Category Archives: Qualified Immunity

“Ruse” Searches Held Unconstitutional.

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

FACTUAL BACKGROUND

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

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

LEGAL ISSUES

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

COURT’S ANALYSIS AND CONCLUSIONS

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

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

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

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

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

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

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

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

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

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

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

B. Whether the Violation Was “Clearly Established.”

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

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

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

Praying While Arrested

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In Sause v. Bauer, the United States Supreme Court held that a police officer may lawfully prevent a person from praying at a particular time and place, such as when a suspect who is under arrest seeks to delay the trip to the jail by insisting on first engaging in conduct that, at another time, would be protected by the First Amendment.

BACKGROUND FACTS

Petitioner Mary Ann Sause filed this civil rights action under U. S. C. §1983, and named the Louisburg, Kansas, police department as the defendant/respondent in the lawsuit.

The centerpiece of Ms. Sause’s complaint was the allegation that two of the town’s police officers visited her apartment in response to a noise complaint, gained admittance to her apartment, and then proceeded to engage in a course of strange and abusive conduct, before citing her for disorderly conduct and interfering with law enforcement.

At one point, Ms. Sause knelt and began to pray. However, one of the officers ordered her to stop. She also claimed that officers refused to investigate her complaint that she was assaulted by residents of her apartment complex, and that officers threatened to issue a citation if she reported this to another police department. In addition, she alleged that the police chief failed to follow up on a promise to investigate the officers’ conduct.

Ms. Sause’s complaint asserted a violation of her First Amendment right to the free exercise of religion and her Fourth Amendment right to be free of any unreasonable search or seizure. The defendants moved to dismiss the complaint for failure to state a claim on which relief may be granted, arguing that the defendants were entitled to qualified immunity. The Federal District Court granted the motion to dismiss her lawsuit.

Ms. Sause appealed, however, the Court of Appeals for the Tenth Circuit affirmed the decision of the District Court, concluding that the officers were entitled to qualified immunity.

COURT’S ANALYSIS AND CONCLUSIONS

“There can be no doubt that the First Amendment protects the right to pray,” said the Court. “Prayer unquestionably constitutes the “exercise” of religion.” The Supremem Court also reasoned that at the same time, there are clearly circumstances in which a police officer may lawfully prevent a person from praying at a particular time and place. “For example, if an officer places a suspect under arrest and orders the suspect to enter a police vehicle for transportation to jail, the suspect does not have a right to delay that trip by insisting on first engaging in conduct that, at another time, would be protected by the First Amendment.”

Furthermore, the Court also reasoned that when an officer’s order to stop praying is alleged to have occurred during the course of investigative conduct that implicates Fourth Amendment rights, the First and Fourth Amendment issues may be inextricable.

The court ruled that in this case, it was is unclear whether the police officers were in Ms. Sause’s apartment at the time in question based on her consent, whether they had some other ground consistent with the Fourth Amendment for entering and remaining there, or whether their entry or continued presence was unlawful. The Court found that Ms. Sause’s complaint contains no express allegations on these matters. “Nor does her complaint state what, if anything, the officers wanted her to do at the time when she was allegedly told to stop praying. Without knowing the answers to these questions, it is impossible to analyze petitioner’s free exercise claim.”

Despite agreeing with the Government on this issue, the Supreme Court nevertheless reversed the judgment of the Tenth Circuit which dismissed Ms. Sause’s case and remanded her case back to federal court for further proceedings consistent with this opinion.

Probable Cause & Parties

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In District of Colombia v. Wesby, the United States Supreme Court decided that police officers had probable cause to arrest partygoers at a home when the totality of the circumstances make it clearly obvious that criminal activity was happening.

BACKGROUND

District of Columbia police officers responded to a complaint about loud music and illegal activities in a vacant house. Inside, they found the house nearly barren and in disarray. The officers smelled marijuana and observed beer bottles and cups of liquor on the floor, which was dirty. They found a make-shift strip club in the living room.  Several women were wearing only bras and thongs, with cash tucked into their garter belts. The women were giving lap dances while other partygoers watched. Most of the onlookers were holding cash and cups of alcohol.

The officers found more debauchery upstairs. A naked woman and several men were in the bedroom. A bare mattress—the only one in the house—was on the floor, along with some lit candles and multiple open condom wrappers. A used condom was on the windowsill. The officers found one partygoer hiding in an upstairs closet, and another who had shut himself in the bathroom and refused to come out.

Many partygoers scattered when they saw the uniformed officers, and some hid. The officers questioned everyone and got inconsistent stories. Two women identified “Peaches” as the house’s tenant and said that she had given the partygoers permission to have the party. But Peaches was not there. When the officers spoke by phone to Peaches, she was nervous, agitated, and evasive. At first, she claimed that she was renting the house and had given the partygoers permission to have the party, but she eventually admitted that she did not have permission to use the house. The owner confirmed that he had not given anyone permission to be there.

At that point, the officers arrested the 21 partygoers for Unlawful Entry. The police transported the partygoers to the police station, where the lieutenant decided to charge them with Disorderly Conduct. The partygoers were released, and the charges were eventually dropped.

Several partygoers sued for False Arrest under the Fourth Amendment. The Federal District Court concluded that the officers lacked probable cause to arrest the partygoers for unlawful entry and that two of the officers, petitioners here, were not entitled to qualified immunity. A divided panel of the D. C. Circuit Court of Appeals affirmed. Eventually, this case went to the U.S. Supreme court.

COURT’S ANALYSIS & CONCLUSIONS

  1. The Officers Had Probable Cause to Arrest.

The U.S. Supreme Court held that police officers had probable cause to arrest the partygoers. The Court reasoned that considering the “totality of the circumstances” under Maryland v. Pringle, the officers made an “entirely reasonable inference” that the partygoers knew they did not have permission to be in the house.

Taken together, the condition of the house and the conduct of the partygoers allowed the officers to make several common-sense conclusions about human behavior. Because most homeowners do not live in such conditions or permit such activities in their homes, the officers could infer that the partygoers knew the party was not authorized. Furthermore, the Court reasoned that officers also could infer that the partygoers knew that they were not supposed to be in the house because they scattered and hid when the officers arrived. Also, the partygoers’ vague and implausible answers to questioning also gave the officers reason to infer that the partygoers were lying and that their lies suggested a guilty mind. Finally, Peaches’ lying and evasive behavior gave the officers reason to discredit everything she said.

2. The Lower Court Failed to Conduct the Correct Analysis.

The Supreme Court explained that the lower court failed to follow two basic and well-established principles of law. First, it viewed each fact in isolation, rather than as a factor in the totality of the circumstances. Second, it believed that it could dismiss outright any circumstances that were susceptible of innocent explanation. Instead, it should have asked whether a reasonable officer could conclude—considering all of the surrounding circumstances, including the plausibility of the explanation itself—that there was a substantial chance of criminal activity.

   3. The Officers Were Entitled to 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, only allowing 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. Courts conducting this analysis apply the law that was in force at the time of the alleged violation, not the law in effect when the court considers the case.

The Court ruled that here, officers are entitled to qualified immunity under 42 U. S. C. §1983 unless the unlawfulness of their conduct was clearly established at the time. To be clearly established, a legal principle must be “settled law,” and it must clearly prohibit the officer’s conduct in the particular circumstances before him. In the warrantless arrest context, “a body of relevant case law” is usually necessary to “ ‘clearly establish’ the answer” with respect to probable cause. Brosseau v. Haugen.

With that, the U.S. Supreme Court reversed and remanded the lower court’s decision.

Contact my office of you, a friend or family member’s house party was interrupted by police who conducted arrests. Competent defense counsel can ascertain whether constitutional rights were violated in the search and seizure of persons and property.

Excessive Force?

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

BACKGROUND FACTS

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

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

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

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

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

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

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

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

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

ISSUE

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

COURT’S ANALYSIS & CONCLUSIONS

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

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

  1. Violation of a Constitutional Right.

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

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

         2. No Clearly Established Right.

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

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

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

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

   3. Dissenting Opinion.

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

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

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

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

Forced & Warrantless Entry

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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.

BACKGROUND FACTS

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

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

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

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

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

COURT’S ANALYSIS & CONCLUSIONS

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

The Police Officers Were Not Entitled to Qualified Immunity.

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

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

Fourth Amendment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Excellent decision.

Excessive Tasing

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

BACKGROUND FACTS

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

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

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

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

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

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

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

LEGAL ISSUE

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

COURT’S ANALYSIS & CONCLUSIONS

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

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

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

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

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

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

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

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

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.

Another Study Finds Few Consequences For Prosecutor Misconduct

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Blogger Radley Balko of the Washington Post describes how a large-scale study from the New England Center for Investigative Reporting discovered that systemic prosecutor misconduct in Massachusetts dated back to 1985.

The report found more than 1,000 cases in which misconduct was alleged by criminal defendants and 120 in which a state appeals court reversed conviction due to misconduct. The group found an additional 134 verdicts reversed or thrown out due to misconduct after reviewing data from the state bar.

Balko says it’s difficult to draw conclusions from the raw number of incidents because most prosecutor misconduct goes unreported. He says the failure to turn over exculpatory evidence often becomes apparent only once a defendant has exhausted their appeals, after which the defense gets access to the prosecutor’s files. But by this point, many defendants no longer have legal counsel.

Additionally, Balko poignantly describes why defense attorneys intentionally do not report prosecutorial misconduct:

“When defense attorneys do find misconduct by prosecutors, there are also some strong incentives against reporting it. Most criminal defense attorneys will also have several other clients being prosecuted by the same office, perhaps even the same prosecutor. Reporting misconduct could jeopardize the attorney’s ability to bargain for those clients. Often, the more enticing option is to use the discovery of misconduct as a bargaining chip to get a better deal for the defendant in that case and perhaps earn favor from the prosecutor in others.”

The topic is not new to Mr. Balko. He summarized a handful of similar studies in a piece for the Huffington Post a few years ago.

“There are a handful of ways to keep wayward public officials honest,” says Balko.  He believes in the success of electoral accountability as a viable option. Still, relying on voters to keep prosecutors honest is a risky proposition. “The groups more likely to be victimized by excessive prosecutors are also the groups with the least amount of political power.”

Taping Cops is Free Speech

McKinney police Cpl. Eric Casebolt is shown in a screen shot from video of an altercation in which he pulled his gun on a group of teenagers at a pool party. A witness, Brandon Brooks, uploaded this video of the incident to YouTube. In a recent 5th Circuit Court of Appeals ruling, Justice Jacques Wiener wrote: “Protecting the right to film the police promotes First Amendment principles.”

The federal 5th Circuit Court of Appeals held that videotaping or filming police activities is protected by the First Amendment.

BACKGROUND FACTS
Phillip Turner, a computer science major at Austin Community College, started collecting video of police activities after he said a Cedar Park police officer blocked his view when filming a DUI arrest several years ago. He filed a complaint and during an investigation learned that there wasn’t an established right to film the police.
Armed with his understanding of the law, Turner has since posted a series of videos on his website where he challenges police officers and police department policies on videotaping of their activities.

On the day of the incident, Mr. Turner was video recording a Fort Worth police station from a public sidewalk across the street when Officers Grinalds and Dyess approached him and asked him for identification. Turner refused to identify himself, and the officers ultimately handcuffed him and placed him in the back of a patrol car. The officers’ supervisor, Lieutenant Driver, arrived on scene. after Driver checked with Grinalds and Dyess and talked with Turner, the officers released Turner.

He filed suit against all three officers and the City of Fort Worth under 42 U.S.C. § 1983, alleging violations of his First and Fourth Amendment rights. Each officer filed a motion to dismiss, insisting that he was entitled to qualified immunity on Turner’s claims. The district court granted the officers’ motions, concluding that they were entitled to qualified immunity on all of Turner’s claims against them. Turner appealed.
THE COURT’S DECISION
Ultimately, the Court affirmed in part and reverse and remand in part.
“Filming the police contributes to the public’s ability to hold the police accountable, ensure that police officers are not abusing their power, and make informed decisions about police policy,” Justice Jacques Wiener wrote in an opinion joined by Justice Stephen Higginson. “Protecting the right to film the police promotes First Amendment principles.”

The 5th Circuit made it clear that such activity to be protected, saying that “a First Amendment right to record the police does exist, subject only to reasonable time, place and manner restrictions,” Justice Wiener wrote.

“Filming the police contributes to the public’s ability to hold the police accountable, ensure that police officers are not abusing their power, and make informed decisions about police policy . . . Protecting the right to film the police promotes First Amendment principles.”

The 5th Circuit sent the case back to the lower court to examine Turner’s claims that he was unlawfully arrested. The court cleared the officers on that point, determining the acted appropriately. In her dissent, Justice Edith Clements said Turner’s First Amendment rights were not violated and that the officers acted reasonably in detaining Turner.

Turner’s attorney Kervyn Altaffer called the 5th Circuit’s ruling a significant one in a complicated area of the law.

“I think any time one of the federal court of appeals says that something is protected by the Constitution, that is important for all people,” Altaffer said. “I definitely think they the police overstepped. … This is supposed to be a free country.”

My opinion? Cameras make everyone behave. And I’m extremely happy the 5th Circuit describes this behavior as protected free speech. Kudos to the 5th Circuit.

Special thanks to reporter Max B. Baker and the Bellingham Herald for reporting.

Deadly Force Not Justified.

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In A.K.H. v. City of Tustin, the Ninth Circuit Court of Appeals held the government could not justify a police officer’s use of deadly force during the officer’s attempted investigatory stop of Mr. Herrera.

FACTS & PROCEDURAL HISTORY.

Defendant Osvaldo Villarreal, a police officer in Tustin, California, fatally shot Benny Herrera during an attempted investigatory stop. Herrera was on foot. Officer Villarreal was in his patrol car and had just driven up beside Herrera. Herrera was in the middle of the roadway, moving in the direction of traffic. His left hand was free and visible; his right hand was in his sweatshirt pocket. Villarreal commanded Herrera to take his hand out of his pocket. Less than a second later, just as Herrera’s hand came out of his pocket, Villarreal shot him twice, killing him. Herrera was unarmed. Villarreal does not claim that he saw, or thought he saw, a weapon in Herrera’s hand.

Relatives of Herrera (“Plaintiffs”) filed suit under 42 U.S.C. § 1983 against Officer Villarreal and the City of Tustin alleging that Villarreal used excessive force against Herrera in violation of the Fourth Amendment. Villarreal moved for summary judgment based on qualified immunity, which would have effectively dismissed the lawsuit against him. However, the federal district court denied the Officer’s motion.

Officer Villarreal brought an interlocutory appeal to the Ninth Circuit Court of Appeals. He argued that, even viewing the evidence in the light most favorable to the plaintiffs, his actions did not violate the Fourth Amendment and that the district court therefore erred in denying him qualified immunity.

THE ISSUES.

The Ninth Circuit reasoned it must ask two questions to determine whether Officer Villarreal is entitled to summary judgment based on qualified immunity. First, viewing the facts in the light most favorable to the plaintiffs, did Villarreal use excessive force in violation of the Fourth Amendment? Second, if Villarreal used excessive force, did he violate a clearly established right?

THE COURT’S ANALYSIS.

Quoting Tennessee v. Garner, the Ninth Circuit reasoned that Deadly Force is permissible only if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm.

Here, the Ninth Circuit found Officer Herrera used excessive force in violation of Mr. Herrera’s Fourth Amendment rights. The Court reasoned that (1) the crime at issue was a domestic dispute that had ended before the police became involved; (2) the deceased did not pose an immediate threat to the safety of the officers or others, as the officer did not believe the deceased was armed and the officer did not see a weapon; (3) although the deceased did not comply with the officer’s commands to remove his hand from his sweatshirt pocket, he did not attempt to flee; and (4) the officer escalated to deadly force approximately 1 second after issuing the command to the deceased to remove his hand from his pocket. “Viewing the evidence in the light most favorable to the plaintiffs, we conclude that Villarreal violated clearly established Fourth Amendment law when he shot and killed Herrera.”

CONCLUSION.

In its conclusion, the Ninth Circuit said the following:

“It has long been clear that a police officer may not seize an unarmed, non-dangerous suspect by shooting him dead. Viewing the evidence in the light most favorable to the plaintiffs, that is precisely what Officer Villarreal did here.”

My opinion? Great decision. Straightforward, direct, constitutionally sound and accurate. I’m happy the Ninth Circuit saw this case for what it was.