Category Archives: § 1983 / Bivens

S.D.Cal. gives helpful explanation of application of Heck bar

A helpful explanation of the Heck bar to Fourth Amendment claims is Cordova v. Imperial Cnty. Narcotics Task Force, 2022 U.S. Dist. LEXIS 3993 (S.D.Cal. Jan. 7, 2022).* Plaintiff lost her excessive force claim, and the defendants sought attorneys fees … Continue reading

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CA6: Arguable PC defeats false arrest claim

Plaintiff is a police officer who was apparently drunk in the Detroit airport after returning to Michigan with his children for Thanksgiving weekend. He ended up being arrested and sued. He understood he was impaired and was going to have … Continue reading

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E.D.Mich.: Prosecutor allegedly drafting false affidavit without PC not absolutely immune

A prosecutor allegedly drafting a false affidavit without probable cause for arrest warrant has no absolute immunity. There is no absolute immunity for drafting questions for a witness interview by another that explicitly avoids exculpatory information. Macmaster v. Busacca, 2021 … Continue reading

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D.N.M.: In Torres v. Madrid on remand, defs get QI; right not clearly established in 2014

Torres v. Madrid, 141 S. Ct. 989 (2021) on remand: Defendants get qualified immunity because it wasn’t clearly established in 2014 that a shooting was an arrest. Torres v. Madrid, 2021 U.S. Dist. LEXIS 248358 (D.N.M. Dec. 30, 2021). [Once … Continue reading

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CA7: Ptf’s manufactured evidence claim survives QI

Plaintiff was tried and acquitted for murder. He sued under § 1983 after two years in custody alleging evidence for his trial was fabricated and exculpatory evidence was withheld. The district court denied qualified immunity, and the defendants appealed. Defendants … Continue reading

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S.D.Ind.: Not all 4A claims are Heck barred, but ptf here “has pled himself into a Heck bar”

“The Court acknowledges that not all Fourth Amendment claims are barred by Heck. Indeed, a civil rights claim may go forward before a conviction is invalidated where the civil rights violation ‘does not inevitably undermine a conviction.’ Booker v. Ward, … Continue reading

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D.Del.: 4A child seizure claim requires the child be a party

A Fourth Amendment child seizure claim requires the child be a party, even if the parents assert the child’s rights. Spahr v. Collins, 2021 U.S. Dist. LEXIS 241127 (D.Del. Dec. 17, 2021). Defendant in his 2255 cannot show defense counsel … Continue reading

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E.D.N.Y.: For § 1988 fee shifting, SCOTUS expert fees not awarded, only local rate

The fact expert Fourth Amendment counsel would have charged the client $1,000-1,800 before SCOTUS isn’t binding on the district court for fee shifting. The local rate is what’s reasonable. Agudath Israel of America v. Hochul, 2021 U.S. Dist. LEXIS 233088 … Continue reading

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CA7: Malicious prosecution case is based on a lack of PC

Malicious prosecution claim is ultimately based on a lack of probable cause. Summary judgment here inappropriate. Gupta v. Melloh, 2021 U.S. App. LEXIS 35934 (7th Cir. Dec. 6, 2021):

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W.D.Wash.: Carpenter does not apply to private searches

Carpenter does not apply to private searches, citing United States v. Miller, 982 F.3d 412, 431 (6th Cir. 2020), and United States v. Ringland, 966 F.3d 731, 737 (8th Cir. 2020). Kleiser v. Chavez, 2021 U.S. Dist. LEXIS 232013 (W.D.Wash. … Continue reading

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Misc.

There was probable cause for the first and second search warrants for child pornography on defendant’s devices (took ~100 pages to say that). No exclusionary rule; good faith exception applies, too. United States v. Pena, 2021 U.S. Dist. LEXIS 218914 … Continue reading

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Reason: SCOTUS Has Made It Practically Impossible To Sue a Rights-Violating Federal Officer

Reason: SCOTUS Has Made It Practically Impossible To Sue a Rights-Violating Federal Officer by Damon Root (“Several recent Supreme Court decisions have made it practically impossible to sue a federal officer over alleged violations of constitutional rights. Now the Court … Continue reading

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S.D.N.Y.: Supposed Franks challenge really only expressing things for cross at trial

Defendant’s motion to reconsideration seems to raise a Franks-type challenge to the search which was not the focus of his original motion to suppress. What he raises “may be interesting cross-examination at trial, [but] they fail entirely to undermine the … Continue reading

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CA10: Exclusionary rule doesn’t apply in § 1983 cases

“Plaintiffs maintain that, because Salt Lake City Police violated the Fourth Amendment by unconstitutionally searching and seizing Jerrail Taylor and Adam Thayne, their statements should be excluded in this 42 U.S.C. § 1983 lawsuit. They advance this argument despite the … Continue reading

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CA9: Heck claims should be dismissed without prejudice

Heck claims should be dismissed without prejudice in case the plaintiff can invalidate the conviction. Lund v. California, 2021 U.S. App. LEXIS 32096 (9th Cir. Oct. 26, 2021). The case has a helpful explanation of Heck:

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D.Idaho: SW for stolen iPhone permitted plain view and seizure of drugs seen on execution

An iPhone was stolen. The owner reported to police it had been turned on at a particular address. Officers got a search warrant for that address, and entered. Drugs in plain view could be seized. United States v. Curiel, 2021 … Continue reading

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NY Times: If the Police Lie, Should They Be Held Liable? Often the Answer Is No.

NY Times: If the Police Lie, Should They Be Held Liable? Often the Answer Is No. by Shaila Dewan (“Federal agents and police officers who work with them are often immune from lawsuits, even for serious rights violations. The Supreme … Continue reading

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CA9: Govt proved inevitable discovery of victims despite suppressing search of motel room

The officers’ investigation had progressed enough to have embarked on a course to readily identify defendant’s victims before the illegal search of the motel room. The government proved inevitable discovery. In addition, this wasn’t so flagrant, despite the granting of … Continue reading

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CA11: There was justification for ptf’s stop, so pretext question doesn’t get to jury

“The plaintiffs contend that the record contains evidence that could lead a jury to conclude that Officer Benton merely used the tag violation as a pretext for an otherwise unlawful stop. But Officer Benton’s subjective purpose for conducting the traffic … Continue reading

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CA10: No Bivens remedy for false arrest and malicious prosecution

No Bivens remedy for false arrest and malicious prosecution. Even if wrong, there was qualified immunity here. Boudette v. Buffington, 2021 U.S. App. LEXIS 24512 (10th Cir. Aug. 17, 2021). The citizen informant called police to say that there was … Continue reading

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