U.S. 5th Circuit holds deputy entitled to qualified immunity on state-created-danger claims, but not wrongful arrest claims

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Keller v. Fleming, 18-60081(5th Cir. July 23, 2019)

In this §1983 case, the U.S. 5th Circuit reversed the denial of an officer’s qualified immunity defense for a state-created-danger claim but affirmed denial based on unlawful arrest claims.

Gerald Simpson was struck and killed by a motor vehicle as he walked along a Mississippi highway in darkness after Simpson had been dropped off at the county line by Sheriff’s Deputy Darrin Fleming.  Simpson was originally stopped while walking down the roadway, but his speech was unintelligible.  The Plaintiffs alleged Deputy Fleming acted pursuant to an Attala County custom of picking up those viewed as vagrants and dropping them off in neighboring jurisdictions to rid the county of vagrants. The submitted evidence establishes Deputy Fleming put Simpson in the backseat of his vehicle and asked him where he resided, but Simpson was unable to articulate where he lived and merely pointed west on Highway 12, in the direction of Durant, Mississippi. Fleming drove Simpson in that direction to the point he reached the end of Attala jurisdiction and let Simpson out.  Fleming was not aware Simpson had recently been released from a state hospital after twelve years of confinement for certain developmental disabilities, including a speech impediment. The family sued Fleming and the County and Fleming filed a motion for summary judgment arguing qualified immunity.  The motion was granted in part and denied in part. Fleming appealed.

The Fourth Amendment generally prohibits an officer from seizing and detaining an individual without “probable cause.” A police officer may approach a person for purposes of investigating possible criminal behavior (i.e. Terry stop). The court determined a reasonable person in Simpson’s position would not have felt free to leave. The transport was also not reasonable given the circumstances. The seizure was not for Terry stop purposes and was significantly more intrusive than a brief detention for identification or investigatory purposes.  It also was law previously established which Deputy Fleming should have known. As a result, it was proper to deny qualified immunity for the Fourth Amendment claim.

Next, for Fourteenth Amendment purposes, as a general matter, a State does not have an affirmative duty to protect an individual from violence by private actors. An exception exists in other circuits for a “state-created-danger” theory where the entity and plaintiff are in a special relationship. However, a “special relationship” only arises when a person is involuntarily confined or otherwise restrained against his will pursuant to a governmental order.  The law was not clearly defined at the time to allow Deputy Fleming to know it might apply. The Fifth Circuit has never recognized this “state-created-danger” exception. As a result, the Fourteenth Amendment claims should have been dismissed. Finally, Plaintiffs have not demonstrated a clearly established substantive due process right on the facts they allege.

If you would like to read this opinion click here. Panel consists of Chief Judge Stewar, Judges Willett and Dennis.  Opinion by Justice Dennis.

Eight Amendment Excessive Fine Prohibition applicable to the states through 14th Amendment says U.S. Supreme Court

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Timbs v Indiana, 17-1091 (U.S. February 20, 2019).

Tyson Timbs plead guilty to controlled substance and conspiracy to commit theft. At the time of his  arrest, the police seized a vehicle Timbs had purchased for $42,000 with money he received from an insurance policy when his father died. The State sought civil forfeiture of the vehicle, which value was four times the maximum monetary fine for the offenses. The Indiana Supreme Court held that the Excessive Fines Clause constrains only federal action and is inapplicable to state impositions.

The Court held the prohibition in the Excessive Fines Clause carries forward protections found in sources from Magna Carta to the English Bill of Rights to state constitutions from the colonial era to the present day. Under the Eighth Amendment, “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Taken together, these Clauses place “parallel limitations” on “the power of those entrusted with the criminal-law function of government.”  Indiana argued the Clause does not apply to its use of civil in rem forfeitures because the Clause’s specific application to such forfeitures is neither fundamental nor deeply rooted. However, the Court noted the trial court did not address the Clause’s application to civil in rem forfeitures and the Indiana Supreme Court only held the Clause was inapplicable to the states through the 14th Amendment.  The Court held the 14th Amendment makes applicable the Excessive Fines Clause, and the Court declined to separate out whether it was for criminal or civil forfeiture purposes.

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

U.S. Supreme Court holds Clearly Establish Prong of qualified immunity defense must not be defined with a high degree of generality.

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City of Escondido v Emmons, 17-1660 (U.S. January 7, 2019)

City of Escondido police received a domestic violence 911 call from Maggie Emmons. Officer Jake Houchin responded to the scene and reported Emmons had sustained injuries caused by her husband. The officers arrested her husband. Several weeks later, another domestic violence call was placed, but this time it was called in by mother of Emmon’s roommate, Douglas (who was not present at the apartment). Officer Houchin again responded. The body cameras revealed that when trying to gain entry, a man in the apartment also told Emmons to back away from the window and not let the officers in. Shortly afterwards a man exited the apartment and tried to move past the officers. Officer Craig stopped the man, took him quickly to the ground, and handcuffed him. The video shows that the man was not in any visible or audible pain as a result of the takedown or while on the ground. He was arrested for a misdemeanor offense of resisting and delaying a police officer. The man turned out to be Emmon’s father, who sued for wrongful arrest.  The officers filed for qualified immunity, which the trial court granted but the U.S. 9th Circuit reversed.

The U.S. Supreme Court broke apart the 9th Circuit’s analysis and questioned the lack of reasoning within the opinion. The Ninth Circuit’s entire relevant analysis was simply “The right to be free of excessive force was clearly established at the time of the events in question.”  The Supreme Court held “With respect to Sergeant Toth, the Ninth Circuit offered no explanation for its decision. The court’s unexplained reinstatement of the excessive force claim against Sergeant Toth was erroneous—and quite puzzling in light of the District Court’s conclusion that ‘only Defendant Craig was involved in the excessive force claim’ and that Emmons ‘fail[ed] to identify contrary evidence.’”  The 9th Circuit errored as the Supreme Court has repeatedly told courts the clearly established right must be defined with specificity. Courts may not define clearly established law at a high level of generality. “In this case, the Court of Appeals contravened those settled principles. The Court of Appeals should have asked whether clearly established law prohibited the officers from stopping and taking down a man in these circumstances.”  The opinion is reversed and remanded for further analysis.

If you would like to read this opinion click here. Per Curiam opinion.

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.

Mandamus action: Pre-suit discovery precluded as petitioner did not support the petition with evidence and trial court failed to issue mandatory findings

In Re: City of Tatum, Texas, 12-18-00285-CV (Tex. App. – Tyler, December 21, 2018)

This is a writ of mandamus original proceeding where the Tyler Court of Appeals conditionally granted the City’s relief and precluded a potential party from taking pre-suit depositions pursuant to Rule 202.

Peterson filed a petition for a pre-suit deposition of the police chief pursuant to Texas Rule of Civil Procedure 202. The grounds for the deposition are that Peterson asserts a Tatum police officer sexually assaulted her when the officer arrived in response to a call for assistance at the home. She alleged that the City knew the officer “exhibited indicators” of this type of behavior; negligently hired, trained, controlled, supervised, and monitored the officer; did not have a policy to prevent such behavior and she anticipated being a party to a lawsuit involving the City. The City objected.  The trial court signed an order allowing the deposition and the City filed this original mandamus proceeding.

Pre-suit discovery is not intended for routine use; it creates practical and due process problems because discovery demands are made of individuals or entities before they are told of the issues. Rule 202.4 states a trial court must order a pre-suit deposition to be taken only if it finds: (1) allowing the deposition may prevent a failure or delay of justice in an anticipated suit (to be used if the purpose is to collect evidence for a lawsuit )or (2) the likely benefit to investigate a potential claim outweighs the burden or expense of the procedure (to be used in order to investigate if a claim even exists). The verified statements in a Rule 202 petition are not considered competent evidence. Peterson presented no evidence to support possible claims to investigate or collect. That a party (i.e. City) may be in possession of evidence pertinent to the subject matter of the anticipated action or to the petitioner’s potential claims does not alleviate the petitioner of her burden of providing evidence to support a Rule 202 request for pre-suit depositions. Further, the order does not contain the findings required to make it a proper order. The Texas Supreme Court has made clear that Rule 202.4 findings cannot be implied from the record and the findings are mandatory. Because the requirements of Rule 202.4 are mandatory, the City’s failure to object in the trial court does not result in waiver. The court conditionally granted the writ and stated an unconditional writ will issue only if the trial court’s order is not corrected.

If you would like to read this opinion click here. Memorandum opinion by Justice Neeley. The attorney for the City is listed as Darren K. Coleman.  The attorney for Peterson is listed as Ron Adkison.

U.S. 5th Circuit holds promoter of sex convention had standing to sue after City passed ordinance banning convention

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Three Expo Events, LLC v City of Dallas, 17-10632 (5th Cir. October 24, 2018).

This is a First Amendment case involving a sex convention where the U.S. 5th  Circuit reversed an order granting the City’s motion to dismiss.

Three Expo Events, L.L.C. (Three Expo), produces adult love- and sex-themed conventions in major cities of the nation. It held just such a convention in 2015 at the Dallas Convention Center and planned to return in 2016. The 2015 convention, which hosted near nude and sexual activities, drew protesters, but the City originally took the position it could not constitutionally preclude the event in 2016. In preparation for the convention and consistent with its business model, Three Expo formed a local entity (Exotica Dallas) to enter into and hold the lease for the convention. However, the City then passed a resolution banning the event. Three Expo filed suit against the City in federal court and sought a preliminary injunction to prevent the City from enforcing the resolution. The district court denied Three Expo’s motion for a preliminary injunction, and no event took place in Dallas in 2016. However, Three Expo proceeded with the suit alleging violations of the First Amendment, the Equal Protection Clause, and the Bill of Attainder Clause. The City filed a motion to dismiss for lack of jurisdiction, which the trial court granted.  Three Expo appealed.

The panel first analyzed the record and determined the trial court make “clear mistakes of fact” in its findings. While the City tried to argue the interplay between Three Expos and Exotic Dallas prevented a finding the City targeted Three Expos, the “overwhelming” evidence in the record indicated the City “firmly intended to make certain that the Exxxotica convention would not be staged by anyone in the Convention Center in 2016. …Three Expo, the undisputed promoter and proposed presenter of Exxxotica 2016, was banned from presenting Exxxotica 2016” due to the totality of actions by the City. The panel held Three Expo established the three elements required for standing on each of its claims and should be permitted to proceed with its suit. The Court held the trial court committed a “manifest failure to apply the well-established principles of law governing Article III standing to the entire evidence of record in this case.” The dismissal was reversed and the case remanded for trial.

If you would like to read this opinion click here. Panel consists of Justices Jolly, Dennis and Elrod. Opinion by Justice Dennis. The attorney for Three Expos is listed as J. Michael Murray.  The attorney listed for the  City is James Bickford Pinson

Fort Worth Court of Appeals holds trial court lacked jurisdiction to hear civil lawsuit for wrongful arrest/malicious prosecution since Plaintiff was convicted of 1 of 3 indictments

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Nathaniel Washington v. City of Arlington Police Department, R. Walsh, Taylor Ferguson, Brian Salvant, and George Mackey 02-17-00337-CV (Tex. App — Fort Worth, Oct. 4, 2018)

This is a civil rights and tort case where the Fort Worth Court of Appeals affirmed the dismissal of the Plaintiff’s claims.

Washington was arrested on three outstanding warrants for the offenses related to drugs. A jury convicted Washington of one of the drug offenses. The criminal judgment was affirmed by the court of appeals. However, prior to the criminal affirmation, Washington filed suit against the police department and the prosecutors. The police department filed a summary judgment motion asserting the criminal conviction precluded Washington from bringing a civil suit. The trial court construed the motion as a plea to the jurisdiction and granted the plea. Washington appealed.

The crux of Washington’s claims against each named defendant is that law enforcement and legal counsel worked in tandem to have Washington falsely arrested and convicted of delivery of cocaine. An inmate plaintiff’s civil-rights or tort claims based on facts that, if true, would undermine the validity of his conviction are not legally cognizable unless the plaintiff can show that the conviction was reversed on direct appeal, expunged by executive order, declared invalid by an authorized state tribunal, or called into question by a federal court’s issuance of a writ of habeas corpus. Citing Heck v. Humphrey, 512 U.S. 477, 486–87 (1994). Washington argued the State dismissed two of the three charges and that he is not seeking release from jail, only money. Washington was arrested based on three warrants, one of which led to his conviction. Even assuming the two indictments were dismissed, the dismissals would not qualify as the relief required under Heck because Washington was validly held on the remaining warrant until his conviction.  In other words, the facts Washington sought to litigate regarding his civil suit are facts essential to his conviction.  No amount of repleading could cure these defects so Washington was not entitled to replead. The court of appeals held the trial court lacked subject matter jurisdiction to hear the claims. The dismissal was affirmed.

If you would like to read this opinion, click here. Panel consists of Justice Sudderth, Justice Gabriel and Justice Kerr. Memorandum Opinion by Gabriel. The docket page with attorney information can be found here.

U.S. 5th Circuit holds 1) IA and CID not required to share evidence and 2) disclosure of exculpatory evidence is a “trial” right, not a right before accepting a plea offer

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Alvarez v City of Brownsville, 16-40772 (5th Cir. Sept. 18, 2018)

This is a §1983/jail altercation case where the U.S. Court of Appeals for the 5th Circuit reversed a $2.3 million-dollar jury award and rendered judgment for the City. [Warning, opinion plus concurrences and dissents is a 61-page document.]

Alvarez (who was 19 at the time) was arrested for public intoxication and burglary of a vehicle. He was placed in a holding cell at the Brownsville PD.  He became disruptive and violent and officers attempted to transfer him to a padded cell to calm down. During the transfer an altercation occurred which was captured on video. An internal investigation occurred, and the video was reviewed. The IA investigation determined proper force was used to subdue Alvarez.   A simultaneous criminal track investigation also occurred for assault on a police officer.  Alvarez did not request the video and the video was not produced to Alvarez voluntarily. The PD has an internal policy where internal affairs information is not shared with the Criminal Investigation Division (“CID”).  The grand jury indicted Alvarez for assault on a public servant and he plead guilty to the charge. Upon discovering a video existed, he sued asserting the City violated his rights under Brady v. Maryland, 373 U.S. 83 (1963)(i.e. compelled release of exculpatory information). The City filed a summary judgment motion, which was denied. A jury awarded Alvarez $2.3 million dollars in damages and the City appealed.

To establish §1983 liability there must be: (1) a policymaker; (2) an official policy; and (3) a violation of a constitutional right whose “moving force” is the policy or custom. Alvarez “must show direct causation, i.e., that there was ‘a direct causal link’ between the policy and the violation.”   For purposes of the analysis, the court assumed, without deciding, the police chief was a final policymaker and that a policy existed preventing the sharing of information between IA and CID.  However, even with those assumptions, the court held no direct causal link existed between the policy and the constitutional violation. It is undisputed the CID investigator failed to inquire about video recordings and did not possess it when performing the criminal investigation. While that may have been a sloppy investigation, that does not create a causal connection. “This series of interconnected errors within the Brownsville Police Department that involved individual officers was separate from the general policy of non-disclosure of information from the internal administrative investigations. The general policy of non-disclosure was not a direct cause of Alvarez’s injury.”  Further, the general policy of non-disclosure was not implemented with “deliberate indifference.” Additionally, “[p]lacing the final decision-making authority in the hands of one individual, even if it makes an error more likely, does not by itself establish deliberate indifference.”  The court also analyzed the impact of Alvarez’s guilty plea on his Brady claim. Citing various U.S. Supreme Court cases, the 5th Circuit held exculpatory and impeachment evidence are not required to be released at every stage of a criminal case and not necessary before the defendant takes a plea agreement. “[W]hen a defendant chooses to admit his guilt, Brady concerns subside.” Essentially, a Brady right is a trial right, not a pre-trial right.  The court did list the other federal circuits which agree with this approach and those which disagree with this approach. However, the court adopted the “trial right” approach and dismissed Alvarez’s claims as a matter of law.

If you would like to read this opinion click here. Court sitting en banc. Chief Judge Carl Stewart issued the opinion. Judge Duncan, Judge Engelhardt and Judge Oldham joined the court after this case was submitted and did not participate in the decision.

City retained ability to revoke non-consent tow permit says U.S. 5th Circuit

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Rountree v. Dyson No. 17-40443 (5thCir. June 11, 2018)

This is a 42 U.S.C. 1983 suit where the City of Beaumont removed a tow-truck company from its non-consent tow rotation list and the 5thCircuit affirmed a dismissal in favor of the City.

Rountree owned a towing company and had been on the non-consent tow rotation list for thirty years. Police Chief James Singletary revoked Rountree’s city-issued towing permit based on a complaint by a competing tow company, which asserted—truthfully—that three of Rountree’s state-issued licenses had lapsed. Rountree did not dispute the lapse, but instead asserted the Chief persuaded the competitor to file the complaint and had targeted Rountree.  The permit is not required for all tows, just non-consent tows requested by PD. Later, Rountree was called by a former customer to help with a tow but Rountree called a permitted tow truck to help the former customer. Sergeant Troy Dyson arrived on the scene and told Rountree to leave. Rountree refused and Dyson arrested him. The charge was later dismissed. Rountree sued the City and Dyson. The trial court dismissed his claims and Rountree appealed.

First, the 5thCircuit held that the trial court was within its discretion to dismiss the case before considering Rountree’s amended pleading. “Defendants should not be required to file a new motion to dismiss simply because an amended pleading was introduced while their motion was pending.” Rather, “[i]f some of the defects raised in the original motion remain in the new pleading, the court simply may consider the motion as being addressed to the amended pleading.” Second, class-of-one claims are inapposite “to a local government’s discretionary decision to include or not include a company on a non-consent tow list.” If a city has the discretion to choose from whom it contracts private services, then it must equally retain the discretion to choose when to terminate such relationship. Alternatively, Rountree’s equal-protection claim fails because he did not sufficiently allege that he has been treated differently from others similarly situated.Finally, Rountree was unable to overcome Dyson’s entitlement to qualified immunity. The City had a criminal ordinance requiring all tow truck operations to follow the commands of police at scenes. Since it is undisputed Rountree refused, the arrest was based on such action by Rountree and was within Sgt. Dyson’s discretion. The dismissals were affirmed.

If you would like to read this opinion click here. Panel consists of Justices Smith, Wiener and Willett. Opinion by Justice Smith. The attorney listed for Rountree is Randall Lee Kallinen.  The attorney listed for the City is Frank David Calvert.

City immune from claims it misapplied its own ordinances or procedures, but not for TOMA claims

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Peter Schmitz, et al v. Town of Ponder, Texas, et al. 02-16-00114-CV, (Tex. App. – Fort Worth, May 10, 2018).

This is a substituted opinion. Summary of original opinion found here. This is an appeal from a final judgment against the Plaintiffs who attempted to force the Town to enforce its zoning laws against other property owners.

In 2014 the Denton County Cowboy Church (“Church”) purchased property zoned single family residential under the Town of Ponder’s zoning ordinance.  The Church’s property is adjacent to the Plaintiffs’ property. According to Ponder’s comprehensive plan, the Plaintiffs’ properties are designated for future low-density residential zoning. In 2015 the Church began construction of an arena. The Town issued a building permit for an open arena. Plaintiffs sued the Church and Town of Ponder, seeking injunctions prohibiting the Church from continuing construction. They also brought claims under §1983 for due process, takings, and equal protection violations. The Town and Church both filed pleas to the jurisdiction which the trial court granted. The Plaintiff appealed.

The Uniform Declaratory Judgment Act (“UDJA”) does not waive immunity of a governmental entity when no ordinance is being challenged. The City maintains immunity for claims seeking a declaration of the claimant’s statutory rights or over a claim that government actors have acted outside the law—ultra vires. However, the majority of the Plaintiff’s requested declarations would establish that the Town, not the individual committee or council members, violated or misapplied its own ordinances or procedures, rendering its actions arbitrary and unreasonable. The Town maintains immunity from such claims. The ordinances further did not waive the Town’s immunity by authorizing suit for enforcement.  With no UDJA claim, requests for permanent injunction are also not viable. Liability against a governmental unit for private-nuisance injuries arises only when governmental immunity is clearly and unambiguously waived, which is not the case here. However, immunity is waived under the Texas Open Meetings Act (“TOMA”) so the TOMA claims are remanded. The court stressed that the waiver of immunity under TOMA does not apply to the extent Plaintiffs seek more than injunctive relief or a declaration that the Town’s actions were voidable under TOMA only. Under Plaintiffs’ §1983 claims, a regulatory taking can occur when governmental action unreasonably interferes with a landowner’s use and enjoyment of his property. However, the Plaintiffs claims challenge the process in which the Town enforced its ordinances, not the substance of the enforcement. Plaintiffs have no protected property interest in the manner in which the Town enforced or failed to enforce its ordinances against the Church, rendering their claim under § 1983 not viable. And while the Town argued RLUIPA preempted their enforcement of certain matters of the ordinances, RLUIPA does not implicate jurisdiction so is not proper to raise in a plea. The court then analyzed the claims against the Church and ultimately held some claims survived and were remanded.

If you would like to read this opinion click here. Panel consists of Justice Gabriel and Justice Pittman. Memorandum Opinion by Justice Gabriel. The attorneys listed for the Plaintiffs are Gregory Sawko and Robert E. Hager.  The attorneys listed for the Town are Matthew Butler and John F. Boyle Jr.

U.S. Supreme Court holds officer entitled to qualified immunity after shooting woman walking towards roommate with a large knife

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Kisela v. Hughe, 17-467, 584 U.S. – (April 2, 2018).

This is an excessive force/qualified immunity case where the U.S. Supreme Court reversed the denial of the officer’s qualified immunity.

Tucson police officer Kisela and two other officers had arrived on the scene after hearing a police radio report that a woman was engaging in erratic behavior with a knife. They viewed Hughes (who matched the description given on the radio) holding a large kitchen knife and advancing towards another woman standing nearby. After commanding Hughes to stop and her failing to comply, Kisela shot Hughes. she was treated for non-life-threatening injuries. The other woman, Chadwick, was Hughes’ roommate. Less than a minute had transpired from the moment the officers saw Chadwick to the moment Kisela fired shots. Hughes sued Kisela for excessive force.  Kisela moved for qualified immunity, which the trial court granted, but the 9th Circuit Court of Appeals reversed.

Excessive force is a fact specific analysis. Specificity is especially important as it is sometimes difficult for an officer to determine how the relevant legal doctrine will apply to the factual situation the officer confronts. In this case, Kisela had mere seconds to assess the potential danger to Chadwick. He was confronted with a woman who had just been seen hacking a tree with a large kitchen knife and whose behavior was erratic enough to cause a concerned bystander to call 911. After his commands to stop were not complied with, he defended Chadwick. Those commands were loud enough that Chadwick, who was standing next to Hughes, heard them. The Court noted that “…not one of the decisions relied on by the Court of Appeals…supports denying Kisela qualified immunity.” The panel’s reliance on such prior opinions the way that it did “does not pass the straight-face test.” As a result, Kisela was entitled to qualified immunity.

Justices Sotomayor and Ginsberg dissented, noting they felt Kisela acted too hastily. He did not observe Hughes commit any crimes and, other than walking, was not acting hostile towards Chadwick. Kisela did not wait for Hughes to register, much less respond to, the officers’ rushed commands. Therefore, they felt the immunity should be denied and to let the facts play out as the facts may not be reasonable.  They noted the Majority did not address reasonableness and simply analyzed whether the law was clearly established.

If you would like to read this opinion click here. Per Curiam Opinion. Justices Sotomayor and Ginsberg dissented.

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 remands excessive force case holding fact question exists as to whether suspect who died during arrest was resisting or not

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Darden v. City of Fort Worth, 16-11244, — F3d. –, 2018 WL 525640 (5th Circ. January 24, 2018)

This is a §1983/excessive force/ wrongful death case where the U.S. 5th Circuit Court of Appeals reversed a trial court order granting the officers’ and City’ summary judgment.

Fort Worth Police Officers W.F. Snow and Javier Romero arrested Darden, a black man who was obese, using a no-knock warrant. Darden’s estate asserts during the arrest the officers assaulted him including taseing him twice, choking him, and punched and kicked him. According to witnesses for the plaintiff, Darden “had no time to react” before “[h]e was thrown on the ground” by the officers. Witnesses testified that Darden never made any threatening gestures and did not resist arrest. The officers assert he did resist arrest requiring the force used.  Darden suffered a heart attack and died during the arrest. The court noted video footage of certain parts of the arrest were contained within the record.  Darden’s estate filed suit against the officers, individually, and the City. The district court granted summary judgment in favor of the officers and the City and dismissed all claims. Darden appeals.

Officers Snow and Romero asserted qualified immunity. The investigating physician determined the force used and taser were contributing factors but Darden suffered from a coronary arty disease. The 5th Circuit first determined the trial court errored in finding Darden’s estate did not establish the death was caused solely by the use of force. A tortfeasor takes his victim as he finds him. Darden’s preexisting medical conditions increased his risk of death during a struggle, and in that way, they contributed to his death. The evidence suggests that Darden would not have suffered a heart attack and died if the officers had not tased him, forced him onto his stomach, and applied pressure to his back. There is a genuine factual dispute over whether Darden posed an immediate safety threat to the officers.  The warrant was issued because probable cause exists the house occupants were dealing drugs, which is a serious offense, although not a violent one in and of itself. While the video shows Darden apparently surrendering, there are gaps. the circumstances and whether he was resisting cannot be determined from the record. The court was careful to point out that a jury may ultimately conclude that Darden did not comply with the officers’ commands and was actively resisting arrest.  However, for summary judgment purposes, the facts are in dispute and granting the officer’s motions was improper. The court provided a good breakdown of the types of force which are permitted in analyzing the existence of disputed facts. Finally, the court held the trial court did not analyze the claims against the City because it had already (inaccurately) determined the officers were not liable. The trial court needs to re-examine the summary judgment arguments as to the City.  The 5th Circuit remanded the case for further proceedings.

If you would like to read this opinion click here. Panel consists of Justice King, Prado and Southwick. Justice Prado delivered the opinion of the court. The attorney listed for Darden is Matthew J. Kita. The attorneys listed for the City are Laetitia Coleman Brown, Kenneth E. East, and Dee Lee Thomas, Jr.

El Paso Court of Appeals holds non-appearance jurors failed to show waiver of immunity in contempt/fee challenge case but should be allowed to amend.

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Joshua Luttrell, et al v. El Paso County, et al., 08-16-00090-CV (Tex. App. – El Paso, December 20, 2017).

There is no way to categorize this case in a single sentence. In the thirty-nine page opinion, the El Paso Court of Appeals addressed a challenge to El Paso County’s use of a special assignment judge who would issue and handle all contempt proceedings when a juror would fail to appear for duty. Long opinion means long summary — sorry.  The Court held the County retained immunity based on the pleadings, but the Plaintiff should be afforded the opportunity to amend. The case was remanded.  For government attorneys or those suing governments, this opinion provides a good basis and starting point for various immunity issues and Uniform Declaratory Judgment Act (“UDJA”) claims.

Appellants filed a lawsuit on behalf of themselves and others, naming Judge Woodard and El Paso County, requesting a declaration that their contempt judgments were void for lack of jurisdiction and that Judge Woodard imposed court costs and fees in an “illegal” manner.  Apparently, when a juror failed to respond to a jury summons in a particular court in El Paso County, that court would either “refer” or “transfer” the matter to Judge Woodard for the purpose of allowing him to conduct contempt proceedings against the recalcitrant juror.  The collective jurors sought to have their court costs and fees removed and the process stopped.  The case has many implications and court performed various analyses of statutes discussing the power of the courts and the counties. By the time the case hit the Court of Appeals, Judge Woodard had been dismissed under judicial immunity and the only issue was the immunity of the County. The County filed a plea to the jurisdiction, which the trial court granted. The collective jurors appealed.

The court began with a history of governmental immunity and transitioned into immunity in declaratory judgment proceedings. The court cited various cases noting the UDJA only waives immunity if the validity of a statute (or ordinance) is in play. The Appellants failed to identify a statute being challenged. Their pleadings “reveal that the true nature of their claims center on their belief that the actions of Judge Woodard and/or the County violated existing law, i.e., that they were held in contempt in violation of their due process rights, and that they were accessed illegal court costs and fees…”  Such claims cannot be brought under the UDJA. Additionally, the UDJA may not typically be used to collaterally attack, modify, or interpret a prior court judgment. The contempt proceedings were declared to be criminal in nature, not civil. Civil courts may only exercise “equity jurisdiction” in cases involving criminal proceedings in a “narrow” set of circumstances, which are not present here. The UDJA is the wrong vehicle for making a challenge to the validity of a criminal contempt judgment.   There is a line of cases stating the UDJA can be used to collaterally attack void judgments. The proper method to collaterally attack a criminal contempt judgment as being void is through either a petition for a writ of habeas corpus when the contemnor has been subjected to jail time, or a petition for a writ of mandamus when, as here, the contemnor is subjected only to a fine. Such are exclusive mechanisms.

Appellants also sought the recovery of the fines, fees and costs, which they believe Judge Woodard wrongfully imposed.  However, Appellants’ request for a “refund” cannot be brought in a UDJA proceeding in the absence of legislative permission. When fees are paid in the context of a judicial proceeding, the aggrieved party may challenge the imposition of those fees (illegal or otherwise) in the context of those proceedings, thus satisfying the requirements of due process.  When a party pays an illegal tax or fee “under duress” in an administrative matter they may challenge it, but these were judicial proceedings. In a judicial proceeding, once a defendant pays the fee, it is voluntarily given. To avoid paying the fee, the defendant must challenge it in the proceedings or utilize another system established for the challenge.  Appellants had other means of challenging the validity of the costs and fees imposed on them. They could have challenged it in the proceedings, filed a mandamus or brought claims under Article 103.008 of the Texas Code of Criminal Procedure, which provides a separate statutory remedy to correct erroneous or unsupportable court costs.  They failed to do so.  As to Appellants attempted ultra vires claim, they only named the County. Such claims must be brought against an official.    Additionally, claims of judicial court action versus county administrative action, falls outside the scope of any takings claims under the Texas Constitution. As to the Appellants §1983 claims, a judge has judicial immunity from a lawsuit brought under §1983, and therefore cannot be named as the “person” who violated the plaintiff’s constitutional rights, when the lawsuit is based on the judge’s judicial actions.  A county may only be held liable in a §1983 case if the plaintiffs are able to demonstrate that the county had an “official policy or custom” that caused them to be subjected to a denial of a constitutional right.  Appellants have not alleged in their current pleadings that the County had any policy or custom that deprived them of their federal constitutional rights and only allege Judge Woodard acted without authority. There is nothing in the pleadings or the record to suggest that Judge Woodard was executing any county policies and, to the contrary, everything points to him acting in his judicial capacity (for which he is immune from suit).  Finally, the  court noted that while the panel “expresses no opinion” as to whether the Appellants can successfully amend, they recognized the should be given the opportunity. The court ends by stating “[w]e do caution Appellants, however, that any amendment to their pleadings must focus on the liability of the County as the only remaining party in the proceeding, with the recognition that Judge Woodard is no longer a party to the proceedings, and expressly explain what actions the County took that would render them liable to Appellants.”   The case was then remanded.

If you would like to read this opinion click here. Panel includes Chief Justice McClure, Justice Rodriguez and Senior Judge Larsen. Opinion by Justice Rodriguez.  The docket page with attorney information is found here.

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.