Crime & Federalism

Plaintiffs brought a substantive due process/1983 claim against a city for failing to lower the speed limit in a residential neighborhood from 25 to 15 mph.  Schroder v. City of Fort Thomas, No. 04-5216 (6th Cir. June 29, 2005).  They lost.  As they should have, since the claim was frivolous.  Still, Schroder's worth reading for its discussion of the two DeShaney exceptions to the "no duty" rule.  Slip op. at 3-5.

Today the Eleventh Circuit handed down an interesting - though not groundbreaking - case analyzing the right of a government employee to be free from speech-related retaliation.  Cook v. Gwinnett, No. 04-12914 (11th Cir. June 29, 2005).

Keep an eye on this recent Section 1983 action - Kennedy v. City of Ridgefield, No. 03-35333 (9th Cir. June 23, 2005).  It's cert. worthy, to be sure. 

Michael Burns, a 13-year old, allegedly molested Kimberly Kennedy's daughter.  Burns had a history of violent behavior: he regularly tormented his family and he once lit a cat on fire.

Kennedy reported the crime to the police.  But because of Burn's violent history, Mrs. Kennedy begged the police to warn her before they told Burns he was being investigated.  Their plan was to leave town, to, in a word, hide out.  The police promised not to tell Burns without first warning the Kennedys.

Then, for some stupid reason, officer Noel Shields told Burns about the allegations.  When Mrs. Kennedy found out that Burns knew, she was terrified.  Noel Shields promised Mrs. Kennedy that the police would patrol the area.  It should not surprise anyone that he lied.

Enraged, Burns broke into Mrs. Kennedy's house, shot and killed her husband, and wounded her.  Mrs. Kennedy sued under Section 1983.  The issue was whether Shields was liable because, in informing Burns of the allegations and promising police protection, Shields created or increased the danger the Kennedys faced .

A 2-1 panel, in a Judge Browning opinion, said, Yes:

Shields’s affirmative actions placed the Kennedy family in a situation of danger greater than they would have faced had he not acted at all. Shields does not dispute that the revelation to Michael Burns’s mother of the allegations of sexual abuse against Michael Burns triggered his actions against Plaintiff and her husband. In revealing the existence of allegations against Michael to Angela Burns after having promised Kennedy that he would notify her first, Shields created a situation of heightened danger. It was inevitable that Michael Burns would eventually learn of the allegations made against him, and he would likely infer who had made them. If Kennedy had received the prior warning officer Shields promised her, she and her family could have taken additional precautions. Instead, they relied on Shields’s promise of advance notification and so considered additional precautions unnecessary.

Moreover, Shields further augmented this danger by offering false assurances that the police would patrol the Kennedy’s neighborhood the night of the shooting. Misrepresentation of the risk faced by a plaintiff can contribute to a finding of state-created danger. See Grubbs, 974 F.2d at 121 (“The Defendants also enhanced L.W.’s vulnerability to attack by misrepresenting to her the risks attending her work.”). Plaintiff alleges that she and her husband based their decision to remain at home that night and leave in the morning in reliance on Shields’s assurances that the neighborhood would be patrolled. Defendant’s affirmative promise of a police patrol thus influenced Plaintiff’s assessment of the risk she and her family faced.

Slip op. at 7484-7485.  The panel held that the contours of right to be free from state-created danger were clear.  Shields can be sued!

This case is cert. worthy (assuming it's not first heard en banc) for a lot of reasons.  But local governments have enough people working for them.  I'm keeping my mouth shut, and my fingers crossed.

UPDATE: The Ninth Circuit, over the dissent of 8 judges, refused to rehear Ridgefield en banc.  I predict the Supreme Court will grant cert. and reverse.

In Kennedy v. Ridgefiled, No. 04-278 (9th Cir. June 23, 2005), a split panel held liable a city under a danger creation theory of liability.  I'm not quite sure what to make of the opinion, and I need to read Castle Rock v. Gonzales.  But I'll blog more later.

This case is about an arresting officer’s investigatory strip search for the purpose of discovering drugs on persons who had been arrested lawfully but had been arrested for offenses that were not drug crimes.

***

We mainly must decide two issues. Whether the strip searches performed on Plaintiffs violated their rights under the United States Constitution and, if so, whether that right -- given the circumstances facing Officer Stephens -- was already so clearly established that every objectively reasonable officer would have known that Defendant was violating federal law at the time. We conclude that the strip search here violated two rights of Plaintiffs, both arising under the Fourth Amendment. First, the strip searches -- as a post-arrest criminal investigation -- were unreasonable, because they were not supported by a reasonable suspicion of the existence of drug evidence. Second, even if some strip search might have been lawful, the manner in which these strip searches were performed was also unreasonable as a matter of federal law. In addition, we conclude that the right to be free altogether of a strip search was, under the circumstances, not already clearly established at the time of the incident, but that the Fourth Amendment itself provided, at the time, sufficient notice that the manner of these particular searches was “unreasonable” in the constitutional sense.

Evans v. City of Zebulon, Georgia, No. 02-16424 (11th Cir. May 9, 2005) (en banc).

More later...

This civil rights case requires us to decide whether police officers of the Town of Walpole and the Commonwealth of Massachusetts Department of State Police ("Massachusetts State Police" or "MSP") were entitled to summary judgment on Plaintiff-Appellant Edmund F. Burke's claim that they violated his Fourth Amendment rights when they arrested him for a brutal murder he did not commit. We must also decide whether forensic dentists/odontologists who assisted in the murder investigation were entitled to summary judgment on Burke's claims that they fabricated or exaggerated inculpatory bite mark evidence in support of probable cause. Finally, we must decide whether the Chief of Police of the Town of Walpole was entitled to summary judgment on Burke's claim that he defamed Burke after his arrest.

This is a long one (62-pages). Burke v. Town of Walpole.  Here are the holdings.

• viewing the evidence as we must on summary judgment, Burke has proffered evidence sufficient to support a finding that he was arrested without probable cause, and hence in violation of his Fourth Amendment right;
• Trooper McDonald's defense of qualified immunity fails because the record contains evidence, sufficient to create a jury question, that he intentionally or recklessly withheld exculpatory DNA evidence from the magistrate who issued the warrant to arrest Burke, and a reasonable officer would know that such conduct violated a clearly established Fourth Amendment right;
• Det. Dolan had a reasonable basis for seeking an arrest warrant and is entitled to summary judgment on the ground of qualified immunity;
• Det. Bausch and Sgt. Shea reasonably relied on a facially valid arrest warrant and are entitled to summary judgment on the ground of qualified immunity;
• the record fails to support Burke's allegation that Dr. Levine or Dr. Crowley intentionally or recklessly fabricated or exaggerated inculpatory bite mark opinions, and they are entitled to summary judgment on the ground of qualified immunity;
• Chief Betro's public statements made in the exercise of his official duties are conditionally privileged, and he is entitled to summary judgment on Burke's defamation claim.

Slip op. at 4-5 (footnotes omitted)

Walgreen Co., Walgreen of San Patricio, and Walgreen of Puerto Rico (collectively, Walgreen) sued John V. Rullan, the Secretary of the Puerto Rico Health Department (Secretary), under 42 U.S.C. § 1983, challenging the constitutionality of a Commonwealth of Puerto Rico statute requiring that all pharmacies seeking to open or relocate within the Commonwealth obtain a "certificate of necessity and convenience." 24 L.P.R.A. § 334 et. seq. Walgreen asserts that this statute is unconstitutional because it impermissibly discriminates against or excessively burdens interstate commerce and violates due process. The district court rejected these arguments. Because we conclude that the statute impermissibly discriminates against interstate commerce, we reverse.

(Hat tip: AL&P.)

This civil rights case stems from a community college instructor’s claim that the college retaliated against her after she attended WTO protests with some of her students. Her claim is a hybrid one—it involves both speech and associational rights under the First Amendment. We are presented with an issue of first impression, namely the appropriate test for benchmarking this hybrid right. We conclude that this case should be evaluated under the balancing test established in Pickering v. Board of Education, 391 U.S. 563, 568 (1968), and that under Pickering, the college’s legitimate safety and pedagogical concerns outweighed the instructor’s rights. We affirm the district court’s grant of summary judgment in favor of the college.

Hudson v. Carven, No. 03-35408 (9th Cir. Apr. 6, 2005).

In Chavez v. Martinez, the Court held that a violation of the Self-Incrimination Clause, if any, occurs only after the compelled statements are admitted.  In practice, this means that no civil remedy may lie for a violation of the Self-Incrimination Clause.  Why?

Because causation is an element of any 1983 claim.  42 U.S.C. 1983 (requiring that a defendant "subjects, or causes [the plaintiff] to be subjected" to a rights violation).  When a judge admits the statements into evidence, he or she acts as a superceding intervening cause.  Thus, the police officer is not liable for any damages resulting from the compelled statement. 

A recent Fifth Circuit case - correctly decided - illustrates the intersection of causation and compelled confessions.  In  Murray v. Earle, No. 03-51379 (5th Cir. Mar. 31, 2005), police officers coerced an 11-year old into confessing to a crime.  Her statement was admitted against her and she was convicted.  Years later, her conviction was overturned by the Texas Criminal Court of Appeals. (!)  When she sued, her section 1983 claim against the officers was dismissed because the judge, by admitting the evidence, was the proximate cause of her conviction.

A very sad, but legally proper, result.

In this civil rights action under 42 U.S.C. § 1983, Defendants-Appellants, seven San Jose City Police Officers (“SJPOs”)1 and Deputy Sheriff Linderman, appeal from an order of the district court denying in part their motions for qualified immunity. This action arises out of the simultaneous execution of search warrants at the residences of members of the Hells Angels, and at the Hells Angels clubhouse on January 21, 1998. While executing one of the search warrants at the residence of plaintiffs Lori and Robert Vieira, the officers shot two of the Vieiras’ dogs. While searching plaintiff James Souza’s property, the officers shot and killed one of Souza’s dogs. During the course of the searches at all of the locations, the officers seized literally “truckloads” of personal property for the sole purpose of showing in a murder prosecution that the Hells Angels had common symbols, which in turn would qualify it as a criminal street gang and therefore support a sentencing enhancement under California Penal Code § 186.22 against the defendant in that case. In seizing this “indicia” evidence, the officers seized numerous expensive Harley-Davidson motorcycles, a concrete slab, and a refrigerator door and in so doing, caused significant damage to the items seized as well as to other property.

***

We affirm the district court’s order denying the SJPOs and Linderman qualified immunity. We hold that Linderman’s instruction to seize “truckloads” of personal property, including numerous motorcycles and a piece of concrete, for the sole purpose of proving that the Hells Angels was a gang was an unreasonable execution of the search warrants in violation of the Fourth Amendment. We further hold that at the time the searches were carried out the law was sufficiently clear to put a reasonable officer on fair notice that this conduct was unlawful.

We also hold that the shooting of the dogs at the Vieira and Souza residences was an unreasonable seizure, and an unreasonable execution of the search warrants, in violation of the Fourth Amendment. Exigent circumstances did not exist at either residence, as the SJPOs had a week to consider the options and tactics available for an encounter with the dogs. Nonetheless, the officers failed to develop a realistic plan for incapacitating the dogs other than shooting them. Finally, we hold that the unlawfulness of the officers’ conduct would have been apparent to a reasonable officer at the time the officers planned for serving the search warrants.

San Jose Chater of the Hells Angels Motorcycle Club v. City of San Jose, No. 02-16329 (9th Cir. Apr. 4, 2005).

More later...