Case Watch List
These cases are not yet final, but bear close watching due to their potential impact on law enforcement. Ideally, once the case becomes final, the blurb about the case will move to the case update list, but I am not always ideal and you may occasionally find cases lurking on both lists.
Phelps-Roper v. Rickets, ___ F.3d ___ (8th Cir. No. 16-1902, filed 08/11/17). Westboro Baptist Church (WBC) members picketed military funerals in Nebraska to warn the nation and to assert their belief that God does not bless a nation that tolerates homosexuality and adultery. Nebraska’s Funeral Picketing Law (NFPL) prohibits picketing within 500 feet of a cemetery, mortuary, or church from one hour prior through two hours following the commencement of a funeral. Neb. Rev. Stat. §§ 28-1320.01 to .03. Phelps-Roper brought this action against the State of Nebraska and the Omaha Police Department (OPD) challenging the constitutionality of the NFPL, facially and as applied. After a bench trial, the district court upheld the NFPL and entered judgment for the appellees. Phelps-Roper appealed the district court’s judgment. The 8th Circuit affirmed, ruling the WBC isn’t entitled to a “bubble-ensconced pedestal.” Phelps argued the law isn’t applied equally because police allow members of the Patriot Guard Riders to be inside the restricted area and shield funeral attendees from WBC signs, which display messages like “no peace for the wicked,” while the group blares Bette Midler’s “From a Distance.” The court decided the law doesn’t apply to welcome counter-protesters. “By contrast,” the court ruled, “the PGR and other attendees were, as invitees, a part of the funeral itself, and thus they did not engage in ‘protest activities’ within the meaning of the statute.”Phelps now seeks certiorrari.
Campos v. City of Wapato, Washington, (No Case and court number yet - just a claim profiled in the Yakima Herald on 02/02/17). A Wapato police officer, Michael Camposd has filed a $1.5 million claim against the city for “divisive and inflammatory” comments its mayor posted on social media in the aftermath of a July officer-involved fatal shooting. Campos fatally shot 38-year-old Mario Martinez-Torres when responding to a domestic disturbance call on July 31. Police reports say Campos shot Martinez-Torres as he struggled with Campos and another officer. The Yakima County Prosecutor's Office ruled the shooting justified. Mayor Tony Guzman called Campos a murderer in a Facebook post. The post read:
". . . . What a fucking piece of shit!! I hope that they prosecute him [Campos] to the fullest extent of the law!! He deserves to die in prison!!! To MURDER someone in such a callus manor deserves to be in prison!!! If not executed for murdering him in front of his family.. . . . If you have an once [sic] of dignity, never show your face in Wapato, and take the Chief with you!!!
United States v. Cox and Kettler, ___ F.3d ___ (10th Cir. Nos. No. 17-3034 & 17-3035). Profiled in Topeka Capital Journal 11/05/16. Cox, owner of Tough Guys gun store in Chanute, is accused of multiple violations of federal firearms law. He is accused of illegally making and marketing firearms, specifically sound suppressors. Prosecutors identified Kettler, a disabled U.S. Army veteran, as a Tough Guys client who acquired a silencer from Cox and filmed a live-fire test of the gear. The suit tests the efficacy of Kansas's 2nd Amendment Protection Act (SAPA). The federal judge in Wichita has prohibited the defense attorneys from using SAPA as a defense for their clients, effectively barring them from presenting the best defense they have. Kris Kobach says the judge is wrong, and that Attorney General Derek Schmidt, ought to prosecute the federal agents. Update: The jury convicted Cox of eight counts of allegedly illegally making and marketing unregistered firearms. They acquitted him of two other counts related to possession of a destructive device. Kettler was found guilty on one count of possession of an unregistered gun silencer. The defendants have appealed to the Tenth Circuit.
Gottwalt v. Oxton, ___ F.Supp. ___ (D. Minn. No. 16-cv-01098-JRT-LIB, filed 04/27/16). Sauk Rapids and St. Cloud police officers stopped Tyler Gottwalt, a firearm permit holder, as he walked across a bridge from one town into the next with an AK-style rifle slung over his shoulder. While the Sauk Rapids officers stood by, those from St. Cloud consulted the city attorney and found that Gottwalt was not violating state law, but could have run afoul of a local city ordinance on carrying weapons other than handguns in public and charged him as such. Just before trial, Judge Vicki E. Landwehr moved to dismiss the case. City officials then attempted to have Gottwalt hit with a misdemeanor disorderly conduct charge, which Landwehr likewise turned down, canceling the planned trial before jury selection was to begin.
Jacobs v. UC Berkeley, Court and Case No. unknown, profiled on PoliceOne.com on 4/10/14. Summary by Henry Lee, San Francisco Chronicle. The UC Berkeley police officer hailed as a hero for helping to rescue kidnap victim Jaycee Dugard is now suing her former employer, saying she was wrongfully denied approval to carry a concealed weapon after she retired on medical disability. Allison "Ally" Jacobs' instincts helped lead to the 2009 capture of Phillip Garrido, the man who kept Dugard captive for 18 years at his home near Antioch. A year later, Jacobs suffered an on-duty injury and, in April 2013, she accepted a disability retirement. Under state law, retired cops are entitled to a permit to carry a concealed weapon. But Jacobs was told she was ineligible for a retired officer card with an endorsement to carry a concealed weapon because UC, in a policy shift, no longer considered her and others receiving disability income to be "retired." Jacobs' attorney, Michael Morguess, said UC officials were "playing semantics" with officers who "put their lives on the line at UC and got injured in the course of performing their duties." UC officials said they changed their policy after former UC Berkeley police Sgt. Karen Alberts, who was close to retirement age, unsuccessfully sued UC in 2012 over a similar denial of a weapons permit after she suffered an on-duty injury. In rejecting Alberts' request for a court order, Judge Evelio Grillo of Alameda County Superior Court suggested that Alberts had the "ability to pursue alternative paths that may lead to the same ultimate result," such as formally choosing to retire instead of continuing to accept disability payments, in accordance to UC policies. UC's retirement plan is different from state plans like the California Public Employees' Retirement System "in that there is no 'disability retirement' status," said UC spokeswoman Dianne Klein. Jacobs now does public speeches on the importance of following one's intuition. She said Monday that she needed the permit because, after her publicized role in the Garrido case, criminals might recognize and challenge her. "I feel, once a police officer, always a police officer," she said. "The fact is all officers are targets the rest of their lives whether retired or not. A big target is painted on my back, and I fear I will not be able to not only protect myself, but my family if the need arises." Jacobs said she sensed something wasn't right on Aug. 25, 2009, when Garrido and the two daughters he fathered with Dugard after kidnapping her showed up at the UC Berkeley police station to ask for permission to hold a campus event. The pale girls were wearing drab sundresses. Their interaction with Garrido was strange, and the effect added up to " 'Little House on the Prairie meets robots,' " Jacobs said. Jacobs checked Garrido's background, saw that he was a sex offender with convictions for rape and kidnapping, and contacted his parole officer. Jacobs got the shock of her life when the parole officer told her that Garrido didn't have any known children. That set in motion Dugard's rescue and the arrest of Garrido and his wife, who were sentenced to lengthy prison terms.
Summary from Findlaw on Mixed Results for Second Amendment Advocates. Is there a right to concealed carry? We've already noted the big circuit split, and the pending cert. petition out of the Third Circuit, but since then, the Ninth Circuit has chimed in twice more, striking down Yolo County, California's restrictions on concealed carry, as well as the entire state of Hawaii's restrictions. Meanwhile, the same circuit just upheld other restrictive gun laws, specifically the City and County of San Francisco's "Safe Storage Law," (requiring gun owners to keep firearms in locked containers, even when at home) and another Police Code section that bans the sale within the city of hollow-point ammunition. The Ninth Circuit, applying a form of intermediate scrutiny, held that the "locked-storage law serves a significant government interest in reducing the number of gun-related injuries and deaths from having an unlocked handgun in the home." As for the ammo, the panel drew parallels to First Amendment restrictions, holding that the ban was "akin to a content-neutral time, place, and manner restriction." Yeah, at this point, they're clearly making up the law as they go along. Content-neutral? Guns? Huh? This is definitely a sign for SCOTUS intervention, unless the Court wants the Ninth Circuit to start applying the Rule in Shelley's case to magazine capacity. The NRA has already promised that the plaintiffs will seek en banc review, then Supreme Court review if necessary.
Ray Call v. City of Riverside Ohio, Actual case name and court number unknown, profiled at usacarry.com. Ray Call has allegedly sued two cops in Ohio for $3 million alleging that cops stopped him while he was open carrying into a Speedway convenience store. The cops threatening him with "reckless inconvenience and noise disturbances."
Third Circuit Case, name and case number unknown, cert. denied ___. Summary from the web: New Jersey’s law is very strict and make it all but impossible for anyone not a member of law enforcement to carry a gun in public. It requires gun owners to indicate “specific threats or previous attacks demonstrating a special danger to applicant’s life that cannot be avoided by other means” in order to get an open carry permit. Approval must be granted by the local police and a Superior Court judge. The “justifiable need” requirement survived two lower court challenges, which were upheld in 2012 by the 3rd Circuit Court of Appeals. The plaintiffs petitioned the Supreme Court to challenge the appeals court ruling. This week (2d week of May 2014), the Supreme Court rejected the challenge, leaving in place the 3rd Circuit’s ruling and New Jersey’s law. This marks the third time the Supreme Court has refused to hear such a challenge. However, there is still a possibility they will have to weigh in on the issue.
State v. Lowery, State v. Schooler & State v. Jimenez, ___ Kan. ___ (No. 116637, 116636 & 116250, respectively, argued 03/07/18). In three Geary county cases (two involving Officer Blake) the Supreme Court will decide whether officers improperly exceeded the scope and duration of Terry stops. In August 2015, Junction City police officer Nicholas Blake stopped Derrick Lowery and a companion en route to Colorado from Tennessee for following too closely. The car belonged to a friend, Lowery told Blake. At some point, Blake directed Lowery to sit in his patrol car, where he wrote a warning citation and then told Lowery to drive safely, according to court records. As Lowery tried to exit the patrol car, Blake told him to stay and asked to search the car. After a dog searched around the car, Lowery was charged with criminal transportation of drug proceeds, criminal transfer of drug proceeds and possession of marijuana. Lowery argued the search was illegal because before detaining Lowery, Blake hadn’t established probable cause. On Feb. 20, 2016, Geary County sheriff’s deputy Lt. Justin Stopper stopped Shaun Lee Schooler on eastbound I-70 because snow covered the license plate of his rental car. During a line of questioning about the rental car’s origins and Schooler’s travel plans, Stopper invited Schooler to sit in the patrol car. After several minutes, Stopper told Schooler he was “good to go,” but then asked a series of questions about drugs and requested to search Schooler’s car. When Schooler declined, he was detained and ultimately charged with felony drug crimes. Stopper clarified during the district court trial that when he said Schooler was “good to go,” he wasn’t actually free to leave. Several justices took issue with the officers “misrepresenting” a driver’s freedom to leave and wondered how a person would know for sure whether an officer was being honest. Justice Carol Beier called the tactic a “trick” and questioned whether “law enforcement gets to lie.” Cruz argued the tactic wasn’t a trick and that the officers had already established reasonable suspicion to investigate, including the fact that neither driver owned the car. In the case of Lowery, discrepancies in his reason for going to Colorado also raised suspicion. An odd but factually true story about picking up a California rental car in Kansas City made the officer suspicious of Schooler’s motives, he said. In the third case, Blake stopped Jessenia Jimenez and Pablo Payeras for following another car too closely in their rental car in January 2016. Blake requested criminal history reports, which are separate from outstanding warrant searches, for both Jimenez and Payeras. He also asked Jimenez a series of questions about her travel plans while sitting in his patrol car. Jimenez argued the criminal background check, which took several minutes to process, and questions about her travel illegally extended the traffic stop so a drug dog could arrive.
United States v. Microsoft Corp., ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 17-2, to be argued 02/27/18). Issue: Whether a United States provider of email services must comply with a probable-cause-based warrant issued under 18 U.S.C. § 2703 by making disclosure in the United States of electronic communications within that provider's control, even if the provider has decided to store that material abroad.
Collins v. Virginia, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 16-1027, to be argued 01/09/18). Issue: Whether the Fourth Amendment's automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house. Virginia police officers were searching for a motorcyclist who had managed to elude them by driving at high speeds – sometimes over 140 miles per hour – on a distinctive orange-and-black Suzuki motorcycle. Using social media, the officers determined that a motorcycle was parked at the home where Ryan Collins spent several nights each week. An officer went to the home and up the driveway, where a motorcycle was parked under an opaque white cover. The officer lifted the cover to see the license plate and vehicle identification number for the motorcycle; from the VIN, he learned that the motorcycle was listed as stolen. Collins was charged with the possession of stolen goods. At trial, he argued that evidence regarding the motorcycle’s license plate and VIN should not be admitted because the officer’s search of the motorcycle in the home’s driveway violated the Constitution. The trial court disagreed, as did the Virginia Supreme Court. They found the search legal under the automobile exception.
Byrd v. United States, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 16-1371, to be argued 01/09/2018). Issue: Whether a driver has a reasonable expectation of privacy in a rental car when he has the renter's permission to drive the car but is not listed as an authorized driver on the rental agreement. Latasha Reed rented a car in New Jersey. She signed a rental agreement that indicated that additional drivers were only permitted “with prior written consent.” When Reed left the facility, she allowed her boyfriend Byrd to take the wheel; shortly thereafter, he began a solo trip in the rental car from New Jersey to Pittsburgh. Byrd was stopped by a trooper in Pennsylvania and received a warning for driving in the left lane. The trooper then searched the car and found a laundry bag that contained a flak jacket and 49 bricks of heroin in the trunk. Byrd argued the search was illegal, but the district court disagreed. The 3rd Circuit affirmed. Byrd argues that he had a privacy expectation because the car was rented by Reed, a close family member and the mother of his five children.
Carpenter v. United States, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 16-402, to be argued 11/29/17). Issue is whether the government must obtain a warrant for records showing where cell phone connects with towers.
Manuel v. City of Joliet, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (No. 14-9496, to be argued 10/05/16). This case is based on a federal Section 1983 claim filed by a man held in jail for 48 days on charges that the police allegedly knew to be false and that were later dismissed. Title 28 U.S.C. §1983 has long provided a vehicle for federal courts to hear civil rights torts claims, and its complicated case law often turns on hoary common law tort doctrine from which Section 1983 sometimes borrows. Elijah Manuel describes his claim, for damages stemming from his allegedly false arrest through various court processes until all charges were dismissed 48 days later, as one for “malicious prosecution” (although he now seems to prefer “unlawful prolonged detention”). The primary question in this case is whether the Fourth Amendment or the due process clause of the 14th Amendment governs such a claim, a question similar to the question that six justices wrote separately about (none commanding a majority) some 22 years ago in Albright v. Oliver.
Michele Choate v. City of Gardner, ___ F.Supp. ___ (D.Kan. No. unknown, filed 02/25/16). The heirs of Deanne Choate, a 53-year old woman shot and killed by Gardner police, filed a wrongful death suit against Gardner and officers Robert Huff, Justin Mohney and Jeff Breneman. Officers were responding to a 911 call that indicated Deanne was under the influence of alcohol, may be suicidal and had a gun. According to the plaintiff, when police arrived at the scene, the door was opened by Deanne’s boyfriend, Andrew Musto, who was immediately handcuffed and removed from the residence. “Officers entered the residence and found Deanne sleeping in bed,” court documents say. After waking Deanne, officers asked her repeatedly “where is the gun,” for about eight minutes. They looked under the sheets, and officers said the room had been cleared. “Officers did not make any effort to restrain Deanne or remove her from the room,” court documents say. “Instead they stayed in the room with the naked 115 pound woman,” before giving her a sweatshirt to wear. Officers continued to speak in a loud tone asking “where is the gun,” and she “produced” a handgun stating, “oh, here it is.” At that point, officers immediately shot and killed Deanne for complying with their request, according to court documents. The suit further alleges that after the shooting, officers were told to turn off their video and audio recording devices to further protect officers and prevent recording of incriminating evidence. The DA’s office cleared officers of wrongdoing in a letter dated May 12, 2015.
Estate of Todd Weber v. Kansas City, Missouri, ___ F.Supp. ____ (W.D. MO). The father of Todd Weber, a man who died after a police chase two years ago, is suing Kansas City, Mo., Police Chief Darryl Forté, Michael Lenoir, Justin Pinkerton, Jason Quint and Scott Selcock.Weber, 38, died in January 2013, after a police chase that began in Independence and ended when he got out of his car in the southbound lanes of Interstate 435 near Front Street in Kansas City. Police stopped Weber on a traffic violation. Reports show that Weber put a gun to his head and then took off with officers in pursuit. Police used stop sticks in an attempt to disable Weber's vehicle--to no avail. After a six-mile chase that at one point saw speeds as low as five miles per hour, Weber got out of his car in the southbound lanes of Interstate 435 near Front Street in Kansas City. When Weber put a gun to his head again, the lawsuit states, officers shot rubber bullets at him as he retreated to his car. That's when, according to the suit, the real bullets began to fly: "Immediately after Defendant Selock again began shooting Decedent with rubber projectiles while Decedent was in his vehicle, Defendants Lenoir, Pinkerton, and Quint shot Decedent with nearly 40 real bullets until they killed him at the scene. At least 23 of those bullets penetrated Decedent."
Davis v. Renn, ___ F.Supp. ___ (No. ____, D, Indiana, profiled in PoliceMag.com 01/14/16). Major Davis II, the man charged with killing Indianapolis Metro Police Officer Perry Renn in July 2014 has now filed a federal lawsuit against Renn, and the City of Indianapolis alleging the use of excessive force. According to police, officers responding to reports of a man with a gun and confronted Davis in a dark east side alley. One officer says Davis pointed an assault rifle at Officer Perry Renn and fired first. In the lawsuit, Davis claims Renn took the first shot, insisting he was unarmed and that the AK-47 police found at the crime scene wasn't his. Davis is demanding almost $7 million dollars in damages.
Davis v. Iowa, Desert Snow, and Joe David, unknown federal district court, unknown case number. Profiled in Washington Post, 11/12/14. Two gamblers in a rented red Nissan Altima were poker players traveling through Iowa on their way to Las Vegas. Iowa state troopers stopped them on I-80, and detained them for more than two hours. Their car was searched without a warrant. And their cellphones, a computer and $100,020 of their gambling “bankroll” were seized under state civil asset-forfeiture laws. The troopers allowed them to leave, without their money, after issuing a traffic warning and a citation for possession of marijuana paraphernalia that carried a $65 fine, court records show. William Barton Davis, 51, and John Newmerzhycky, 43, both from Humboldt County, Calif., claim their constitutional rights against unreasonable searches and seizures were violated. They also contend the stop was part of a pattern connected to the teachings of a private police-training firm that promotes aggressive tactics. ‘Your property is guilty until you prove it innocent’(11:36) In the wake of Sept. 11, 2001, an aggressive brand of policing called “highway interdiction,” which involves authorities seizing money and property during traffic stops, has grown in popularity. Thousands of people not charged with crimes are left fighting legal battles to regain their money. (Gabe Silverman/The Washington Post). Davis is a professional poker player, and Newmerzhycky worked as glass blower, according to court records. In an interview, Davis said the men felt as though they were being “stalked” by the police. If allowed to proceed, the lawsuit could illuminate the widespread but little-known police practice known as “highway interdiction.” The suit names Desert Snow, the Oklahoma-based training firm, and its founder, Joe David, court records show. It also names the two Iowa State Patrol troopers who participated in the traffic stop and were trained by Desert Snow.
Federated University Police Officers’ Association v. Univ. California Board of Regents, court and case number unknown, profiled in LRIS Newsletter 11/21/14. On Tuesday, a California police union filed a lawsuit against the UC Board of Regents and others, alleging that the UC Irvine Police Department illegally collected communications of UC employees, police officers and the public. The Federated University Police Officers’ Association, or FUPOA, representing more than 250 UC police officers, filed the class action lawsuit against the UC Regents, the UC Irvine Police Department, or UCIPD, Assistant Police Chief Jeffrey Hutchison, Police Chief Paul Henisey and Johnson Controls Inc., a facility services corporation based out of Wisconsin. According to the lawsuit, advanced audio and visual recording devices were installed throughout the UCIPD police station to collect communications without the consent of those recorded. The UC Regents approved and funded the device installation by Johnson Controls Inc. under the direction of Hutchison, Henisey and UCIPD to install the devices, the lawsuit alleges. “We have tried to resolve this by any method we have at our disposal,” said David Mastagni Jr., an attorney representing FUPOA. “We asked them to immediately turn off cameras and audio recording (devices) … asking to meet and confer, we sent a demand to stop and sent a letter asking not to destroy evidence and recordings.” In January, Kevin Flautt, an attorney representing FUPOA, sent demands to Henisey requesting the university cease and desist the recordings. The recording activity was discovered in December 2013. FUPOA also filed a public records request asking UCIPD to release all information regarding the purchase, installation and operation of the recording devices and information on if and when the recordings were accessed. According to the lawsuit, UCIPD deleted several months of recordings upon discovery of the devices. The devices were placed in areas where plaintiffs possessed a “reasonable expectation of privacy” in their communications, such as hallways and bathrooms, and were strong enough to record through interior walls of the police department building, the lawsuit says. “(This case) should not be looked at solely in the context of law enforcement managers eavesdropping on rank and file police officers,” said David Mastagni Sr., managing partner of law firm Mastagni Holstedt. “It should be looked in the point of view of the regents and (the police’s) managers in the UC system conducting surveillance on everyone.” Cathy Lawhon, a spokesperson for UC Irvine, said in a statement that the campus denies the allegations in general and will vigorously defend against them. In a press release, FUPOA said the lawsuit was necessary to protect staff, students, faculty and the public from the violation of their privacy rights.
American Civil Liberties Union Foundation v. City of Los Angeles, ___ Cal.App. ___ (case no. unknown, profiled on policeone.com on 10/20/14). Advocacy groups have appealed a judge's ruling that denied them access to police records of license plate scans in Los Angeles, saying they are crucial to understanding the scope of government surveillance. The American Civil Liberties Union Foundation of Southern California and the Electronic Frontier Foundation want one week of records collected by the Los Angeles Police Department and Los Angeles County Sheriff's Department in August 2012 — an estimated 3 million scans. Superior Court Judge James Chalfant denied the request in August, saying the records are exempt from disclosure under California's open records law because they pertain to law enforcement investigations, and releasing them could violate individual privacy. The groups said in a filing this week to California's 2nd District Court of Appeal that the records are collected indiscriminately and could be used to track anyone, including political activists. It says they could be used to monitor peaceful protests, houses of worship or a particular neighborhood or organization. A San Diego Superior Court judge ruled last month that technology entrepreneur Michael Robertson wasn't entitled to see records collected on his vehicle because they pertained to law enforcement investigations. Robertson argued he isn't a criminal suspect — at least as far as he knows — and has said he plans to appeal.
City of Hays v. Vogt, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 16-1495, to be argued 02/20/18). Issue: Does the prosecution’s use of allegedly compelled statements at a pretrial hearing, not at a criminal trial, violate the Fifth Amendment’s Self-Incrimination Clause? In 2013, Matthew Vogt, a police officer in the City of Hays, Kansas, applied for a new position with the City of Haysville’s police department. In his application to the City of Haysville police department, Vogt acknowledged that he had kept a knife which he had obtained while working as a Hays police officer. In order to maintain his job offer with Haysville, Vogt disclosed his possession of the knife and returned it to the Hays police department. The Hays police department thereafter began an internal investigation into the incident, while the Kansas Bureau of Investigation initiated a criminal investigation. In light of the criminal investigation, the Haysville police department rescinded its job offer. As part of the investigation, the Hays police department supplied the Kansas Bureau of Investigation with signed statements that Vogt had made concerning the knife. Kansas ultimately charged Vogt with two felonies relating to his possession of the knife. A Kansas state district court dismissed the charges against Vogt after the pretrial hearing, finding a lack of probable cause. Vogt then filed a lawsuit in the United States District Court for the District of Kansas against the City of Hays, the City of Haysville, and several individual police officers, arguing that his Fifth Amendment rights had been violated when prosecutors used his statements against him at the probable cause hearing. The district court dismissed Vogt’s case, holding that he had failed to state a valid Fifth Amendment claim because the incriminating statements had not been used against him in a criminal trial. Vogt appealed to the Tenth Circuit. There, the defendants argued that the phrase “criminal case” effectively limits the application of the Fifth Amendment only to trials, and that criminal defendants therefore do not have a Fifth Amendment right against self-incrimination during pretrial proceedings. Ultimately, however, the Tenth Circuit departed from the district court’s more limited reading of “criminal case,” which encompassed only the criminal trial, and held that the phrase “criminal case” may include probable cause hearings such as Vogt’s. The Tenth Circuit affirmed the lower court’s ruling in part, agreeing that Vogt’s claims against the City of Haysville and various individual police officers should have been dismissed. However, the court reversed the dismissal of Vogt’s claim against the City of Hays, holding that Vogt had adequately pleaded that the City had violated his Fifth Amendment rights by using his statements in anticipation of the probable cause hearing.
McCoy v. Louisiana, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 16-8255, to be argued 01/17/18). Issue: Can a defendant’s lawyer concede the defendant’s guilt after the defendant explicitly instructs the lawyer to plead not guilty? McCoy was arrested in Idaho and charged in Louisiana with a triple homicide. English believed that maintaining McCoy’s innocence in the face of overwhelming evidence would lead to the death penalty for his client, so English went against his client’s wishes and conceded guilt to the jury, hoping to receive leniency in sentencing. The jury returned a guilty verdict and recommended the death penalty. The Louisiana Supreme Court upheld the conviction and McCoy appealed the constitutional question to the Supreme Court. McCoy argues that the Sixth Amendment guarantees him autonomy to decide whether he, or his counsel, will admit guilt.
Stinnie et al. v. Holcomb, ___ F.Supp. ___ (Case No. 3:16-CV-00044, U.S. D.C. W.D. Virginia). The U.S. Justice Department filed a statement of interest in a class action suit alleging that a state law allowing for suspension of driving privileges for unpaid costs and fines unfairly discriminates against the poor.
Crites v. City of Haysville, ___ F.Supp. ____ (D. Kan 2017)(profiled on tsnews.com on 06/26/17). Robert Crites, a former Haysville police lieutenant, sued the city alleging that Haysville discriminated against him based on a disability and violated federal laws when it terminated his employment on May 29, 2015. Crites suffered from post-traumatic stress disorder (PTSD) after he shot and killed Chad Leichhardt in an apartment at 401 Sarah Lane on Aug. 19, 2014. Crites's psychologist diagnosed Crites with PTSD and informed the city Nov. 12, 2014, that Crites would not be able to return to work for 12 weeks. On Feb. 5, 2015, the psychologist informed the city that Crites was “complying fully with the treatment process and is making steady progress,” but would not be able to return to work for 10 weeks. On April 23, 2016, the psychologist authorized Crites to return to work with no restrictions. A fitness for duty exam concluded that Crites was not fit for duty due to “ongoing critical incident stress symptoms” and other factors. A week later, Crites was offered a transfer to a civilian position at a lower rate of pay, allowed to resign or be involuntarily terminated. Crites declined to resign or take the civilian position, and he was terminated. Crites claims that he was entitled to be considered a “qualified disabled person” under the Americans With Disabilities Act and said that Haysville unlawfully terminated his employment because of his disability. He also claims that his rights under the Family and Medical Leave Act (FMLA) were violated, because the city failed to give him proper notice of his right to unpaid, job-protected leave under the act.
Roe v. City of Atlanta, ___ F.3d ___ (11th Cir. No. 11-11758, unpublished opinion filed 02/01/12). A former investigator with the city of Los Angeles claims Atlanta police rejected his job application solely because he has HIV, a decision he said breaks the law and perpetuates stereotypes about people with the virus. Atlanta police argue hiring the man poses a threat to the health and safety of the public. The district court held that Roe cannot establish that he is a qualified individual for two reasons: 1) because he cannot prove he does not pose a direct threat because of his HIV status; and 2) because he failed to prove that he is a qualified individual wholly aside from whether he posed such a direct threat. The Circuit held that the City's motion for summary judgment did not mention ground 2), and agrees with Roe that the City did not raise the issue of qualifications beyond its argument that he was a direct threat. While a district court is permitted to raise new issues in deciding a motion for summary judgment, it must give notice to the parties. See Fed.R.Civ.P. 56(f)(2). Because no notice was given to Roe, we vacate on this ground, and remand for further proceedings.
McCluney v. City of Wichita, ___ F.Supp. ___ (USDC, D.Kan - Case No. Unknown), profiled in the Wichita Eagle on 7/6/15. A former lead member of the Wichita police SWAT team – a specially trained unit that responds to high-risk situations – has filed an age-discrimination complaint against the city in federal court. The complaint, filed by Richard McCluney on June 19, says that he resigned his position on the SWAT team “under duress and at the direction of” police Deputy Chief John Speer and that he was discriminated against because of his age. Speer told McCluney’s SWAT commander that McCluney was “too old,” the lawsuit says. At the time, McCluney was 57. McCluney is 58 now and works at the Patrol North bureau, said Sean McGivern, one of the Wichita lawyers representing the officer. Beyond that, McGivern couldn’t comment, he said Thursday. Wichita police Capt. Doug Nolte, a spokesman for the Police Department and the city on the matter, confirmed Thursday that McCluney remains an officer with the agency but said he couldn’t comment on the lawsuit. Speer said Thursday: “We have seen the complaint and read McCluney’s version of events, and we are reviewing his claims. But the legal process needs to be followed, and any further comments should be respectful of it.” McCluney has requested a jury trial in federal court in Wichita and is seeking a judgment “greater than $75,000,” according to the lawsuit complaint signed by his lawyers. The discrimination caused McCluney to suffer damages including “loss of hazard and overtime pay,” the document says. McCluney has 26 years of experience in law enforcement, including 21 with the Wichita police SWAT unit, and he had been a lead trainer for the team and been in hundreds of SWAT operations, the lawsuit says. "As a qualified SWAT team operator, McCluney was asked to participate in the United States Government’s Anti-Terrorist Assistance Program and was assigned along with Navy SEAL and Army Special Forces members to highly classified missions in Iraq,” the lawsuit says. In 2013, the city awarded him the Silver Wreath of Valor for “actions taken during a SWAT operation,” it says. The lawsuit alleges that on July 31, 2014, Speer, a deputy chief, told Lt. Kevin Vaughn about McCluney: “He is too old, give him his medal, give him his party and tell him to move on.” Speer also told Vaughn that he thought McCluney was falsifying his physical fitness tests to remain with SWAT, the complaint says, adding: “Speer had no basis to make that statement then and he has no basis to make that statement today.” On Aug. 7, 2014, Speer met with the SWAT unit and made these statements, the lawsuit says: “I intend to have a young team.” “Eventually no one over forty years old will be allowed on my team.” “Some of you are old, quit hoarding the training and information from younger officers.” “We are all men here, this is a conversation among men, so if you want to make a stink over this, go right ahead, bring on your H.R., bring on your F.O.P., bring on your lawyers, I’m the Colonel, and Deputy Chiefs don’t lose.” Paul Zamorano, president of the local police union, the Fraternal Order of Police, said Thursday that he couldn’t comment. In late August or early September 2014, the complaint says, Sgt. Kevin Kochenderfer told the SWAT team he had a message from Speer: that Vaughn had been removed as commander of the unit and that “certain members of the unit who had reached the age of 40” would be retired from SWAT. Kochenderfer told McCluney and two other people that he had been sent by Speer to get their resignations from the unit, the complaint says. The lawsuit says McCluney has “exhausted all administrative remedies prior to bringing suit.”
Neal v. City of Fairfax, Virginia, Case No. unknown, profiled in the Washington Post 06/27/17).. The Virginia Supreme Court has agreed to hear a challenge over how long police can keep data from automated license plate readers, which police say can provide valuable investigative information and civil liberties critics say can be used to track the movements of innocent people. The case, filed by the American Civil Liberties Union in Fairfax County, Va., appears to be the first legal challenge in the nation to the varying lengths of time police retain the data recording when and where a vehicle is photographed by a license plate reader. After a bill to limit the data retention time to seven days was vetoed by Va. Governor Terry McAuliffe (D) in 2015, the ACLU filed suit in Fairfax on behalf of Harrison Neal, whose license plate had been captured twice by police cameras. The suit sought to prohibit the Fairfax police from keeping the information at all, a practice the Virginia State Police began after receiving an opinion from then-Attorney General Ken Cuccinelli (R) that retaining the information violated the Data Act. Fairfax keeps its license plate data for a year.
United States v. Furguson, Missouri, ___ F.Supp. ____ (E.D. Mo. Case: No. 16-cv-00180, filed 02/10/16. The justice department alleges the City of Ferguson, through the Ferguson Police Department (“FPD”), the Ferguson Municipal Court, and the office of the City Prosecuting Attorney, engages in an ongoing pattern or practice of conduct, including discrimination, that deprives persons of rights, privileges and immunities secured and protected by the United States Constitution and federal law.
Case name unknown. ___ F.Supp. ___ (D. Kan. 2015), profiled in the Junction City Post 10/05/15. The fight over a move by the Legislature to defund the Kansas judiciary’s budget has now landed in the federal courts. A court notice shows Kansas has moved the lawsuit filed by four judges to U.S. District Court in Topeka. The attorney representing the judges said Monday he is confident that whether it is heard in state or federal court the measure defunding the courts would be found unconstitutional. No decision has been made on whether to oppose the venue change. Legislation passed this year nullifies the judicial branch’s entire budget if a 2014 law stripping the Kansas Supreme Court of its ability to appoint chief judges is struck down. Kansas contends the lawsuit raises a federal due process claim. The case is now before U.S. District Judge Daniel Crabtree.
Civil & Criminal Liability
Lozman v. City of Riviera Beach, Florida, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 17-21, to be argued 02/27/18). Issue: Does the existence of probable cause prevent a plaintiff from pursuing a retaliatory arrest claim against the government? Lozman argues that if a plaintiff who asserts a retaliatory arrest claim can establish a causal connection between his protected speech and the subsequent government action, the burden should then shift to the government to prove that it would have made the same decision even without the alleged animus. Lozman moved his floating home to the Riviera Beach Marina. Shortly after moving there, Lozman learned that the City of Riviera Beach (“Riviera Beach”) planned to redevelop the Marina. Lozman became “an outspoken critic” of the proposed redevelopment project when he discovered that Riviera Beach planned to seize thousands of homes through eminent domain and give the land to a private developer. On May 4, 2006, before Riviera Beach could implement the redevelopment plan, the Florida legislature passed House Bill 1567, which drastically limited the government’s eminent domain power. Riviera Beach consequently held a special emergency meeting and approved the redevelopment plan before the governor signed the bill into law. On June 8, 2006, Lozman filed a lawsuit against Riviera Beach, alleging that it violated the Florida Sunshine Law by holding the special emergency meeting without timely public notice. In response, Riviera Beach held a closed meeting later that month to discuss Lozman’s lawsuit. A public transcript later revealed that during the meeting, Councilperson Elizabeth Wade stated, “I think it would help to intimidate the same way as [the Florida Department of Law Enforcement] is coming to my house. I am wondering if my lines are tapped or whatever. I think they should be questioned by some of our people . . . so that they can feel the same kind of unwarranted heat that we are feeling[.]” On November 15, 2006, Lozman made a speech at a public meeting held by Riviera Beach. During his speech, Lozman noted that the mayor and another councilperson were absent and that the U.S. Attorney’s Office had recently arrested another local politician. Councilperson Wade, who was in attendance, interrupted Lozman and instructed him to remain on-topic. Despite Wade’s warning, Lozman continued criticizing various local officials. Wade then called over Officer Francisco Aguirre, who was providing security during the meeting. Officer Aguirre approached Lozman while Lozman was still speaking and asked Lozman to talk with him outside. Lozman responded that he was not finished and continued speaking. Officer Aguirre then threatened to arrest Lozman if he did not go outside. Still, Lozman refused and protested that he had not finished his speech. At that point, Wade exclaimed, “Well, carry him out.” Officer Aguirre handcuffed Lozman. Lozman was subsequently charged with disorderly conduct and resisting arrest without violence, but the charges were later dropped because there was “no reasonable likelihood of successful prosecution.” In February 2008, Lozman filed claims of retaliation by false arrest, unreasonable seizure, and common law false arrest against Riviera Beach pursuant to § 1983 in the U.S. District Court for the Southern District of Florida. Lozman alleged that Riviera Beach retaliated against him for opposing their redevelopment plan by having him arrested at the November 15, 2006 meeting. Following trial in 2014, the jury returned a verdict in favor of Riviera Beach on all three counts. The Eleventh Circuit affirmed, holding in part that, Lozman could not succeed on his retaliatory arrest claim because the jury believed that Officer Aguirre had probable cause to arrest Lozman. The United States Supreme Court, granted certiorari on November 13, 2017.
Miller v. Sawant, Court and Case Number unknown. Profiled on Police Magazine on 08/23/17. Two Seattle police officers Scott Miller and Michael Spaulding are suing socialist city councilmember Kshama Sawant as an individual for damaging their reputations with comments about a fatal officer-involved shooting. The lawsuit, filed by Williams, Kastney and Gibbs, claims Sawant, acting beyond her scope as a city councilmember, personally defamed the two officers who were involved in the shooting death of Che Taylor after he allegedly pulled a gun on them. A gun was found at the scene and a witness corroborates the report from Miller and Spaulding. A King County inquest jury found that Taylor, indeed, posed a threat of death or serious injury to these two officers. According to the filing, “…having never spoken to the officers, their attorney, the department, and with the investigation still incomplete, Kshama Sawant was publicly pronouncing these officers ‘murderers’ and referring to the shooting as a product of ‘racial profiling.’ As a consequence of her rhetoric, the lawsuit alleges the officers were “publicly berated and chastised” and Miller had to move.
Bell v. City of Kansas City, Missouri, ___ F.Supp. ___ (USDC, MO, Case No. unknown, profiled in the Kansas City Star 08/22/17). Tyree Bell was arrested and incarcerated last summer for 3 weeks in the Jackson County Juvenile Detention Center. After three weeks, an officer watched dash cam video and realized that Bell was wrongfully accused. Bell was arrested while walking home from summer school. Minutes earlier, a suspect armed with a gun had fled from officers in the area, and one of those officers identified Bell as the suspect. Video that showed the fleeing suspect was available, as was video of Bell’s arrest, but the officers did not go back and watch it.
Dunning v. Helper, ___ F.Supp.2d ___ (M.D. Tenn, Case No. unknown, reported in Law Enforcement Today on 06/27/17). A federal court has ruled that Williamson County District Attorney Kim Helper has no prosecutorial immunity and can now be sued individually by two fired police lieutenants. Pat Stockdale and Shane Dunning were investigated for alleged misconduct. The two lieutenants were on paid administrative leave for about six months during the investigation. Finally, the investigation ended with no findings. In spite of this, the men were fired. At the time, city manager Scott Collins told News 2 he was advised by DA Helper she would not prosecute any cases the officers worked, forcing him to fire the men. According to the lieutenants’ attorneys, they have sued the city of Fairview and the DA individually for a combined 12 million dollars. The DA argued she had prosecutorial immunity from such a case. But last week, Judge Aleta Trauger ruled against DA Helper. “For the reasons discussed in the accompanying memorandum, the motion to dismiss filed by defendant General Kim Helper, is hereby Denied,” the judge wrote. The Complaint alleges, among other things, that she was not acting within the scope of her duties when she attempted to influence the staffing decisions in the City of Fairview. In essence she had Lt. Stockdale and Lt. Dunning terminated by ‘Giglio impairing’ them. This impairment is essentially an attack on their credibility as a witness for the State. If they cannot testify, then they cannot be police officers arresting people on the street. The Complaint alleges that she had no basis to attack their credibility, and that she did so purely out of personal, political, and retaliatory motivations, none of which fall within the duties of a prosecutor.
Missouri v. James M. Combs, Jackson County District Court Case No. unknown. Profiled on KCTV 09/29/16. An Independence police officer has been accused of having sex with a girl as young as 14 years old and has been charged with statutory rape. The probable cause statement from the prosecutor says they have reason to believe 37-year-old officer began having sex with the girl when she was 14 years old and that he continued to do so for almost two years.
Pennie v. Black Lives Matter, ___ F.Supp. ___ (Dallas Texas U.S. District Court Case No. Unknown, profiled on PoliceOne.com on 09/22/16). A Dallas police sergeant has filed a federal lawsuit against Black Lives Matter leaders and others, blaming the movement for race riots and violence against police officers. Sgt. Demetrick Pennie, president of the Dallas Fallen Officer Foundation and a 17-year law enforcement veteran, sued not only those associated with the Black Lives Matter movement but public figures such as the Rev. Al Sharpton, Louis Farrahkan, George Soros, the New Black Panthers Party and even President Barack Obama and presidential nominee Hillary Clinton. According to the suit, the defendants "have repeatedly incited their supporters and others to engage in threats of and attacks to cause serious bodily injury or death upon police officers and other law enforcement persons of all races and ethnicities." The suit accuses the defendants of inciting supporters and others "to engage in threats and attacks" against law enforcement officers around the country, including the July 7 murders of five Dallas officers by Micah Johnson after a Black Lives Matter demonstration. Pennie is being represented by Larry Klayman of lobbying organization FreedomWatch. "Sergeant Pennie and I feel duty-bound to put ourselves forward to seek an end to the incitement of violence against law enforcement which has already resulted in the death of five police officers in Dallas and the wounding of seven more, just in Texas alone," Breitbart quoted Klayman as saying in a release. The 66-page complaint seeks damages of more than $500 million. See also Zamarippa v. Black Lives Matter, Louis Farrakhan, the Nation of Islam, Al Sharpton, National Action Network, Rashad Turner, Opal Tometi, Patrisse Cullors, Alicia Garza, Deray McKesson, Johnetta Elzie, New Black Panthers Party, Malik Zulu Shabazz and George Soros, (U.S. District Court of the Northern District of Texas. Case No. Unknown, profiled on Police Magazine and Police One on 11/10/16); in which the father of a deceased officer Patrick Zamarripa seeks$550 million for the loss of his son. The suit claims Micah Johnson shot at officers because he was incited by the defendants' anti-police rhetoric; Baton Rouge Officer v. Black Lives Matter and DeRay McKesson, ___ F.Supp. ___ (Case No. unknown, profiled on WAFB on 11/07/16). Officer who was seriously injured during a July 9 protest over the shooting of Alton Sterling has filed a lawsuit against the national Black Lives Matter movement and co-founder of the organization. The officer claims "defendants conspired to violate the law by planning to block a public highway. Defendants were in Baton Rouge for the purpose of demonstrating, protesting, and rioting to incite others to violence against police and other law enforcement officers." See also case in LA where a police commissioner has requested a temporary restraining order against stalking by a member of Black Lives Matter.
Sandy Hook Victims v. Bushmaster, ___ F.Supp.___ (D. Connecticut, Case No. Unknown, profiled on KMBC 04/14/16). Judge Barbara Bellis denied Bushmaster Firearms and Remington's motion to dismiss the case. The firm representing the families hailed the ruling as a victory. However, the ruling does not prevent gun makers from appealing and filing a new motion to strike the case. Lead attorney Josh Koskoff represents 10 families whose relatives were killed or injured when 20-year-old Adam Lanza opened fire inside a Newtown, Connecticut, elementary school in December 2012. Koskoff told CNN, "We are thrilled that the gun companies' motion to dismiss was denied. The families look forward to continuing their fight in court." CNN reached out to Bushmaster and Remington but has yet to hear back. The companies argue they are protected under the federal Protection of Lawful Commerce in Arms Act, which protects gun manufacturers from liability if a firearm is "misused" in a crime to kill people. The families argue that while the guns may not in themselves be unsafe, Bushmaster and Remington's marketing strategy deliberately targets young men, some of whom are inclined to violence. The families want access to the companies' marketing documents. Bellis issued no ruling on the statute itself -- thereby giving both sides more time to make their cases. Sandy Hook was the second-deadliest mass shooting in the United States, following the killing of 32 people at Virginia Tech on April 16, 2007. On December 14, 2012, Lanza fatally shot his mother and then drove to the school, where he used a Bushmaster AR-15 to shoot to death 20 children and six adults. Lanza, 20, killed himself as police approached. Remington is the parent company of Bushmaster. UPDATE: According to the New York Daily News, Judge Bellis granted a motion to dismiss the suit pursuant to the Protection of Lawful Commerce in Arms Act on October 28, 2016.
Heirs of John Paul Quintero v. City of Wichita, ___ F.Supp. ___ (D. Kan No, unknown, filed 10/21/15.) Profiled in Wichita Eagle 10/26/15. Dallas-based attorneys representing Santiago Quintero sued the City after it failed to respond to a demand letter seeking $10 million in the death of 23-year-old John Paul Quintero. Plaintiff alleges that Quintero – referred to throughout by his middle name, Paul – was “unjustifiably shot and killed … under circumstances where no reasonable police officer would have done so.” Wichita officers responded to a 911 call from Quintero’s relatives saying he was armed with a knife, intoxicated and threatening others at a home on Oliver near Central on Jan. 3. Police have said Quintero was belligerent, had disobeyed commands and was reaching for his waistband when the officer fired two rounds from a military-style assault rife, striking him in the left buttock. Quintero’s father, who was standing near his son and officers, said the 23-year-old had his hands up and his back to officers when he was shot. Quintero suffered extensive internal injuries and underwent surgery at a Wichita hospital but went into cardiopulmonary arrest. He was declared dead about six hours after the shooting. The female officer’s use of deadly force was “unnecessarily aggressive … impulsive, reckless and excessive,” the lawsuit alleges – and illustrative of what it calls a longstanding departmental practice of allowing officers to shoot people “in the absence of an actual immediate threat” without consequence. “There’s a pattern of violations linked to the city’s training and supervision regarding deadly force,” Bowers said, referring to 11 other police shootings listed in the lawsuit in which people were killed or injured between 2010 and February 2014. Wichita police officers, the lawsuit alleges, are “trained and encouraged” to rely on force and threats to control stressful situations in lieu of other de-escalation tactics.
Richard v. City of Wichita, ___ F.Supp. ___ (profiled in the Wichita Eagle on 9/17/15). A widow seeks $5 million from the Wichita Police Department for alleged excessive force and a cover-up. Stacy Richard survived being shot 16 times by Wichita police but later committed suicide. His wife Michlle Richard alleges Wichita police officers have shot at least 29 people since 2010, killing 13, which shows an "unwritten de facto policy of unnecessarily using deadly force.” The lawsuit also contends that police shootings “remain cloaked in secrecy with the shooting files made part of the WPD secret confidential records file recently disclosed by media. On the day of the shooting, Richard’s therapist told 911 that he was suicidal and in his house with a gun, the lawsuit says. Instead of “securing a perimeter and de-escalating the situation as policy and training dictate,” the officers tried to “enter and clear the residence within five minutes of arriving on scene even though they knew Stacy was alone and not an imminent danger to the officers or others,” the lawsuit says.
State v. Jacob Ramsey, district court case in Jackson County, MO. Profiled in the Kansas City Star on February 20, 2015. A Jackson County, Mo., grand jury has indicted a Kansas City officer in connection with the nonfatal shooting of a 37-year-old man last June. Prosecutors did not release details of the shooting incident, but family and friends told media last summer that the man was unarmed when the officer shot him in the face June 24 in the 6400 block of East 15th Terrace. Shortly after the shooting, police officials said officers had gone to a house looking for a wanted person. Someone matching that person’s description ran from the house. An officer fired his weapon when he believed the person was about to shoot him. The officer, 31, faces charges of first-degree assault and armed criminal action in the case. Various law enforcement and legal sources the Kansas City Star Friday that they could not recall the last time a Kansas City officer was indicted after a shooting. In an internal message to department members, Police Chief Darryl Forté said he believed the officer was “acting in the best interest of public safety when he was placed in that situation.” The Kansas City Fraternal Order of Police released a written statement expressing strong support for the officer, whom it described as an impeccable officer with a flawless record. The FOP asked that the media respect his privacy as he prepares to “fight these baseless charges.
New Mexico v. Perez & Sandy, N.M. Dist. Ct., Case No. Unknown, profiled on Findlaw 01/12/15. Prosecutors say two Albuquerque police officers will face murder charges in the March killing of a homeless camper, a shooting that generated sometimes violent protests around the city and sparked a federal investigation. Second District Attorney Kari Brandenburg announced Monday that SWAT team member Dominique Perez and former Detective Keith Sandy will each face a single count of open murder in the death of 38-year-old James Boyd. It allows prosecutors to pursue either first-degree or second-degree murder charges. Police say Perez and Sandy fatally shot Boyd, who was holding a knife, during an hours long standoff. Helmet video which went viral on YouTube, appeared to show Boyd surrendering when officers opened fire. The officers' lawyers say they look forward clearing their clients. Albuquerque police recently signed an agreement with the U.S. Department of Justice to overhaul the force. UPDATE: On October 12, 2016 the jury deadlocked and a mistrial was declared. Nine favored aquittal and three voted to convict. The DA will have to decide whether to retry the case. SECOND UPDATE: On 11/18/16, the DA dismissed charges against Dominique Perez without prejudice.
Sykes v. Seasons Pizza, unknown Court and Case No. in Delaware, profiled on KMBC 7/24/14. A man who held up a local pizzeria at gunpoint is now suing the shop's employees for allegedly roughing him up as he attempted to run off with the cash. Nigel Sykes, 23, of Wilmington, Delaware, alleges assault in a federal civil complaint claiming the rough treatment during the attempted hold-up was "unnecessary" and that as a result of the injuries he suffered, he is due over $260,000. Sykes admitted in his self-written complaint -- which he filed from prison, where he is serving a 15-year sentence for robbery and attempted robbery -- that he forced he way into Seasons Pizza in Newport, showed the employees his gun and demanded money. After they handed over $140, he began to exit the shop when employees allegedly grabbed him from behind and wrestled the gun from him, with at least one shot being fired during the struggle. "That is when the assault began," according to Sykes' suit. "All of the Season's Pizza employees participated in punching, kicking and pouring hot soup over my body. I was unarmed and defenseless and had to suffer a brutal beating by all of the employees of Seasons Pizza," he wrote. Sykes also alleges that that after employees subdued him, two Newport police officers improperly used stun guns on him and denied him access to medical attention. At the time of his 2010 arrest, police said Sykes was linked to at least eight other robberies including a bank, three other pizzerias, two fast food restaurants and two convenience stores. Attorneys for the two Newport police officers recently filed a response to the suit, seeking to have it tossed out on statute of limitations grounds.
Unknown Plaintiff v. City of Wichita, case number unknown (SG County District Court) - writeup posted in The Wichita Eagle on Wed, May. 14, 2014. The estate of a Wichita motorist hit and killed by a driver fleeing from police in a stolen pickup is seeking $3 million in damages from the city and others, claiming the chase was “carried out with reckless disregard for the safety of others,” court documents say. The lawsuit, filed in March in Sedgwick County District Court, is in its early stages at the same time that the fleeing driver, Keith Ritz, was on trial this week on charges including first-degree murder in the death of 38-year-old Venancio Perez on March 5, 2013. On Wednesday, a jury found Ritz guilty of the murder charge. According to testimony Tuesday in the criminal case, the chase was estimated to last a minute to a minute and a half. It occurred around 10 a.m. in a residential neighborhood. An officer in a marked patrol car was pursuing Ritz with lights and sirens and a second patrol car was trailing or going parallel to the chase as Ritz blew through stop signs, according to testimony. The lead officer was within about two blocks of Ritz when the stolen pickup ran a final stop sign while going north on Wichita Street and struck Perez’s pickup on the driver’s side. Perez was driving west on Harry and was within two blocks of his home. He died instantly. A prosecutor said the investigation showed the stolen pickup was going 64 mph when it hit Perez’s truck. The lawsuit, which names the Board of City Commissioners, the city of Wichita, the Wichita Police Department, Police Chief Norman Williams and Ritz, claims that police lacked justification for a high-speed chase that put the public at risk. Officials with the city’s legal department declined to comment, citing pending litigation. In an answer to the lawsuit petition, an attorney representing the city denied the allegations. “Defendants deny responsibility for the criminal conduct of Keith Ritz,” the attorney said. At the time of the collision, the closest police vehicle was more than two blocks from the stolen pickup, the defendants said in their answer. The lawsuit notes that about two months before the fatal crash, Ritz led police on another chase in another stolen vehicle before he crashed into a light pole at Rock and Harry, and that police failed to take Ritz into custody after he was taken to a hospital. The lawsuit also accuses the police chief and supervisors of failing to adequately train officers on proper vehicle-pursuit methods. After the crash, police said that the chase had been called off. According to testimony in the criminal case Tuesday, a supervisor had called off the chase and officers were losing sight of the stolen pickup as it accelerated and roared past stop signs. Department policy, the lawsuit says, calls for ending a chase immediately when ordered by a supervisor or if conditions merit it, including “when there is a clear and unreasonable danger to the officer or public.” “The location of the pursuit, through a residential neighborhood at high rates of speed warranted the termination of this pursuit,” the lawsuit says. “There was a clear and unreasonable danger to the public by continuing the vehicle pursuit.”
Case name, court and number unknown - profiled on PoliceOne.com on 5/12/14. The widow of a Lakewood, Colo., police officer is suing the SWAT officer, Braley, who shot and killed her husband, the City of Lakewood, the police department, the police chief, and several officers. The named officers are the shooter, Devaney Braley, Sgt. Current and Sgt. Thomas Grady. Five other officers are being sued, but are only listed as John and Jane Does 1-5. James Davies, 35, was killed in the line of duty by another officer in November 2012, outside a home near the border of Lakewood and Edgewater. Officers were checking on a report of a loud party when they heard shots fired in another location and went to investigate, according to police spokesman Steve Davis. Davies' widow, Tamara Davies, filed the lawsuit Wednesday on behalf of her husband's estate. The lawsuit says Davies had been ordered by his supervisor to maintain his position in that location. "Agent Davies stood on the ladder, alone, in full LPD uniform, believing that his fellow officers and supervisor knew that he was providing perimeter containment for the north and east sides of the house," the lawsuit says. "Suddenly, without any prior warning, another LPD officer, Agent Devaney Braley, exited the north door of the house and began shining the bright flashlight mounted on his AR-15 rifle down the fence over which Agent Davies was observing the back yard," the lawsuit says. "Agent Davies calmly acknowledged Agent Braley’s entrance into the yard by saying 'Hey,' in a normal tone of voice. Agent Braley immediately focused his flashlight on Agent Davies and began to scream 'Police. Drop the gun.'" The lawsuit says approximately 1.5 seconds later, Braley fired a .223 caliber bullet through Davies’ left cheek and into the base of his brain.
Estate of Wayne Torrie v. Weber County, ___ Utah ___ (Profiled in The Salt Lake Tribune, 8/7/13). A Utah Supreme Court ruling could change police chases according to the defendant's attorney. The Supreme Court reversed the district court's dismissal and held that police have a "duty of care" to the people they are pursuing. The decision ruled in favor of the family of Wayne Torrie, 16, who died in 2010 when he crashed in Weber County after a high speed police chase. Torrie’s family sued the officer that chased him, as well as the Weber County Sheriff’s Office. As a result of the Supreme Court's ruling, Torrie’s family will be able to sue Weber County Deputy Denton Harper, who chased the boy. The ruling didn’t settle the lawsuit itself or determine whether Harper breached his duty. Instead, it merely said a duty exists. The Supreme Court affirmed dismissal of the Weber County Sheriff’s office. Attorney Peter Stirba, who represented Harper and the sheriff’s office, said the decision means that anyone being chased by police can turn around and sue the pursuing officers. “If that person, for whatever reason, gets hurt, they can sue,” Stirba explained. "It sort of creates a perverse incentive to a wrongdoer." For that reason, Stirba said the case sets a significant precedent that is seemingly at odds with both common sense and laws in other states. Police will now have to consider potential lawsuits from wrongdoers even as they are chasing those same people. "It puts them in a very awkward position," Stirba said. "This is just is another layer of difficulty in the judgments they have to make." But Jim McConkie, the Torrie family’s lawyer, said police already have a responsibility to be judicious when undertaking an inherently risky action, such as a high-speed car chase. "Police officers have rules and regulations they’re supposed to follow," McConkie said. "They’re not supposed to chase people if they haven’t committed serious offenses and aren’t a threat to the community." McConkie said Harper knew who Torrie was and could have just picked him up later. "They create a danger by chasing around after a 16-year-old boy," McConkie said. Stirba called the case, and Torrie’s death in particular, tragic, but added that he and his legal team believe Harper acted reasonably. The case began when Torrie’s family alleged Harper and the sheriff’s office mishandled the chase. On March 23, Torrie arrived home from school upset because he had been harassed at school. He subsequently took the family’s Suburban and his mother called the Cache County Sheriff’s Office for help locating him. Torrie eventually drove into Weber County. He also reportedly texted his mother saying he was afraid of going to jail and would try to escape or even harm himself. Torrie’s family has argued that the sheriff’s office knew about the texts but pursued him anyway. He eventually crashed into an embankment and suffered fatal injuries. The case now goes back to the trial court.
Case name unknown. NYC Won't Defend Sued Officer. Profiled in Police Magazine 08/03/12. New York City has distanced itself from a high-ranking police official accused of firing pepper spray at Occupy Wall Street protesters, taking the unusual step of declining to defend him in a civil lawsuit over the incident. The decision means Deputy Inspector Anthony Bologna also could be personally liable for financial damages that may arise out of the suit, said lawyers familiar with similar civil-rights claims. The 29-year veteran has asked a judge to reverse the city. "He wasn't doing this as Anthony Bologna, mister. He was doing this as Anthony Bologna, deputy inspector, NYPD," said his lawyer, Louis La Pietra. Mr. Bologna's union, the Captains Endowment Association, is now covering the cost of his defense.
United States v. Joe Arpaio, ___ F.Supp. 3d ___ (AZ District Court Case No. 12-cv-00981-LOA filed 05/10/12). Sheriff Joe Arpaio has been sued by the federal government for civil rights violations. The lawsuit was filed by the Justice Department. They accuse Arpaio of "violating the civil rights of Latino drivers and inmates in the county jail." Among the allegations, Justice Department lawyers say the sheriff pulled over Latino drivers for no reason. They also claim he retaliated against judges and lawyers critical of him and gave no services to non-English-speaking inmates. Arpaio isn't going down quietly though. He's fired back with choice words regarding the suit. "I'm not going to give up my authority to the federal government. It's as simple as that," Arpaio said. Justice Department officials have been investigating the sheriff's organization for some time. They had been seeking an agreement from Arpaio requiring his office train officers to make constitutional traffic stops. They also wanted him to assure Latinos in his county that they'd be protected. The lawsuit also seeks a court order preventing Maricopa County cops from engaging in any more discriminatory practices. Arpaio's county is the largest in Arizona, containing over 3.8 million residents. The self-proclaimed toughest sheriff in America has disputed the Justice Department's findings. He claims the inquiry was a politically motivated attack by the Obama administration. However, Sheriff Joe Arpaio seems eager to confront the lawsuit head on. "If they sue, we'll go to court," he said. Update - October 11, 2016. Prosecutors said they will charge Sheriff Joe Arpaio with criminal contempt-of-court for defying a judge's orders to end his signature immigration patrols in Arizona. Criminal contempt charges were filed 10/25/16. Trial is set for 12/06/16. UPDATE - 08/25/17 - President Trump pardoned Arpaio for his criminal contempt conviction.
Kohn v. Marquis, Case No. Unknown, Va Circuit Court(profiled on PoliceOne.com on 8/19/11). A lawsuit filed in the 2010 death of a police recruit alleges that "repeated, violent blows to the head" of John Kohn by training instructors resulted in a brain hemorrhage that created a subdural hematoma and caused his death. The lawsuit, filed Tuesday in Circuit Court by Kohn's widow, Patricia Kohn, asks for $35 million in compensatory damages and $350,000 in punitive damages. The suit names: Bruce P. Marquis, the former police chief; Sharon Chamberlin, current acting police chief and former senior assistant chief over the training division; and officers who trained recruits in defensive tactics - Leldon Sapp, Stephen Bailey, Michael Reardon and Laura Tessier. Kohn, 40, died in a hospital in December after he was injured during a week of defensive tactics training. He was hit in the head during drills - strikes that were routine training in Norfolk at the time - and also collided with another recruit while running. Since then, the department has joined other agencies in banning intentional head strikes during training. Experts have noted that headgear worn by recruits does not prevent them from getting head injuries. The lawsuit alleges Marquis and Chamberlin failed to properly operate and supervise the training academy and alleges the instructors hit Kohn in the head, causing his death. Kohn blacked out after three sparring drills in which he was expected to block blows from instructors on top of him. The third drill led to public outrage after the release of a video that showed Sapp hitting Kohn, whose arms then fell flat to the mat. A few minutes later, he began making snoring and gurgling noises and was taken to the hospital. He never regained consciousness. Although instructors asked recruits three times a day whether they were injured, Kohn did not speak up.
Mahoney v. State of Pennsylvania, profiled on Findlaw 03/16/11. Federal lawsuit filed against state police over Taser incident. Wednesday, March 16, 2011. Pittsburgh Post-Gazette. A Clarion County incident in which a gasoline-soaked man burst into flames and died, allegedly after being zapped with a Taser, is the subject of a federal lawsuit filed Tuesday against the Pennsylvania State Police. Levi Mohney was 24 on March 18, 2009, when state troopers surrounded his girlfriend's Strattenville mobile home and demanded that he come out, according to the complaint filed in the Western District of U.S. District Court by attorney Patrick G. Geckle, of Philadelphia. When he would not come out, they broke open the door. Mr. Geckle said they were investigating an allegation that he had assaulted his girlfriend. During the encounter police used a Taser, and because he had previously soaked himself in gasoline, Mr. Mohney ignited and suffered burns over 98 percent of his body, the complaint said. His father, Shawn Mohney, of New Bethlehem, is suing for violations of civil rights, wrongful death, and violations of the Americans with Disabilities Act. Mr. Geckle said Mr. Mohney was suffering from a mental disability. "In my humble opinion, there was no need to Taser the man," said Mr. Geckle. "He wasn't armed. He wasn't posing a direct threat to the officers." State police had no comment Tuesday. First published on March 16, 2011 at 12:00 am
Estate of Chris Cooper v. Wilfrito Pulholtz, City of Independence, Paramedics, etc., et al. Profiled on KCTV 12/17/08. Case against Independence Police Department who was chasing Pulholtz when he ran over Cooper and killed him. Cooper 17, was riding a bicycle at Noland Road at Osage on 11/08/07. Alleges police were negligent by violating chase policy, were reckless in failing to provide proper medical care, and joking about Cooper.
City of Newark v. Betty Lucas, ___ Oh. ___ (Case No. Unknown. Case profiled in New York Times 5/30/03). Ohio Supreme Court to consider whether city can prosecute for complicity in violation of a restraining order. Ms. Lucas had a protective order issued for her benefit after several domestic situations. She invited her ex-husband Joseph to a birthday party for one of their children. They started drinking and then fighting, and soon they were explaining themselves to the police. She was convicted of domestic violence and violating the restraining order and received a 90 day suspended jail sentence and two years probation. Joseph was convicted of violating the restraining order and received a 90 day suspended jail sentence and paid a fine of $100. An appeals court in Canton affirmed that decision last year, holding that Ms. Lucas had "recklessly exposed herself to the offender from whom she has sought protection." The appeals court decision broke new ground, said Cheryl Hanna, an expert in domestic violence law who teaches at Vermont Law School. "This is the first case," Professor Hanna said, "in which a court has held that it's allowable for the state to charge a woman with aiding and abetting her abuser in violating a restraining order."
Azpilicueta v. City of Whittier, California Los Angeles County Superior Court, Case No. BC574443, profiled on PoliceMagazine.com on 03/05/2015). Six Whittier, Calif., police officers are suing the city, saying they faced retaliation when they complained and refused to meet alleged ticket and arrest quotas. Officers Jim Azpilicueta, Anthony Gonzalez, Mike Rosario, Nancy Ogle, Steve Johnson and Cpl. Joseph Rivera say they spoke out against the quotas, which they claim were imposed by the Whittier Police Department in 2008, according to a suit filed Tuesday in Los Angeles County Superior Court. The officers said their “careers have been materially and adversely affected, and irreparably harmed” by the city, the Los Angeles Times reports. City Manager Jim Collier and Whittier police spokesman Officer John Scoggins declined to comment and said they had not seen the lawsuit. The officers say the alleged ticket and arrest quotas continue to this day. The alleged retaliation started after the officers said they complained to their supervisors and the police department’s Internal Affairs Division, the suit claims.
Bohringer v. City of Hutchinson, Case No. unknown, Reno County District Court (profiled on KAKE News, 01/07/15). A Hutchinson Police officer whose firing for Brady/Giglio issues was upheld by the city council last month is going to court to get his job back. Lorenzo Bohringer said he wants to be a Hutchinson Police Officer again. The case dates back to November of 2013 when Bohringer was backing up another police officer, Jamin Raigoza, on a DUI stop. Later records show the woman arrested for DUI filed a sexual harassment against officer Raigoza. Bohringer said at one point after their shift he said Raigoza made a sexual remark about the woman from the DUI stop that he believed was a joke and not true. Bohringer would later be questioned twice by superiors. He was asked what he knew about Raigoza's comments and actions. Bohringer says he was merely a back up and knew nothing of misconduct by Riagoza. "Their interpretation is different than mine on the sole fact of a comment that was made off duty and they feel was inappropriate but I felt it as a joke." Bohringer was accused of lying to cover for Riagoza and he and another officer were fired. It went to arbitration where the arbitrator recommended Boringer be reinstated. Despite that, Bohringer appealed his firing to the Hutchinson City Council and lost. Bohringer said a year before another Hutchinson officer in trouble was treated differently. "He was accused of dishonesty. He openly admitted to being dishonest and was given a final warning," said Bohringer. Bohringer, said later this month he'll go to district court to try to get the city council's decision to uphold his firing overturned
United States v. Commonwealth of Pennsylvania, Court and Case No. Unknown, profiled by AP on 7/30/14. The Pennsylvania State Police, one of the nation's largest forces, is faced with ending the physical fitness tests it gives to applicants for state trooper positions or defending in court a practice that the federal government says illegally discriminates against women. The Justice Department's 10-page lawsuit was filed Tuesday in federal court in Harrisburg. A spokeswoman for the Pennsylvania State Police said Tuesday evening that the agency's lawyers had not seen the lawsuit yet and could not comment on it. With 4,677 sworn members, Pennsylvania State Police troopers provide protection for much of Pennsylvania. The lawsuit said the use of the tests to screen and select the applicants for the entry-level positions amounted to a pattern of employment discrimination. Much greater percentages of male applicants than female applicants passed the physical fitness tests going back to 2003, it said. As a result, the state police had failed to hire dozens of women for entry-level trooper positions on an equal basis with men, it said. Had female applicants passed the test at the same rate as men between 2003 and 2012, approximately 119 additional women would have merited further consideration for the jobs and approximately 45 more would have been hired as entry-level troopers, the Justice Department said. The practice violates Title VII of the Civil Rights Act of 1964 and does not qualify under the law as a business necessity, it said. "The Department of Justice is deeply committed to eliminating artificial barriers that keep qualified women out of public safety work," Jocelyn Samuels, acting assistant attorney general for the department's civil rights division, said in a statement. A test begun in 2003 consisted of a 300-meter run, sit-ups, push-ups, a vertical jump and a 1.5-mile run, the lawsuit said. The test carried cut-off scores for each of the five events, and the state police required that applicants pass each event, it said. From 2003 to 2008, 94 percent of male applicants passed the fitness test, while 71 percent of female applicants passed. Under a similar test administered in 2009 through 2012, 98 percent of male applicants passed, while 72 percent of female applicants passed, the lawsuit said. The Justice Department sued the city of Corpus Christi, Texas, in 2012, stating similar allegations. The city settled the lawsuit last year, approving a $700,000 settlement for female police applicants who had failed the test. Corpus Christi police also agreed to stop using the test and hire 18 women who did not pass the test, but were considered eligible to be officers.
City of Gardena v. Judge Stephen V. Wilson, (actual case name unknown - 9th Cir. case profiled on policeone.com on 02/06/17). A California police chief who didn't want the public to see video of his officers killing an unarmed man that led to a nearly $5 million settlement wants the judge who released the video admonished. Lawyers for the Gardena chief are scheduled to argue before an appeals court Monday that a Los Angeles federal court judge abused his authority by releasing the footage before they could get a higher court to intervene. A ruling by the 9th U.S. Circuit Court of Appeals will not have a practical impact on video of the fatal shooting of Ricardo Diaz-Zeferino because the footage has been public for more than a year and a half. Judge Stephen V. Wilson ordered the video released it in 2015 after saying it was important for the public to see whether the shooting was justified and so taxpayers could understand why the LA suburb paid $4.7 million to settle a lawsuit with Diaz-Zeferino's family and a friend who was injured. The videos were sought by lawyers for The Associated Press and other news media organizations at a time when intense public scrutiny was beginning to be focused on police shootings nationwide. The news media argued the videos should be unsealed under a First Amendment right to access court documents. The city wants the court to deem that in future cases a stay should be granted automatically to allow an appeal. But attorneys for AP, the Los Angeles Times and Bloomberg argued in court papers that the city didn't deserve a stay because it had little chance of winning an appeal on the merits of the case and didn't properly request a stay of execution. They also said the appeal is pointless because the video was widely published.
Berger v. National Collegiate Athletic Association, et al., ___ F.3d ___ (7th Cir. No. 16-1558, filed 12/05/16). Former student athletes at the University of Pennsylvania sued Penn, the National Collegiate Athletic Association, and more than 120 other NCAA Division I universities and colleges alleging that student athletes are employees who are entitled to a minimum wage under the FLSA. The district court disagreed. The 7th Circuit affirmed. Student athletes are not employees and are not covered by the FLSA.
State v. Miller, ___ Kan.App.2d ___, ___ P.3d ____ (unpublished, No. 113595, filed 03/18/16), pet. for rev. filed 04/18/16. Topeka Police Officers were checking a motel registry (hotel indterdiction) and got a hit on the name Daleen Miller, allegedly a Native American male who was 5'6" and weighed 220 lbs., who had a felony warrant out of Oklahoma. They went to the room identified as Miller's and encountered a Native American female with wet hair. She identified herself as Renee Grant and said Daleen Miller was shopping at Wal-Mart. She then closed and locked the door. After checking Daleen Miller's tribal identification card at the front desk, officers returned to the room and arrested the female who identified herself as Renee Grant. The state charged her with one count of interference with law enforcement, false report pursuant to K.S.A. 2014 Supp. 21-5904(a)(1)(C). Miller alleged the charge must be dismissed because her lie did not "substantially hinder" the officers in their duty. Judge Parrish agreed, and dismissed the case. The Court of Appeals reversed, finding no requirement for substantial interference. While that may be an element under the serving process portion of the statute, K.S.A. 2014 Supp. 21-5904(a)(3), it doesn't apply to 2014 Supp. 21-5904(a)(1)(C). The Court also held the statute is not impermissibly vague, and that Miller cannot claim a First Amendment right to lie to the police.
Harter v. Immigration and Customs Enforcement, ___ F.Supp. ___, (Case No. unknown, published in the KC Star on 07/10/17). Plaintiffs allege ICE officials didn't follow proper procedures, resulting in Pablo Serrano-Vitorino being released from jail twice before March 7, 2016, when authorities say he shot four men in Kansas City, Kansas. Wyandotte County officials notified ICE in 2014 that Serrano-Vitorino was in jail for domestic battery, but he was released when the agency didn't send an agent to interview him, according to the lawsuit. He was pulled over by Overland Park police for traffic violations in 2015. The lawsuit says ICE prepared paperwork to have him detained but it was sent to the Johnson County Sheriff's Office, which did not have Serrano-Vitorino in custody. Overland Park officials, unaware of the paperwork, released him.
Blesch v. Holder, CV12-1578, filed 04/02/12, United States District Court for the Eastern District of New York. Married Same Sex Couples File Suit Over Denial of Spousal Immigration Benefits. A group of legally-married same-sex plaintiffs has filed a lawsuit against the federal government over the government's refusal under the Defense of Marriage Act (1 U.S.C. § 7) to adjust the status of foreign-born spouses to allow them to remain in the United States. The plaintiffs allege that this practice violates equal protection provisions of the Fifth Amendment to the U.S. Constitution.
Coalition of La Raza v. Gary R. Herbert, ___ F.3d ___ (USDC, Central Utah, Case No. 11-CV-401-BCW, filed 05/03/11). ACLU's suit against the State of Utah to enjoin enforcement of its Immigration bill similar to Arizona SB 1070. According to policemag.com, on May 10, 2011, a federal judge has blocked Utah's new immigration law, citing its similarity to Arizona's 2010 law.
Digital Ally v. Taser Intl., ___ F.Supp. ___ (D. Kan No. 16-cv-02032-CM-JPO, filed 1/14/16). Digital Ally sued Taser International late and accused Taser’s Axon Flex body cameras of infringing its US Patent No. 8,781,292. The patent describes linking together a body-worn camera, a vehicle-based camera, and a “managing apparatus” that communicate with each other.
Florida v. Stahl, ___ Fl.App. ___ (No. 2D14-4283, filed 12/07/16). Stahl was engaged in shooting up the skirt shots in a clothing store. He initially consented to a search of his phone, then changed his mind. Police obtained a warrant, but were stymied by his Stahl's passcode. The state filed a motion to compel the passcode. The Court of Appeals held that Stahl could be compelled to give up his passcode, holding it was nontestimonial. "[T]he communication was sought only for its content and the content has no other value or significance. By providing the passcode, Stahl would not be acknowledging that the phone contains evidence of video voyeurism." Additonally, '[p]roviding the passcode does not "betray any knowledge [Stahl] may have about the circumstances of the offenses" for which he is charged."
Ayala v. Scott, Florida Court and Case number unknown. Aramis Ayala, Florida's first and only black elected state attorney, announced in March 2017 that she no longer intends to pursue the death penalty, Gov. Rick Scott removed her office from 21 first-degree murder cases, including the trial of accused police killer Markeith Lloyd. Ayala sued, claiming Scott's decision was not justified.
United States House of Representatives v. Burwell, ___ F.Supp.2d ___ (U.S.D.C. D.C. No. 14-1967 (RMC), filed 05/12/16). This case involves two sections of the Affordable Care Act (Obamacare): 1401 and 1402. Section 1401 provides tax credits to make insurance premiums more affordable, while Section 1402 reduces deductibles, co-pays, and other means of “cost sharing” by insurers. Section 1401 was funded by adding it to a preexisting list of permanently-appropriated tax credit s and refunds.Section 1402 was not added to that list. The question is whether Section 1402 can nonetheless be funded through the same, permanent appropriation. It cannot. Paying out Section 1402 reimbursements without an appropriation thus violates the Constitution. Congress authorized reduced cost sharing but did not appropriate monies for it, in the FY 2014 budget or since. Congress is the only source for such an appropriation, and no public money can be spent without one.
Belenky v. Kobach, (Shawnee District Court No. 2013CV1331, filed 01/15/16). Secretary of State Kris Kobach has no legal authority to set up a dual election system in which people who register using a federal form may only vote in federal elections. Judge Frank Theis ruled in favor of the American Civil Liberties Union, which has challenged that policy. Kobach instituted that policy during the 2014 elections, the first statewide election conducted in Kansas since the new citizenship law went into effect. State law now requires people to show proof of U.S. citizenship in order to register to vote. But federal election forms do not require such documentation, and a federal law known as the National Voter Registration Act requires states to accept that form.
So, beginning in 2014, Kobach has instructed local election officers to allow people who use the federal form to vote by provisional ballot, but to count only those votes cast in federal races, not state or local races.
Class actions involving Uber/Lyft - Profiled in Bizjournal.com 2/2/15. Actions suggest drivers are employees rather than independant contractors and judge appears to agree. See also KCMO's proposed code changes.
Croddy v. United States, ___ F.3d ___ (D.C. 2000). Suit challenges the FBI's use of polygraph for pre-employment screening. Requests declaratory judgment.
Physical Fitness Testing
Arndt v. City of Colorado Springs, ___ F.Supp. ____ (No. 15-cv-00922 RPM-MJW, USDC Colo.) 12 female officers are suing over a new “one test fits all” physical fitness exam they say discriminates against women. Nearly 40-percent of the female force over the age of 40 failed the exam last year and were placed on desk duty until they passed. Officers who didn’t pass ultimately face termination. However, since the lawsuit was filed, no officer has been terminated. The Chief has suspended testing until the conclusion of the lawsuit. Update: On 07/12/17, U.S. District Judge Richard Matsch held the fitness test given to Colorado Springs, CO, police officers discriminated against women and violated civil rights laws. The test "shamed and ostracized" the 12 plaintiffs - many of them decorated officers with decades of service - while providing "meaningless" results." Performing poorly on the mandatory test left officers at risk of losing their jobs, despite the benchmark scores being "arbitrary" and the evaluation having little to do with the officers' everyday work, Matsch said. Significantly more women than men failed it. "To retroactively impose that requirement on women who have invested their lives as career police officers is fundamentally unfair," Matsch wrote. The ruling that Colorado Springs violated Title VII of the Civil Rights Act of 1964 leaves the city on the hook for a possible payout to the plaintiffs for wage loss and emotional distress. A hearing on damages is expected to be set in the coming week. The tests included one-minute sit-up and push-up tests, as well as two running tests, one of which focused on agility. Forty percent of women failed the test, compared with 9 percent of men. Women police recruits tested that year fared slightly worse, while men did slightly better. All 12 plaintiffs failed on the first try.
Poverty a Suspect Class?
Washington v. Solano County Superior Court, Solano County Superior Court Case No. unknown, profiled in San Francisco Times Standard 06/15/16. A coalition of civil rights groups sued a Northern California superior court over its practice of suspending the driving licenses of people too poor to pay what they call exorbitant fees for minor offenses. The complaint filed in Solano County Superior Court by the American Civil Liberties Union of Northern California and others claims the court's actions violate both the state's vehicle code and due process protections. The legal action comes as lawmakers across the country are recognizing the impact of escalating fines and fees on impoverished people who either go into debt trying to pay off the ticket, or face suspension of critical driving privileges needed to work. The individually named plaintiff in the lawsuit is Henry Washington, who was ticketed in Solano County in 2010 for driving an unregistered vehicle that he had purchased to take his brother to medical appointments. Washington couldn't register the car because it could not pass a smog test. He was too poor to pay the fine and his license was suspended.
Taylor v. Axon Enterprises Inc., (Court and Case No. Unknown, published on Reuters.com on 09/21/17). In this products liability action, former Houston officer Karen Taylor alleges the Taser X2 is underpowered, so much so that it failed to stop a mentally ill woman from attacking her. The incident left Taylor with injuries that forced her to end her 8-year police career, she says. Taser, which now does business as Axon Enterprise Inc, no longer sells the X26 in the United States and Canada. In its place are two new generation Tasers, the two-shot X2 and the single-shot X26P. The maximum output of both is 72 microcoulombs, about half that of the original X26. The reduction lowered their cardiac hazard. Andy Vickery, the Houston lawyer representing Taylor, said that if the case demonstrates the X2 is too weak to protect police, Taser may have a duty to fix or replace the weapons. Company spokesman Steve Tuttle said the problem was operator error.
Red Light Camera Litigation
Parker v. American Traffic Solutions, Inc., ___ F.3d ___ (11th Cir. No. 15-13721, filed 08/31/16). Still reeling from the fiscal effects of the 2008 economic downturn, Florida state lawmakers authorized red light cameras in 2010, with the express intent of improving public safety — but with the added prospect of millions of dollars for state and local governments. The cameras have proved an unpopular source of revenue, while providing little in the way of measurable safety improvements and potentially contributing to an increase in traffic accidents. According to the Department of Highway Safety and Motor Vehicles, 3,453 traffic accidents occurred from 2011-2014 at red light camera intersections before the cameras were installed. Using comparable metrics, the department reported 3,959 accidents occurred at the same intersections after cameras were installed – an increase of 15 percent. The number of rear-end collisions increased during the period by 10 percent. Crashes involving non-motorists rose 17 percent, and crashes resulting in incapacitating injuries jumped 29 percent. In the latest decision affecting the matter, the U.S. Court of Appeals for the 11th Circuit, overseeing Florida, Georgia and Alabama, denied a ticket refund worth more than $200 million to Florida class action residents. But it also denied the local governments’ request to dismiss the class-action lawsuit, thereby allowing it to proceed. It held that an order denying sovereign immunity is not a final, appealable order, so it dismissed the appeal for lack of jurisdiction. A final decision won’t happen anytime soon. In 2014, the Florida 4th District Court of Appeal invalidated the red light camera program in Hollywood, Fla., for unlawfully delegating police power to a red light camera vendor called American Traffic Solutions. The Arizona-based company, also a defendant in the class-action lawsuit, was selectively determining which photos to send to Hollywood’s traffic enforcement office where the tickets were effectively rubber-stamped. Further complicating matters, a state appeals court ruling in July found the city of Aventura’s red light camera program was perfectly fine. Aventura is a defendant in the class action suit. The maze of legal proceedings will likely land in the Florida Supreme Court, said Sheila Dunn, communications director for the National Motorists Association. A ruling from the high court would apply throughout the state.
People v. Goldsmith, and People v. Borzakian. On April 3, 2014 at 1:30 p.m. in Los Angeles, the California Supreme Court is set to hear oral arguments in People v. Goldsmith and People v. Borzakian, two cases that deal with the admissibility of red-light ticket evidence. The two cases came to differing conclusions about the admissibility of such evidence, with the appellate court in Goldsmith holding that the evidence was not hearsay and was admissible. Barzakian went the other way, as did an earlier case, People v. Khaled, which was explicitly rejected by the Goldsmith court. Meantime, there's Howard Herships, a pro se petitioner to the U.S. Supreme Court.
C.L. Trustees v. Lockheed Martin, San Diego Superior Court case no. GIC773619. Class action lawsuit against red light camera contractor was certified in March 2003 in San Diego The municipal agencies contract with ACS (formally Lockheed Martin IMS) to administer thus program. Attorney for the contractor ACS, Chris Lui of O'Melveny & Myers (213) 430-6112.
Search and Seizure
Rhode Island v. Patino, RI superior court, profiled in the Providence Journal on 09/04/12). Superior Court Judge Judith Savage granted defendants motion to suppress text messages on Pation's girlfriend's phone. Patino, is charged with murdering his girlfriend's six-year-old son, Marco Nieves. Savage said Patino "made a preliminary showing that numerous sworn statements made by police officers in a dozen warrants were either deliberately false or made in reckless disregard of the truth." The case was appealed to the R.I. Supreme Court, which heard arguments on 02/06/14.
Tolentino v. New York, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 09-11556, to be argued 03/21/11). Following an automobile stop in Manhattan, New York police officers ran Petitioner Jose Tolentino's driver's license through a Department of Motor Vehicles (DMV) database, discovering that his driver's license had been suspended and that he had at least ten suspensions for failure to answer a summons or to pay a fine. Tolentino was indicted by a grand jury for aggravated unlicensed operation of a motor vehicle. On appeal, Tolentino argues his DMV records must be suppressed because they were the fruit of an unlawful stop. Respondent State of New York argues that, even if the stop was unlawful, the exclusionary rule should not be extended to apply to information the government already possessed, since such an application would be unreasonable. The Supreme Court will have to balance the cost of suppressing highly probative evidence against the potential benefit of discouraging police from conducting random automobile stops without probable cause.
Mayfield v. Federal Bureau of Investigation, Case No. and District unknown. Profiled in the Topeka Capital Journal on October 5, 2004. The Portland lawyer mistakenly arrested by the FBI in the Madrid train bombings sued the U.S. government Monday, claiming his rights were trampled on because of his Muslim faith. Brandon Mayfield, a 38-year-old convert to Islam, is seeking unspecified damages and a ruling that key provisions of the Patriot Act are unconstitutional. Mayfield is a Kansas native and graduate of the Washburn University School of Law. He accused the government of violating his civil liberties by wiretapping his Oregon home and filing misleading affidavits to justify his two-week imprisonment. "The Patriot Act goes way too far in taking away our privacy and freedom as U.S. citizens," Mayfield told The Topeka Capital-Journal in a May interview. "Not even a 'war on terror' allows the federal government to deprive U.S. citizens of their constitutionally protected rights," Mayfield's attorneys said in a statement.
Use of Force
State v. De’Anthony Wiley, JOCO Dist. Ct. Case No. 15CR0080 (profiled in KC Star, 09/13/16). District Judge Timothy McCarthy heard a day and a half of testimony and viewed a video of a robbery attempt and shooting before finding that De’Anthony Wiley's self-defense claim was not warranted. Wiley, one of four robbers of gun shop She’s A Pistol argued that he was paralyzed from a gunshot wound and was trying to give up when he fatally shot Jon Bieker . Wiley's attorney Lindsey Erickson, argued that the incident should be dissected into two parts. The first part was the attempted robbery and the flight from the robbery, which had ended. The second part was when Wiley was on the floor paralyzed and unable to flee. At that point, she said he only had two choices. “He could lay there and be executed or defend himself,” she said. Assistant District Attorney Vanessa Riebli however argued that Jon Bieker was the one who was acting in self-defense when he saw his wife Becky Bieker threatened with guns and knocked to the ground. She said that during the 24 second incident, Wiley had continued firing shots, even after he was on the ground, and there was no evidence that he had tried to give up. McCarthy found that Jon Bieker was faced with an imminent threat to his wife and himself when he took action. The judge noted that all of the bullets in Wiley’s gun were fired during the incident. Becky Bieker, testified she did not regain consciousness until the shooting was over. In her testimony , she said that when she came to, she saw Wiley reaching toward a gun on the ground. Becky Bieker testified that she told him to stop or she would shoot him. When he continued reaching, Becky Bieker said she fired at him as she was calling 911. Co-defendant Nicquan Midgyett, who also was wounded, joined Wiley’s motion seeking immunity from prosecution for murder. Besides Wiley and Midgyett, both 21, the other men charged in Johnson County District Court with murder in the case are Hakeem Malik, 20, and Londro Patterson, also 21.
State v. Dustin Evans, ___ Kan.App.2d ___, ___ P.3d ____ (No. 112000, filed 10/23/15, pet. for review filed 11/23/15, COA No. 112000, JOCO Dist. Ct. No. 13CR1366 (OPPD Case No. 2013-012964). Judge Ryan dismissed aggravated battery charges against Evans, who ran a sword through his wrestling buddy allegedly because he felt threatened. Judge Ryan held that Evans was immune from arrest pursuant to K.S.A. 21-5231. The Court of Appeals reversed, holding that Ryan failed to view the conflicting evidence in the light most favorable to the state. See also State v. Collins, where David Collins shot drunk former employee Desmond Bowles. Collins reached for his gun to scare Bowles, but the "gun went off," entering Bowles left eye and exiting through his left ear. Thomas County District Judge Glenn Schniffner dismissed the charge against Collins in May 2014. Rork represented Collins.
Jackson v. City of Wichita, unknown court in Wichita. Posted in The Wichita Eagle on 09/18/13. The family of Karen L. Jackson, a Wichita woman killed by police last summer, sued the city of Wichita on Tuesday, along with two officers they say killed her. Jackson, a 45-year-old with mental problems, died July 10, 2012, after two Wichita officers shot her in front of her estranged husband’s house. Officers fired after she walked quickly toward the officers with a knife, stabbing herself and calling out "shoot me," police said at the time. She died later that night. The lawsuit names officers Elizabeth Martin and Bryan Knowles as defendants, along with the Police Department and the city. The plaintiffs are the dead woman’s estranged husband, Derrick Jackson, and two of her adult children, Tyra Williams and Earnest Day. Sedgwick County District Attorney Marc Bennett cleared the officers of criminal wrongdoing in January. But people have the right to sue in civil court even after officers have been cleared of criminal wrongdoing. The officers went to the home in the 700 block of North Spruce to settle a domestic dispute between the couple after Derrick Jackson called 911 that night. The officers believed Karen Jackson "posed an imminent threat"to their lives and safety, Bennett said in a report filed in the case, and the officers fired after Jackson repeatedly ignored orders to stop and drop the knife. But the family, including Williams, said days after Jackson was shot that she was so disabled from longtime leg and back ailments that there was no way she could have walked quickly toward the officers in a threatening manner. Williams said Jackson didn’t have the strength to pick up her small grandchildren. Wichita lawyer James Thompson, who filed the lawsuit, said that from November 2010 through July 2012 Wichita police shot 16 people, killing seven of them. He said the number of shootings "shows an unwritten de facto policy of unnecessarily using deadly force." City spokesman Van Williams said it’s the city’s policy not to comment on pending lawsuits. The lawsuit said that Jackson had a long history of bipolar disorder, and that Wichita police had taken her to Via Christi Hospital on Harry’s psychiatric ward on at least three occasions before the shooting. Thompson said she was listed in the police computers as a person with mental problems. "Consequently, the defendant city of Wichita was already on notice that Karen Jackson was mentally ill," Thompson wrote. The department has specially trained Crisis Intervention Team officers assigned to deal appropriately with cases such as hers, according to Thompson. The police policy manual, Thompson wrote, says those trained officers are the "preferred response to all calls involving mental health crisis." Instead, two armed officers approached her, and the night ended with her dead, he wrote. Thompson also wrote in the lawsuit that police regulations spell out when the use of a firearm is not justified. Standard police protocol, Thompson wrote in the lawsuit, "calls for one officer to draw their service weapon while the other officer draws their Taser; thereby allowing the officer to use non-lethal force but maintain the option of lethal force if the non-lethal force is unsuccessful." Bennett’s report said that when the two officers approached the house on Spruce, they saw Karen Jackson emerge with a bottle of whiskey, a beer can, a fire igniter and a "large butcher knife" under her arm. Jackson ignored commands from the male officer, who had drawn his gun, to drop the knife, the report said. She instead dropped the liquor containers and moved forward "at a steady pace," swinging the knife, police said shortly after the shooting. Then she stabbed herself several times and yelled for police to shoot her, according to police.
Case name unknown. Profiled in Police Magazine 08/03/12. UC Davis Police Chief Overrules Panel, Fires Pepper-Spray Officer. UC Davis Police Chief Matthew Carmichael rejected a review that found Lt. John Pike should have faced demotion or a suspension at worst for his involvement in a pepper-spraying controversy that took place on campus in November. Instead, Pike was fired. An internal affairs investigation found that Pike had acted reasonably, the Sacramento Bee reports. However, Chief Carmichael wrote in a letter to Pike that "the needs of the department do not justify your continued employment," according to the documents. Pike had repeatedly warned protestors that they would be pepper-sprayed if they did not disperse, and that "the police officers were fully encircled by protesters who had locked arms and would not let the officers exit," according to the report. He also voiced concerns about the plan to remove protestors and felt that the operation should be called off.
Taser Cases - Mattos v. Agarano, and Malaika Brooks v. City of Seattle,. Profiled on policeone.com 5/15/12. Malaika Brooks was seven months pregnant when a Seattle police officer stunned her with a Taser. Hawaii resident Jayzel Mattos was at home when she, too, got zapped by police. Now, the Supreme Court is being asked to consider for the first time police use of Tasers. The facts in Brooks: Malaika Brooks was seven months pregnant when Seattle police cited her for going 32 in a school zone where the speed limit was 20 miles per hour. Brooks repeatedly refused to sign the speeding citation because she mistakenly believed that it would be an admission of guilt. After explaining to Brooks that she would be arrested if she didn't sign the citation, one of the three police officers at the scene pulled out a Taser and asked Brooks if she knew what it was. Brooks responded that she didn't, and told the police that she was "less than 60 days away" from having a baby and needed to go to the bathroom. The officers then began to discuss where to taser Brooks, agreeing that it should not be on her stomach since she was pregnant. The officers eventually entered Brooks' car, applying the Taser to her arm, leg, and neck before dragging her out of the car and off to jail. The Ninth Circuit Court of Appeals found that the officers violated Brooks' Fourth Amendment rights, but that the officers were entitled to qualified immunity because the constitutional right to be free of tasering was not clearly established in the context of the case. The court also concluded that tasering a non-threatening suspect, like Brooks, is excessive force. With more than 11,000 agencies nationwide arming officers with the stun guns, the time may be getting ripe for settling questions about when electrical force becomes excessive. "One could argue that the use of painful, permanently scarring weaponry on nonthreatening individuals, who were not trying to escape, should have been known to be excessive by any informed police officer," Appellate Judge Mary Schroeder noted, before cautioning that "there is no good case law" to clarify decision-making. Schroeder and the 9th U.S. Circuit Court of Appeals confronted the complicated Taser questions last year. The majority's conclusion that stunning a nonviolent individual could be considered excessive force will be reviewed by Supreme Court justices in a private conference this month. Already, the Los Angeles County Police Chiefs Association is urging the high court to take up the Taser cases. Some appellate judges, too, are warning about dire consequences if Taser use is restricted. "My colleagues cast doubt on an effective alternative to more dangerous police techniques, and the resulting uncertainty will lead to more, worse injuries," 9th Circuit Judge Alex Kozinski cautioned. "This mistake will be paid for in the blood and lives of police and members of the public." The Taser cases will be among many considered by the Supreme Court's nine justices at their May 24 conference. If at least four justices agree, the combined cases will be added to the docket for the upcoming 2012 term. While these particular Taser cases may not make the cut, in time others almost certainly will, as the proliferating technology keeps getting dragged into court. In Woodland, Calif., for instance, the family of a man who died after being shocked several times won a $300,000 settlement in 2009. The next year, a Chowchilla, Calif., resident was awarded $330,000 after police shocked him at home. Some are product liability cases challenging the manufacturer, Arizona based Taser International, as when the family of a Salinas, Calif., man in 2008 was awarded $6.2 million after he was shocked and went into cardiac arrest. The cases now being considered by the Supreme Court are different. They challenge the police officers who fired the Tasers. The issue is excessive force. "When you get to the use of a new weapon, that's the issue that will get up to the Supreme Court eventually," Woodland Hills, Calif.-based attorney Peter Williamson, who has taken on some high-profile Taser cases, predicted in an interview Friday. "It's taken years for these cases to filter up."
Pet. for Writ of Cert. denied 5/29/12. Steven Daman v. Malaika Brooks, No. 11-898; Darren Agarano v. Troy Mattos, No 11-1032; Malaika Brooks v. Steven Daman, No. 11-1045; and Troy Mattos v. Darren Agarano, No. 11-1165.
Village of Dolton, Illinois v. Taser International, 05-C-4126 (Northern District of Illinois, ED). Class action complaint filed 7/18/05 alleging that Taser products are unsafe.
John J. Knoll
March 14, 2018