Recently in Use of Force Category

Senior Circuit Judge Jon Newman of USCA2 has this op-ed in the WaPo, proposing expanded civil remedies for police misconduct.  It is an important subject and worthy of serious consideration, but I think Judge Newman's article may mislead folks who are not familiar with the law in this area, both nonlawyers and lawyers who specialize in other areas.  Judge Newman writes,

The acquittal Thursday of another Baltimore police officer charged in the death of Freddie Gray, like the acquittal 25 years ago of the Los Angeles officers who beat Rodney King, reveals the inadequacy of the criminal-law remedy. Suing the police for money under a strengthened federal civil rights law would be a better response to police misconduct.

Right now, however, federal law makes it more difficult to sue a police officer for denying a citizen his constitutional rights than for injuring him by ordinary negligence. If an officer negligently drives his car and injures a citizen, the victim can win money just by proving negligence, and the city that employs the officer pays whatever the jury awards.

But when an officer uses excessive force or makes an unlawful arrest or search, proving wrongful conduct is not enough. Under Section 1983 of the federal civil rights statute, the officer can escape liability with the special defense of qualified immunity -- showing that he reasonably believed his conduct was lawful, even if it was not. And if the jury finds the officer liable, federal law does not require his employer to pay the award.
There is some truth here, but there is more to it.
One of my least favorite U.S. Supreme Court precedents is Mapp v. Ohio (1961).  That is the case that imposed on the states the rule previously followed by federal courts that evidence obtained in violation of the Fourth Amendment (with "violation" determined long after the fact and frequently unknowable to the police at the time of the search or seizure) must be excluded from a criminal trial.

In my view, the criminal trial should be all about a reliable determination of whether the defendant did it.  All reliable evidence should be considered.  If you want to put the police on trial for what they did, that should be a separate case.

One of the objections to eliminating the Fourth Amendment exclusionary rule and relying on civil remedies is that the doctrine of qualified immunity prevents the resolution of previously undetermined questions.  That is, if the searchee sues the police officer, the officer is entitled to immunity as long as what he did was not clearly illegal at the time of the search.  So how can you ever get to a judicial determination to make the law clear for future cases?

One answer is that if the action in question is a regular practice of the police department, you sue the city, not the cop, and there is no immunity.  Today's decision of the U.S. Court of Appeals for the Ninth Circuit in Lowry v. City of San Diego, No. 13-56141, illustrates the point.

Use of Force and Suing Police Officers

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Today, after multiple relistings, the U.S. Supreme Court summarily decided Mullenix v. Luna, No. 14-1143.

On the night of March 23, 2010, Sergeant Randy Baker of the Tulia, Texas Police Department followed Israel Leija, Jr., to a drive-in restaurant, with a warrant for his arrest. 773 F. 3d 712, 715-716 (CA5 2014). When Baker approached Leija's car and informed him that he was under arrest, Leija sped off, headed for Interstate 27. 2013 WL 4017124, *1 (ND Tex., Aug. 7, 2013). Baker gave chase and was quickly joined by Trooper Gabriel Rodriguez of the Texas Department of Public Safety (DPS). 773
F. 3d, at 716.

Leija entered the interstate and led the officers on an 18-minute chase at speeds between 85 and 110 miles per hour. Ibid. Twice during the chase, Leija called the Tulia Police dispatcher, claiming to have a gun and threatening to shoot at police officers if they did not abandon their pursuit. The dispatcher relayed Leija's threats, together with a report that Leija might be intoxicated, to all concerned officers.
So when the natural consequences of Leija's voluntary choices follow in due course, what does his widow do?  Sue the police officer, of course.  The person actually at fault is dead, and she has his estate anyway, such as it is.

Under Supreme Court precedent, police officers are immune from suit so long as the law is not clearly established that their acts are illegal under the circumstances.  In immunity cases, as in habeas corpus cases, lower federal courts regularly try to avoid the rule by defining the "clearly established" law at an excessive level of generality.  Summary reversal of such decisions has taken up an inordinate portion of the Supreme Court's docket for some years now.  This one is reversed with only one dissent, by Justice Sotomayor.

Thoroughly Justified Homicides by Police

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 Amy Brittain has this story in the Washington Post.  It's bottom line should not be news -- everyone should know this.

To identify trends among fatal shootings by police, The Post studied whether the individuals killed were unarmed or armed with weapons and reviewed the actions they took in the immediate moments before police shot them. The Post has compiled a database of all fatal shootings nationwide by officers in the line of duty in 2015.

[The story describes the case of bank robber Steven Snyder and Trooper Trevor Casper, who shot and killed each other, Snyder firing first.]

But only a small number of the shootings -- roughly 5 percent -- occurred under the kind of circumstances that raise doubt and draw public outcry, according to an analysis by The Washington Post. The vast majority of individuals shot and killed by police officers were, like Snyder, armed with guns and killed after attacking police officers or civilians or making other direct threats.

Jim Pasco, executive director of the national Fraternal Order of Police, said The Post's findings confirm what police officers already know.
Why doesn't everyone already know that?
Folks opposed to laws that highly restrict or even ban firearm possession by law-abiding citizens often point to the potential of an armed citizen preventing a crime of violence.  The other side says that is very rare.

It does happen, though, and Eugene Volokh at the Volokh Conspiracy has a fine example.  The subsequent criminal case also points out a controversial aspect of the felony murder rule.

As the story begins, it is eerily similar to the Wichita Massacre case argued in the U.S. Supreme Court last week.
SF Deputy City Attorney Christine Van Aken began her argument in City and County of San Francisco v. Sheehan the traditional way: "Mr. Chief Justice, and may it please the Court."  Evidently it didn't, because she was immediately grilled by the Justices one might expect to lean her way for arguing a position different and narrower than the one they thought they had taken the case to decide.

Does the Americans with Disabilities Act have anything to do with the use of force by police to subdue a mentally ill and potentially dangerous person?  It shouldn't.  There is plenty of law governing use of force by police from other sources, and ADA is supposed to be about employment and public accommodations.

Lyle Denniston reports on the argument at SCOTUSblog.  I would not be surprised if the Court drops the case.  Technically, that's Dismissed as Improvidently Granted, or a DIG in SCOTUS practitioner parlance.
The US Department of Justice issued this report on the shooting of Michael Brown by Officer Darren Wilson.  The evidence is summarized on pages 5-8.  On point after point, Officer Wilson's claim of justifiable homicide is supported by forensic evidence, reliable witnesses, or both.  The claims that fanned the flames of racial division and touched off riots are refuted, as the witnesses making those claims are contradicted by forensic evidence or their own inconsistent statements.

Although there are several individuals who have stated that Brown held his hands up in an unambiguous sign of surrender prior to Wilson shooting him dead, their accounts do not support a prosecution of Wilson. As detailed throughout this report, some of those accounts are inaccurate because they are inconsistent with the physical and forensic evidence; some of those accounts are materially inconsistent with that witness's own prior statements with no explanation, credible for otherwise, as to why those accounts changed over time. Certain other witnesses who originally stated Brown had his hands up in surrender recanted their original accounts, admitting that they did not witness the shooting or parts of it, despite what they initially reported either to federal or local law enforcement or to the media. Prosecutors did not rely on those accounts when making a prosecutive decision.

New SCOTUS Cases

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The U.S. Supreme Court has taken up a number of new cases for full briefing and argument.  All the buzz is about the same-sex marriage cases, off-topic for this blog.  There is one actual criminal case, McFadden v. United States, No. 14-378.  The question presented is:

Whether, to convict a defendant of distribution of a controlled substance analogue - a substance with a chemical structure that is "substantially similar" to a schedule I or II drug and has a "substantially similar" effect on the user (or is believed or represented by the defendant to have such a similar effect) - the government must prove that the defendant knew that the substance constituted a controlled substance analogue, as held by the Second, Seventh, and Eighth Circuits, but rejected by the Fourth and Fifth Circuits.
Kind of an interesting "mental state" question, but not a big case.
Kimberly Kindy reports in the WaPo:

A forensic pathologist quoted in a St. Louis Post-Dispatch story about the shooting death of Michael Brown said some of her statements concerning the autopsy were taken out of context.

Judy Melinek was quoted about the volatile case in which Brown -- black, 18 and unarmed -- was fatally shot Aug. 9 by Darren Wilson, a white Ferguson, Mo., police officer.

Last week's Post-Dispatch report, which focused on St. Louis County's official autopsy of Brown and an accompanying toxicology report, relied on unidentified sources with knowledge of the county's investigation of the shooting, leaked autopsy documents, and quotes from Melinek and others. The Post-Dispatch has said it stands by its reporting, including Melinek's comments.

But Melinek said she did not assert that a gunshot wound on Brown's hand definitively showed that he was reaching for Wilson's gun during a struggle while the officer was in a police SUV and Brown was standing at the driver's widow, as the Post-Dispatch reported.

Michael Brown Autopsy Report

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Christine Byers reports for the St. Louis Post-Dispatch:

The official autopsy on Michael Brown shows that he was shot in the hand at close range, according to an analysis of the findings by two experts not involved directly in the case.
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Kimberly Kindy and Sari Horwitz have this article in the WaPo with the above headline:

Ferguson, Mo., police officer Darren Wilson and Michael Brown fought for control of the officer's gun, and Wilson fatally shot the unarmed teenager after he moved toward the officer as they faced off in the street, according to interviews, news accounts and the full report of the St. Louis County autopsy of Brown's body.

Because Wilson is white and Brown was black, the case has ignited intense debate over how police interact with African American men. But more than a half-dozen unnamed black witnesses have provided testimony to a St. Louis County grand jury that largely supports Wilson's account of events of Aug. 9, according to several people familiar with the investigation who spoke with The Washington Post.

Mass Shootings

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The FBI has released a report titled A Study of Active Shooter Incidents in the United States Between 2000 and 2013.  Devlin Barrett has this story for the WSJ. 

How were the incidents "resolved"?
UC Irvine Law Dean Erwin Chemerinksy has this op-ed in the NYT, titled "How the Supreme Court Protects Bad Cops." 

Chemerinsky is upset about the doctrine of qualified immunity in civil suits against police officers for excessive force.  Okay.  Although I generally support it, at times I have had some qualms about some aspects and applications of that doctrine myself.  But just looks at what he says to support this argument.
Although Hall v. Florida got most of the attention yesterday, the Supreme Court also decided two cases in favor of the police, both unanimous at least in part.

Plumhoff v. Rickard involves the police's use of deadly force against someone who led them on a high-speed chase over 100 miles an hour and continued trying to escape even after the police had him cornered.  There are several holdings worth noting.
On May 12, the Commonwealth Court of Pennsylvania (an intermediate appellate court, see below) decided a case on a constitutional right of self-defense.  The case of Madziva v. Philadelphia Housing Authority, No. 1215 C.D. 2013, arose in the unusual context of a public employee's challenge to his discharge.

Madziva was a property manager for a public housing agency.  One day, a resident's unhappiness with the handling of her transfer request resulted in a minor scuffle in which the resident was the aggressor, and Madziva used a minimal amount of force to extricate himself.  The agency's personnel manual had a flat prohibition on fighting and said self-defense was no excuse.  The Pennsylvania Constitution provides in Article I, Section 1 (emphasis added):

All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.

The conflict between the manual and the Constitution resulted in a firing, as it should have.  Unfortunately, instead of firing the bonehead who wrote the manual, they fired the manager who used reasonable force to defend himself from an assault.

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