8th circuit – Techdirt (original) (raw)

Supreme Court Reverses 8th Circuit’s Blessing Of BS Retaliatory Arrest For ‘Mouthing Off’ To Missouri Cop

from the can't-arrest-first,-justify-later dept

Fortunately, not everything the Supreme Court does these days is absolutely horrible. In this case (handled by the Institute for Justice) a Missouri man can resume his lawsuit against the officer who arrested him for… well, for reasons the cop ginned up well after the arrest had already happened.

Mason Murphy was minding his own business walking down a rural road when Officer Michael Schmitt decided it was time to, um, intervene. He pulled up to Murphy, got out of his car, and demanded the man provide him with an ID. Nine minutes of argument followed, with Murphy refusing to identify himself and ending with Officer Schmitt handcuffing him, driving him back to the station, and throwing him in a cell for two hours.

The officer’s original defense of the arrest was “failure to identify.” The problem was the law only requires people to ID themselves if they’re committing a crime, suspected of committing a crime, or about to commit a crime. That leaves a lot of open space for “failure to ID” arrests, but not nearly the amount of open space on the rural road Murphy was walking along before his walk was interrupted by the police officer.

Belatedly realizing “failure to identify” might not actually work as a justifiable arrest, Officer Schmitt consulted with other officers after he had already arrested Murphy to find some reason to justify this arrest after the fact.

While in the police car, Officer Schmitt told Murphy he was arrested for “[f]ailure to identify.” He then changed his tune when he told someone via his police radio that Murphy was stumbling and walking on the wrong side of the road. Yet Murphy was not stumbling or acting impaired. When Officer Schmitt arrived at the jail with Murphy, he made a phone call in which he described Murphy as a “dip shit walking down the highway” who “would not identify himself” and “ran his mouth off.” He then asked, “What can I charge him with?” Later, Officer Schmitt falsely claimed that Murphy was drunk. Officer Schmitt even admitted on multiple occasions that he did not “smell anything” on Murphy. Despite all this, Officer Schmitt insisted Murphy “sit here for being an asshole.” Roughly two hours later, Murphy was released.

The officer finally settled on an extremely obscure state law that requires pedestrians to “walk only on the left side of the roadway or its shoulder facing [oncoming] traffic.” Of course, he had already arrested Murphy for something else earlier, but then realized he couldn’t make his “failure to identify” bullshit stick unless he found some other crime to justify the deployment of the failure to identify law.

It was clear from the comments the officer made, as well as his scramble to find a justification for the arrest, that this was a retaliatory arrest prompted by Murphy allegedly “being an asshole” by refusing to comply with an unlawful order.

Somehow, the Eighth Circuit Court of Appeals still found a way to side with the officer. It said the walking on the wrong side of the road thing was indeed a crime, therefore it was perfectly legal to arrest someone for failure to ID, even if all the justification for the original charge came after the fact. In essence, the Eighth Circuit told cops in the district it was fine to arrest people first and come up with a justification later.

But that’s not how the law works. And that’s not even how Supreme Court precedent works. Even if one decides its ok for cops to manufacture justifications for arrests after arrests have already occurred, the precedent set in the Supreme Court’s 2019 Nieves decision says even probable cause for an arrest can be undermined in retaliation cases if there’s evidence on the record showing officers rarely, if ever, responded to violations of cited laws with arrests.

There’s nothing on the record suggesting anyone in Missouri has ever been arrested for violating the “walking down the wrong side of the road” statute. At best, if anyone had ever even been stopped by police for doing so, the violation would be handled by a citation, rather than an arrest.

Murphy (and his Institute for Justice reps) appealed this decision. And the Supreme Court has found in favor of the plaintiff, reversing the decision and sending it back to the Eighth Circuit to deliver a decision that considers the Nieves decision, as well as another victory scored by the IJ in another recent First Amendment retaliation case.

This morning, the U.S. Supreme Court granted the Institute for Justice’s (IJ) petition for certiorari in Murphy v. Schmitt, vacated the 8th U.S. Circuit Court of Appeals’ decision, and remanded the case back to the lower court for reconsideration in light of IJ’s recent win in Gonzalez v. Trevino. The Eighth Circuit had ruled against Mason Murphy in his lawsuit alleging retaliation for the exercise of his First Amendment rights.

“This decision is a huge step forward, not just for Mason Murphy, but for all Americans who have been retaliated against by government officials for their speech,” said Marie Miller, an attorney at the Institute for Justice, which filed the petition on Mason’s behalf. “Our work is building lasting precedent, making it easier for people to hold officials accountable when their rights are violated. We will continue fighting until all Americans are protected against government retaliation.”

The Gonzalez v. Trevino case got sent back to the Fifth Circuit Appeals Court earlier this year. In that case, Sylvia Gonzalez, a city council member with a knack for irritating her fellow council members and dead set on removing the city manager from office, was arrested for the obscure charge of “removing a government record.” What actually happened was Gonzalez either mistakenly or deliberately (depending on whose testimony you believe) removed a copy of signed petition calling for the dismissal of the city manager and (again, either mistakenly or deliberately) misled the mayor about its current location when asked.

Instead of dealing with this alleged insubordination in city council meetings or via an internal investigation, the mayor had Sylvia Gonzalez arrested. The Fifth Circuit (at least the majority) saw nothing wrong with this, even though it was clear Gonzalez was being punished for her anti-city manager speech, rather than the temporary disappearance of a signed petition. Again, the Nieves case factored into the Supreme Court’s reversal as Gonzalez presented evidence showing no one had ever been arrested for this crime in Texas, making it clear this was extremely selective enforcement. The Fifth talked itself in circles justifying the arrest and decided the legal standard was “any arrests in exactly these same circumstances” rather than recognizing the lack of any arrests for this crime under any circumstances.

So, it’s two in a row for the Nieves factor, both handled by the Institute for Justice. Courts far too often find any probable cause for an arrest undercuts First Amendment retaliation claims. And, far too often, those rulings stick. But when it’s an arrest for minor violations cops rarely, if ever, choose to arrest people for, probable cause is no longer the sole issue. Instead, it becomes only one factor that must be weighed against claims of retaliatory arrests. And, as the Supreme Court has now made clear more than once, failure to properly weigh this factor will encourage the thing the courts are supposed to be guarding against: the punishing of speech any government employee doesn’t like.

Filed Under: 1st amendment, 4th amendment, 8th circuit, mason murphy, michael schmitt, missouri, police misconduct, retaliatory arrest, supreme court

US Appeals Court Sends Dispute Between French Cognac Cartel And Music Label Back To USPTO

from the were-they-drunk? dept

You know, when you’ve written as much as I have about trademark disputes, there are times when you think you’ve seen everything, only to have the universe remind you that the depth of silliness around trademarks can always get deeper. The subject of today’s conversation is going to be a certification mark. While afforded similar protections to a trademark, they are primarily used by a third party, with permission of the owner of a trademarked product, to validate that a product meets certain agreed upon quality standards from the trademark owner. You can find some examples here, but one that is easy to understand is the Energy Star certification mark. To have an Energy Star stamp or mark included on the packaging or product of an electronic good, it must meet the Energy Star standards. Meanwhile, other related goods or services cannot use the “Energy Star” term or symbols in a way that would be confusing to the public. Make sense? Sweet.

The Bureau National Interprofessional du Cognac group, or BNIC, is a consortium in France of makers of cognac. The BNIC has a certification mark for cognac in the United States. Unless a cognac product meets certain standards, it cannot call itself cognac. Silly in my view, but not nearly as silly as when the BNIC decided to oppose a trademark application in the United States for a music label called Cologne & Cognac Entertainment merely for using “cognac” in its name. The USPTO managed to get the question on this opposition right, allowing the mark to proceed because the liquor markets and music industry markets aren’t related and the public was not going to be confused between the two.

But the BNIC appealed that decision and the appeals court, which should be investigated for drinking cognac on the job, sent this back to the USPTO stating that it had erred in its analysis for what protections the BNIC mark is afforded.

U.S. Circuit Judge Alan Lourie said that the PTO miscalculated how famous “cognac” is in a way that improperly favored the label in the office’s confusion analysis.

The office should have considered “whether or not [BNIC’s] mark was famous as an indicator of its geographic origin” – like Florida oranges, Georgia peaches or Darjeeling tea – “but it did not do so,” Lourie said.

Lourie also found that the office made mistakes in analyzing the marks’ similarity and the relatedness of the goods and services they cover, noting that several hip-hop artists have partnered with cognac brands and used “cognac” in song titles and lyrics.

This. Is. Fucking. Absurd.

For starters, as I mentioned, certification marks are for quality standards or the achievement of certain criteria. They are not geographical indicator marks, a la Champagne, which appears to be what the appeals court is referring to. Part of the problem here is that the American trademark system doesn’t have GI marks, and instead will occasionally afford GI type protections via collective marks and, sometimes, certification marks. But those really are tangential uses, with quality and standards being the primary purpose. The fact is that cognac is named after a region in France, but the mark in question is the name of the drink that is almost certainly more famous worldwide than this region. “Georgia Peaches” is different than “Cognac.” One tells you what the product is and where it came from. The other is merely the name of the product.

But, fine, perhaps you want to argue that a certification mark in this case is doing the job of what would elsewhere be a GI mark. That still doesn’t make any of this infringement. The music business is an industry entirely unrelated to the alcohol industry, as the USPTO rightly pointed out. And no amount of hip-hop artists either partnering with cognac companies or rapping about the drink in their songs is going to somehow cause the public to think that the music label has literally anything to do with a cartel of cognac makers in a region in France.

Now, I have no idea what the USPTO will do as a result of this judicial rebuke, but I sure hope to god it won’t merely roll over and rescind its previous approval for the music label’s trademark. Because the idea of the BNIC being able to police language half a world away in this manner should be plainly bonkers to anyone with a working brain.

Filed Under: 8th circuit, certification mark, cognac, likelihood of confusion, trademarks, uspto
Companies: bnic, cologne & cognac

Appeals Court Says Cop Whose Cop Dog Bit Another Cop Is Entitled To Qualified Immunity

from the welcome-to-the-resistance,-officer-dogbit dept

Huh. Here’s something you definitely don’t see every day. But before we get to the ruling, let’s do a brief exploration of the ultra-weird legal landscape that has made it clear cop dogs and cops should be held to way different standards than regular dogs and regular people. And it’s the regular dogs and regular people who are always at a disadvantage.

First off, defending yourself from an attack by a police dog is almost always treated as a criminal offense. In some places, the charge brought is “assaulting an officer,” even though the attack targeted a four-legged “officer” rather than a two-legged, actual-human-being officer.

On the other side of the coin, your dog doesn’t even need to attack a police officer for an officer to decide your dog needs to be killed. Citizens who kill other people’s dogs will definitely face criminal charges. And people attacked by dogs while intruding in other people’s yards will likely be told they can’t possibly swear out a complaint against the dog’s owner.

All bets are off with cop dogs. They’re “officers” under the law and the general opinion of most courts is “suck it up” when you’ve been mauled by a K-9 unit. Rarely, if ever, will courts suggest excessive force claims stemming from police dog attacks are capable of piercing the qualified immunity veil.

In this case, though, the double-standard stops working because both parties are law enforcement officers. In a move that must have endeared him to law enforcement officers all over Minnesota, Champlain police officer Daniel Irish sued Hennepin County Deputy Keith McNamara after McNamara’s dog bit him while they engaged in an on-foot pursuit of a criminal suspect. (h/t Short Circuit)

Here’s how this whole thing went down, as recounted by the Eighth Circuit Appeals Court in its decision [PDF]:

[O]ver the wail of police sirens, Deputy McNamara repeatedly commanded Thor, who could not see the suspect, to “get him!” as they raced down the cemetery path. Officer Irish then turned into the cemetery ahead of them and joined the pursuit. Thor bounded forward, outpacing Deputy McNamara and running behind Officer Irish’s squad car. It was approximately 35 seconds after Thor got over the fence when Deputy McNamara heard screaming. His body cam picked up an agonized “Keith [McNamara]! Keith!” Too far away to restrain Thor, Deputy McNamara repeatedly shouted, “Thor, come! Thor! Thor, out!”

Officer Irish’s body cam also captured the chaos. Shortly after he requested the suspect’s description, he arrived in the cemetery, spotted the suspect just across a ravine, opened his squad car door, and yelled, “Get on the fucking ground!” Thor immediately attacked him. Officer Irish fought to control him but continued to give the suspect orders. Between breaths, Officer Irish told Thor to “get him!”—to no avail. He gasped, “Keith! Keith! I didn’t know he was out.” Deputy McNamara finally caught up and restrained and refocused Thor. Bloody but unbowed, Officer Irish gave a K9 warning. The suspect started to inch away, so the officers released Thor, who eventually vaulted through the ravine and apprehended him.

Officer Irish sued Deputy McNamara, alleging (yes, you’re reading this correctly) a Fourth Amendment violation. Precedent says a K-9 attack/bite/hold is a seizure under the law and that suspects (who are the ones usually on the receiving end of police dog attacks) must be given “[adequate] warning and an opportunity to surrender” before the dog is released.

Obviously, Officer Irish was never given adequate warning or a chance to surrender. And for good reason. He wasn’t the intended target of the dog’s aggression. Somehow, despite all the supposed training the dogs receive (and all the expertise their handlers claim to have), Thor decided the person he was supposed to attack was a fellow officer. So much for the Thin Blue Line, etc. etc.

Given these facts, it’s pretty difficult to read this as a Fourth Amendment violation. Everyone (on two or four legs) was a law enforcement officer. While Officer Irish may have been “seized,” he wasn’t “seized” in the sense that his freedom was being purposefully curtailed by the actions of a government employee. This argument makes about as much sense as someone claiming their Fourth Amendment rights were violated when their neighbor’s dog attacked them. The playing field is completely level here, which means this was unfortunate, but not unconstitutional.

Unbelievably, the lower court said qualified immunity did not apply here. That clear error has been reversed by the Eighth Circuit, which points out there not only needs to be an imbalance of power, but the clear intent to limit someone else’s freedom via government dog attack. (All emphasis in the original.)

[A] seizure occurs when an officer, “by means of physical force or show of authority, terminates or restrains [an individual’s] freedom of movement through means intentionally applied.” Brendlin v. California, 551 U.S. 249, 254 (2007). The Supreme Court has explained that the “intent that counts under the Fourth Amendment is the ‘intent that has been conveyed to the person confronted.’” (quoting Chesternut, 486 U.S. at 575 n.7) (holding that all occupants in a car are seized during a traffic stop). So long as the officer’s conduct is “willful,” a “seizure occurs even when an unintended person or thing is the object of the detention.” Brower, 489 U.S. at 596, 599 (emphasis added) (citation omitted) (holding that a seizure occurred where a fleeing suspect crashed into a roadblock).

Officer Irish argued the correct standard is “unintended person,” rather than “through means intentionally applied.” The Appeals Court disagrees. This was an accident, not an intentional attack. And that means something, especially when it’s two law enforcement officers involved, rather than a police officer and someone who just happened to be in the area where a police dog was unleashed.

These are two different things, even though Officer Irish clearly believes otherwise. The Eighth Circuit points out exactly where the lower court went wrong when it denied immunity to the deputy whose dog ended up attacking a fellow officer.

Officer Irish protests that the unintended-target cases are immaterial because excessive force cases involving K9s are unique. See, e.g., Hope v. Taylor (M.D. Fla. Feb. 23, 2021) (taking a “different tack” from unintended-target cases and holding that a seizure occurred where an officer deployed a K9 that bit a bystander, not the intended suspects). He says that by releasing Thor with the intent that he bite the first person he found, Deputy McNamara had all the intent needed to effect a seizure. Though we have never recognized a constitutional distinction between force-by-K9 and force-by-bullet, the district court did. It relied on Szabla v. City of Brooklyn Park, where we found “a submissible case of excessive force” after an officer’s K9 was tracking a suspect but ended up biting an innocent bystander. From Szabla, the district court inferred an “[i]mplicit” holding that when an officer intentionally deploys a K9 to find and bite a suspect and the K9 bites an innocent bystander, that bite is “a seizure under clearly established law.”

We do not read so much into Szabla. It never addressed whether the officer subjectively or objectively intended to seize the plaintiff. And it fits best in the mistaken-identity line of cases. The officer in Szabla told his K9 to find and apprehend an unknown suspect, “ordered [the apprehended plaintiff] to show his hands,” and then detained and refused to release him until the officers determined that he was not the suspect they were after. In other words, the officer arguably subjectively intended to seize the plaintiff whom he mistakenly believed was the suspect […] (stating that an “implicit holding in Szabla” is “that a seizure occurs when a [K9] seizes an individual [whom] police did not know to be present, at least when police initially believe that the individual is the suspect” (emphasis added)).

This case, on the other hand, fits best in the unintended-target line of cases. Less than a minute before the bite, Deputy McNamara commanded Thor to “get him!”—the fleeing suspect; during the bite, he repeatedly ordered Thor to disengage from Officer Irish and quickly restrained him; and after the bite, he refocused Thor toward the suspect. […] So Szabla could not have put Deputy McNamara on notice that Thor’s bite was a seizure.

Even without this precedent, the resolution should have been clear. If you’re a law enforcement officer who works with other officers and their K9s, you should assume the risk that the dog is going to screw up now and then. Non-cops aren’t expected to assume this risk because they’re not law enforcement professionals with all the (alleged) “training and expertise” that comes with. When a regular person is caught by a dog, it’s a seizure and the Fourth Amendment applies because the dog is an extension of the government’s power. When a cop dog bites another cop, that’s just an incident that should mean nothing more than resetting the “DAYS SINCE LAST WORKPLACE ACCIDENT” counter to zero. It’s definitely not the basis for a civil rights lawsuit.

All Officer Irish is going to get from this spectacular failure is a bunch of antipathy from other law enforcement officers. No one’s going to want to provide backup to an officer who has demonstrated he’s willing to sue over unfortunate (and extremely uncommon) workplace mishaps. He may as well have blown his money suing the Champlain PD for providing an unsafe work environment. It was always a non-starter, but somehow the lower court gave him just enough hope to allow him to embarrass himself at the appellate level.

Filed Under: 8th circuit, daniel irish, k-9 unit, keith mcnamara, minnesota, police violence, qualified immunity

Immunity Denied To Officer Who Claimed A Suicidal Man Pointed A Gun At Him Through His Own Head

from the interesting-interpretation-of-'threat'-here dept

Far too many law enforcement officers believe the best way to deal with suicidal people is to kill them. That’s the case here with Washington County Deputy Brian Krook. He came across a suicidal person and decided to make that final decision for them, shooting and killing 23-year-old Benjamin Evans as he knelt on the crosswalk with a gun pointed at his own head.

This followed forty minutes of negotiation with Evans by officers on the scene, so at least it wasn’t instant escalation. During this conversation, Evans repeatedly asked to call his girlfriend, who had earlier that day rejected his marriage proposal. At one point, Evans pulled the clip out of his gun and threw it down the street, leaving him with the single bullet aimed at his own head.

Deputy Krook was called in to help. They shouldn’t have bothered. Krook arrived and was given the plan by the sergeant in charge of the scene. She said the plan was to keep him talking and use less-lethal munitions if necessary. Sergeant Folendorf gave Deputy Krook the shotgun with the less-lethal rounds. Krook leaned the shotgun against the cruiser and pointed his service weapon at Evans instead. He also stepped out from behind the cruiser, placing himself in the (self-proclaimed) “danger” he was about to use as an excuse to kill the suicidal young man.

As the other officers made some progress in talking Evans down, Deputy Krook suddenly had ideas of his own about what was happening, as recounted in the lawsuit filed by Evans’ survivors:

Krook can be heard on the audio saying that he was uncomfortable with the movements that Evans was making. No one acknowledged his comment.

Krook did not warn Evans to stop moving his head or looking around.

No other deputy warned Evans to stop moving his head or looking around.

Evans remained on his knees in the crosswalk with the gun to his head while talking to [Officer] Ramirez.

While Evans was moving his head and looking around, with the gun to his temple and talking to Ramirez, Krook shot him multiple times and without warning.

Krook used his service weapon and not the less-lethal shotgun that was leaning against the car next to him.

Evans slumped to the ground still holding the gun to his temple.

Krook then advanced on Evans and shot him several more times at close range.

Krook is the anomaly. That’s why he’s still being sued. Several officers were on the scene but only Krook felt the need to kill someone for pointing a gun — with a single bullet in it — at their own head.

No other officers fired.

The lower court denied qualified immunity to Krook, which he immediately appealed. The Eighth Circuit Appeals Court says two things to Krook. First, no QI. At least not right now. Second, if you want QI, you need to bring some competing evidence of your own. (h/t Gabriel Malor)

But most importantly, the court says in its very short refusal to discuss Krook’s qualified immunity invocation, you had better bring a better argument than this one, which is an absolute jaw-dropper. From the decision [PDF]:

Here, the availability of qualified immunity turns on whether Krook acted reasonably under the circumstances by shooting Evans because Evans either pointed his gun at another or otherwise wielded his gun in a “menacing fashion.” See Cole, 959 F.3d at 1134. The district court noted that it is “undisputed that Evans never took direct aim at Krook or anyone else . . . .” Krook claims the shooting was constitutionally reasonable because Evans’ gun was pointed in the direction of the officers (through Evans’ own head) when Evans turned his head.

Whew. That is some sort of bullshit. I can understand the desperate moves one might make when being sued, but it’s not as though Deputy Krook is representing himself here. He’s being represented by supposedly competent attorneys, either provided by the county that employs him or by the law enforcement union he belongs to.

Sure, we might expect an officer to say something this stupid and believe it will get them out of trouble. But we certainly don’t expect that from supposedly competent representation. Good luck finding a case on point that deals with officers being hit by bullets fired through someone’s skull. And if it has happened, it’s most likely been friendly fire, considering how many bullets cops fire when they’re “reasonably” scared. If Krook wants immunity, he’s going to need a better argument than that and something more than the “inconclusive nighttime videos” provided by his employer. Back to the lower court it goes and back goes Krook himself, with no immunity to protect him from the consequences of his clearly unreasonable actions.

Filed Under: 8th circuit, benjamin evans, brian krook, excessive force, police killing, qualified immunity, washington county sheriff

Eighth Circuit: When Pretty Much Every Judge Thinks Your Warrant Is Bad, Good Faith Ain’t Gonna Save It

from the disappointing,-but-unsurprising dept

Warrants that are short on things required by the Fourth Amendment — probable cause, specificity, the correct address, solid affidavits — are often given a free pass because law enforcement has plenty of options when it comes to sneaking around the edges of the Constitution.

In some cases, the excuses are pretty much just this: “Hey, maybe we didn’t even need a warrant!” Those excuses include exigent circumstances (“no time to get a good warrant!”), plain view (“hey, we just saw the stuff right out in the open!”), community caretaking (“we cared so much about this person’s health we arrested/killed them!”), and any number of other exceptions (vehicle exception, officer safety, border security).

Then there’s something called “good faith,” a defense offered almost exclusively in hopes of excusing officers who acted in bad faith. That theory is basically this: “Well, we had a piece of paper with a judge’s signature on it.”

Even a bad warrant can become a good warrant so long as it was shoved in front of the bleary eyes of the local magistrate who likely started dozing off during the multiple paragraphs of copy-pasted boilerplate that always proceeds the actual particulars of this supposed probable cause.

But when multiple judges start saying a warrant is bad, no amount of good faith will save it. Especially when almost every judge given the chance to read the warrant affidavit arrives at the same conclusion: this isn’t probable cause, or anything even approaching it.

And so it goes in this relatively brief Eighth Circuit Appeals Court decision [PDF]. It starts with the arrest of John Ralston, following a search of his property. Although officers claimed Ralston was involved in fencing stolen goods, he was only charged with illegally possessing a firearm.

Ralston wasn’t even the person cops were interested in. Ralston lived on a 9.32 acre parcel of property left to him by his mother. The property contained a mobile home on the north side of Bear Creek Road (in Jones County, Iowa) and another small residence on the south side of the same road.

Local law enforcement officers were far more interested in Colton Varty, who they considered to be a suspect in multiple burglaries. Using extremely specious reasoning, they came to the conclusion Varty either lived at the mobile home at this property or at least “frequented” the residence.

So, officers decided the smartest move was to search John Ralston’s property.

The warrant authorized the search of Ralston’s residence, the mobile home where Varty was frequenting/residing, a machine shed, and two separate storage sheds with a physical address of 1221 Bear Creek Road, as well as a blue Jeep Liberty Sport owned by Varty. It authorized officers to seize a number of different things, including items commonly used in thefts or distribution of stolen property, indicia of occupancy, tools burglars use to gain access to locked structures or storage containers, property that had been reported as stolen, shoes believed to have beenworn during the thefts, and tire tracks/treads for comparison.

Ralston challenged the search of the south side of his property, which contained the house Ralston actually lived in. (The mobile home “linked” to Varty was on the north side.) Ralston claimed no nexus existed to give officers probable cause to search a residence never linked to Varty, the actual burglary suspect.

The first judge (beyond one signing the original warrant) to review the warrant agreed with Ralston. No probable cause existed to search his property.

In analyzing Ralston’s argument, the magistrate judge found: (1) the affidavit supporting the search warrant described the places to be searched in overbroad terms; (2) the information in the affidavit connecting Varty to the south side of the property was minimal; and (3) the supporting affidavit contained no information connecting Varty to Ralston’s residence. In addition to finding a want of probable cause, the magistrate judge found the good-faith exception did not apply.

The government said, “Oh, come on! The two residences are on the same property and besides everyone always grants us good faith, no matter how terrible we are at establishing probable cause.”

The district court compared Ralston’s arguments to the government’s arguments and then compared them to the warrant. It came down on the side of Ralston and the magistrate performing the initial review, but it did give the government what it wanted: forgiveness.

The district court was unpersuaded by the government’s objections regarding the probable cause determination, but ultimately denied the motion to suppress, reversing the magistrate judge’s determination that the good faith exception did not apply.

The score at this point: Bad warrant: 2 – Good faith 1. Not the best odds, but then again, the government rarely needs the best odds to walk off with win or, at the very least, a tie.

The Appeals Court makes sure this isn’t a tie. First off, it points out there’s nothing tying the suspected activity of Varty to the residence maintained by Ralston. These are two different people and only one of them was actually suspected of committing a string of burglaries.

The fact that Varty may have been present on the property from time to time (or even maintained a part-time residence on the other end of the 9.32 acre parcel) isn’t enough to tie Ralston to Varty’s alleged criminal activity. Probable cause is the base line. The officers didn’t even manage to approach that low bar here.

The officers here knew that Ralston and Varty maintained separate residences on the property. Their residences were separated by a road. The officers offered little more than a hunch that Ralston’s residence was being used to fence property that Varty was stealing. A reasonable officer would understand that a prerequisite for a search warrant is probable cause, not a mere suspicion or hunch.

Obviously, these officers were unreasonable. The appeals court makes sure that much is clear. Reviving past criminal activity may help when convictions and prison sentences are on the line. But they don’t add anything to probable cause assertions that deal with an entirely different set of crimes allegedly committed by an entirely different person.

The government asks us to give weight to law enforcement’s conclusory assertions that the property had been known for multiple years as a place where stolen property was fenced, Ralston and Varty were unemployed drug users, Ralston had been involved in the sale or distribution of narcotics for many years, and a neighbor had recently reported gunfire in the area.

The officer’s meandering into Ralston’s past weapons violations, drug use, and drug convictions is unrelated and immaterial to the offenses—burglary and possession/fencing stolen property—that were under investigation in the warrant application.

Attempting to add more probable cause to a deficient warrant during testimony in front of the district court doesn’t change anything about the original warrant. Only one judge approved it as it was written. Every judge after that declared it to be deficient. The Appeals Court points out that the US Supreme Court long ago declared that the “mere association with a known or suspected criminal or the presence in the location known to be involved in criminal activity does not establish probable cause.”

And that’s all the cops had here: stuff the Eighth Circuit made clear years ago didn’t amount to a hill of Fourth Amendment beans.

Armed with only the proximity of residences on rural property, conclusory assertions that lacked a nexus to Ralston’s residence or the targeted offenses, and no evidence of a relationship between Ralston and Varty or evidence that Varty had access to Ralston’s house, a reasonable officer would not believe there was a sufficient nexus to establish probable cause to search Ralston’s residence for evidence related to the burglaries or fencing stolen property. While the affidavit was detailed, focused, and probative as to Varty’s criminal activity, it said little about Ralston and lacked any specifics connecting Ralston or his residence to the offenses under investigation. Given the paucity of evidence as to Ralston, law enforcement should have been aware of the affidavit’s deficiencies. The additional information not included in the affidavit that consists of conclusory assertions and details unrelated to the offenses under investigation does not cure the deficiencies.

Bad warrant. No good faith. The final smack of the law enforcement nose with the rolled-up judicial newspaper? A vacated guilty plea, suppression of the evidence derived from this search, and (presumably) a dismissal of charges that can’t be supported without the evidence the government obtained illegally.

Filed Under: 4th amendment, 8th circuit, colton varty, good faith, iowa, john ralston, jones county, probable cause, warrant

Eighth Circuit Says Cops Can Come With Probable Cause For An Arrest AFTER They’ve Already Arrested Someone

from the do-what-now dept

Well, this is a bit of a doozy. This case — via the Institute for Justice — involves a possible First Amendment violation but somehow ends with a judicial blessing of cops who make things up after the fact to justify an arrest that has already taken place.

That’s literally what happened here. Mason Murphy was walking down a Missouri road when he was accosted by Officer Michael Schmitt. From the opening of this very unfortunate decision [PDF]:

Schmitt stopped his car, approached Murphy, and asked Murphy to identify himself. Murphy refused to identify himself, and Schmitt put Murphy in handcuffs after nine minutes of argument. Murphy asked why Schmitt arrested him, and Schmitt refused to answer.

So far, it would appear no criminal act was committed and that the cuffing of Murphy by Schmitt was in retaliation for Murphy’s refusal to identify himself and, First Amendment-wise, his refusal to shut up.

I said “so far,” but nothing really changed following this first nine minutes of unjustified detention. It continued. And it got worse.

On the drive to the sheriff’s department, Murphy again asked Schmitt why he was being arrested. Schmitt responded that the arrest was for “failure to identify.”

Now, that could have been a legitimate charge. State law does allow officers to demand identification in certain cases.

They shall also have the power to stop any person abroad whenever there is reasonable ground to suspect that he is committing, has committed or is about to commit a crime and demand of him his name, address, business abroad and whither he is going.

Note the bold print, though. To demand identification from Murphy, Officer Schmitt would have needed to suspect his walking on the side of the street was a criminal act. But Schmitt apparently didn’t consider this to be a criminal act. Nor did he seem to have any idea whether any criminal act had been committed that would justify (1) his demand Murphy identify himself, and (2) the subsequent arrest for “failure to identify.”

None of that happened. Officer Schmitt arrested first and asked rather desperate questions later.

Once at the station, Schmitt can be heard making a call to an unknown individual and saying he “saw the dip shit walking down the highway and [he] would not identify himself.” Schmitt then asked the unknown individual: “What can I charge him with?”

Without any predicate suspected offense, Officer Schmitt could not demand Murphy identify himself. Murphy could not have possibly violated the law Schmitt first thought he could arrest him for. Schmitt appears to have recognized this fact, hence his call for charging advice that might allow him to reverse engineer the probable cause to support his actions.

Meanwhile, Murphy sat in a cell for two hours until officers identified him via a credit card in his wallet and released him.

Murphy sued, claiming his First Amendment right to mouth off to a law enforcement officer was violated by this obviously retaliatory arrest that was completely unsupported by probable cause.

Both the lower court and the appeals court say there was probable cause, even if Officer Schmitt didn’t appear to know it at the time he accosted and cuffed Murphy.

A Missouri statute requires pedestrians to “walk only on the left side of the roadway or its shoulder facing traffic which may approach from the opposite direction.” Mo. Rev. Stat. § 300.405.

Murphy agreed there was probable cause to arrest him under this statute, but pointed out this was much like the Supreme Court’s Nieves case, where the court decided any probable cause for an arrest automatically defeats First Amendment retaliation claims. The justices in this case noted there are exceptions to this rule, like the sudden enforcement of laws law enforcement officers had never bothered to enforce prior to the retaliatory arrest.

The parties agree Schmitt had probable cause to arrest Murphy because Murphy was in violation of Missouri Revised Statute § 300.405. Murphy argues the facts in this case fit into the possible Nieves exception because, like the hypothetical in Nieves, this is a situation where “officers have probable cause to make arrests, but typically exercise their discretion not to do so.”

[…]

The Supreme Court in Nieves gave an example of an individual who is arrested for jaywalking in an intersection where “jaywalking is endemic but rarely results in arrest” while the individual is “vocally complaining about police conduct[.]” Nieves 139 S. Ct. at 1727. Murphy relies heavily on the similarities between jaywalking and walking on the wrong side of the road to prove his point.

The Eighth Circuit says the cases aren’t comparable. Murphy submitted no evidence showing this law enforcement agency routinely saw people violating this pedestrian law but chose not to enforce it. And, as far as the court’s counterargument goes in terms of case specifics, it’s correct.

But that ignores the bigger issue: Officer Schmitt — as captured on his own recordings — never once mentioned anything about this law or Murphy’s violation of it. Instead, he opted for “failure to identify” and only released Murphy once his identification had been forcibly obtained and he could find no other reason — including this particular law — to charge him with a crime.

So, while the court may see this as a straight-up exercise of the Supreme Court’s Nieves precedent (probable cause beats First Amendment claims), it ignores the fact the officer’s own statements and actions showed he did not actually have probable cause to effect the arrest and that all justifications for the stop, detention, and arrest of Murphy were obtained after the fact. That’s the bigger problem. By focusing on the law that went unmentioned by the arresting officer, the court is giving its blessing to cops who arrest first and seek justification later.

The dissenting opinion lays it all out in all of its ugliness:

Later events indicate Officer Schmitt was scrambling to justify the arrest. While in the police car, Officer Schmitt told Murphy he was arrested for “[f]ailure to identify.” He then changed his tune when he told someone via his police radio that Murphy was stumbling and walking on the wrong side of the road. Yet Murphy was not stumbling or acting impaired. When Officer Schmitt arrived at the jail with Murphy, he made a phone call in which he described Murphy as a “dip shit walking down the highway” who “would not identify himself” and “ran his mouth off.” He then asked, “What can I charge him with?” Later, Officer Schmitt falsely claimed that Murphy was drunk. Officer Schmitt even admitted on multiple occasions that he did not “smell anything” on Murphy. Despite all this, Officer Schmitt insisted Murphy “sit here for being an asshole.” Roughly two hours later, Murphy was released.

Sure looks like retaliation from here. It was “contempt of cop,” which isn’t a crime, but every cop somehow believes it is and will seek any law at all to justify their decision to make innocent people sit in jail for “being an asshole.” If being an asshole was a crime, most cops would violate this law multiple times a day.

It’s that chain of events that matters and the post facto attempt to justify the arrest for a law most likely rarely, if ever, enforced makes it clear this was plain old retaliation.

Under these factual allegations, I cannot join the majority’s conclusion that Murphy failed to state a plausible claim. If the Sunrise Beach Police Department regularly enforces the Missouri statute prohibiting a person from walking on the wrong side of the road, one would suspect Officer Schmitt and the other officers he spoke with would have had little trouble identifying that law as the basis for the arrest. Instead, viewing the factual allegations in the complaint in a light most favorable to Murphy, Officer Schmitt arrested Murphy for challenging and criticizing him before later exploring various legal justifications for the arrest. Indeed, the allegations of post hoc decision-making indicate pretext, which supports application of the Nieves exception.

Schmitt retains the qualified immunity he really didn’t earn. He hassled somebody who wasn’t receptive to being hassled and turned his inability to walk away from a confrontation he created into two hours of misery for someone who was doing nothing more than walking down a road. And because of this ruling, cops like Schmitt will continue to engage in this sort of behavior because the courts are telling them they’ll just keep getting away with it.

Filed Under: 1st amendment, 8th circuit, identification, mason murphy, michael schmitt, missouri, probable cause

County Benchslapped For Illegally Detaining All Foreign-Born People For Pickup By ICE, Even If They’re American Citizens

from the don't-be-evil dept

This is some kind of ugly. When law enforcement starts talking about being “proactive,” it’s time to start worrying about your rights. Here’s what happened to Myriam Parada after a routine traffic stop.

Parada ended up in the Anoka County Jail after an officer discovered that she had been driving without a license. While going through the booking process, she had to disclose her country of birth, which was Mexico. Even after deeming her “[r]eady for [r]elease,” Anoka County continued to hold her while a deputy contacted Immigration and Customs Enforcement, better known as ICE.

That’s from the Eighth Circuit Appeals Court decision [PDF], which affirms Parada’s win in the lower court, over the inane and insane protestations of the county in Minnesota.

Instead of being free to go, Parada was subjected to an unofficial county policy — one that resulted in her being held at the jail for four hours before she was finally released. The policy can’t be found with the rest of the county policies because someone was smart enough to realize this unconstitutional bullshit probably shouldn’t be memoralized.

The delay was due to Anoka County’s “unwritten policy requiring its employees to contact ICE every time a foreign-born individual is detained, irrespective of whether the person is a U.S. citizen.” (Emphasis added). The way it works is simple: “If the individual [says] they were born abroad, the jail will send ICE a notification” and “attempt[] to wait to start release procedures . . . until [it] hear[s] back,” which “could take between 20 minutes and 6 hours.”

The Appeals Court says the lower court got this exactly right:

The district court’s conclusion was correct: Anoka County’s policy is a classic example of national-origin discrimination. On its face, it treats people differently depending on where they were born. […] Those born abroad must wait anywhere from 20 minutes to 6 hours longer while deputies consult ICE. For those born in the United States, by contrast, there is no call and release is immediate.

Anoka County suggested it was just trying to help out ICE by “giving ICE an opportunity” to investigate the legal status of arrestees without “burdening” ICE with “too many false positives.” The Appeals Court says the county’s interest may be “compelling,” but the judges follow that up with “we have our doubts about it.”

Even if this were a compelling law enforcement interest, it absolutely cannot be handled this way.

The bigger problem, however, is Anoka County’s scattershot approach to accomplishing its interest. By its own statistics, more than half of the foreign-born individuals it referred to ICE turned out to be American citizens. It is not hard to figure out why. For one thing, many who are born elsewhere will have already become American citizens. Consider a few examples. By the strict terms of the policy, it would apply to famous actors like Bruce Willis and Arnold Schwarzenegger—both long-time American citizens not to mention six former members of the United States Supreme Court.

The policy is also underinclusive: it will miss people who are American-born children of foreign diplomats or who have renounced their citizenship, like American-born Jews who have accepted sole citizenship under Israel’s Law of Return. The point is that Anoka County’s chosen means were not “specifically and narrowly framed to accomplish” its interest.

A better way to handle this would be literally anything else. Detainees could be asked about their citizenship status. Some sort of reasonable suspicion could be applied to the process for making ICE referrals. For a county that claims in court it did not want to “burden” ICE with too many “false positives,” it did exactly that more than half the time.

And the county can’t escape this lawsuit (one it has already lost) by asking for immunity. As the Appeals Court points out, the fact that the policy is “unwritten” means the county has already lost the statutory immunity argument.

On the surface, there seems to be little doubt that Anoka County’s unwritten policy was a planning-level decision. When individual employees later followed it, the challenge to their conduct became a challenge to the “policy itself,” meaning statutory immunity would normally apply.

But the normal rule takes a back seat when there is no evidence “to support [a] statutory[-]immunity claim.” Conlin, 605 N.W.2d at 402. As the Minnesota Supreme Court has put it, “[t]he burden is on the [County] to show it engaged in protected policy-making.” And here, Anoka County failed to produce any evidence about how it reached its decision, including whether it considered any “financial, political, economic, and social effects.” Under these circumstances, the consequences are clear: it is “not entitled to statutory immunity.”

The unconstitutional, unwritten policy is hopefully no longer not officially on the books. To put it more clearly, hopefully the staff at the Anoka County Jail is no longer illegally holding foreign-born arrestees solely for the purpose of allowing ICE to take a shot at them. The affirmed loss means the county owes Parada 30,000forthewrongfuldetainment.Butitalsowillbeburdeningresidentswithamuchbiggerbill:nearly30,000 for the wrongful detainment. But it also will be burdening residents with a much bigger bill: nearly 30,000forthewrongfuldetainment.Butitalsowillbeburdeningresidentswithamuchbiggerbill:nearly250,000 in legal fees headed to Parada’s representation. And that’s on top of whatever it blew on three attempts to get this ruling overturned. That’s a lot of money to spend on a policy so obviously discriminatory, even jail staff should have been aware of the potential downside.

Filed Under: 8th circuit, anoka county, citizens, detention, ice, minnesota

Des Moines Residents Will Shell Out $125,000 To Man Whose Phone Was Illegally Seized By Cops He Was Recording

from the residents-paying-extra-for-bad-customer-service dept

Denying qualified immunity to law enforcement officers who violate rights is a rarity. It doesn’t mean the sued cops lose. It just means they can’t dismiss the lawsuit. In theory, that means officers alleged to have violated rights will now make their case in front of a jury.

But a cop facing a jury is even more rare than an immunity denial. When government employees are faced with being judged by a jury of their peers, their employers tend to start handing out settlements. What this does is force the people they’re supposed to be serving to buy their way out of lawsuits where government misconduct might become part of the permanent record.

That is what has happened here. In May 2018, Des Moines resident and radio producer Daniel Robbins was recording illegally parked cars near the police station. Some of these illegally parked cars were driven by police officers. Detective Brad Youngblut, on his way towards his (possibly illegally parked) vehicle noticed Robbins and decided to start hassling him.

This hassling continued for about 12 minutes. By the end of it, Robbins was surrounded by police officers and no longer had possession of his cell phone and camera. The excuse given for this seizure was… well, no real excuse was given until the Youngblut and the officers were sued. This is what was said at the time:

Detective Youngblut suggested that the officers “just make a suspicious activity case . . . [and] confiscate the camera until we have a reason for what we’re doing.”

Just making some shit up, basically. Once sued, the detective claimed reported car vandalism in the area, as well as a murder of a couple of cops somewhere else in the country by a person filming them, was all the justification he needed to stop Robbins and seize his recording equipment. Also: loitering.

What was left unexplained to any court’s satisfaction was why Robbins’ property was seized and why it took the Des Moines PD 12 days to return it to him. The Eighth Circuit Appeals Court said Robbins’ Fourth Amendment allegations were credible, reversing the granting of immunity to officers by the lower court.

On remand, the district court issued a ruling aligning with the Appeals Court decision, which meant the next step for the officers would be a jury trial. But, of course, the city of Des Moines isn’t going to let that happen. Instead, it’s going to “allow” residents to pay the tab for the misconduct of these officers. (h/t Michael Vario)

The city of Des Moines is paying a $125,000 settlement to a man who was detained by police for recording video outside the police station, court records show.

The city seems a bit bitter about this, but only appears to think the judicial system is flawed, rather than the officers whose rights violations triggered this lawsuit.

“The city won this case at the district court level, which was ultimately reversed by a panel of Eighth Circuit judges,” City Manager Scott Sanders said in a statement. “While the city disagrees with the panel’s determination, it also respects the judicial process and decided to settle the case and move forward.”

To be extremely, explicitly clear, the city did not “win” at the lower level. All it did was talk a judge into granting immunity to officers who certainly appear to have violated rights. That’s not a “win” on any level. It’s the sort of thing that encourages bad cops to be worse cops and ensures that no matter what happens, it will be the general public forced to pay the bills and suffer the losses.

Filed Under: 4th amendment, 8th circuit, brad youngblut, daniel robbins, des moines, qualified immunity, recording police

Appeals Court Says St. Louis County’s Warrantless Arrests Are Likely Unconstitutional… But Somehow Still Pretty Much OK

from the if-arresting-you-is-wrong,-I-don't-want-to-be-right dept

Law enforcement needs probable cause to effect arrests and engage in searches. In most cases, a warrant is also required. It’s a bit of paperwork that allows the government to bypass Fourth Amendment protections to serve the greater good, i.e., the invasion of privacy (a search) or the removal of personal freedom (an arrest).

For far too many cops, obtaining a warrant is a hassle they’d rather not deal with, even if it’s rarely an actual hassle. So, they find ways to route around this rights-related roadblock. Drug dogs are called to scenes so an animal can tell cops it’s ok to engage in a search. Pretextual stops use real or perceived traffic infractions as fishing licenses for bigger criminal charges. Exigent circumstances or officer safety concerns are other Constitution-evading outlets for cops who simply can’t fathom having to pass some boilerplate past a judge to stay on the right side of the Constitution.

Probable cause is the baseline standard. Warrants are a requirement. The Eight Circuit Appeals Court, recognizing the baseline standard, has released a confusing and confounding decision [PDF] that says warrantless arrests are both constitutional and unconstitutional. It all depends on things the court can’t clearly define, but affirms it definitely knows a Fourth Amendment violation when it sees one. (h/t Short Circuit)

The issue at the center of the case is the St. Louis County PD’s “wanteds” system. Via this system, officers can issue electronic notices notifying other officers of criminal suspects to be arrested. These notices are called “wanteds.”

This is, importantly, not the same thing as securing a warrant for arrest by presenting probable cause to a magistrate. Instead, officers are utilizing their own discretion to issue arrest notices while claiming it’s the same thing as probable cause. The process is simple, subjected to zero oversight, and contains massive potential for abuse.

To issue a Wanted, an SLCPD officer, without any judicial oversight, concludes that probable cause exists to believe that the subject “has committed a crime.” Armed with this independent conclusion, the officer notifies a computer clerk (known as a “CARE operator”), who enters the Wanted in the Regional Justice Information System (“REJIS”) database. To have the Wanted entered into the system, the SLCPD officer need only identify the target’s name, physical descriptors, personal data, address, charges being investigated, and the issuing officer’s name and contact information. If all is in order, the Wanted is entered into the REJIS database. The CARE operator is wholly without information to assess the existence of probable cause to issue the Wanted.

Officers can, of course, arrest people without securing a warrant. But that usually only happens when an officer is witnessing a crime being committed, like when a search turns up contraband or someone makes the crucial mistake of engaging in criminal acts while being observed by a cop.

The “wanteds” system used by St. Louis PD officers isn’t even close to the same thing, as the Eighth Circuit notes. The defendants argued it was pretty much the same thing. According to the cops, the determinations expressed by officers when feeding names into the database are the equivalent of probable cause and any resulting warrantless arrest is subject to the “collective knowledge” doctrine, which allows cops who didn’t witness criminal acts to arrest someone for criminal activity witnessed by others.

The court says it’s a false equivalent. One officer’s subjective claims do not add up to probable cause for an arrest.

The evidence here belies any claim that the Officers were acting as part of a team involved in an investigation. Rather, the Wanteds rested on a single officer’s probable cause determination and authorized any officer to arrest the suspect. The evidence establishes that seizures pursuant to Wanteds occur following routine traffic stops conducted by officers who, by chance, search the Wanteds database (as demonstrated by Furlow) and when an officer happens to check for Wanteds in the area (as seems to be the case in Torres’ seizure). Because the Wanteds System routinely imputes a single officer’s finding of probable cause to officers potentially anywhere in the country—without any showing of a joint investigation—this Wanteds System cannot be saved under the collective knowledge doctrine.

The court also refuses to humor the SLCPD’s other attempts to salvage the entirety of the “Wanteds” program. Getting a warrant is simply not that difficult and this attempt to bypass the judicial system is what’s unwarranted.

The SLCPD’s expression of doubt that a neutral magistrate will issue an arrest warrant unless officers speak with the suspect prior to making the warrant application defies logic. The only requirements for issuance of an arrest warrant are: (1) probable cause to believe a crime has been or is being committed, and (2) probable cause to believe the person to be arrested is the person who committed the crime. It necessarily follows that if a neutral magistrate declines to issue a warrant, then the officer’s determination of probable cause is unsupported.

How do we know the SLCPD’s claims are terrible? Because thousands of law enforcement agencies do the thing the SLCPD claims is impossible to do in order to justify its officer-generated Fourth Amendment bypass.

The Officers also suggest that seeking a warrant in every case in which a Wanted is issued would be inconvenient and unduly burdensome. The Officers offer no explanation as to why the vast majority of police agencies in the country function without resort to a “wanteds system” like the SLCPD’s system. The claim that seeking a warrant is unduly burdensome is overstated.

Even if the SLCPD was correct that the judicial system’s involvement was “burdensome,” it still wouldn’t matter. If the SLCPD wants the ability to deprive people of their freedom, it has to do the paperwork legwork, no matter how much of an alleged hassle it is.

The Supreme Court has not enumerated an exception to the Fourth Amendment’s warrant requirement based on the inconvenience of obtaining a warrant before proceeding with an arrest.

This would all lead someone to assume the Eighth Circuit has declared the SLCPD’s “Wanteds” system unconstitutional. But that assumption would be wrong. Despite all of its constitutionally-based criticism, the Appeals Court still finds a way to partially bless a system so apparently essential to public safety, nearly no other law enforcement agency uses it. Exceptions apply, says the Eighth Circuit, and so the plaintiffs lose their challenge.

The Wanteds System is broad enough to encompasses situations that do not violate the Constitution, including those involving an arrest immediately after an officer has entered a wanted, circumstances involving evanescent evidence, sand incidents involving a fleeing felon. Because of the existence of these constitutional applications, the plaintiffs’ facial challenge to the Wanteds System fails.

So, nearly completely unconstitutional but not universally constitutional. Exceptions apply. And if those exceptions apply, it makes more sense for the SLCPD to ditch a system that encourages Fourth Amendment violations and utilize systems used elsewhere — ones that only allow officers to issue APBs, etc. when the call-out for an arrest is supported by these warrant exceptions.

Maybe that makes sense, but the conclusion seems at odds with the reasoning used to arrive at it. What’s completely inexplicable is the concurring opinion by Judge Stras, which suggests cops should be free to use something that has its roots in the vigilante justice of the Old West, which tended to view all rights as expendable when it came to (often violently) apprehending alleged criminals.

Think of the iconic wanted posters of the old west. They contained just a few basic pieces of information: the name of the outlaw, his image, a reward for his capture, and the crime he committed. See, e.g., Barbara Fifer & Martin Kidston, Wanted!: Wanted Posters of the Old West (2003); Leanna S. Schooley & Tom Kellam, Wanted in America (2019). The posters for Jesse James and John Wilkes Booth followed this formula. See Photographs of John Wilkes Booth and Jesse James Wanted Posters, in Sophie Tanno, 5,000forJesseJames‘DeadorAlive’and5,000 for Jesse James ‘Dead or Alive’ and 5,000forJesseJames‘DeadorAlive’and100,000 for Lincoln’s three killers: The fascinating wanted posters for America’s biggest 19th century criminals, DailyMail (July 24, 2019, 9:25 AM), https://bit.ly/3SVNPng. And sometimes, like during the manhunt for Jesse James, the poster would contain three words no outlaw would want to see: “DEAD OR ALIVE.”

The question is whether these “wanteds,” as St. Louis County calls them, violate the Fourth Amendment. Based on the long common-law tradition of warrantless felony arrests supported by probable cause, I would conclude that the answer is no.

Um… maybe we shouldn’t encourage cops to act like bounty hunters and apprehend people based on nothing more than a couple of sentences typed into a database. Just because something used to work pretty well doesn’t mean it should be allowed to continue. Lots of posters were put up to identify and apprehend escaped slaves, but no one’s suggesting that tradition should be carried on just because it can be done electronically. I mean, I would hope not.

In the end, the “Wanteds” system survives. The Appeals Court has made it clear that only certain uses are acceptable. And while that helps, it’s unlikely to change anything about the SLCPD’s day-to-day use of the system. This challenge failed. And it will take another challenge — one that’s more successful — to actually start deterring abuse of a system that makes a mockery of the Fourth Amendment.

Filed Under: 4th amendment, 8th circuit, probable cause, st. louis, warrant

Appeals Court Tells Cops Their Inability To Read A Temporary Plate Cannot Justify A Traffic Stop

from the not-just-any-pretext-will-do dept

Pretextual stops are an unfortunate side effect of American law enforcement. When cops want to question people or root around in their cars, they’ll find another reason to make the stop and hope the eventual searches make it all worthwhile.

This law enforcement activity has been repeatedly blessed by courts, which tend to view it as an essential component of crime-fighting. The collateral damage to constitutional rights is often viewed as an acceptable sacrifice for law enforcement gains. But, every so often, cops mishandle the pretext so badly courts can’t grant them immunity for their rights violations. It’s rare, but it’s always good to see it happen.

The Eighth Circuit Court of Appeals has handed down one of these rarities [PDF]. Cops, who admitted in their own testimony they couldn’t clearly see the plate they decided to view as potentially illegal, will have to continue to face this lawsuit, having had their immunity stripped by two consecutive courts.

Pretext stops are cool and legal. But the pretense has to hold up long enough to justify the initial stop. This one didn’t. From the opening of the decision:

[T]he officers noted that [Jared] Clinton’s car did not have permanent license plates. Instead, the plates on Clinton’s car advertised the dealership “Dewey Auto Outlet.” Clinton had a valid temporary tag in the appropriate place in his vehicle’s rear window. However, the officers were unable to “make out any writing” on it from their position behind Clinton’s vehicle. The officers “observed that the vehicle had . . . dealer plates and a white piece of paper taped in the back window. [They] followed the vehicle for several blocks and could not make out any writing on it.” According to Officer Minnehan, “mostly it [was] the angle of the back windshield and then the glare from the sun” that made the tag unreadable. Officer Garrett similarly testified that he “could not have said” whether the tag “was blank or not blank” because “there was no way to tell” from where they were following Clinton’s vehicle. He further testified to having previously encountered forged tags because of the fact that paper tags are “easily altered.” Officer Steinkamp testified about his previous experiences with drivers placing counterfeit or blank documents in the windows of unregistered vehicles to mimic temporary registration tags.

The only conclusion these officers had reached was that they wanted to stop this car. They didn’t have anything else. So, they pulled the car over and one officer upped the ante by claiming to detect the “strong odor of marijuana.” A search soon commenced with officers discovering a vape pen and vape cartridge both “alleged to contain THC.” Jared Clinton was charged with possession and spent four hours in jail. He filed a motion to suppress, which apparently was enough to convince the county prosecutor to dismiss the case.

Clinton sued. The officers claimed they not only had reasonable suspicion to perform the stop, but qualified immunity if they were wrong about the reasonable suspicion part. The lower court disagreed with the officers.

It is undisputed that Clinton’s temporary tag complied with Iowa law. Clinton v. Garrett, 551 F. Supp. 3d 929, 938 (S.D. Iowa 2021) (“A properly completed temporary registration tag was taped in Clinton’s rear window.”). The issue is whether the officers had a reasonable and articulable suspicion that Clinton was violating the law. The district court found that they did not, reasoning that the inability to make out the tag did not constitute “a particularized basis for believing a motor vehicle was unregistered or a temporary registration tag was falsified.” The court based its conclusion on the distinction between an absence of information about the tag, i.e., the officers’ inability to see what was on the tag, and the presence of some information that pointed to the tag being fake.

The Appeals Court says the lower court was right. A cop can’t use their failure to do their job competently as the basis for a traffic stop.

_We focused on the fact that Officer Del Valle relied on her inability to read the tag—rather than on her observation of a possible legal defect on the tag—in deciding to stop the vehicle_…

The decision concludes with the court pointing out the ridiculousness of the officers’ arguments simply by repeating them back to them.

The officers argue that there is no clearly established right to drive with a nervous passenger through a high crime neighborhood with a temporary tag that is unable to be read by officers following the vehicle. We have already dismissed this argument to the extent that it relies upon Clinton’s nervous passenger and the area where he was driving. These facts, in isolation, do not support a conclusion that Clinton’s vehicle was connected to unlawful activity in general, much less to the specific kind of unlawful activity for which the officers pulled him over—a possible temporary tag violation. Nor can a driver rightly be held responsible for ambient conditions that render a tag illegible. […] The authority is clear: officers must have particularized facts that give rise to reasonable suspicion in order for a stop to be constitutionally valid.

Immunity denied. And the officers who converted their inability to read a paper plate into an unconstitutional stop and search can continue to be sued by their victim. Not all pretexts are created equal and this pretext turned out to be almost as useless as no pretext at all.

Filed Under: 8th circuit, pretextual stops