Archives for: August 2010, 15


Permalink 09:39:49 am, by fourth, 423 words, 369 views   English (US)
Categories: General

CA7: A diabetic assaulted by officer for suspected DWI survives summary judgment

Plaintiff’s case against an officer for excessive force who was “pissed off” at plaintiff for allegedly being a drunk driver resulted in plaintiff being thrown to the ground and seriously manhandled and injured survives summary judgment and qualified immunity. Plaintiff was in hypoglycemic shock, which the officer was trained to recognize, and an EMT saw plaintiff’s medical alert bracelet and the officer then calmed down and removed the handcuffs from plaintiff’s bleeding wrists. McAllister v. Price, 615 F.3d 877 (7th Cir. 2010)*:

Claims that officers used excessive force in seizing a person are evaluated under the Fourth Amendment's reasonableness standard. See Acevedo v. Canterbury, 457 F.3d 721, 724 (7th Cir. 2004). The dispositive question is whether, in light of the facts and circumstances that confronted the officer (and not 20/20 hindsight), the officer behaved in an "objectively reasonable" manner. See Graham v. Connor, 490 U.S. 386, 396-97, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). The Supreme Court has directed lower courts to consider three factors in this inquiry: (1) the severity of the crime at issue; (2) whether the suspect poses an immediate threat to the safety of officers or others; and (3) whether the suspect is actively resisting arrest by flight. Id. at 396.

. . .

While we are hesitant to second-guess the snap judgments made by law enforcement personnel, McAllister has come forward with enough evidence so that a jury could infer that Price's mistaken belief that McAllister was intoxicated was unreasonable. It was clear to Price, as it was to the other witnesses, that McAllister was impaired in some way during and after the accident. Thus, this is not a case like Estate of Phillips, where the plaintiff's medical condition was completely hidden. Multiple eyewitnesses observed McAllister to be convulsing or twitching, and at least one concluded that McAllister was not intoxicated. Price was trained to ask if someone who appears unwell is diabetic, but did not do so before applying the challenged force. McAllister was wearing a medical alert necklace--something that Price was trained to look for--but Price made no attempt to check for it until this course of action was suggested by a witness. Finally, Price was trained to recognize people under the influence of alcohol and drugs; yet if we draw all reasonable inferences in favor of McAllister, Price did not follow that training and leapt to the conclusion that McAllister was intoxicated. For these reasons, the district court did not err in finding a genuine issue of material fact regarding McAllister's diabetic condition.

Lower court opinion: McAllister v. Town of Burns Harbor, 693 F. Supp. 2d 815 (N.D. Ind. 2010).

Permalink 09:23:36 am, by fourth, 375 words, 469 views   English (US)
Categories: General

N.D.Ind.: Abortion provider's suit against inspection of records without court order or subpoena not ripe

Local ordinance mandated government review of some medical records upon a “credible complaint” about itinerant doctors providing abortion services without backup medical care. The plaintiff doctor sued over application of the ordinance to him. The court held that the Fourth Amendment claim was not ripe for decision because there had been no effort to review his medical records. The ordinance may very well create a constitutional violation, but the case is not ripe to decide it. Ft. Wayne Women’s Health v. Bd. of Comm'rs, Allen County, Ind., 2010 U.S. Dist. LEXIS 82128 (N.D. Ind. August 11, 2010):

Dr. Klopfer insists his Fourth Amendment challenge is an as-applied challenge. The Board of Commissioners argues that the challenge isn't ripe because no search has occurred yet, so Dr. Klopfer's challenge must be considered a facial Fourth Amendment challenge to the ordinance, which courts disfavor. The distinction makes no difference here. Without a subpoena, unconsented searches of patient records would be unconstitutional. Because the case law is so developed on this question, no government official would be entitled to qualified immunity in a § 1983 suit if he or she conducted such an unconsented search. See Doe v. Heck, 327 F.3d at 517 ("At this juncture, however, we now make it clear that it is patently unconstitutional for government officials to search the premises of a private or parochial school and/or seize a child attending that school without a warrant or court order, probable cause, consent, or exigent circumstances."); see also Camara v. Municipal Court, 387 U.S. at 528-529 (stating that search of private property without proper consent is unreasonable unless authorized by valid search warrant). Though the ordinance might be read as providing an instruction to conduct an unconstitutional search, it is appropriate to presume that government officials in Allen County will apply the ordinance in a constitutional manner and obtain either consent or a subpoena before undertaking a search of patient notification forms. See, e.g., United States v. Ramsey, 503 F.2d 524, 530-531 (7th Cir. 1974) (noting that normal application of statute wouldn't ordinarily lead to Fourth Amendment violations and that unconstitutional applications of the statute were inhibited by other protections). In the absence of an actual unconstitutional search, Dr. Klopfer is unlikely to succeed on his Fourth Amendment claim.

Permalink 08:01:04 am, by fourth, 218 words, 425 views   English (US)
Categories: General

E.D.Ky.: "Evidence of thefts of ATVs" is particular enough because the crime has certain indicia during the search, like a key copier

A particularity clause for evidence of ATV thefts was sufficiently particular. “The universe of responsive items reasonably finds a limit in the subject matter of the designated crime, which in this case presents a logical and discernible limit and thus confines officer discretion. See, e.g., Sanders v. Parrish, 141 F. App'x 412, 417 (6th Cir. 2005) (referencing materials in the search warrant affidavit to remedy a deficient description of items to be seized).” United States v. Taylor, 2010 U.S. Dist. LEXIS 81617 (E.D. Ky. July 26, 2010) (R&R), adopted United States v. Taylor, 2010 U.S. Dist. LEXIS 81769 (E.D. Ky. August 11, 2010) (“While multiple items could fall within the warrant’s terms, this by no means dooms the warrant’s particularity. ... Other courts have held that warrants with language similar to the warrant issued in this case are sufficiently particularized.”).*

“James Cameron moves to suppress evidence obtained by Yahoo! during its search of photo albums located on the Yahoo! Network. The Court rejects the Defendant's contention that in searching for and reporting to the Government that one of its customers was committing a crime against children, Yahoo! acted as an agent of the Government for Fourth Amendment purposes.” Yahoo! was acting as a citizen informant in turning the evidence over to the government. United States v. Cameron, 729 F. Supp. 2d 418 (D. Me. 2010).*

Permalink 12:17:37 am, by fourth, 372 words, 443 views   English (US)
Categories: General

CA6: "Frisk" of a suspected bank robber's duffle bag for the gun they reasonably believed he had was reasonable

Frisking defendant’s duffle bag that was partly unzipped for a weapon that the officers reasonably believed was in there was reasonable. He was wanted for bank robbery, and there was reason to believe he was armed. United States v. Walker, 615 F.3d 728, 2010 FED App. 0244P (6th Cir. 2010):

The directive to steer clear of “unreasonable” searches cannot be reduced to a “frisk first” or any other one-size-fits-all command, which is presumably why courts of appeals have declined to adopt a “frisk first” requirement for Terry searches. See, e.g., United States v. Shranklen, 315 F.3d 959, 963-64 (8th Cir. 2003); United States v. Thomson, 354 F.3d 1197, 1200-01 (10th Cir. 2003); United States v. Rhind, 289 F.3d 690, 693-94 (11th Cir. 2002); United States v. Brown, 133 F.3d 993, 998-99 (7th Cir. 1998). Other courts likewise have recognized that non-frisk search methods may be reasonable under the Fourth Amendment. See, e.g., United States v. Landry, 903 F.2d 334, 337 (5th Cir. 1990) (grabbing a bag and looking inside); People v. Jackson, 79 N.Y.2d 907, 590 N.E.2d 240, 241, 581 N.Y.S.2d 655 (N.Y. 1992) (shining a flashlight through a plastic bag). The courts’ job is to ask what was reasonable under the circumstances, not to poke and prod for lesser-included options that might not occur to even the most reasonable and seasoned officer in the immediacy of a dangerous encounter.

If it is a loaded gun that concerns the officer, moreover, it is by no means clear that poking and prodding the outside of a duffel bag is the most sensible way to find it. No doubt, the frisking of the outside of a bag intrudes less on the privacy of the suspect. But at what cost? Who looks for a gun by aimlessly grabbing and manipulating the outside of a large bag that may or may not contain the gun--and a loaded gun at that? That, we suspect, is not what gun-safety programs recommend. If Terry permits officers to open a closed container located in a car after a stop and after the officers have removed the passengers from the car, see Long, 463 U.S. at 1050-51, it surely permits an officer to unzip a duffel bag, one that is already partially unzipped, to see what is lying on top of it.

Permalink 12:08:51 am, by fourth, 500 words, 699 views   English (US)
Categories: General

CA10: Use of deadly force that does not stop or seize a person is not a Fourth Amendment issue

Officers shot at a burglar who shot at them, hitting him, but he fled the scene. He was apprehended three days later. The use of deadly force against him was not a seizure since he was not seized. Brooks v. Gaenzle, 614 F.3d 1213 (10th Cir. 2010):

Following Hodari and Lewis, the Supreme Court again considered what constitutes a seizure by summarizing, “[a] person is seized by the police and thus entitled to challenge the government’s action under the Fourth Amendment when the officer, by means of physical force or show of authority, terminates or restrains his freedom of movement, through means intentionally applied.” Brendlin v. California, 551 U.S. 249, 254, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007) (internal quotation marks and citations omitted and emphasis added). As to Hodari and Lewis, it further clarified, “[a] police officer may make a seizure by a show of authority and without the use of physical force, but there is no seizure without actual submission; otherwise there is at most an attempted seizure, so far as the Fourth Amendment is concerned.” Id. As to what constitutes actual “submission,” the Supreme Court explained it depends on ‘the totality of the circumstances -- the whole picture,” United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981), and, as the Brendlin Court offered, “what may amount to submission depends on what a person was doing before the show of authority; a fleeing man is not seized until he is physically overpowered, but one sitting in a chair may submit to authority by not getting up to run away.” 551 U.S. at 262.

Not only have we applied these same principles in considering seizure situations, but none of our holdings suggest the mere use of physical force or show of authority alone, without termination of movement or submission, constitutes a seizure. For instance, in Reeves, we determined two individuals were not “seized” for the purpose of a Fourth Amendment violation when law enforcement officers pointed their guns at them and ordered them not to move, but they failed to submit to their assertions of authority. See 484 F.3d at 1248-50, 1253-54 & n.17. In Latta v. Keryte, 118 F.3d 693 (10th Cir. 1997), we held an officer did not seize a suspect during an interstate pursuit, even though he shot out two of the suspect’s tires, given it “did not cause [him] to submit to … authority or succeed in stopping him.” Id. at 700. Likewise, in Bella, we determined a seizure did not occur when a law enforcement officer shot at and struck a helicopter operated by an innocent hostage. 24 F.3d at 1254-56. We concluded that while the shots constituted an intentional assertion of authority, they did not cause the hostage to submit or otherwise succeed in stopping him, and therefore, it did not constitute a seizure within the meaning of the Fourth Amendment. Id. at 1255-56. Similarly, in this case, the intentional use of deadly force in shooting Mr. Brooks neither prevented his freedom of movement nor otherwise succeeded in stopping him.

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
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2013-14 Term:
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  Navarette v. California, granted Oct.1, argued Jan. 21 (ScotusBlog)
  Fernandez v. California, 134 S.Ct. 1126, 188 L. Ed. 2d 25 (Feb. 25) (ScotusBlog)

2012-13 Term:
  Maryland v. King, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013) (ScotusBlog)
  Missouri v. McNeeley, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (ScotusBlog)
  Bailey v. United States, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013) (ScotusBlog)
  Florida v. Harris, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013) (ScotusBlog)
  Florida v. Jardines, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) (ScotusBlog)
  Clapper v. Amnesty International USA, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (ScotusBlog)

2011-12 Term:
  Ryburn v. Huff, 132 S.Ct. 987, 181 L.Ed.2d 966 (2012) (other blog)
  Florence v. Board of Chosen Freeholders, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012) (ScotusBlog)
  United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (ScotusBlog)
  Messerschmidt v. Millender, 132 S.Ct. 1235, 182 L.Ed.2d 47 (2012) (ScotusBlog)

2010-11 Term:
  Kentucky v. King, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) (ScotusBlog)
  Camreta v. Greene, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011) (ScotusBlog)
  Ashcroft v. al-Kidd, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (ScotusBlog)
  Davis v. United States, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) (ScotusBlog)

2009-10 Term:

  Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam) (ScotusBlog)
  City of Ontario v. Quon, 560 U.S. 746, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010) (ScotusBlog)

2008-09 Term:
  Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (ScotusBlog)
  Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (ScotusBlog)
  Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) (ScotusBlog)
  Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (ScotusBlog)
  Safford Unified School District #1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009) (ScotusBlog)

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"If it was easy, everybody would be doing it. It isn't, and they don't."

"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud

"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).

"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence."
Mapp v. Ohio, 367 U.S. 643, 659 (1961).

Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).

"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today."
Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).

"The great end, for which men entered into society, was to secure their property."
Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)

"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment."
United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)

"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth."
Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

"A search is a search, even if it happens to disclose nothing but the bottom of a turntable."
Arizona v. Hicks, 480 U.S. 321, 325 (1987)

"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."
Katz v. United States, 389 U.S. 347, 351 (1967)

“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)

“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.”
United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)

"You can't always get what you want / But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards

"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
Martin Niemöller (1945) [he served seven years in a concentration camp]

“You know, most men would get discouraged by now. Fortunately for you, I am not most men!”
Pepé Le Pew

"There is never enough time, unless you are serving it."
Malcolm Forbes

"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
Johnson v. United States, 333 U.S. 10, 13-14 (1948)


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