Recently in Use of Force Category

This morning, the U.S. Supreme Court heard argument for the second time in the case of Hernandez v. Mesa, numbered 17-1678 on its second trip to 1 First Street.

The maxim "if you repeat a lie often enough it becomes the truth"* often serves our opponents well. In the case of the Big Lie about the shooting of Michael Brown in Ferguson, Missouri, though, it may be unraveling. Candidates' lies about that incident are so clearly contrary to the now-well-known facts that even left-leaning media are calling them out on it. William Saletan reports for Slate:

Last week, in a Democratic presidential debate, former Housing and Urban Development Secretary Julián Castro read a list of black Americans killed by police violence. Alongside Laquan McDonald, Walter Scott, and Eric Garner, Castro named Michael Brown, who was shot dead five years ago in Ferguson, Missouri. Several of the current Democratic candidates have accused the officer who shot Brown of murder. Brown's death was a tragedy, but it wasn't a murder. When Democrats claim it was, and when they refuse to correct that mistake, they cast doubt on their commitment to truth. And they undermine the cause of criminal justice reform.

The claim is not merely false. It is one of the most destructive lies in recent history. For a candidate to repeat it is beyond inexcusable.

The researchers found that white police officers were no more likely to shoot minority citizens than non-white officers were. If anything, black police were more likely to kill black civilians, because police tend to be drawn from the communities they work in. The best predictor of the race of killed civilians, they found, was the rate of violent crime in the place they lived. In areas with high rates of violent crime by African-Americans, police were more likely to shoot dead a black person. In areas in which white people committed more crimes, police were more likely to shoot white people.

Both the Sacramento County D.A.'s Office and the California Attorney General's Office announced that neither will pursue charges against two Sacramento police officers who were involved in the 2018 shooting death of Stephon Clark.  Both the Sacramento County D.A. and the Attorney General found that the "officers believed they were in danger when they shot and killed Clark."  The DOJ's report can be found here.

In 2018 and 2019, 62 law enforcement officers were killed by gunfire while in the line of duty.  Officer Natalie Corona just started her career with the Davis (California) Police Department when she was shot and killed by a man who rode up on a bike as she was investigating a minor traffic accident.  She was 22 years old.  Sergeant Steve Hinkle had been with the Sullivan County (Tennessee) Sheriff's Office for 27 years when he was shot and killed as he was conducting a welfare check.  He was 67 years old.  Just a few days ago, Officer Nathan Heidelberg was shot and killed while responding to a residential burglar alarm in Midland, Texas.  He was 28 years old.  Like these three, 59 other men and women were killed by gunfire while carrying out their duty to serve and protect over the last 15 months.

David Pyrooz and James Densley assert that Antifa can be designated a street gang in this op-ed in the WSJ. They note that there are many definitions of "street gang":

Yet under any scientific or official definition, Antifa makes the grade. Gangs are groups. They have a collective identity, which includes signs, symbols and other features that distinguish the in-group from the out-group. Bloods wear red; Crips wear blue; Antifa wear black. It's obvious when Antifa members join protests, even for the untrained eye. And don't be fooled by Antifa's diffuse structure. Conventional street gangs are pretty disorganized too.

Alex Schiffer reports in the WaPo:

The New England Holocaust Memorial in downtown Boston was vandalized Monday night by a 17-year-old who was immediately tackled by bystanders and held until police arrived, police said.

I wonder ... If the vandal sues the tacklers, will the people who regularly decry the use of force in response to "mere property crimes" support him?

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.

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.

 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.