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FMG Law Blog Line

Posts Tagged ‘#police’

Supreme Court Revisits Interplay Between First and Fourth Amendments

Posted on: November 29th, 2018

By: Wes Jackson

Imagine you commit a minor crime and an officer approaches you. The interaction goes south when you call the officer a “pig” and remind him that your tax dollars pay his salary. He then arrests you. Were your constitutional rights violated?

That’s the question the Supreme Court considered Monday, November 26, 2018 when it heard oral arguments in Nieves v. Bartlett. In Nieves, two Alaska State Troopers were patrolling a multi-day ski and snowmobile festival when they decided to investigate some underage drinking. Bartlett, who was intoxicated, intervened and confronted the troopers. The officers arrested Bartlett and put him in a “drunk tank.” He was later released and charged with disorderly conduct and resisting arrest. The state declined to prosecute the charges due to budgetary reasons. Bartlett sued, alleging his arrest was retaliatory because he refused to assist the officers in their investigation of the minors drinking alcohol.

Retaliatory arrest claims, like the one in Nieves, occur at the intersection of the First and Fourth Amendments: the presence of probable cause bars a Fourth Amendment claim for false arrest, but the circuits are split as to whether probable cause will also bar a First Amendment claim for retaliatory arrest arising from the same incident. Those circuits applying the probable cause bar to retaliatory arrest claims employ a bright-line objective standard that protects the officer from protracted litigation or trial where it is clear (or even arguable) that a reasonable officer could believe the arrestee had committed a crime. Rejecting the probable cause bar to retaliatory arrest claims could subject officers to months or years of litigation probing their subjective intent behind making an arrest—i.e., did the officer arrest the plaintiff for his crime or his speech?

At the Nieves oral argument, the justices sought to find a balance between protecting First Amendment rights while also giving law enforcement officers enough cover to act decisively and make arrests in fast-paced situations. On one hand, Justice Kagan noted the concern that officers might use minor crimes as a pretext to arrest for speech they disagree with, stating “there are so many laws that people can break that police officers generally look the other way, but, you know, you’re saying something that the officer doesn’t much like, so he doesn’t look the other way.” On the other hand, Justice Breyer and other justices noted the obvious concern with the chilling effect that would accompany the possibility of officers being haled into court every time they arrest someone who hurls an insult—officers could be to hesitant to make otherwise appropriate arrests.

One possible solution the justices entertained was to keep the probable cause bar for retaliatory arrests, but to limit its application to situations where there was probable cause for the charge on which the officer made the arrest or other charges upon which the arrestee was soon indicted. Such a solution would keep the probable cause bar for retaliatory arrests but prevent officers from concocting post hoc justifications for the arrest months or years later in a civil rights lawsuit.

The Court should issue an opinion in Nieves v. Bartlett in the coming months. If you have any questions about this case or retaliatory arrest claims more generally, please contact Wes Jackson at [email protected].

Are We Witnessing the End of Qualified Immunity?

Posted on: September 19th, 2018

By: Sun Choy

For many decades, qualified immunity has served as a powerful defense to end civil cases against public officials, including law enforcement officers for the alleged use of excessive force.  Given the many high-profile deaths involving the use of force by officers, progressives have again called for the end of qualified immunity.  Even some conservatives are now calling for an end to qualified immunity.  In a recent National Review article, the author lays out a conservative rationale to end qualified immunity, which is primarily based on the “plain meaning” of the statutory language of 42 U.S.C. § 1983.  With progressives and conservatives joining forces, is it only a matter of time before the Supreme Court ends qualified immunity?

If you have any questions or would like more information, please contact Sun Choy at [email protected].

Fourteen Seconds Plus Emergency Lights Equals Probable Cause To Arrest

Posted on: June 11th, 2018

By: Charles Reed

There is a saying that “nothing good ever happens after midnight.” Both City of Hollywood, Florida police officer Ronald Cannella and citizen Livingston Manners would become very familiar with this saying after the events of June 24, 2014. On that day, close to three in the morning, Officer Cannella patrolled a residential area of the city due to a series of recent thefts. Manners, a Hollywood resident, was sitting in his car on the side of the road before heading to work and, shortly after Cannella passed by him on patrol, Manners pulled out and made a turn. What happened after that is largely in dispute, but what is undisputed is that Cannella approached Manners’ vehicle with emergency equipment activated. Manners saw Cannella behind him with lights and siren activated and, instead of stopping his car, Manners drove another fourteen seconds – approximately one tenth of a mile – at a slow speed to reach a well-lit gas station where video surveillance was available. Manners testified that he did not immediately stop his vehicle because it was late at night in a very dark area and, as a large African-American male, he was in fear for his life. However, Manners’ actions captured by videotape thereafter appeared to contradict his purported fear as he argued with Cannella and actively grappled with Cannella as Cannella attempted to arrest him. It took five officers and two taser deployments over a period of three minutes to get Manners in handcuffs.

After Manners was acquitted of the criminal charges stemming from the incident, he sued Cannella and others. On the issue of probable cause, the Eleventh Circuit held in Manners v. Cannella, 2018 U.S. App. Lexis 15007 (June 4, 2018) that Cannella had probable cause to arrest Manners for fleeing or attempting to elude a law enforcement officer by driving “for three blocks, or one-tenth of a mile, or for 14.4 seconds after seeing Officer Cannella was behind him with the patrol car’s lights and sirens on.” Id. at *19. This probable cause was present even though Manners rolled down his windows and drove a slower rate of speed (25 miles per hour) before pulling over to the gas station. The Court analogized Manners’ conduct with previous Florida cases involving a ten mile-per-hour drive for five minutes and a one to two-mile drive after lights and sirens were present. Id. at 21-22. The Court shrugged off Manners’ concerns for his safety by filtering his flight through the doctrine of necessity under state law and further held “a generalized fear of police does not provide a legal basis to vitiate probable cause for the offense of flight.” Id. at 23-24.

The Eleventh Circuit’s analysis of this issue reflects the tension between the law and instructions sometimes provided to the general public when approached by law enforcement late at night. In some instances, especially where the citizen is approached by a person impersonating an officer, news reports will quote senior command staff recommending that citizens call 9-1-1 or travel to well-lit areas late at night if they are uncomfortable with emergency lights behind them.[1] On the other hand, should citizens follow these instructions, they risk arrest and prosecution for flight even if – as in this case – the duration of the travel is a tenth of a mile. For now, at least in the Eleventh Circuit, it appears that law enforcement officers may be justified in effecting an arrest in such situations and may not face civil liability for the exercise of their arrest powers.

If you have any questions or would like more information, please contact Charles Reed at [email protected].

[1] A snapshot of various news articles around the country concerning late night stops between citizens and law enforcement: Chicago Tribune, News4JAX, and South Miami.

Study Finds No Significant Impact of Body Cameras on Police Conduct or Citizen Complaints

Posted on: November 13th, 2017

By: Wesley C. Jackson

In response to recent high-profile officer-involved shootings, many commentators are touting police body cameras as a way to keep police accountable. The hypothesis is that when police and citizens know they are being watched, they are more likely to behave civilly during confrontations. Specifically, body cameras are thought to deter officers from engaging in excessive force or other unprofessional conduct and to encourage citizens to be less resistant or combative when interacting with police.

But how does this theory hold up under examination? Not very well, according to a working paper discussing the findings of a recent controlled study of policing behaviors and outcomes in the Metropolitan Police Department of the District of Columbia. The study found that the use of police body cameras had no statistically significant impact on officers’ use of force, citizen complaints, policing activity, or judicial outcomes.

The study examined the effect of police body cameras on multiple variables as the D.C. Metropolitan Police Department began issuing cameras to its officers. Specifically, the study observed officers who were randomly assigned body cameras and compared those officers’ rates of use of force and citizen complaints to a control group of officers who did not receive cameras. The evaluation period ran for 18 months from June 2015 to December, 2016.

The paper’s authors concluded that as to use of force, citizen complaints, police activity, and judicial outcomes, the analyses “consistently point to a null result: the average treatment effect on all of the measured outcomes was very small, and no estimate rose to statistical significance at conventional levels.” In other words, the use of police cameras produced no measurable difference in police conduct, at least in this study.

What explains this unexpected outcome? One explanation is simply that body cameras do not change police or citizen behavior. Indeed, in the heat of the moment, the implications of a body camera will likely be the last thing on an officer’s or citizen’s mind. The researchers also posit that the results could be particular to the D.C. police: as the police force for the nation’s capital, the D.C. police may already be more disciplined than the average police force due to the increased scrutiny it receives and the officers’ frequent experience handling citizen interactions under pressure at inaugurations, protests, and other such events. Additionally, the results could be due to a “spillover” effect: officers who were not assigned body cameras may nevertheless have adjusted their conduct, knowing that other officers in the area may be wearing body cameras.

The researchers concluded that “Law enforcement agencies . . . that are considering adopting [body cameras] should not expect dramatic reductions in use of force or complaints, or other large-scale shifts in police behavior, solely from the deployment of this technology.” Even so, agencies should note that the study did not examine one important consideration in adopting body cameras: the effect additional video evidence will have on civil rights lawsuits alleging improper police conduct. Even if the use of body cameras will not produce department-wide improvements in police conduct, they could still be useful in defending officers and municipalities in civil rights lawsuits.

Police body cameras can also provide non-measurable benefits, such as streamlining internal investigations of citizen complaints and providing the appearance of police accountability to the community. That is to say, while this recent study does not establish that police body cameras have a measurable effect on policing, body cameras may nevertheless be a useful tool to departments for other reasons.

If you have questions about this topic or would like more information, please contact Wes Jackson at [email protected].

GPS Tracking Devices – The Answer to Stopping High-Speed Pursuits?

Posted on: November 1st, 2017

By: Sun Choy

In the era of drones and artificial intelligence, it was only a matter of time before technology caught up to stopping high-speed pursuits. In a suburb of metropolitan Atlanta, a police department successfully deployed a GPS tracking device to terminate a pursuit and later arrest the fleeing suspect based on the information transmitted by the device. At a cost of $5,000 a piece, it may be cost prohibitive for many agencies. Even if available, many pursuits may still require immediate termination by PIT maneuver (Pursuit Intervention Technique) or spike strips to stop the danger posed by the fleeing suspect. While it remains to be seen how effective the GPS tracking device will be long term, it is encouraging to see technology used to mitigate the inherent dangers associated with high-speed pursuits.

If you have any questions or would like more information, please contact Sun Choy at [email protected].