Category Archives: Police Misconduct

Forced & Warrantless Entry

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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.


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.


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.

Prosecutors Use Body Camera Evidence

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Interesting feature from  a correspondent for NPR who covers law enforcement and privacy issues. In this feature, he discusses how police body cameras are becoming key tools for prosecutors.

This year, police body cameras made the transition from experimental tech to standard equipment. Sales exploded after the 2014 Ferguson protests as police departments scrambled to refute claims of abuse. Now the cameras have become routine, but they’re not making a significant dent in the number of people shot and killed by police.

In this feauture from Weekend Edition Sunday, Kaste described how body cameras have become a standard piece of equipment for the criminal justice system.

“Prosecutors now use them far more often than – for police accountability, prosecutors are using it to make cases against defendants, against members of the public who are charged with crimes,” said Kaste. He also described how a survey last year conducted by George Mason University showed that prosecutors were far more likely to have used video to prosecute a member of the public than to use the video to prosecute a police officer.

“What we have really is technology that quickly became sort of required for prosecution in general,” said Mr. Kaste. “Juries now expect it, and the police in the field kind of feel the pressure to get video of themselves finding evidence.”

Kaste answered questions on whether citizens can use body camera video to support their own claims of police abuse.

“There’s no national standard on that, and that’s becoming more and more of a bone of contention,” he said. “In a lot of places, it’s considered a public record and you can request it. But a lot of cases, you don’t get to see the video because the case is under investigation, and that kind of puts it in limbo. Or, in places like California, Police departments have cited officer privacy. They kind of almost view it as a personnel record or something, and it takes a lot to get the video out,” said Mr. Kaste.

” . . . it’s gotten to the point where at least one academic I talked to this year said we should rethink the whole system and start giving the video to a third party to control, not to the police department.”

My opinion? Ultimately body-worn cameras (BWC’s) are a good thing. They provide non-objective evidence of what really happened instead of forcing us to rely on people’s stories. However, I agree with Mr. Kaste in his argument that obtaining the video is oftentimes difficult. It makes no sense that BWC evidence is released by the very same police departments that it’s made to scrutinize. This is the fox guarding the hen house. Consequently, attorneys must be incredibly careful, diligent and consistent on arguing public disclosure requests and motions to obtain pretrial discovery of this evidence.

Contact my office if you, a friend or family member faces criminal charges involving BWC evidence. Although it might work in a defendant’s favor, the evidence can be suppressed if it’s unfairly prejudicial against defendants under the rules of evidence.


I-940 & Police Misconduct

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Wonderful article by  of the Seattle Times  reports that Initiative 940 (I-940) gives an opportunity to prosecute police for deadly shootings in Washington state.

With Thursday’s expected delivery of signatures for Initiative 940, years of debate and stalemate over Washington’s deadly-force law look to be coming to a head. If I-940 qualifies, state lawmakers — and probably ultimately voters — will face big decisions on a charged issue.

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De-Escalate Washington

De-Escalate Washington didn’t just pull together the bare-bones 260,000 signatures for I-940, which would make it easier to prosecute law-enforcement officers for alleged misuse of deadly force. The group hopes to turn in about 360,000 signatures Thursday to the Washington Secretary of State’s office, according to Leslie Cushman, the group’s policy director.

In his article, O’Sullivan reports that community advocates have argued Washington’s law — considered the nation’s most restrictive for holding officers accountable for unjustified use of deadly force — is overdue for a change. Right now, an officer can’t be convicted of a crime for using deadly force if he or she acted in good faith and without malice, or what the law calls “evil intent.” That makes it nearly impossible for prosecutors to bring criminal charges even if they find an officer committed a wrongful killing, according to a 2015 report by The Seattle Times.

I-940 would change the law to a more detailed, multipart threshold that considers what a “reasonable officer” might have done under the circumstances. It would also take into account an officer’s intentions to determine if she or he acted in good faith.

The initiative also requires more de-escalation and mental-health training for law- enforcement officers.

O’Sullivan also writes that the effort comes on the heels of high-profile shootings including the deaths in Seattle of Che Taylor and Charleena Lyles by white officers of African Americans and other minorities in recent years have underscored concerns about law enforcement.

Family members of several victims of police shootings have been involved in the campaign, including Che’s brother Andrè, who chairs De-Escalate Washington.

Law Enforcement Response to I-940

O’Sullivan reports that law-enforcement groups have protested changes to the deadly-force statute. They say the new legal standard could prompt officers to hesitate in ways that could endanger themselves and others.

 “Unfortunately, this initiative will not do anything to reduce violent interactions between law enforcement and the public,” said Teresa Taylor, executive director for the Washington Council of Police & Sheriffs, which represents more than 4,300 law- enforcement officers.
However, success in the legislative session that begins in January appears unlikely. Lawmakers this year couldn’t find a compromise that satisfied both law enforcement and community activists.
My opinion? I-940 is a step in the right direction. And it’s about time. Police misconduct is a hot-button issue. Granted, being a police officer is a very difficult job. Officers make difficult judgment calls in very complex, risky and dangerous situations. That said, officers need training on diffusing situations which don’t necessarily rise to public safety and/or officer safety risks. I-940 is not made to put police in jail for doing their jobs. It’s made to foster public trust, train officers in de-esclating their contacts with citizens and avoid unnecessary shooting deaths.

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.”

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.


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.


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.


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.

Top Cop Says Police Militarization Endangers Public Safety.

Excellent article by Major Neill Franklin, Executive Director, Law Enforcement Action Partnership says that the Trump administration wrongfully revoked President Obama’s Executive Order 13688, which limited the scope of a federal program that allows state and local police departments to obtain military equipment free of charge.

“I’m convinced that the 1033 Program has been one of the single greatest contributors to the public losing trust in law enforcement,” said Major Franklin.

He further said that scrapping Executive Order 13688 means police departments will again have unfettered access to high caliber guns, grenade launchers, and armored vehicles, among other forms of military equipment. “During a time when criminal justice and police reform have bipartisan support, this decision shows a clear misunderstanding both of what Americans want and, more perilously, of what’s truly effective at improving public safety.”

In his article, Major Franklin said that the use of such equipment for regular police work damages police-community relations. Militarization has eroded public trust in police, the effectiveness of law enforcement overall, and ultimately, public safety.

“Officers need to engage in crime prevention and crime fighting activities that work,” said Major Franklin.  They do not need to participate in programs that waste resources and create dangerous situations for both law enforcement and the public. He claimed that in the SWAT raids studied by the ACLU for its 2013 report, War Comes Home, 79 percent of SWAT deployments were issued to execute search warrants, mostly for drugs. Somewhere between 36 and 65 percent of those drug searches resulted in no discovery of illegal contraband. “Even if everything goes smoothly and nobody gets injured or killed during a raid, it’s still an enormous waste of time and extremely dangerous for both officers and civilians.”

“An all-too-common SWAT scenario is one where SWAT’s involvement escalates a nonviolent situation into a deadly one,” said Major Franklin. “Imagine that you are awoken at dawn by the sound of men shouting and battering down your door. You can’t hear what the voices are saying, but you realize your home is being invaded. Your instinct tells you to grab your lawfully owned gun and face the intruders. You race downstairs and make it to the front door only to find the intruders are police – and they think you have drugs. The police are scared of an armed man running toward them, and you’re barely awake. You’re confused. And then shots are fired. Nobody remembers who pulled the trigger first.”

“With each of these incidents, public trust in the police erodes,” said Major Franklin. He claimed that research shows people who don’t trust police are less likely to report a crime.  “I can tell you from experience it makes them much less likely to cooperate in investigations. Without the community to help us, police work — the hard work of solving rapes and homicides and kidnappings — becomes nearly impossible.

Major Franklin said his philosophy is instead guided by the Nine Principles of Policing set forth by Sir Robert Peel and his commissioners nearly 200 years ago, which have set the standard ever since. The very first principle is to prevent crime and disorder, as an alternative to their repression by military force.

“I support replacing the 1033 Program with one in which officers must demonstrate competence, be trained in proper equipment usage, and may only use military equipment for hostage, active shooter, and barricade scenarios.  I believe this because I became a police officer to protect people. When people fear the police more than they fear crime itself, the legitimacy of the career I loved so much becomes meaningless,” said Major Franklin.

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.”


“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.”


“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 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.”


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.


“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.

SCOTUS Eliminates the “Provocation Rule”

Image result for police raid house shoot open fire

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.


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.


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.


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.”


Trump On Crime.

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Like it or not, Donald Trump won.

Criminal defense attorneys serving their clients must survey the aftermath and ponder how Mr. Trump’s administration approaches issues of criminal justice. What is Trump’s stance on the “War on Drugs?” How does his stance embrace the growing legalization of marijuana among the States? How does Mr. Trump view the Fourth Amendment’s protections against unlawful searches and seizures? How does Trump view the discord between police and communities of color? Will Trump’s administration seek the immediate deportation of illegal immigrants who commit crimes? How does he feel about the death penalty? These issues – and many others – affect many defendants facing criminal charges.

If the best predictor of future behavior is past behavior, we look no further than Mr. Trump’s comments over the years; especially his comments during his campaign.

THE WAR ON DRUGS: 1990 & 2015

In 1990, Trump argued that the only way to win the War on Drugs was to legalize drugs and use the tax revenue to fund drug education programs. As he put it, “You have to take the profit away from these drug czars.” In his 2000 book,The America We Deserve, he stated that he’d never tried drugs “of any kind.”

Fast-forward 25 years, and now Trump is opposed to legalization. “I say it’s bad,” he told the crowd at the Conservative Political Action Conference in June, in response to a question about Colorado’s legal weed. “Medical marijuana is another thing, but I think recreational marijuana is bad. And I feel strongly about that.” Regarding states’ rights, Trump said, “If they vote for it, they vote for it. But they’ve got a lot of problems going on right now, in Colorado. Some big problems. But I think medical marijuana, 100 percent.”

Source: On the Issues: Donald Trump on Drugs.

Apparently, Trump opposes recreational marijuana and endorses medical marijuana. Unfortunately, his stances can become problematic for states like Washington, Colorado and a handful of others which have already passed initiatives allowing its citizens to possess small amounts of marijuana for recreational purposes. Will Trump’s administration reverse these State initiatives? Will Trump’s administration violate federal court opinions which have slowly de-prioritized federal prosecutions of marijuana cases in states which have legalized marijuana? How will drug prosecutions and/or convictions under Trump’s administration affect citizens receiving federal benefits to include welfare, social security and financial aid?

Only time will tell.


Trump’s recent comments at the First Presidential Debate at Hofstra University, Sept. 26, 2016, moderated by Lester Holt of NBC News gives telling insights on these issues.

Q: What should be done about crime?

TRUMP: “Stop and frisk worked very well in New York. It brought the crime rate way down. You take the gun away from criminals that shouldn’t be having it. We have gangs roaming the street. And in many cases, they’re illegal immigrants. And they have guns. And they shoot people. And we have to be very vigilant. Right now, our police, in many cases, are afraid to do anything. We have to protect our inner cities, because African-American communities are being decimated by crime.”

Q: “Stop-and-frisk was ruled unconstitutional in New York, because it largely singled out black and Hispanic young men.”

TRUMP: “No, you’re wrong. Our new mayor refused to go forward with the case. They would have won on appeal. There are many places where it’s allowed.”

Q: “The argument is that it’s a form of racial profiling.”

TRUMP: “No, the argument is that we have to take the guns away from bad people that shouldn’t have them. You have to have stop-and-frisk.”

Some background information and “fact-checking” is necessary to understand this discussion.

Recently, in Floyd v. City of New York, U.S. District Court Judge Shira A. Scheindlin ruled that New York City police violated the U.S. Constitution in the way that it carried out its stop-and-frisk program, calling it “a form of racial profiling” of young black and Hispanic men. Apparently, there were 4.4 million stops made by New York City police between January 2004 and June 2012, and 83 percent of them were made of blacks and Hispanics — even though those racial groups represented 52 percent of the city’s population in 2010.

During trial, Judge Scheindlin found that 14 of the 19 stops constituted an unconstitutional stop or unconstitutional frisk. Ultimately, Judge Scheindin found the NYPD’s execution of its stop and frisk policy was unconstitutional.

My opinion?  Sure, most would agree we want guns and criminals off our streets. However, if stop and frisk policies involve systematically targeting certain racial groups, then these policies are simply unlawful. Period. Given his statements during the debates, I fear Trump’s administration may create, endorse and execute criminal justice policies which ultimately violate Fourth Amendment protections against unlawful searches and seizure.

2. How do you heal the racial divide?

TRUMP: “We need law and order. If we don’t have it, we’re not going to have a country. I just got today the endorsement of the Fraternal Order of Police. We have endorsements from almost every police group, a large percentage of them in the US. We have a situation where we have our inner cities, African- Americans, Hispanics are living in he’ll because it’s so dangerous. You walk down the street, you get shot.”

3. Do you see a crisis in the US of white police officers shooting unarmed blacks?

TRUMP: “It’s a massive crisis. It’s a double crisis. I look at these things, I see them on television. And some horrible mistakes are made. But at the same time, we have to give power back to the police because crime is rampant. I believe very strongly that we need police. Cities need strong police protection. But officers’ jobs are being taken away from them. And there’s no question about it, there is turmoil in our country on both sides.”

4. Do you understand why African Americans don’t trust the police right now?

TRUMP: “Well, I can certainly see it when I see what’s going on. But at the same time, we have to give power back to the police because we have to have law and order. And you’re always going to have mistakes made. And you’re always going to have bad apples. But you can’t let that stop the fact that police have to regain control of this tremendous crime wave that’s hitting the US.”


According to Politico Magazine, Trump will probably pick ultra-conservative judges to fill anticipated vacancies in the United States Supreme Court. In an article titled, “How President Trump Could Reshape the Supreme Court – and the Country,” reporter Jeffrey Rosen surmises that Trump’s lasting legacy could be his power to shape the Supreme Court.

Apparently, during the third presidential debate, Trump described the 21 judicial candidates he has identified:

“They will be pro-life. They will have a conservative bent. They will be protecting the Second Amendment. They are great scholars in all cases, and they’re people of tremendous respect. They will interpret the Constitution the way the Founders wanted it interpreted, and I believe that’s very important.”

Apparently, Trump’s judicial picks are pro-law enforcement on issues involving government searches and seizures. This bodes negatively for preserving Fourth Amendment protections against search and seizure.

Also, Trump vows to give more power to police to handle the racial divide between police and communities of color. My opinion? That’s similar to dousing a forest fire with gasoline. or allowing a fox to guard your henhouse. Police aren’t experts at policing themselves. What is needed are the reinforcement of police accountability policies as well as a substantial shift with the culture of today’s police departments.

Let’s be frank: the unjustified killing of citizens at the hands of police can no longer go unpunished, especially in the face of indisputable video evidence. In those cases, police must be held accountable for the crimes they commit against the citizens they are sworn to serve and protect. It’s the only way to rebuild trust between police and the communities of color.

Equally important, we need policies which increase training on de-escalation techniques and decrease police militarization models which involves the use of military equipment and tactics by law enforcement officers. This includes decreasing the use of armored personnel carriers, assault rifles, submachine guns, flashbang grenadesgrenade launcherssniper rifles, and Special Weapons and Tactics (SWAT) teams if more reasonable alternatives are possible.


Put simply, Mr. Trump as a staunch advocate of the death penalty.

“A life is a life, and if you criminally take an innocent life you’d better be prepared to forfeit your own. My only complaint is that lethal injection is too comfortable a way to go.”

“I can’t believe that executing criminals doesn’t have a deterrent effect . . . Young male murderers, we are constantly told, are led astray by violent music and violent movies. Fair enough. I believe that people are affected by what they read, see, hear, and experience. Only a fool believes otherwise. So you can’t say on one hand that a kid is affected by music and movies and then turn around and say he is absolutely not affected when he turns on the evening news and sees that a criminal has gone to the chair for killing a child. Obviously, capital punishment isn’t going to deter everyone. But how can it not put the fear of death into many would-be killers?”

Source: The America We Deserve, by Donald Trump, pp. 102-104, July 2, 2000.


According to the Huffington Post, Trump vows to immediately deport or imprison up to 3 million undocumented immigrants.  Trump said he would launch what could be the largest mass deportation effort in modern history, vowing to immediately deport a number of people comparable to the record-setting figure that President Barack Obama carried out over two terms in office.

This should come as no surprise. According to a recent article from the Washington Post, Trump’s proposal calls for the deportation of undocumented immigrants who have committed violent crimes. Trump said he would push for two new laws aimed at punishing criminal aliens convicted of illegal reentry and removing “criminal immigrants and terrorists,” including previously deported unauthorized immigrants. He said he would name these laws after victims killed by people in the United States illegally.

Although Trump’s removal of undocumented immigrants at this pace is apparently limited to convicted felons, his enthusiasm for removals suggests that overall deportations will likely rise when he takes office, after declining sharply last year.

Clearly, Trump’s presidency shall affect our nation’s approach to crime and punishment. Consequently, it’s imperative to hire defense counsel who is competent handling drug charges, death penalty crimes, violent crime, racial injustice and immigration issues. Today’s defense counsel must stay abreast of today’s ever-changing political landscape.