U.S. Supreme Court holds 1st Amendment retaliatory arrest claim barred because probable cause exists and plaintiff has no objective evidence of retaliatory motive

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Nieves, et al., v Bartlett, 17–1174 (May 28, 2019)

In this First Amendment/retaliatory arrest/§1983 case the U.S. Supreme Court held the presence of probable cause eliminates the First Amendment claims as a matter of law. [Comment: warning this is a 48-page set of opinions, concurrences and dissents].

Bartlett was arrested by police officers Nieves and Weight for disorderly conduct and resisting arrest during a winter sports festival in Alaska. During the event Nieves and Weight were separately speaking with individuals at the festival about various law enforcement aspects when Bartlett approached each and interfered with the questioning of patrons. Due to the fact Bartlett appeared intoxicated, after the second time Bartlett allegedly interfered, he was arrested. It was also during this second instance that Bartlett allegedly aggressively attempted to physically intimidate one officer by stepping into his personal space and yelling at him. Bartlett sued under 42 U. S. C. §1983, claiming that the officers violated his First Amendment rights by arresting him in retaliation for his speech.  The District Court granted summary judgment for the officers, holding that the existence of probable cause to arrest Bartlett precluded his claim. The U.S. Court of Appeals for the Ninth Circuit reversed and the officers appealed.

As a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions for engaging in protected speech.  It is not enough to show that an official acted with a retaliatory motive. The motive must cause the injury under a “but-for” analysis.  The analysis is complex as it is particularly difficult to determine whether the adverse government action was caused by the officer’s malice or the plaintiff ’s potentially criminal conduct.  Police officers conduct approximately 29,000 arrests every day—a dangerous task that requires making quick decisions in circumstances that are tense, uncertain, and rapidly evolving.  After a highly detailed analysis of common-law and current precedent, the Court concluded the proper test was an objective standard test, which is resolved if the officers had probable cause to make an arrest.  The subjective intent of the officers is therefore taken out of the analysis.  However, the Court adopted an exception for “minor” offenses which allows a plaintiff to present objective evidence others similarly situation for these minor offenses are not arrested.  Because there was probable cause to arrest Bartlett and he presented no objective evidence others in his situation were not, his retaliatory arrest claim fails as a matter of law.

If you would like to read this opinion click here. ROBERTS, C. J., delivered the opinion of the Court, in which BREYER, ALITO, KAGAN, and KAVANAUGH, JJ., joined, and in which THOMAS, J., joined except as to Part II–D. THOMAS, J., filed an opinion concurring in part and concurring in the judgment. GORSUCH, J., filed an opinion concurring in part and dissenting in part. GINSBURG, J., filed an opinion concurring in the judgment in part and dissenting in part. SOTOMAYOR, J., filed a dissenting opinion.

U.S. Supreme Court holds officers at scene were not required to belief innocent explanations of suspects given circumstances – probable cause therefore exists for arrests.

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District of Columbia, et al. v Wesby, et al, No. 15–1485., — U.S. – (January 22, 2018).

This is an unconstitutional false arrest case where the U.S. Supreme Court determined the officers on the scene had probable cause to make arrests of partygoers. The Court’s collection of opinions totals twenty-five pages.

D.C. police officers responded to a complaint about noise at a vacant house. Upon arriving and entering, the house was in disarray and nearly barren. When searching for the source of the noise officers discovered a makeshift strip club with several partygoers and strippers.  All pointed to someone named “Peaches” who allegedly gave them permission to use the home. After investigating and contacting Peaches, the officers discovered she had no authority to grant access to the home and the true owner did not give permission. The officers arrested the partygoers for illegal entry. After the charges were eventually dropped, the partygoers sued the officers and D.C. for false arrest.  On cross-motions for summary judgment, the trial court awarded partial summary judgment to the partygoers, holding the officers lacked probable cause to arrest. Specifically, the charge required the partygoers to have knowledge they were illegally present. While Peaches may not have had authority to give, no evidence existed the partygoers knew that. The Court of Appeals affirmed the grant of the partygoers’ summary judgment and denial of qualified immunity. In other words, the officers needed “some evidence” that the partygoers “knew or should have known they were entering against the will of the lawful owner.” The Supreme Court granted review.

A warrantless arrest is reasonable if the officer has probable cause to believe that the suspect committed a crime in the officer’s presence. Courts examine the events leading up to the arrest, and then decide whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to probable cause. Probable cause is “a fluid concept” that is “not readily, or even usefully, reduced to a neat set of legal rules.”  The Court went through a detailed review of what the officers knew and could reasonably infer and the totality of the circumstances.  The Court ultimately determined a reasonable officer could infer the partygoers were knowingly taking advantage of a vacant house as a venue for their late-night party.  The U.S. Constitution does not require the officers to believe the partygoers given the circumstances surrounding them. Probable cause “does not require officers to rule out a suspect’s innocent explanation for suspicious facts.” The condition of the house and the conduct of the partygoers allowed the officers to make several “common-sense conclusions about human behavior.” The Court provided an excellent analysis of the record and why each such specific fact helps support probable cause. In holding the contrary, the Court of Appeals engaged in an “excessively technical dissection” of the factors supporting probable cause. The Court had a definite issue with the Court of Appeals analysis which took each fact in isolation, instead of as one part of the totality of circumstances. A factor viewed in isolation is often more “readily susceptible to an innocent explanation” than one viewed as part of a totality. The Court even held that while its merit analysis ends the dispute and case, since the Court of Appeals incorrectly applied qualified immunity and the merits, the Court was going to analyze everything to correct the panel’s error anyway. For those dealing with qualified immunity issues, it is a helpful and instructive analysis. The summary judgment for the partygoers is reversed.

Justice Sotomayor concurred, but wrote separately to question the majority’s decision to slap the Court of Appeals by analyzing and ruling on matters beyond what is needed to resolve the case.

Justice Ginsburg concurred on the judgement only in part. She was concerned, the majority’s opinion sets the balance too heavily in favor of police unaccountability to the detriment of Fourth Amendment protection.  However, she agreed, under a qualified immunity analysis, no “settled law” exists on the fact specific subject, so the officers were entitled to immunity.

If you would like to read this opinion click here. Justice Thomas, delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, BREYER, ALITO, KAGAN, and GORSUCH, JJ., joined. SOTOMAYOR, J., filed an opinion concurring in part and concurring in the judgment. GINSBURG, J., filed an opinion concurring in the judgment in part.

U.S. 5th Circuit holds fact question exists on qualified immunity between whether officer stepped in front of car to prevent escape, or was already in front of car and shot to defend himself

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Vann v. City of Southaven, 16-60561 (5th Cir. November 22, 2017).

The U.S. Court of Appeals for the Fifth Circuit reversed the granting of summary judgment for the City and its officer in this police shooting and death case.

Vann drove Katchens and Katchens’s three-year-old son to a drug exchange which turned out to be a police sting operation. Shortly after Vann arrived at the lot, his car was boxed in by unmarked civilian cars driven by undercover police officers. The officers exited their cars, and Vann reversed his car, trying to escape. During Vann’s escape attempt, Vann’s car moved forward toward Sergeant Jeff Logan, who shot Vann before being knocked to the ground by Vann’s car. While Logan was on the ground, and as Vann’s car approached him for a second time, Lieutenant Jordan Jones fired a second shot at Vann. Vann died as a result of the shots fired by Logan and Jones. Katchens and his son survived.  The facts are in dispute as to whether the officers used lights/sirens, wore police badges and vests, and identified themselves as police officers. There is also disagreement as to the sequence of events.  Vann’s estate filed suit. The City and officers moved for summary judgment, which the trial court granted. Vann appealed.

The central disputed fact is whether Logan ran to the opening and shot Vann to stop him from fleeing or whether Logan ran between the cars to get out of Vann’s way and then shot Vann because Vann was going to hit him.  However, since the U.S. Supreme Court has told courts not to define “clearly established law” at a high level of generality, the disputed facts must be examined for an application.  Tthe question becomes if Logan’s conduct were believed to be as Katchens testified, is Logan still entitled to qualified immunity. When viewing the facts in the light most favorable to Plaintiff, Logan’s running into the way of Vann’s car and shooting at Van are not distinct acts. It has long been settled that “[w]here [a fleeing] suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.” Put simply, “[a] police officer may not seize an unarmed, nondangerous suspect by shooting him dead.” On the other hand, if Logan was running away from Vann’s moving car and thus being threatened at the time he shot, a reasonable officer would have resorted to deadly force in such situations. Disputed evidence exists between Logan running in front of Vann’s car to prevent him from escaping and Logan already being in the car’s path and shooting to prevent injury. As a result, based on summary judgment standards, the summary judgment was improperly granted.

Justice Haynes concurred in part, but dissents as to the denial of Logan’s qualified immunity.  In his opinion, the disputed facts are disputed only up to a point. However, at some moment during this escape attempt, Logan was in front of the vehicle that ultimately struck him, Logan fired his weapon.  His opinion is that such force is reasonable under legal standards and Logan should have been granted qualified immunity.

If you would like to read this opinion click here.  The panel consists of Justices Smith, Elrod and Haynes. Opinion by Justice Enrod. Justice Haynes concurred in part and dissented in part.  The attorney listed for Vann is Daniel Marten Czamanske.  The attorney listed for the City is Robert Edwin Hayes, Jr.

U.S. 5th Circuit holds henceforth, a clearly established constitutional right exists to video tape police and their facilities

Turner v. Driver, No. 16-10312 (5th Cir., February 27, 2017)

This is a §1983 case where the U.S. Court of Appeals for the Fifth Circuit affirmed in part and reversed in part an order dismissing three officers from a suit alleging First and Fourth Amendment violations.

Turner was seen videotaping the Fort Worth Police Station from a public sidewalk across the street. He was unarmed and posed no apparent signs of immediate threat. Police Officers Grinalds and Dyess approached him and requested ID. Turner asked the officers whether he was being detained, and Grinalds responded that Turner was being detained for investigation and that the officers were concerned about who was walking around with a video camera.  However, neither officer could respond when ask the crime under investigation. When Turner refused to provide ID, he was handcuffed and the video camera was taken. Lieutenant Driver approached Grinalds and Dyess. Driver requested ID and Turner responded he did not have to provide it since no crime was committed. Driver responded that Turner was correct, ordered his release and return of the camera. Turner sued Driver, Grinalds, and Dyess in their individual capacities. The officers moved to dismissed based on qualified immunity which the trial court granted. Turner appealed.

The 5th Circuit first analyzed qualified immunity under the First Amendment. The U.S. Supreme Court has “repeatedly” instructed courts “not to define clearly established law at a high level of generality.”  At the time, no case had determined a First Amendment right exists to videotape a police station. The First and Eleventh Circuits have held that the First Amendment protects the rights of individuals to videotape police officers performing their duties. However, no precedent places the constitutional question “beyond debate.”  As a result, there was no clearly established First Amendment right at the time which prevents the granting of the officers’ qualified immunity on that claim. However, the court did hold from henceforth, a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions.  News-gathering and other methods of receiving and collecting information and ideas is an undoubted right under the First Amendment. Film creation is also protected. And, when combining the two, 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.”

Under the Fourth Amendment detention claim, because Lt. Driver did not arrive on scene until after the arrest, he was entitled to dismissal. As to Grinalds and Dyess, an initial detention and inquiry is valid if the officers had reasonable suspicion. The initial inquiry with Turner was not objectively unreasonable. The Fourth Amendment is concerned with ensuring that the scope of a given detention is reasonable under the totality of the circumstances.  Nothing in the amended complaint suggests that Turner was videotaping an arrest, a traffic stop, or any other action or activity. On the contrary, Turner’s complaint states that he was filming only “the routine activities at the Fort Worth Police Department building.”  Grinalds and Dyess reference several attacks on police officers and police stations in Dallas and Austin in recent history resulting in an increase of security.  Turner’s filming in front of the police station “potentially threatened security procedures at a location where order was paramount.” An objectively reasonable person in Grinalds’s or Dyess’s position could have suspected  Turner was casing the station for an attack, stalking an officer, or otherwise preparing for criminal activity, and thus was sufficiently suspicious to warrant questioning and a brief detention.  As a result, they were entitled to qualified immunity for the wrongful detention claim. The parties dispute whether Turner’s detention amounted to an arrest. When determining whether an investigative stop amounts to an arrest, “[t]he relevant inquiry is always one of reasonableness under the circumstances,” which must be considered on a case-by-case basis.  After analyzing the facts alleged the court held Grinalds’s and Dyess’s actions—handcuffing Turner and placing him in the patrol car—were disproportionate to any potential threat that Turner posed or to the investigative needs of the officers.  As a result, it was an arrest. Based on the allegations of Turner’s amended complaint, the officers lacked probable cause to arrest him. The police cannot arrest an individual solely for refusing to provide ID. As a result, at this stage of the litigation, Grinald and Dyess are not entitled to qualified immunity. Finally, Lt. Driver is not liable for the actions of Grinald and Dyess. Personal involvement of supervising personnel generally includes giving a “command, signal, or any other form of direction to the officers that prompted” the detention or arrest.  Turner’s complaint alleges Driver investigated the situation and promptly ordered Turner’s release. As a result, Driver was properly dismissed.

If you would like to read this opinion click here. The Panel includes Circuit Judge Wiener, Circuit Judge Clement, and Circuit Judge Higginson. Circuit Judge Wiener delivered the opinion of the court. Attorney for the Appellant: Kervyn Bryce Altaffer, Jr.. Attorneys for the Appellee:  Kenneth E. East and Luis Alfredo Galindo.

Deputies entitled to qualified immunity, even though one testified his actions may be unconstitutional

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Pratt v. Harris County 15-20080 (5th Circuit- May 3rd 2016)

This is a §1983 excessive force case where the trial court granted the officer’s qualified immunity motions. The 5th Circuit affirmed.

Pratt was involved in a minor traffic accident.  Upon arriving at the scene, deputies observed Pratt “running in circles . . . imitating a boxer.” When deputies attempted to interact with him he was uncooperative and started to walk away. After several warnings the deputies deployed their Tasers. Pratt continued to resist but was eventually handcuffed and restrained. EMS arrived, but Pratt did not have a pulse. The autopsy report noted the examiner could not “definitively separate[]” the effect of Pratt’s ingestion of cocaine and ethanol, from the other possible contributing factors—which, at least, included Pratt’s car accident, various altercations, tasing, and hog-tying—that culminated in his asphyxiation. At the time of Pratt’s arrest, the County had a policy which prohibited officers from using hog-tie restraints. The results of the County’s internal investigation were presented to a grand jury, and the deputies were no-billed.  Pratt’s mother sued the individual deputies and the County. Both filed dispositive motions which were granted.

The 5th Circuit first analyzed the deputies qualified immunity claims. The court listed various facts including Pratt’s continued resistance and the escalation of force techniques used before the deputies were finally able to subdue him. The record shows that both officers responded “with ‘measured and ascending’ actions that corresponded to [Pratt’s] escalating verbal and physical resistance.”  Additionally, the court held “[a]lthough hog-tying is a controversial restraint, we have never held that an officer’s use of a hog-tie restraint is, per se, an unconstitutional use of excessive force.” And even though one deputy testified his belief was the practice of hog-tying may be unconstitutional, “the constitutionality of an officer’s actions, is neither guided nor governed by an officer’s subjective beliefs about the constitutionality of his actions or by his adherence to the policies of the department under which he operates.” The question for the court was whether the actions of the deputies was excessive in the specific circumstances. Ultimately the court held it was not.

The concurring opinion did not analyze the situation as deeply and simply stated the actions of this nature should not be second guessed if it is a close call. The dissent asserts that the hog-tying technique and the policy prohibiting it should be sufficient to overcome qualified immunity. Additionally, while he failed to comply with requests, the dissent asserted Pratt posed no immediate danger to the officers which would justify the tasing or hog-tying technique.

To read the opinion click here. The panel consists of Justices Jolly, Haynes and Costa. Judge Jolly issued the opinion, Judge Costa concurred and Judge Haynes concurred and dissented on the judgement. The attorney for the mother of Pratt is Susan Hutchinson. Attorney for the the County is Mary E. Baker.

Police officer hired by private university established entitlement to official immunity

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William Marsh Rice University and Gary Spears v. Rasheed Rafaey 14-13-00235-CV (Tex. App.- Houston [14th Dist.], May 17th 2016)

A man arrested by a private-university peace officer sued the officer and the university asserting various tort claims, but the 14th Court of Appeals determined the officer (and by extension the University) established entitlement to official immunity.

Gary Spears is a licensed law enforcement officer.  On the night in question, Spears was on duty working for Rice University as a police officer.  Spears saw two cars, one behind the other, one block from campus.  Rasheed Refaey was in the driver’s seat of the second vehicle. Officer Spears believed that the vehicles were obstructing the roadway because the lane in which the vehicles were stopped was impassable. When Spears approached, the traffic light facing Refaey’s car turned green, but Refaey did not depart. Spears initated a traffic stop but that is when Refaey drove onto Main Street. According to Refaey, about one mile into this drive, he realized that the police officer was following him.  Nonetheless, Refaey did not pull over. Refaey’s position is that since Rice University is a private university, Rice police have no business pulling him over, especially since he was never technically on Rice property. When Rafaey finally did pull over he had a heated debate with Spears. During this argument, Officer Spears noticed Refaey’s eyes were red and watery and that he had a strong odor of alcohol on his breath. Officer Spears placed Refaey in handcuffs and arrested him on suspicion of having committed the offenses of evading arrest and driving while intoxicated. Later, all charges against Refaey were dropped.  He sued the University and Spears asserting negligence, false-imprisonment, assault, and intentional-infliction-of-emotional-distress claims based on his allegedly unlawful arrest and detention. Officer Spears and Rice University (hereinafter the “Rice Parties”) moved for summary judgment based on official immunity. The trial court denied the motion, and the Rice Parties appealed.

This case originally went up to the Texas Supreme Court which held licensed police officers could be entitled to official immunity while working for private universities.  The Court remanded the case for a determination if it should apply in this case. The 14th Court of Appeals first determined that private universities may employ state licensed police officers under the Education Code. The summary-judgment evidence proves as a matter of law Officer Spears was performing duties assigned to him by Rice University and that these duties were performed in Harris County, Texas, a county in which Rice University has land. To be entitled to official immunity, such actions, however, must be consistent with Rice’s educational mission. The statute does not require that the duties assigned be “consistent with the mission statement of the institution,” nor does the statute require that the duties be “listed in the mission statement of the institution.”  It is uncontested the University’s mission statement does not address patrolling on public streets. However, Rice University submitted testimony that when a Rice officer investigates possible traffic violations the officer is ensuring the health and welfare of the students, faculty, staff, and visitors on campus, which furthers Rice University’s educational mission. Refaey’s car was stopped across the street from part of the Rice University campus. Refaey did not submit any evidence to contradict that such patrols and investigations were contrary to Rice’s educational mission. Further, after analyzing the testimony, the court held the evidence proves that a reasonably prudent officer, under the same or similar circumstances, could have believed that Officer Spears’s conduct was justified based on the information Officer Spears had at the time. As a result, Spears established entitlement to official immunity. The University, by extension, also established immunity. The summary judgment should have been granted.

For the full opinion click here. Panel consists of Chief Justice Frost, Justice Boyce and Justice Jamison. Opinion by Chief Justice Frost. The attorney listed for Rafaey is Derrick Michael Saulsberry. The attorney listed for the University is Lara Hollingsworth.

City ordinance requiring hotels to provide certain data to law enforcement equates to unconstitutional search and is facially invalid says U.S. Supreme Court

Los Angeles v. Patel 13-1175 (U.S. June 22, 2015)

In this case the U.S. Supreme Court analyzed the standards for making facial challenges to particular city ordinances. After analyzing the specific ordinance, the Court held the City’s ordinance unconstitutional.

The City of Los Angeles (“City”), requires hotel operators to record and keep specific information about their guests on the premises for a 90-day period. These records shall be made available to any officer of the Los Angeles Police Department for inspection for any reason without a warrant. Respondents, a group of motel operators and a lodging association, brought a facial challenge on Fourth Amendment grounds.  The trial court dismissed the suit holding respondents lacked a reasonable expectation of privacy in their records. The Ninth Circuit subsequently reversed.

The Court first noted that while facial challenges are difficult to prosecute, they are still proper mechanisms to challenge unconstitutional ordinances/statutes. A facial challenge does not require a plaintiff to establish the law unconstitutional in all situations, only that it is unconstitutional in the situations it actually authorizes or prohibits conduct. As to the merits of the L.A. ordinance, the Court has repeatedly held searches conducted outside the judicial process, without prior approval by a judge are per se unreasonable . . . subject only to a few exceptions, such as exigent circumstances or administrative searches. The hotel ordinance does not fall under any such exception. “Absent an opportunity for precompliance review, the ordinance creates an intolerable risk that searches authorized by it will exceed statutory limits, or be used as a pretext to harass hotel operators and their guests.” The court emphasized that its holding is limited to the fact only an opportunity to object and force a neutral decision maker to review a request for the information is necessary. Actual third party decisions are not required as a condition to the initial inquiry by law enforcement.

Justice Scalia’s dissent focused on the fact that while the facial invalidation of a statute might be a logical consequence, it is not the case-or-controversy end result.  Further, he does not believe the search of business records in this manner is unreasonable as motels/hotels are closely regulated business enterprises. Justice Alito’s dissent focuses on his opinion the ordinance cannot be facially unconstitutional if there are any scenarios in which it would be constitutional (and he lists five).

If you would like to read this opinion click here. SOTOMAYOR, J., delivered the opinion of the Court, in which KENNEDY, GINSBURG, BREYER, and KAGAN, JJ., joined. SCALIA, J., filed a dissenting opinion, in which ROBERTS, C. J., and THOMAS, J., joined. ALITO, J., filed a dissenting opinion, in which THOMAS, J., joined.

City immune from alleged wrongful sale of seized vehicle

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Marissol Ochoa Sierra and Emilio Chapa Trevino v City Of Pharr, 13-14-00425-CV, (Tex. App. — Corpus Christi, May 21, 2015)

This is an appeal from the granting of a plea to the jurisdiction involving the alleged wrongful sale of an impounded vehicle.  The Thirteenth Court of Appeals affirmed the granting of the plea.

Pharr police reported that it was informed by an agent with Customs and Border Protection that the agency had Sierra in custody.  At the time of her arrest she was driving a Cadillac Escalade which was impounded. While Sierra provided proof of ownership of other property seized, she could not provide proof of ownership of the vehicle, noting it was purchased from a friend but the ownership transfer had not yet occurred. When the Escalade remained unclaimed for more than twenty days, the City put notices in a newspaper then sold it. Later, seeking return of the vehicle, Sierra and Trevino filed suit asserting the seizure was improper and the City had no valid claim to the title. The City filed a plea asserting the recorded title owner (Armando Guadalupe Bazan Garcia) made no claim and that Sierra and Trevino had no standing as they were not the title owners. The court granted the plea.

Although Sierra and Trevino alleged that Trevino owned the vehicle, they provided no evidence to establish title or standing to seek recovery of the Escalade. Instead, the City provided a bill of sale, which it attached to its plea to the jurisdiction that identified Garcia as the registered owner of the vehicle. This conforms with Sierra’s statement to police that the sale had not been completed. Sierra and Trevino did not respond to this evidence by disputing it with contrary evidence.  As a result, they did not establish standing and the plea was properly granted.

If you would like to read this opinion click here. Chief Justice Valdez, Justice Rodriguez, and Justice Longoria.  Majority Opinion given by Justice Rodriguez.  The attorney listed for the Appellant is Kelly K. McKinnis. The attorneys listed for the Appellee are Miguel “Michael” Pruneda and J. Arnold Aguilar.

U.S. Supreme Court holds officers entitled to qualified immunity after shooting mentally ill individual holding a knife

CITY AND COUNTY OF SAN FRANCISCO, CALIFORNIA, ET AL. v. SHEEHAN No. 13–1412  (U.S. May 18, 2015)

This is a §1983 and ADA case where the U.S. Supreme Court held officers who shot a mentally ill individual who attacked them with a knife were entitled to qualified immunity, but left unanswered the ADA question of whether they must have factored in a “reasonable accommodation” in life threatening situations.

Sheehan lived in a group home for individuals with mental illness. At one point she became hostile and threatened to kill her social worker. When officers Reynolds and Holder arrived to escort her to a temporary facility for evaluation, she grabbed a knife.  The officers exited the room to give her time to calm down.  Without evaluating whether the situation called for any other special considerations due to the group home environment, the officers reentered the room. When pepper spray proved ineffective, they shot Sheehan several times. Sheehan survived and sued under §1983 and the ADA claiming the officers failed to provide a reasonable accommodation during the arrest which would not have resulted in the need to shoot her. The trial court granted the Defendants summary judgment holding officers did not need to evaluate such an accommodation in a life threatening situation. The 9th Circuit held that the ADA applied and that a jury must decide whether San Francisco should have accommodated Sheehan. The court also held that Reynolds and Holder are not entitled to qualified immunity. The County and officers filed this appeal and the U.S. Supreme Court granted Certiorari.

After going through detailed facts, the Court first held that when it granted cert. the questioned presented by the County as to the ADA claim was whether officers must provide a reasonable accommodation in a life threatening situation. However, the briefing only addressed whether Sheehan qualified as disabled. The Court seemed to take offense to the change in argument and determined the County did not properly brief the question on which writ of cert. was granted.  Therefore, the Court would not address the ADA arguments. [Comment: The dicta seems to indicate the Court felt the original question asked was the most important one and wanted to rule on that question.   The briefed question presupposed the ADA applies and it appears the Court did not want to make any ruling with that implication.]  As to the individual officer’s qualified immunity, the Court held the 9th Circuit used the proper test, but came to the wrong conclusion. The first entry to the room was not unconstitutional as officers may enter a room without a warrant to render emergency aide.  The officers were then faced with a discretionary situation and feared Sheehan would continue to pose an immediate threat. In the Court’s mind there was no “doubt that had Sheehan not been disabled, the officers could have opened her door the second time without violating any constitutional right.” Additionally, the Court held “because the two entries were part of a single, continuous search or seizure, the officers were not required to justify the continuing emergency with respect to the second entry.” The Court held that after opening the door a second time, the use of pepper spray, then firearms was reasonable under the circumstances. The Court did a detailed analysis distinguishing the 9th Circuit’s use of cases in determining that the law was also not clearly established in this type of circumstance. [Comment: For any lawyers with law enforcement qualified immunity matters, this is a helpful case.]

If you would like to read this opinion click here. Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, Ginsburg, and Sotomayor, JJ., joined. Scalia, J., filed an opinion concurring in part and dissenting in part, in which Kagan, J., joined. Justice Breyer took no part in the consideration or decision of this petition. The docket sheet with attorney information can be found here.

U.S. Supreme Court holds police officer’s reasonable mistake on the law did not invalidate the reasonable suspicion arising out of the mistake.

Heien v. North Carolina, 13-604 (December 15, 2015)

This is a police mistake of law case. Sgt. Darisse noticed a vehicle with one of its brake lights not working and pulled over the driver. After receiving consent to search the vehicle he discovered cocaine and arrested the passenger, Heien. The trial court denied Heien’s motion to suppress where he argued the North Carolina traffic code requires only one light to be operational. The court of appeals reversed the denial holding that since Darisse was mistaken on the law, the stop was objectively unreasonable. The State Supreme Court reversed in turn holding the technical mistake of law did not invalidate the reasonableness of the stop. Heien appealed and the U.S. Supreme Court granted review.

The Court first held the Fourth Amendment requires government officials to act reasonably, not perfectly, and gives those officials “fair leeway for enforcing the law.”  The limiting factor is that “the mistakes must be those of reasonable men.” Mistakes of law are no less compatible with the concept of reasonable suspicion, which arises from an understanding of both the facts and the relevant law. Whether an officer is reasonably mistaken about the one or the other, the result is the same. The North Carolina traffic codes also require integration of brake lights into the car system and it was reasonable for Sgt. Darisse to believe the law required both to be operational.

If you would like to read this opinion click here. ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA, KENNEDY, THOMAS, GINSBURG, BREYER, ALITO, and KAGAN, JJ., joined. KAGAN, J., filed a concurring opinion, in which GINSBURG, J., joined. SOTOMAYOR, J., filed a dissenting opinion.  The docket page with attorney information can be found here.

Officer entitled to immunity for warrantless entry while in hot pursuit of misdemeanor suspect says U.S. Supreme Court.

Stanton v. Sims, No. 12-1217, __ U.S. __ (November 4, 2013).

In this U.S. Supreme Court case, the Court held an officer was entitled to qualified immunity after entering into a side-yard while in hot pursuit of a misdemeanor suspect. The court was careful not to express an opinion on whether or not the entry was constitutional or not, simply that such a question is sharply debated throughout the nation so the law was not “clearly established” for qualified immunity purposes.

Officer Stanton responded to a call for an unknown disturbance in a known gang area. Upon arrival, he observed several individuals in the area listed for the disturbance. After exiting the vehicle, he identified himself (even though already in full uniform and a marked vehicle) and ordered the individuals to stop in order to investigate. Failure to stop after an officer’s order is a California misdemeanor. Suspect Patrick did not stop and ran through a gated area (where the fence and gate blocked his view of the fleeing suspect).  Stanton made a “split-second decision” to kick open the gate; however, Sims was standing behind it and was injured. She brought suit for unreasonable search and seizure. The trial court granted Stanton’s qualified immunity summary judgment motion, but the 9th Circuit reversed. Stanton appealed and the court granted the writ of certiorari.

Part of this opinion gives the impression the U.S. Supreme Court is chastising the 9th Circuit’s analysis and opinion and provided some harsh words in its own analysis.  However, the bottom line of the opinion is that numerous courts hotly dispute whether it is constitutional for a warrantless entry while in pursuit of a misdemeanor suspect.  Without commenting on the constitutionality of such an action, the Court held that this national dispute indicates the law is not clearly established and that Officer Stanton is therefore entitled to qualified immunity.

If you would like to read this opinion click here.

Mother’s claims for release of sexual orientation information of daughter dismissed.

Wyatt v. Fletcher No. 11-41359 (5th Cir. May 31, 2013).

This is essentially a privacy claim for information known to the entity and released to the parent.  For cities which have programs, community centers, and other situations where information about minors is known to the entity, this case is important for qualified immunity purposes.

In this case a mother brought a §1983 action against two high school coaches who disclosed the daughters sexual orientation to the mother during a disciplinary hearing. She also alleged a violation based on a disciplinary confrontation with the daughter in a locked locker room. The trial court denied the coaches claims of qualified immunity and they took this interlocutory appeal.

The Fifth Circuit went through a detailed recap and analysis of the constitutional right to privacy but ultimately held there was no clearly established privacy right under the Fourteenth Amendment that precludes officials from discussing with a parent the student’s (minor’s) private matters, including matters relating to sexual activity of the student. Further, there is no clearly established right that bars a private confrontation regarding sexual orientation (in a closed and locked room), even if the minor is not permitted to leave during the relatively short confrontation. The court reversed the denial and rendered judgment dismissing the coaches.

If you would like to read this opinion click here.

 

Dubious evidence of probable cause still enough to protect deputies under qualified immunity.

Crostley v. Lamar County, Texas No. 12-40288 (5th Cir. May 29, 2013)

This is an interlocutory appeal from the denial of qualified immunity and a court’s refusal to allow a pleading amendment in a §1983 case. After a night of drinking beer and smoking marijuana, Plaintiffs were investigated and charged with the murder of their companion.  Eventually the charges were dropped and Plaintiffs brought a civil rights action seeking damages for injuries they suffered as a result of their nine-month imprisonment.  Their suit named Lamar County, Texas, and two investigators.  The District Court dismissed the County on its FRCP 12(b)(6) motion.  While the investigators’ motion for summary judgment on qualified immunity was pending, Plaintiffs moved for leave to amend their complaint to re-name the County and add a Department of Public Safety officer.  The trial court denied the Plaintiffs’ requests and granted the investigators’ summary judgment.  Plaintiffs appealed.

The court went through a long rendition of facts including various steps taken in the investigation. The Fifth Circuit then first addressed the Plaintiffs’ request to amend their pleadings and re-name the County, even though it had been dismissed with prejudice. Because the order dismissing the county was interlocutory, and there had been no severance or certification of final judgment, the order can be amended and the court should have allowed Plaintiffs to re-name the County.  Evidence of additional County policies did not come to light until after the dismissal.  This part of the opinion is of significance to litigators but not so much for general counsel.

The court then went on to hold that the deputies actions were not “objectively unreasonable” in believing there was probable cause to arrest the Plaintiffs. However, the court did provide specific examples in the record noting such information was conclusory and “of dubious quality.” The court reiterated its dislike and distrust of form or conclusory affidavits to support probable cause. However, the deficiency of any one piece of evidence used to demonstrate probable cause does not, on its own, mean that probable cause did not exist. Under the totality of the circumstances, it was not objectively unreasonable for officers to believe probable cause existed. Further, for the state law claim of malicious prosecution, the officers were entitled to official immunity. The order granting their immunity is affirmed.

If you would like to read this opinion click here.

 

U.S. Supreme Court holds police can take DNA samples without a warrant upon the booking of a suspect.

Maryland v. King, No. 12–207, slip op (June 3, 2013).

In a divided decision, the U.S. Supreme Court held police could take DNA samples upon the arrest of an individual as part of the regular booking procedures.   The court analogized it to taking finger prints and mug shots.  The dissent argued the Court was allowing police to collect scientific evidence as an attempt to close cold case files, something previously rejected.

In this 50 page slip opinion the Court analyzed the constitutionality of the practice which was created in response to a Maryland statute authorizing such collection if utilized for “serious” criminal offenses. The Court ultimately held using a buccal swab inside a person’s cheek to obtain a DNA sample is a search under the Fourth Amendment. And the fact that the intrusion is negligible is of central relevance to determining whether the search is reasonable for constitutional purposes.  Since the search is minimal, it is reasonable for identification purposes.

If you would like to read this opinion click here.

Deputy not liable for false arrest, but potentially liable for excessive force says 5th Circuit.

Ramirez v. Jim Wells County, No. 11-41109 (5th Cir. May 15, 2013)

This is an interlocutory appeal from the denial of qualified and official immunity for false arrest and excessive force claims brought against a Jim Wells County deputy under 42 U.S.C. §1983.  Deputy Martinez (“Tazer Joe” Martinez as referenced in the opinion) attempted to execute a warrant against Ramirez’s sister-in-law while at Ramirez’s landscape business.  When Ramirez approached the deputies to inquire about their business at his shop, Ramirez and Martinez got into an argument.  Deputy Martinez grabbed Ramirez’s arm prompting Ramirez to pull away. Martinez then tased Ramirez in the chest, handcuffed him while on the ground, then tased him again.  Ramirez was not charged after his arrest and he brought claims against Deputy Martinez and the County.  The trial court denied the summary judgment motion asserting qualified and official immunity and Martinez took this interlocutory appeal.

The Fifth Circuit first noted that while a video existed of portions of the incident, the video was not “blatantly contradicted” by either story of the facts to justify dispelling either version under Scott v. Harris, 550 U.S. 372 (2007)(holding that when a suspects version of the facts blatantly contradicts the video so that no reasonable juror could believe it, courts need not infer facts in favor of non-movant to summary judgment).

The court then determined that under Texas law, probable cause to make an arrest can be formed by resisting the arrest itself.  Ramirez broke Deputy Martinez’s hold and a reasonable officer could conclude a Texas law was violated.  As a result, Martinez was entitled to qualified immunity for false arrest and official immunity for malicious prosecution.  However, taking the facts most favorable to Ramirez, no reasonable officer could conclude a general inquiry about official business or tasing an individual already on the ground and in handcuffs is a reasonable use of force. The trial court properly denied qualified immunity as to the excessive force claims and official immunity as to the assault claims.  The case was affirmed in part and reversed in part.

If you would like to read this opinion click here.