaborated that the media can either assist in enhancing the public’s trust or incite fear. “So if we want to bridge the gap between officers and civilians, the media needs to highlight instances in which officers do the right thing in a very sticky situation.”

USE OF WEAPONRY

“Use of force is never acceptable unless the force used is objectively reasonable and used only when necessary to accomplish lawful objectives,” said Diggs. “Officers have to assess the situation and determine which use of force should be used in their specific situation.”

USE OF FORCE AND WEAPONRY

In the article, Rodney outlines the factors officers should use when deciding whether to use force and what type of force option to use:

(1) Whether the suspect poses an immediate threat to the officer or others;

(2) The severity of the crime;

(3) Whether the suspect is actively resisting arrest; and

(4) Whether the suspect is a flight risk or attempting to escape custody.

Further, deadly force should only be used if there is an immediate threat of death or severe bodily injury to the officer or another.

However, implementing an effective process will not be easy. The article states that one possible method of improving often involves implementing better and stronger sanctions; so, we wonder whether those involved in wrongful deaths need to be better sanctioned.

STRONGER SANCTIONS

“A lot of times we see that criminally, officers are not charged with murder or even disciplined within their own departments,” said Diggs. “Despite the monetary compensation that may be awarded to families, the officers face no discipline and the money that is being paid is not being paid out of the officer’s pockets.  Monetary compensation by way of settlement, or event civil verdicts, does not equate police reform.

“Greater sanctions would cause a deterrent and would cause officers to think twice and consider the reasonable and appropriate force options available to them or opt not to use force, especially deadly force, when it’s not needed,” says Diggs.

The OIG Report of National Best Practices report itself discusses the following options:

  • Increased de-escalation training, and adopting de-escalation as a formal agency policy.
  • Discouraging force against those who pose a danger only to themselves.
  • Other options, such as chemical spray and personal protection shields.
  • Providing prompt supervisory response to critical incidents to reduce the likelihood of unnecessary force.

You can read the full proposed report here.

My opinion? Great article with excellent suggestions from Mr. Diggs.

Downtown Bellingham’s Loitering Problem: What’s the Answer?

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Excellent article by Kie Relyea of the Bellingham Herald discusses the problem of increased loitering in downtown Bellingham.

According to Relyea, downtown business owners are telling city leaders they need help. They’re tired of people sleeping in the doorways of their buildings, lighting fires in their alcoves, and having to clean up after those who leave behind stolen bicycles, trash, feces and drug paraphernalia such as used needles.

That, and a rise in antisocial behavior and unseemly loitering, is making some people who visit and work in downtown Bellingham feel unsafe.

Relyea reports that Bellingham residents reported feeling less safe when walking alone downtown during the day and night than previously, according to a recent survey of residents’ views about issues facing the community. The March 12 deadly shooting in downtown also raised a great deal of concern about safety downtown.

THE STATISTICS

According to Relyea, Bellingham Police Department statistics showed a nearly 2.5 percent increase in overall incidents from 2013 and 2016 in downtown – going from 3,688 to 3,778 responses that were both criminal and non-criminal in nature. For 2016 alone, 53 percent of the incidents police responded to in the downtown were non-criminal in nature.

Criminal incidents would be arrestable offenses such as assaults, robbery and rape. Non-criminal could include responding to people with mental problems, someone violating the sitting and lying ordinance, or someone who was drunk.

 

SOLUTIONS

Relyea reports that business owners want to help those who want to be helped. This means opening a bigger shelter for the homeless, getting them into housing, finding them jobs and helping people struggling with mental health and addiction.

Bellingham Mayor Kelli Linville said prevention was important to her, and the city spends up to $450,000 a year toward such efforts, including for the Homeless Outreach Team, community paramedic and intensive case management.

An upcoming project called Whatcom GRACE (for Ground-Level Response and Coordinated Engagement) also could help, by reaching out to those being called “familiar faces” – people who tend to fall through the cracks over and over, and who have a number of needs such as housing, behavioral health and substance abuse. They’re also the ones who come into contact with a number of organizations.

Apparently, police believe it’s a safety issue to not have people blocking sidewalks where there are pedestrians. However, the ACLU and homeless advocates said such laws target people who are visibly poor and homeless, and could be unconstitutional.

Bellingham Council member Michael Lilliquist gave his perspective:

“For some people, including myself, restricting and limiting people from sitting down is not a well-aimed tool. For one thing, sitting down is sometimes a perfectly fine and normal thing to do. In addition, our police tell me it is difficult to enforce and easy to avoid,” he said.

“For example, people can move just a little distance, such as where the alleyway or a driveway cuts through, and then they are technically not in violation because it is not a ‘sidewalk’ under the definition,” Lilliquist added. “It seems like a lot of work, and some hostility, to get at something that is not the heart of the problem.”

My opinion?

First, don’t criminalize homelessness. That’s not the answer, and only leads to violating people’s constitutional rights. Second, if anything, divert more resources to addressing mental health and substance abuse.

Drug-Sniffing Dogs

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In United States v. Gorman, the Ninth Circuit Court of Appeals held that the Fourth Amendment was violated when an officer unreasonably prolonged an initial traffic stop and radioed for a drug-sniffing dog after because he thought there were drugs in the car.

BACKGROUND FACTS

In January 2013, a police officer stopped Straughn Gorman on Interstate-80 outside Wells, Nevada for a minor traffic infraction. The officer thought Gorman might be carrying drug money. Acting on this concern, he unsuccessfully attempted to summon a drug-sniffing dog and then prolonged Gorman’s roadside detention, which lasted nearly half an hour, as he conducted a non-routine records check.

Unable to justify searching the vehicle, he questioned Gorman further and finally released him without a citation.

Undeterred, the officer then developed the bright idea of contacting the sheriff’s office in Elko, a city further along Gorman’s route, to request that one of their officers stop Gorman a second time. The first officer conveyed his suspicions that Gorman was carrying drug money, described Gorman’s vehicle and direction of travel, and reported that his traffic stop had provided no basis for a search. “You’re going to need a dog,” he said. A second officer, who had a dog with him, then made a special trip to the highway to intercept Gorman’s vehicle.

The second officer saw Gorman and eventually believed he had found a traffic reason to pull him over. Following the second stop, the second officer performed a series of redundant record checks and conducted a dog sniff. The dog signaled the odor of drugs or drug-tainted currency. On the basis of the dog’s alert, the second officer obtained a search warrant, searched the vehicle, and found $167,070 in cash in various interior compartments.

No criminal charges arising from this incident were ever brought against Gorman. Instead, the government attempted to appropriate the seized money through civil forfeiture. Civil forfeiture allows law enforcement officials to “seize . . . property without any predeprivation judicial process and to obtain forfeiture of the property even when the owner is personally innocent.” Leonard v. Texas, 137 S. Ct. 847, 847 (2017).

Gorman contested the forfeiture by arguing that the coordinated stops violated the Fourth Amendment. He prevailed. The federal district court ordered that his money be returned and also awarded him attorneys’ fees. The Government appealed to the Ninth Circuit Court of Appeals.

ANALYSIS & CONCLUSIONS

The Court of Appeals (1) affirmed the lower court’s order granting claimant’s motion to suppress evidence seized pursuant to a traffic stop; (2) affirmed the award of attorneys’ fees; and (3) held that the search of claimant’s vehicle following coordinated traffic stops violated the Constitution.

The Court of Appeals held that the first stop of claimant’s vehicle was unreasonably prolonged in violation of the Fourth Amendment. The court reasoned that the Supreme Court has made clear that traffic stops can last only as long as is reasonably necessary to carry out the “mission” of the stop, unless police have an independent reason to detain the motorist longer. The “mission” of a stop includes “determining whether to issue a traffic ticket” and “checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance.” Rodriguez v. United States, 135 S. Ct. 1609, 1615 (2015).

Additionally, the Court held that the dog sniff and search of claimant’s vehicle during the coordinated second vehicle stop followed directly in an unbroken causal chain of events from that constitutional violation; and consequently, the seized currency from the second stop was the “fruit of the poisonous tree” and was properly suppressed under the exclusionary rule.

Finally, the Court held that none of the exceptions to the “fruit of the poisonous tree” doctrine – the “independent source” exception, the “inevitable discovery” exception, and the “attenuated basis” exception – applied to claimant’s case.

Good decision.

Ninth Circuit Strikes Nevada Statutory Scheme Allowing Pretextual Stops

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In United States v. Orozco, the Ninth Circuit Court of Appeals held that a statute allowing Nevada law enforcement officers to stop and search commercial vehicles for no reason violates the Fourth Amendment as unlawfully pretextual.

BACKGROUND FACTS

In 2013, law enforcement received a tip that defendant Victor Orozco – a commercial truck driver – regularly transported illegal drugs across the border inside his semi truck. Unbeknownst to Orozco, Nevada had a statutory and administrative scheme  allowing its police officers to pull over and search commercial vehicles for contraband under the notion that these searched perform a public safety purpose.

On April 27, 2013, the tipster said Orozco would be driving through White Pine County,
Nevada. Trooper Zehr of the Nevada Highway Patrol was advised of the vehicle and its location. He was told he would have to develop his own probable cause to get the vehicle stopped because there could possibly be drugs in the vehicle, but there was nothing solid.

Troopers targeted Orozco’s truck and pulled it over. They discovered the truck had made several trips across the border. Eventually, a K-9 officer dog arrived and made a positive alert as to the presence of drugs. The troopers found a duffel bag containing twenty-six pounds of methamphetamine and six pounds of heroin in the sleeper compartment.

Prior to trial, Orozco moved to suppress the drug evidence on the ground that the inspection of his vehicle was an impermissible pretext “motivated by a desire to search for evidence of drug trafficking, rather than to conduct a commercial vehicle inspection.” However, because “safety inspections” were part of a facially valid administrative scheme, the district judge held that the stop of Orozco’s truck was lawful. Later, Orozco was convicted of two counts of possession with intent to distribute a controlled substance for which he was sentenced to 192 months in prison.

LEGAL ISSUE ON APPEAL

Orozco appealed his conviction on the issue of whether the stop was justified under the administrative search doctrine, which permits stops and searches, initiated in furtherance of a valid administrative scheme, to be conducted in the absence of reasonable suspicion or probable cause.

COURT’S ANALYSIS & CONCLUSION

In short, the Court of Appeals reversed the district court’s denial of Orozco’s motion to suppress, vacated his conviction for two counts of drug possession arising from the stop of his vehicle and remanded the case back to the lower court for further proceedings.

“Nevada Highway Patrol troopers made the stop in order to investigate criminal activity, even though they lacked the quantum of evidence necessary to justify the stop,” reasoned the Court of Appeals. Based on that, the stop was not justified under the administrative search doctrine, which permits stops and searches, initiated in furtherance of a valid administrative scheme, to be conducted in the absence of reasonable suspicion or probable cause.

The Court of Appels further reasoned that although an administrative scheme allowing Nevada law enforcement officers to make stops of commercial vehicles and conduct limited inspections without reasonable suspicion was valid on its face because its purpose was to ensure the safe operation of commercial vehicles, the evidence in this case, however, established beyond doubt that the stop of the defendant’s vehicle was a pretext for a stop to investigate information of suspected criminal activity short of that necessary to give rise to reasonable suspicion.

“The stop would not have been made in the absence of a tip that the defendant was possibly carrying narcotics. Accordingly, the stop was a pretextual stop that violated the Fourth Amendment.”

The Court further emphasized that the presence of a criminal investigatory motive, by itself, does not render an administrative stop pretextual, and nor does a dual motive—one valid and one impermissible. “Rather, the defendant must show that the stop would not have occurred in the absence of an impermissible reason.”

With that, the Court reversed Orozco’s convictions.

My opinion? Good decision. Pretextual stops are often used by police officers as an excuse to initiate a stop and search of automobiles suspected of being involved in criminal activity. These stops involve police officers stopping drivers for traffic violations – minor or otherwise – to conduct investigations which are separate and unrelated to the original reasons substantiating the stop. Pretextual traffic stops give police officer a lot of discretion in who they choose to stop and for what reasons. Too much discretion. Again, good decision.

SCOTUS Eliminates the “Provocation Rule”

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In  County of Los Angeles v. Mendez, the U.S. Supreme Court held that the Fourth Amendment provides no basis to uphold the Ninth Circuit’s “provocation rule,” a doctrine which makes officers liable for injuries caused by their use of force.

BACKGROUND FACTS

The Los Angeles County Sheriff’s Department received word from a confidential informant that a potentially armed and dangerous parolee-at-large had been seen at a certain residence. While other officers searched the main house, Deputies Conley and Pederson searched the back of the property where, unbeknownst to the deputies, respondents Mendez and Garcia were napping inside a shack where they lived.

Without a search warrant and without announcing their presence, the deputies opened the door of the shack. Mendez rose from the bed, holding a BB gun that he used to kill pests. Deputy Conley yelled, “Gun!” and the deputies immediately opened fire, shooting Mendez and Garcia multiple times.

Officers did not find the parolee in the shack or elsewhere on the property.

PLAINTIFF’S CIVIL RIGHTS CLAIMS

For those who don’t know, the “Provocation Rule” holds that if a police officer recklessly promotes a potentially violent confrontation with a Fourth Amendment violation, the officer is liable for any injury caused by a subsequent use of force that results from that confrontation, even if the use of force itself was reasonable.

Armed with the “Provocation Rule,” Mendez and Garcia sued the police deputies and the County under 42 U. S. C. §1983. They advanced three Fourth Amendment claims: a warrantless entry claim, a knock-and-announce claim, and an excessive force claim. On the first two claims, the Federal District Court awarded Mendez and Garcia nominal damages. On the excessive force claim, the court found that the deputies’ use of force was reasonable, but held them liable nonetheless under the Ninth Circuit’s provocation rule, which makes an officer’s otherwise reasonable use of force unreasonable if (1) the officer “intentionally or recklessly provokes a violent confrontation” and (2) “the provocation is an independent Fourth Amendment violation,.

The Government appealed the case to the Ninth Circuit Court of Appeals. On appeal, the Ninth Circuit held that the officers were entitled to qualified immunity on the knock-and-announce claim and that the warrantless entry violated clearly established law. It also affirmed the District Court’s application of the provocation rule, and held, in the alternative, that basic notions of proximate cause would support liability even without the provocation rule.

The Government appealed the Ninth Circuit’s ruling to the U.S Supreme Court.

COURT’S ANALYSIS

In short, the U.S. Supreme Court held that the Fourth Amendment offers no basis for the Ninth Circuit’s “provocation rule.” It reasoned that the rule is incompatible with this Court’s excessive force jurisprudence, which sets forth a settled and exclusive framework for analyzing whether the force used in making a seizure complies with the Fourth Amendment. The Court reasoned that the legal issue is “whether the totality of the circumstances justifies a particular sort of search or seizure.” Tennessee v. Garner.

The Court reasoned that the provocation rule instructs courts to look back in time to see if a different Fourth Amendment violation was somehow tied to the eventual use of force. Problematically, this approach that mistakenly conflates distinct Fourth Amendment claims. To the extent that a plaintiff has other Fourth Amendment claims, they should be analyzed separately.

“The Ninth Circuit attempts to cabin the provocation rule by defining a two-prong test: First, the separate constitutional violation must “create a situation which led to” the use of force; and second, the separate constitutional violation must be committed recklessly or intentionally,” said the Court.

The U.S. Supreme thought this approach was mistaken. First, the rule relies on a vague causal standard. Second, while the reasonableness of a search or seizure is almost always based on objective factors, the provocation rule looks to the subjective intent of the officers who carried out the seizure:

“There is no need to distort the excessive force inquiry in this way in order to hold law enforcement officers liable for the foreseeable consequences of all their constitutional torts.”

Plaintiffs can, subject to qualified immunity, generally recover damages that are proximately caused by any Fourth Amendment violation. Here, reasoned the Court, if respondents cannot recover on their excessive force claim, that will not stop them from recovering for injuries proximately caused by the warrantless entry.

“The Ninth Circuit’s proximate-cause holding is similarly tainted,” said the Court. Its focuses solely on the risks foreseeably associated with the failure to knock and announce—the claim on which the court concluded that the deputies had qualified immunity—rather than the warrantless entry.

My opinion? I concur with  blogger Radley Balko’s insights on this. He blogs about criminal justice, the drug war and civil liberties for The Washington Post, and says the following:

“The cops, on the other hand, engaged in some incredibly sloppy policing that nearly got someone killed. They violated the Mendezes’ Fourth Amendment rights not once, but twice. Then they filled the couple with bullets after they mistook Angel Mendez’s reach for his pellet gun as a threat. Angel Mendez was shot five times, and lost his right leg below the knee. Jennifer Mendez was shot in the back. That was 6½ years ago. They still haven’t seen a dime. And after Tuesday’s ruling, it seems unlikely that they ever will.”

Exactly.

Seattle Allows Filming Cops

 

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Great article in the Seattle Times by Daniel Beekman discusses how Seattle’s City Council voted Monday to enshrine in the Seattle Municipal Code the rights of the public to observe, record and criticize police activity without fear of retaliation.

 The only exceptions are when an observer hinders, delays or compromises legitimate police activity, threatens someone’s safety or attempts to incite other people to violence, according to the ordinance sponsored by Councilmember Lisa Herbold.

The First Amendment can offer protections to members of the public when they watch and record police. And a Seattle Police Department policy adopted in 2008 says bystanders may remain nearby and record the incident as long as they don’t interfere.

So, people already were allowed to watch and record police in Seattle. But the council’s vote means the rights of police observers are now recognized in city law.

According to Beekman, the ordinance says officers should assume members of the public are observing and possibly recording their work at all times. Councilmember Herbold initially proposed the change last year, pointing to high-profile shootings that was recorded by bystanders.

 “The value of video and audio recordings by the public is keenly evident from the recordings in 2016 of the deaths of Philando Castile in Minnesota, Alton Sterling in Baton Rouge … and law-enforcement officers in Dallas and Baton Rouge,” the ordinance says.

Across the country, smartphones are helping regular people hold their police departments accountable. But people watching, recording and criticizing officers have in some instances been arrested, according to a council memo.

Though Seattle police are recorded by patrol-car cameras and are being outfitted with body-worn cameras, civilian recordings are still important, Herbold said Monday.

My opinion? Wonderful! I’ve had many Clients complain that their attempts to record interactions with police result in their cameras being confiscated and being slapped with charges of Obstructing and Resisting police.

I’ve said it once, and I’ll say it again: recording interactions between police and citizens makes everyone behave better and shows proof of what really happened. Kudos to the Seattle City Council.



Alexander F. Ransom

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