Crime & Federalism

In Hudson v. Michigan, Justice Antonin Scalia argued that the exclusionary rule was unnecessary because of "[a]nother development over the past half-century that deters civil-rights violations," namely, "the increasing professionalism of police forces, including a new emphasis on internal police discipline."  The good folks of Bella Villa, Missouri missed that memo.

Edward Locke, Jr. is the police chief in a small Missouri town.  He recently had a close call with the Eighth Circuit Court of Appeals. A split panel (2-1) allowed him to escape liability in a case where:

Chief Locke thrust his knee between [Diane's] legs, and while Diane was still leaning on the hood of the patrol car, Chief Locke began to paw and stroke her, beginning at Diane’s waist and moving down to her buttocks. Diane testified Chief Locke was “rubbing down [her] butt onto and around [her] inner/outer thighs, [and then] around the front.” Diane could hear Michael and Walkmaster yelling, but she told them, “I’ll take care of it. It will be okay.” Diane claims Chief Locke then slid his hands under her sweater and began “working his hands up from [her] waist up to [her] sides towards [her] breasts.”

Cook v. City of Bella, No. 08-2712 (8th Cir. Oct. 2, 2009). (This post explains why the Eighth Circuit should rehear Cook en banc.)  Cook v. City of Bella was not Chief Locke’s first run-in with the Eighth Circuit.  A couple of months before Cook, Locke was sued for sexual misconduct involving another woman:

At the police station, Locke interviewed Schmidt regarding her identity. This process included the completion of a booking sheet with information about the arrest and Schmidt’s identification. The booking sheet included a section for listing “scars/marks/tattoos/deformities.” In response to Locke’s inquiry about whether she had any scars, marks, tattoos or deformities, Schmidt indicated that she had a butterfly tattoo. The tattoo is approximately two inches long and is located approximately two inches from Schmidt’s hipbone. The tattoo was hidden by her clothing at the time ofher booking.

After Schmidt described her tattoo to Locke, he requested that she take a picture of the tattoo. When she asked why he needed a picture, he told her that it was for identification purposes. Locke provided Schmidt with a Polaroid camera and asked her to go into the bathroom to take a picture of the tattoo. When she returned with a photograph of her tattoo, Locke examined the picture and stated that it was not good enough. Locke indicated that he would need to take a better picture. Pursuant to Locke’s request, Schmidt unbuttoned her jeans partway and folded theminwards to permit him to take a photograph. He again rejected this photograph asbeing incomplete or otherwise unacceptable. To permit Locke to take an acceptable photograph, Schmidt further unbuttoned her jeans and folded them inwards again.Locke took a second photograph, which he apparently found to be acceptable.

Schmidt v. City of Bella Villa, 557 F.3d 564 (8th Cir. 2009). Does anyone want to bet where that second picture ended up – in the police file, or in Locke’s “stash”?  Locke is one busy police professional.

In Copeland v. Locke, No. 07-CV-2089 (E.D.Mo. 2009) (which is pending before the Eighth Circuit Court of Appeals!), Locke allegedly beat up and harassed a female motorist.  I've uploaded the Complaint from Copeland v. Locke here.

Someone within the Eighth Circuit Court of Appeals must be wondering what is going on in Bella Villa.  Why hasn't the Department of Justice opened an investigation?  Why hasn't the city fired Locke?  

While the Eighth Circuit wonders what is wrong with Locke, I'm going to wonder how much more misconduct the Eighth Circuit is going to give Locke a pass on.  Some might suggest that the Eighth Circuit gave a bad man a pass because that is what the law required.  That argument lacks persuasive power since Schmidt was questionable under the law; and Cook is dead wrong as a matter of law.  

There is no better way to see "quirks," "nuance," or "double standards" than to simultaneously study or practice two areas of law: Criminal defense and police misconduct. The same conduct that would get an ordinary citizen arrested is often found to be "no big deal," when a police officer does it.  The same conduct that gets a civilian thrown into jail won't even allow for a lawsuit against a police officer.  A recent Eighth Circuit Court of Appeals case is illustrative.

In v. City of Bella Villa, No 08-2712 (8th Cir. Oct. 2, 2009) (here), a man left a car after witnessing Chief Edward Lock sexually assault the man's wife. The police officer, without any warning, tasered the man. The officer placed the man into handcuffs and then

Chief Locke picked Michael up off the ground and slammed Michael against Diane's mother's car. Chief Locke then instructed Michael to get in the patrol car, but when Michael had difficulty getting in the vehicle, Chief Locke pushed Michael into the car, hitting Michael’s head on the door.

Slip op. at *11-12. The Fourth Amendment states that a seizure of a person must be reasonable. What reasonable reason exists for slamming Michael (who weighed 112 lbs.) into a car?   Michael was already in custody. Thus, no use of force would have been reasonable. Nevertheless, two federal Court of Appeals judges held that the use of force was reasonable. How did the two judges reach that conclusion?

They credited the lack of permanent or serious physical injuries:

The record before us contains pictures of these alleged injuries which reveal two puncture marks on Michael’s chest where the taser darts entered, and, at most, a scrape to Michael’s eyebrow. In its memorandum granting summary judgment on Michael’s excessive force claim, the district court noted the lack of any significant injury sustained by Michael and no permanent physical injury.

Shouldn't the existence of injuries go towards damages rather than liability? The Fourth Amendment allows a police officer to use force to effectuate an arrest. Once a person is arrested, though, what excuses the use of force?  The cop is kicking a man "just for kicks." How is that not per se unreasonable?

Edward Locke lives in Missouri. Under Missouri law, Locke's conduct was unreasonable as a matter of law.

Mo. Rev. Stat. provides that a person is criminally liable for third-degree assault when "(1) The person attempts to cause or recklessly causes physical injury to another person ... (3) The person purposely places another person in apprehension of immediate physical injury []."  Slamming a person's head into a car just for fun can cause an injury.  Slamming a person into the hood of a car puts a person into apprehension of physical injury.  Under Missouri criminal lock, Locke committed a crime.

The law of criminal assault will nearly the same way in every state in the union. Nevertheless, two federal judges held that criminal conduct, when done by a police officer, isn't even unreasonable.

Some will say say, "But constitutional law is different from criminal law."  That's true on its face, but also glosses over how constitutional law - at least in Section 1983 cases - is made.  The Constitution states that the use of force must be reasonable.  The Constitution doesn't contain an Appendix of Definitions.  The Constitution does not define "reasonable."

Judges must determine, on a case-by-case basis, what conduct is reasonable.  One way to judge reasonableness is to look towards criminal and civil laws.  If every state in the union has classified assault as a crime, isn't it reasonable to infer that assault is unreasonable conduct?

Here, Edward Locke assaulted a man under the law of every state.  How then could two judges excuse his conduct? 

Edward Locke is the Chief of Police, for Bella Villa, Missouri.  Chief Locke has faced numerous allegations of sexual misconduct.  (Collected cases here).  Numerous women have accused him of conduct ranging from photographing their pubic areas, to sexual battery. 

When Locke sought to molest another victim, the victim's husband non-violently confronted Locke.  Here is what allegedly happened:

Chief Locke thrust his knee between [Diane's] legs, and while Diane was still leaning on the hood of the patrol car, Chief Locke began to paw and stroke her, beginning at Diane’s waist and moving down to her buttocks. Diane testified Chief Locke was “rubbing down [her] butt onto and around [her] inner/outer thighs, [and then] around the front.” Diane could hear Michael and Walkmaster yelling, but she told them, “I’ll take care of it. It will be okay.” Diane claims Chief Locke then slid his hands under her sweater and began “working his hands up from [her] waist up to [her] sides towards [her] breasts.” 

Cook v. City of Bella Villa, No: 08-2712 (8th Cir. Oct. 2, 2009) (here).  How did Locke respond?  He tasered the husband:  

Michael stepped out of the car at that point and was yelling at Chief Locke. Diane claims less than a minute passed from the time Chief Locke began to touch her to the time Michael stepped out of the vehicle.

Amazingly, two judges of the Eighth Circuit Court of Appeals held that a citizen has no right to tell a police officer to stop sexually molesting one's wife.  If a cop molests your wife in the Eighth Circuit Court of Appeals, you must simply watch:

In evaluating Appellees’ motion for summary judgment, the district court concluded, “[Chief] Locke’s conduct, in tasering and causing Michael’s head to strike the subject vehicles, [was] objectively reasonable as a matter of law.” The court continued, “In addition to being alone and outnumbered by presumably intoxicated suspects, Diane’s sarcastic comments and noncompliance, coupled with Michael’s wayward behavior in exiting the vehicle and opposing Locke’s arrest and/or search could lead a reasonable officer to respond in the manner described of [Chief] Locke.” We agree.

The two judges overstated the factual allegations.  No one was out of control.  No one had threatened Locke.  They simply told the Chief of Police, "No means no."  The panel's ruling is therefore legally unsustainable. 

Judge Morris S. Arnold dissented from this appalling ruling: 

Based on the facts as alleged by Michael, Michael witnessed Chief Locke touching Diane in a way that Michael believed to be inappropriate. When Chief Locke began moving his hands underneath Diane’s shirt toward her breast area, Michael exited the vehicle. Michael stated, “Yo, dude, what’s the problem? You can’tbe touching her thataway.” When Michael made those comments, he was standing beside the car. Chief Locke told Michael that Chief Locke would talk to Michael ina minute. Michael remained where he was, smoking a cigarette. Chief Locke then walked Diane to where Michael was standing. Michael took one step toward Chief Locke. Chief Locke told Michael to “[g]et back in the fucking car” and, at the same time, Chief Locke tasered Michael. Michael never saw the taser. 

Unfortunately for the Constitution and citizens of Bella Villa, this isn't the first time the Eighth Circuit has let Locke escape liability.  In Schmidt v. City of Bella Villa, 557 F.3d 564 (8th Cir. 2009) (here), Locke rubbed a woman's breast.  A unanimous three-judge panel of the Eighth Circuit Court of Appeals dismissed the case against Locke.

What does Edward Locke need to do in order to be held liable?  Are you waiting for him to "graduate" from sexual battery to full-on rape?

In Cook v. City of Bella Villa (here), a man go out of his car after Chief of Police Edward Locke allegedly began molesting the man's wife.  Chief Locke ultimately tasered the husband.  It seems that Chief Locke has a history of molesting women:

The Cooks argue the district court abused its discretion in denying the Cooks’ motion for a new trial on the basis of Appellees’ counsel’s material misstatement offact during closing argument. Appellees’ counsel stated,  

There have been no other complaints involving [Chief Locke], involvinghis improperly patting down people or touching woman [sic] or doing something improper, there’s been nothing. He has a perfectly clean and unblemished record and now we have this accusation involving this man’s reputation, this honorable person who is serving the community.

 The statement made by Appellees’ counsel in closing argument was a false statement. Multiple complaints had been filed against Chief Locke at the time of the Cooks’ trial, several of which alleged misconduct similar to the Cooks’ incident. See Cavataio v. City of Bella Villa, 510 F.3d 1015 (8th Cir. 2009); Schmidt v. City ofBella Villa, 557 F.3d 564 (8th Cir. 2009); Copeland v. Locke, No. 07-CV-2089 (E.D.Mo. 2009).

Why is Chief Locke still employed?  Why hasn't he been indicted for sexual assault?  UPDATE: Chief Locke's sexual assaults have been given media attention.  Here is one news story.  Why isn't Locke in prison?  

More importantly: Why is the Eighth Circuit Court of Appeals allowing Chief Locke to continually escape civil liability for his sexual assaults?