Archives for: December 2011, 29


Permalink 08:01:26 am, by fourth, 155 words, 936 views   English (US)
Categories: General

W.D.Ark.: $1 for excessive force in Tasering case

Remember my practice pointer about questioning the officer about what he would do if the person stopped walked away in determining whether the person was free to go? Imperfect, sure, but it often leads to the right answer. In a long fought case in the Western District of Arkansas, a USMJ awarded $1 in damages for excessive in unreasonably Tasering a person who walked away from a traffic stop. Man awarded $1 in Barling Taser case, Arkansas Democrat-Gazette (paywall):

The lawsuit alleged that Barbor fired a Taser at him when he tried to walk away from a traffic stop where his girlfriend had been arrested, and when he refused to let police search him for weapons.

That's a real deterrent to excessive force cases. The appeal was Kirby v. Roth, 10-3697 (8th Cir. May 2, 2011), where Kirby was pro se and the district court failed to award damages after the first trial. This was on remand for damages.

Permalink 12:23:57 am, by fourth, 189 words, 738 views   English (US)
Categories: General

CA8: Sexual assault during traffic stop by auxillary officer was a § 1983 violation and was under color of law

Sexual assault by an auxiliary officer during a traffic stop was a § 1983 violation and was under color of law. Also, he pled guilty to a criminal civil rights violation and that would be collateral estoppel. Johnson v. Phillips, 664 F.3d 232 (5th Cir. 2011):

Johnson's final constitutional claim is that Phillips violated her substantive due process right to bodily integrity. As of 2006, it was clearly established in this circuit that the commission of a sexual assault by a government official acting under color of law constitutes a violation of due process that shocks the conscience. Rogers v. City of Little Rock, Ark., 152 F.3d 790, 796 (8th Cir. 1998); Haberthur v. City of Raymore, Mo., 119 F.3d 720, 723 (8th Cir. 1997). Johnson alleges that Phillips pushed her up against the hood of her car, pulled her shorts and underwear to the side, took pictures of her genitals with his cellular phone, and penetrated her vagina with his finger. These allegations constitute "an egregious, nonconsensual entry into the body which was an exercise of power without any legitimate governmental objective." Rogers, 152 F.3d at 797. Any reasonable officer would have known that these actions violated clearly established law.

Permalink 12:17:27 am, by fourth, 362 words, 3724 views   English (US)
Categories: General

D.N.M.: “Concealed carry” and reasonable suspicion

In a “concealed carry” state, it is still possible for an officer to have reasonable suspicion that a person is possessing a gun in violation of law. Factors may warrant an officer to conduct a stop and frisk on reasonable suspicion of possession of a weapon, even though it creates a risk of stopping innocent people. United States v. Rodriguez, 836 F. Supp. 2d 1258 (D. N.M. 2011):

Rodriguez may object that the practical end result of the Court's decision is that, in New Mexico, a police officer's observation of a concealed handgun automatically creates reasonable suspicion. The Court acknowledges that this may be a possibility. One might object that, under the Second Amendment to the United States Constitution and state law, carrying a weapon is legal, and giving police authority to make an investigatory stop anytime they see lawful conduct is impermissible. Given that guns raise particular problems for law enforcement, making the wrong decision might not be reversible for the officer. The law tolerates some intrusion on lawful activity that presents police with ambiguous acts that could also be unlawful. In a free society, there must be a balance between legitimate police goals, public safety, and individual freedom. The Court believes that to hold that officers may not investigate this conduct under the facts of this case would unduly restrict legitimate police conduct that was reasonable under the circumstances. The Court reiterates, however, that it is not deciding whether seeing a concealed handgun by itself might trigger a reasonable suspicion that a crime is being committed under all factual scenarios. The surrounding circumstances would likely affect that inquiry in ways the Court need not address today.

Consequently, the officers could permissibly conduct an investigatory stop and question Rodriguez based on their reasonable suspicion that he was carrying a concealed firearm, at least until the investigatory stop transformed into an arrest under the Fourth Amendment. "[A] police officer may in appropriate circumstances," possession of reasonable suspicion, "and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." Terry v. Ohio, 392 U.S. at 23.

Also noted at Volokh Conspiracy.

Permalink 12:10:28 am, by fourth, 221 words, 901 views   English (US)
Categories: General

CA9: Stop at San Clemente permanent checkpoint is quite limited

“A stop at a permanent immigration checkpoint, like the San Clemente checkpoint, is constitutional as long as the detention is limited to a few brief questions about immigration and the production of immigration documents. United States v. Preciado-Robles, 964 F.2d 882, 884 (9th Cir. 1992) (citing United States v. Martinez-Fuerte, 428 U.S. 543, 558, 96 S. Ct. 3074, 49 L. Ed. 2d 1116 (1976)). Whether or not the Border Patrol agent in this case impermissibly extended the immigration stop, the search of Ortiz-Flores’s backpack and the search of his person must be justified by consent or probable cause. Martinez-Fuerte, 428 U.S. at 566-67.” Here there was neither, and the motion to suppress should have been granted. United States v. Ortiz-Flores, 462 Fed. Appx. 759 (9th Cir. 2011).*

Defendant’s claim in his § 2255 that the DVD of his traffic stop was edited to remove exculpatory evidence fails for lack of any factual support. Even so it fails on the merits. Thomas v. United States, 2011 U.S. Dist. LEXIS 147971 (M.D. Tenn. December 23, 2011).*

“Mr. Dutton, a military veteran, has been preparing for the economic collapse of the world.” He freely talked with his ex-wife’s boyfriend about manufacturing explosives and arming grenades when their daughter was exchanged for visitation. His information to the police was enough for probable cause for manufacturing a destructive device. United States v. Dutton, 2011 U.S. Dist. LEXIS 147928 (D. Kan. December 23, 2011).*

Permalink 12:01:28 am, by fourth, 282 words, 567 views   English (US)
Categories: General

N.D.Tex.: Officer's credibility lacking, and no legal basis for stop was shown

Officer’s credibility did not support the asserted basis for his stop and its continuation. A reasonable person would not have felt free to leave. United States v. Dixon, 2011 U.S. Dist. LEXIS 147865 (N.D. Tex. December 23, 2011) (on motion to reconsider; original order from September 2010)*:

Because Ralson's credibility, for the reasons herein stated, has been severely discredited, the court cannot accept his account of the events regarding the revolver and when he saw it. Harris did not see a revolver until it fell to the ground underneath the car. Because of the inconsistencies and irrational position taken by Ralson regarding the cylinder, the court does not believe that Ralson saw the gun while Dixon was seated in the car. The court is convinced that Ralson did not see it until sometime after he ordered Dixon to step out of the vehicle and a struggle ensued. Accordingly, there was no legal basis — reasonable suspicion, probable cause, or otherwise — for him to order Dixon to step out of the vehicle. Ordering Dixon out of the car was not justified by Terry. Nothing had been done by the officers to determine the reliability of the anonymous tip as to criminal activity on Dixon's part or as to officer safety. Considering all the circumstances surrounding the encounter between Dixon and the officers, the court concludes that a reasonable person would not have believed that Dixon was free to leave once Ralson told her to step out of the vehicle.

The trial court credited the officer’s testimony that the defendant consented to a search of his person after the officer passed by and smelled marijuana from a group. State v. Garrett, 2011 Tenn. Crim. App. LEXIS 936 (December 20, 2011).*

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by John Wesley Hall
Criminal Defense Lawyer and
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Little Rock, Arkansas
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  Missouri v. McNeeley, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (ScotusBlog)
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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)
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  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)

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  Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam) (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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