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Posts Tagged ‘#cops’

11th Circuit: Exclusionary Rule is Inapplicable to Malicious Prosecution Claims

Posted on: March 8th, 2016

By: Kevin Stone and Andy Treese

The Eleventh Circuit Court of Appeals recently published an opinion in which it held that the exclusionary rule cannot be used against police officers in a civil suit.

In Black v. Wigington, 15-10848, 2016 WL 278918 (11th Cir. Jan. 22, 2016), the plaintiffs sued several sheriff’s deputies for malicious prosecution.  Because an officer cannot be liable for malicious prosecution if the arrest is supported by probable cause, the key inquiry was whether probable cause supported the plaintiffs’ arrests.  The officers argued that evidence found during their search of the plaintiffs’ home provided probable cause, while the plaintiffs argued that the evidence could not provide probable cause because the search was illegal. 

During the plaintiffs’ criminal trial, the superior court determined that the search was unlawful.  As a result, the superior court applied the exclusionary rule, suppressing all evidence associated with the search, resulting in a dismissal of the criminal charges.  The Eleventh Circuit held, however, that the exclusionary rule does not apply in a civil suit against police officers.  As a result, the court considered the evidence found during the unlawful search and concluded that probable cause existed for the prosecution of plaintiffs.  For that reason, the malicious prosecution claim failed.  The court, however, made clear that plaintiffs may still sue officers for an illegal search. 

As the court observed, the exclusionary rule is not a “personal constitutional right” or a requirement of the Fourth Amendment; it is a “judicially created remedy” which applies in the criminal context, only.  The court reasoned that the cost of applying the exclusionary rule in civil suits against officers is significant because officers could be forced to pay damages based on “an overly truncated version of the evidence.”  Although the exclusionary rule prevents illegally gathered evidence from being used in a criminal trial, it does not apply in a civil suit alleging false arrest and malicious prosecution.



U.S. Supreme Court Reverses Fifth Circuit on Whether Officer is Entitled to Qualified Immunity

Posted on: November 16th, 2015

By: Coleen Hosack

         On November 9, 2015, the Supreme Court reversed the Fifth Circuit’s decision to uphold a district court ruling denying summary judgment to Texas Department of Public Safety Trooper Chadrin Mullenix, the sole issue being whether Mullenix was entitled to qualified immunity under circumstances where he used his rifle to disable a vehicle driven by a fleeing felon. Mullinex v. Luna, 577 U.S. (2015). The Court held that central to the qualified immunity analysis is how the court frames the “clearly established rule.”  The relevant inquiry “is whether existing precedent placed the conclusion that Mullenix acted unreasonably in these circumstances ‘beyond debate.’”  Mullinex, p. 7 slip opinion.  Framing the rule too generally like the Fifth Circuit did (i.e. that deadly force requires a sufficient threat) is inadequate because answering the general question fails to settle the matter of immunity, particularly in light of Brosseau v. Haugen, 125 S. Ct. 596, 599 (2004), a case also involving the shooting of a suspect fleeing in a car.  In Brosseau, the Court rejected the general test and explained that the correct inquiry was whether it was clearly established that the Fourth Amendment prohibited the officer’s conduct in the situation that the Brosseau officer confronted, which was whether to shoot a disturbed felon, set on avoiding capture through vehicular flight, when persons in the immediate area are at risk from that flight.

         As for Mullinex, the context in which the “clearly established rule” should have been analyzed was within the framework that he confronted a reported intoxicated fugitive, set on avoiding capture through high-speed vehicular flight, who twice during his flight had threatened to shoot police officers, and who was moments away from encountering an officer at Cemetery Road. Mullinex, p. 7 slip opinion. The circumstances that Mullinex faced were more unpredictable and more dangerous than those circumstances faced by the Brosseau officer, who was entitled to qualified immunity.  Unlike Mullinex, who knew officers were on foot in the immediate area, the Brosseau officer only believed officers on foot were in the immediate area and that others persons might be in the area.  Mullinex’s actual knowledge of officers on the ground coupled with the actual threats Leija made and the possibility that Leija was intoxicated made the case for qualified immunity even stronger for Mullinex as compared to the Brosseau officer.

         The Court argued that if the use of deadly force in connection with dangerous car chases like those circumstances found in Scott v. Harris, 127 S. Ct. 1769 (2007) and Plumhoff v. Rickard, 134 S. Ct. 2012 (2014) does not violate the Fourth Amendment; then it surely cannot be the basis for denying qualified immunity. The Court rejected the dissent’s criticism of Mullinex’ not waiting to see if the spike strips worked first before attempting to disable the vehicle by other means. There is no clearly established law that says an officer must select one dangerous alternative over another in high speed chases. Further, relying on an Amici Curiae brief written by the National Association of Police Organizations, spike strips suffer from their own set of problems, including that they are not always reliable and they too are inherently dangerous to use. Finally, the Court was satisfied with the governmental interest that justified the shooting because of Mullinex’s testimony that he feared Leija may run over the officers manning the spike strips.  Aside from Mullinex being immune from suit, the take away from this case against the back-drop of Brosseau, Scott, and Plumhoff, is that the Supreme Court has sent another strong message that the use of deadly force to end a dangerous high speed pursuit is permissible under the Fourth Amendment.

Taser Drones for Police Officers – Now a Reality?

Posted on: September 1st, 2015

By: Wayne Melnick

In the past, I blogged a series of articles regarding the possible legal and insurance ramifications of law enforcement drone usage. For quick reference you can find the blogs here and here.

In the latest twist on law enforcement drone use, despite all the recent publicity regarding the militarization of local police departments, North Dakota has become the first state to legalize (or at least authorize) its police to equip drones with “less lethal” force.  Although the bill was originally drafted to ban all weapons on police drones, following amendment in committee, North Dakota HB1328 came out of committee limiting the prohibition to only “lethal” weapons.  That omission, whether intentional or not, allows for “less lethal” or “less than lethal” weapons to be used on drones. Less lethal force has traditionally included Tasers, stinger balls, bean bags, rubber bullets and even flash bang “grenades.” Understand, of course, that having the authority to use such technology does not mean that it is going to actually be used; at least not immediately.

The potential insurance and legal risks associated with local police forces arming drones with less than lethal force is potentially staggering – especially in light of the fact that there are no standards associated with the use of less than lethal force in such situations. We will continue to monitor this situation to see if any other states follow suit in allowing drones to be armed in this manner – and whether any police force actually utilizes this technology.

For now, it is incumbent upon insurers and police departments to review their risk associated with such a use of “less lethal” drones and whether the policies and coverage in place are sufficient for this brave new frontier of law enforcement.

Supreme Court Grants Qualified Immunity to Police Officers Involved in Encounter with Mentally Ill Woman, Declines to Address Whether ADA Applies to Arrests

Posted on: May 20th, 2015

By: Andy Treese and Charles Reed, Jr.

This week the United States Supreme Court declined to rule on the issue of whether the Americans with Disabilities Act requires law enforcement officers to provide accommodations to an armed, violent, and mentally ill suspect in the course of bringing the suspect into custody.  At the same time, the Court reversed the Ninth Circuit Court of Appeals and awarded qualified immunity to two San Francisco police officers forced to shoot a woman who charged them with a knife after they entered her home to take her into custody for a mental health evaluation.  .  The case is City and County of San Francisco v. Sheehan, 575 U.S. ___ (2015).  Brian Dempsey and Kevin Stone previously blogged about the case here.  Look for an article with further details on this ruling in our next LawLine newsletter.

The case arose out of an incident at a group home for the mentally ill.  Teresa Sheehan, a resident of the home, threatened to kill a social worker, so the social worker called San Francisco police officers to detain Sheehan for a psychiatric evaluation. When the two female police officers arrived, they entered Sheehan’s room.  Sheehan then attacked the officers with a knife, forcing them out of the room and slamming the door.  The officers called for back-up. But before back-up arrived, the officers re-opened the door because they feared that Sheehan might be planning an ambush.  Sheehan again attacked them with the knife.  In response, the officers pepper-sprayed Sheehan.  When this did not stop Sheehan’s advance, the officers shot Sheehan several times.  She survived and sued, contending that the officers’ entry and use of force were unreasonable under the Fourth Amendment and that they failed to accommodate her mental illness.   The district court granted summary judgment to the defendants, but the Ninth Circuit reversed.

The Court took the case to reach the legal question of whether the ADA applies in the arrest context at all, but San Francisco changed its legal position during the case, so the Court declined to reach the issue.

The Court held that the officers were entitled to qualified immunity because  the “right” recognized by the Ninth Circuit in this case – a right to have the police accommodate a disability before making an entry that was otherwise valid under the Fourth Amendment – was not clearly established, if it existed at all.  A plaintiff cannot “establish a Fourth Amendment violation based merely on bad tactics that result in a deadly confrontation that could have been avoided. Courts must not judge officers with the 20/20 vision of hindsight.”  The Court declined to rely on the Ninth Circuit’s “provocation” theory, which has been sharply criticized, and rejected the notion that expert testimony was sufficient to establish a constitutional violation.  Notably, the Court held that “even if an officer acts contrary to her training…that does not itself negate qualified immunity where it would otherwise be warranted.  Rather, so long as a reasonable officer could have believed that his conduct was justified, a plaintiff cannot avoid summary judgment by simply producing an expert’s report that an officer’s conduct leading up to a deadly confrontation was imprudent, inappropriate, or even reckless.  In close cases, a jury does not automatically get to second-guess these life and death decisions, even though a plaintiff has an expert and a plausible claim that the situation could better have been handled differently.”

Officers dealing with mentally ill subjects are often forced to make tough decisions without the benefit of a “pause” or “rewind” button.  The ruling in this case reiterates the protection afforded to officers for making those decisions, while reminding the lower courts that the Fourth Amendment’s use of force inquiry is based on a constitutional standard of objective reasonableness, rather than hindsight, or second-guessing by a paid expert after the fact.

Eight Minutes Too Many: Supreme Court Decides that Traffic Stop Prolonged for Use of a Drug Detection Dog Violated the Fourth Amendment

Posted on: April 24th, 2015

By: Brian R. Dempsey

During a lawful traffic stop, a police officer can ask a driver to exit a vehicle, conduct a free-air drug sniff with a trained canine, and even investigate the possibility of criminal conduct which is unrelated to the original purpose of the traffic stop.  The Supreme Court has held that these are “de minimis” intrusions on personal liberty that do not require reasonable suspicion of criminal activity in order to comport with the Fourth Amendment.

In Rodriguez v. United States, the Supreme Court was asked to decide whether the same rule applies after the tasks relating to the traffic stop have been completed.

The case arose from a midnight traffic stop which was conducted by an officer who was accompanied by a trained drug-sniffing dog.  After the officer issued a warning to the driver (and thereby completed the traffic stop), he called another officer to come to the scene to provide security while he had his canine conduct a free-air sniff around the car.  The traffic stop was prolonged for seven or eight minutes until the dog alerted on the car.  The officers then discovered a bag of methamphetamine, leading to a federal prosecution which ultimately led to this appeal from the denial of the driver’s motion to suppress the incriminating evidence.

In a 6-3 decision which was handed down earlier this week, the Court concluded that an officer’s authority to detain a driver for a traffic stop “ends when tasks tied to the traffic infraction are — or reasonably should have been – completed.” Justice Ruth Bader Ginsburg wrote for the majority, and was joined by Chief Justice John Roberts and Justices Antonin Scalia, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.

Justices Samuel Alito, Clarence Thomas, and Anthony Kennedy dissented.  In his dissent, Alito concluded that independent suspicion existed for the continued investigation – an issue which the majority left open for the lower courts to decide.  Alito also found it “perverse” that if the officer had not waited for a back-up officer for safety reasons, he could have performed a solo dog sniff without any constitutional problem.  For his part, Justice Thomas criticized the majority’s rule because it appears to be linked to the efficiency of the individual officer conducting the stop.  After all, the Court’s prior Fourth Amendment jurisprudence had consistently emphasized that the Fourth Amendment reasonableness inquiry does not hinge on the characteristics of the individual officer conducting the seizure.

In sum, the Court concluded that law enforcement activities unrelated to the traffic stop, while not illegal in and of themselves, are permitted only if they do not measurably extend the duration of the stop.  In the wake of this opinion, it is likely that future cases involving roadside investigations will turn on fact-intensive determinations regarding whether officers have completed traffic stops with reasonable efficiency, or whether they have dragged their feet to accommodate unrelated investigative tasks.

The full opinion can be found at the Court’s website: