Sixth Circuit Reaffirms It's A Fourth Amendment Violation To Chalk Car Tires For Parking Enforcement Purposes

from the folks,-this-is-why-they-play-the-games dept

Two years ago, the Sixth Circuit Court of Appeals surprised the city of Saginaw, Michigan by finding the process of marking car tires with chalk for parking enforcement violated the Fourth Amendment. The city certainly didn't expect multiple ticketholder Alison Taylor's lawsuit to make it this far. And it certainly didn't expect the Appeals Court to reverse the district court's decision that no Fourth Amendment violation had taken place.

Contrary to expectations, the Appeals Court ruled in 2019 that chalking tires certainly appeared to violate the Fourth Amendment. And the city was unable to successfully argue otherwise. Relying on the Supreme Court's Jones decision, the Appeals Court said the city unreasonably "trespassed" on the private property of residents (that being their cars) to apply the chalk mark -- property still protected by the Fourth Amendment against unreasonable searches despite being parked on public streets.

The argument that this temporary intrusion was excused by the community caretaking function of law enforcement also failed. The court pointed out engaging in revenue-generating enforcement efforts did nothing to take care of the community and the initial trespass occurred when vehicles were still parked legally, giving the government no reasonable suspicion to engage in this intrusion.

That wasn't necessarily a win for Alison Taylor, who decided to sue after she'd amassed fifteen parking tickets. It went back down to the lower court for some fact-finding, giving the city another chance to raise arguments that might allow it to continue utilizing this parking enforcement method.

Well, the case has returned to Sixth Circuit Appeals Court, and the court's conclusions haven't changed. The city raised a new argument during the case's return to the lower level and the Appeals Court [PDF] doesn't like this one either.

This time around, the city argues chalking is actually an administrative search -- yet another warrant exception the government has at its disposal. But if it's an administrative search (as the city argues), it's still an unreasonable search because it eliminates one crucial aspect of these searches: the opportunity for the search target to ascertain compliance with the law before being subjected to this warrantless search.

Generally, when a search is conducted for an administrative purpose and pursuant to a regulatory scheme—such as inspecting a home for compliance with a municipal housing code— the government may justify a warrantless search by showing that it met “reasonable legislative or administrative standards.” This is assessed by “balancing the need to search against the invasion which the search entails.” But it is not a free-for-all for civil officers; among other requirements, “the subject of the search must be afforded an opportunity to obtain precompliance review before a neutral decisionmaker.” This prerequisite removes the City’s practice from the usual administrative-search case, see id.; Liberty Coins LLC, 880 F.3d at 281–82, as there is no such opportunity (which the City does not contest).

Having failed with this definition, the government proposes another: parking on public streets is a "closely-regulated industry" that gives city employees the authority to perform warrantless searches. This argument is even worse, says the Sixth Circuit.

[U]nlike the closely regulated industries of liquor sales, firearm dealing, mining, or automobile junkyards identified by the Supreme Court, municipal parking plainly does not “pose[] a clear and significant risk to the public welfare.” That automobiles are regulated and involved in parking is inconsequential because the exception applies to industries, not objects. So, for example, a state’s statutory scheme authorizing a warrantless inspection of an automobile junkyard resulting in the search of a Ford Mustang may be permissible, but it does not apply to the search of the same convertible parked on a city street.

The city also tried to compare this form of parking enforcement with border crossings and DUI checkpoints -- places where Fourth Amendment rights are presumed to be waived, if not ignored completely, to allow the government to serve its "special needs" (border security, public safety). Even the city seems to have a hard time buying its own argument.

We see no special need here, which defendants concede by admitting that “Ms. Hoskins’s job was not impacted in any respect if she did not chalk tires.” And common-sense commands this conclusion; for nearly as long as automobiles have parked along city streets, municipalities have found ways to enforce parking regulations without implicating the Fourth Amendment. Thus, tire chalking is not necessary to meet the ordinary needs of law enforcement, let alone the extraordinary.

However, the court does allow the parking enforcement officer (the "Ms. Hoskins" mentioned above) qualified immunity for the warrantless trespasses on Alison Taylor's property. Unsurprisingly, the Appeals Court says the officer could not have possibly gathered from almost nonexistent precedent that this was a rights violation. In fact, the only precedent the Appeals Court can find is the Jones decision, which concerns a GPS device and impermissible trespass onto a person's property. That case also involved law enforcement and a parked car, but it's completely understandable that a parking enforcement officer wouldn't equate this decision with the heretofore unchallenged practice of chalking tires.

So, the city will have to find another way to engage in parking enforcement. This may mean the installation of plate readers and surveillance cameras. Or there might be a simpler solution -- one that cities have used for years with few problems or constitutional violations. The court even includes a link in its decision to inform the city of its options.

See, e.g., Amanda Erickson, A Brief History of the Parking Meter, Bloomberg CityLab (April 3, 2012), available at https://www.bloomberg.com/news/articles/2012-04-03/a-brief-history-of-the-parking-meter (last visited Aug. 9, 2021).

Like the last one, this decision is published, which means it's precedent. So, if chalking is in use elsewhere in the circuit (and it almost definitely is), it's a constitutional violation. But, given the fact it's unlikely many drivers will challenge being chalked, it's probably a pretty safe way for city governments to violate rights en masse.

Filed Under: 4th amendment, 6th circuit, chalk tires, parking, parking enforcement

Appeals Court Says Handing Out A Free Sample Of Drugs Isn't A 'Conspiracy'

from the do-better,-drug-warriors dept

Our nation's preeminent drug warriors rolled the dice on turning less than a half-gram of drugs into a lengthy prison sentence. They lost. The Sixth Circuit Court of Appeals isn't amused by the machinations of DEA agents (and federal prosecutors) who tried to turn a freebie sample into a drug trafficking conspiracy.

The opinion [PDF] opens with the Appeals Court showing just how permissive and expansive drug conspiracy statutes are.

Our court has long interpreted the drug-conspiracy statute, 21 U.S.C. § 846, to prohibit two individuals from knowingly reaching an agreement to distribute drugs.

Any two individuals. Pretty fucking open-ended. If you want a conspiracy, it doesn't take much to find one.

This conspiracy test could be read to cover every drug transaction between a willing seller and a willing buyer, even those for the buyer’s personal use. After all, the seller has agreed with the buyer to “distribute” drugs between them.

But it's not quite as expansive as the DEA officers involved in this case thought it was. There are a few judicial limits.

Yet we have also long held that a buyer-seller agreement alone does not establish a “conspiracy” under § 846.

And it's definitely not so expansive that it can cover what happened here. When the focus of the prosecution shifts to someone who was only incidental to the primary investigation, it's pretty difficult to continue pretending there's a "conspiracy."

The government presented overwhelming evidence that Aaron Reels operated a drug distribution scheme. The problem? Reels was not on trial. William Wheat was. And the evidence against Wheat showed essentially that he once gave Reels a .3-gram free “sample” of heroin—a sample that led to no further exchanges between them.

Whoops. The DEA had an actual drug trafficker in its grasp. But then it decided it also wanted the guy who spritzed a local dealer with some smack from the sample bottle. This is a recipe for losses, dismissals, and evidence suppression.

The government alleged that Wheat agreed with Reels to distribute heroin, and a jury convicted him of a drug conspiracy. We conclude, however, that insufficient evidence supports this conviction. The logic underlying our buyer-seller exception extends to Wheat’s agreement to distribute a sample to Reels. And the government did not present enough additional evidence of a broader agreement between Wheat and Reels to distribute heroin to third parties.

But not every charge is dismissed. The guy handing out the .3-gram "supply" of heroin made the mistake of using something everyone uses multiple times per day.

At the same time, Wheat used his phone to arrange the exchange of the sample. So the government more than sufficiently proved that he used a “communication facility” to facilitate a drug felony.

Sure, that's a much shorter sentence. But, come on: if it wasn't a "conspiracy," how can a "felony" be "facilitated" by the use of a phone to discuss a sample? The court giveth. And taketh. At the end of all of this, there's a person facing a few years in prison for handing out a sample.

I'm not sure what we're paying Cleveland-area DEA agents, but this arrest, indictment, and (partial) conviction doesn't appear to justify their salary.

The two arranged to meet at a Circle K gas station the next day. While there, Wheat gave Reels a free “sample” of about .3 grams of heroin. Samples are often exchanged between drug dealers who do not know each other well to help potential purchasers decide whether to buy from potential sellers. Testimony in this case suggested that the .3 grams would otherwise cost about $20 to $40 on the Cleveland drug market.

Yes, the DEA took down the actual drug dealer as well, but it couldn't resist trying to turn a free sample into a drug conspiracy worth years of imprisonment at taxpayer expense -- all over $20-40-worth of drugs. Good lord. The court calls bullshit:

Measured against these standards, Wheat’s conspiracy conviction cannot stand. To be sure, the government presented a “slam-dunk” case that Wheat committed a crime: He distributed a heroin sample to Reels in violation of 21 U.S.C. § 841(a)(1).

Maybe a case could be made for a lesser charge. But the DEA and federal prosecutors chose to go large.

But it did not charge Wheat with distributing to Reels; it charged him with conspiring with Reels.

Good luck talking a jury into that, says the court:

This evidence would allow a rational jury to conclude that Wheat and Reels negotiated a future drug deal, not that they agreed on one.

And the government's arguments actually makes its case worse:

As the government’s expert explained, drug sellers give samples to buyers to see if they “like[] the drugs” and help them decide whether “to purchase more.” It is not all that unlike Costco offering customers, say, a free taquito sample. Would anyone infer (beyond a reasonable doubt, no less) that a customer has agreed to buy a bulk package of taquitos merely from the decision to try the sample?

The government’s expert added that Reels had been “shopping around” for samples from several sources, “just like if you were buying a car, you are going to go get the best price and the best car for your dollar, and that’s exactly what he’s doing here[.]” Does his receipt of the other samples show an agreement to buy from the other sources too? [...]

In short, “[p]roof of mere negotiations” does not prove a conspiracy. And the government identifies “nothing but speculation” that the parties ever passed this negotiations phase.

This is some supremely lazy work by the DEA. And the work done by prosecutors to pursue this losing effort is nothing more than blowing tax dollars on charges that are both opportunistic and vindictive. The DEA already had a solid bust involving an actual drug trafficker. Then it got greedy and decided to pounce on someone who may have been doing nothing more than working a side hustle to support his own habit. That's the government seeking to take away anything from 5-40 years from someone's life just because they handed out a free sample of heroin to a known drug dealer who was already targeted by the DEA.

That's not a drug war victory. That's not going to keep massive amounts of drugs off the street. It's just federal prosecutors inflicting pain because they can.

Filed Under: 6th circuit, conspiracy, dea, drug war

Appeals Court Says Address Mistakes On Warrants Are Mostly Harmless, Not Worth Getting Excited About

from the what-even-the-fuck dept

In a case involving a drug bust utilizing a warrant with erroneous information, the Sixth Circuit Court of Appeals had this to say [PDF] about the use of boilerplate language and typographical errors:

Challenges to warrants based on typographical errors or factual inaccuracies typically fall under this Circuit’s clerical error exception. We have consistently found that inadvertent drafting mistakes, for instance transposing a number in a street address or listing an incorrect nearby address, do not violate the Fourth Amendment’s prohibition on unreasonable searches and seizures. That is because those errors create little risk of a mistaken search or a general warrant granting police an unconstitutionally broad authority to conduct searches.

The order to search listed the wrong address. Here's why:

This description at the beginning of the warrant correctly directed officers to Abdalla’s precise New Hope Road address in DeKalb County. But the warrant’s final paragraph “commanded” officers “to search the . . . premises located at 245 Carey Road, Hartsville, Trousdale Tennessee.” (R. 20-1, Search Warrant, Page ID # 59.) Agent Gooch testified that the Carey Road address came from using a previous warrant as a template. Although Judge Patterson had jurisdiction over Abdalla’s residence in DeKalb County, he lacked jurisdiction in Trousdale County, which encompassed the Carey Road property listed on the warrant’s final page.

The court says this is harmless. Rather than suppress evidence in hopes that cops won't just copy-paste "sworn statements" before running them by a judge, the Appeals Court says this creates "little risk" of "mistaken searches." Perhaps in this case the risk was minimal. The rest of the warrant correctly described the residence and how to locate it. But to pretend careless warrant crafting rarely results in "mistaken searches" ignores how often it happens -- and how often this supposed low-risk "mistake" results in real harm.

"Little risk?" Here's what's actually happening in the Sixth Circuit, which covers Kentucky, Michigan, Ohio, and Tennessee.

Oak Park, Michigan (November 2019): Police raid the wrong side of a duplex, breaking windows and the front door before realizing their mistake.

Flint, Michigan (October 2014): Troopers go to the wrong house to locate a fugitive, shoot family's dog in the face.

Detroit, Michigan (May 2017): After conducting a one-day(!) human trafficking investigation, a SWAT teams raids the wrong house, handcuffs everyone present (including two children) before discovering their mistake.

Detroit, Michigan (September 2017): DEA agents raid two(!) wrong addresses. The forty officers(!!) recover no drugs. Search warrants and property receipts left at the properties by the feds were blank, according to this report.

Detroit, MIchigan (April 2017): Police raid wrong house, kill homeowner's dog.

Nashville, Tennessee (August 2020): Three cops raid wrong house, traumatizing the resident and two young children. Officers predicated the search on housing information that hadn't been updated since November 2018.

Lebanon, Tennessee (January 2006) - Officers raid wrong house, kill 61-year-old man while his wife is handcuffed in another room.

Louisville, Kentucky (October 2018) - Officers (three of whom shot and killed Breonna Taylor during another botched raid) using outdated information raid a house looking for someone who had moved out four months earlier.

Bowling Green, Kentucky (July 2016) - Police raid the wrong house looking for a Black suspect. Officers handcuff and question the homeowner, who weighs 100 pounds less than the suspect they're looking for. The interrogated homeowner is also one foot taller than the suspect. He's also white.

Louisville, Kentucky (January 2020) - Officers enter the wrong house seeking a shooting suspect, handcuffing one of the residents.

Louisville, Kentucky (July 2020) - Cops raid a vacant house looking for a drug suspect who had already been arrested and was in jail. Officers break windows, destroy a door, and handcuff the man hired to paint the interior of the vacant residence.

Cleveland, Ohio (November 2018) - Wrong house raided during a shooting investigation. Cops cause over $8,000 of physical damage to the house and spend an hour interrogating all the residents -- some of whom are disabled -- before realizing their mistake.

Strongsville, Ohio (May 2010) - A man and his 14-year-old daughter are forced out of their house and made to lay face down on the lawn until officers realize they have the wrong address.

Cleveland, Tennessee (May 2018) - DEA and local cops raid wrong house in search of murder suspect. Flashbangs are deployed into the house despite the presence of young children -- something officers should have been able to discern from the number of toys around the front entry of the residence.

This is just a small sampling. And this is just from this circuit, which covers only four of the 50 states. This happens far too frequently for it to be shrugged off by an Appeals Court, even if the facts of the case might lead the court to conclude a mistake in an affidavit doesn't warrant the suppression of evidence.

The Fourth Amendment places the sanctity of the home above all else. And yet, officers continue to perform searches without performing the due diligence required to support a home invasion. Outdated info, unverified claims by informants, minimal investigative work… it all adds up to situations where rights are violated and residents are recklessly subjected to violence and deadly force.

How bad can it get? Here's a true horror story that shows just how little law enforcement agencies care about the people they're supposed to protect and serve:

Embarrassed cops on Thursday cited a "computer glitch" as the reason police targeted the home of an elderly, law-abiding couple more than 50 times in futile hunts for bad guys.

Apparently, the address of Walter and Rose Martin's Brooklyn home was used to test a department-wide computer system in 2002.

What followed was years of cops appearing at the Martins' door looking for murderers, robbers and rapists - as often as three times a week.

Every wrong visit to the house was a chance for officers to respond with deadly force to perceived threats. That these residents managed to survive 50+ incidents with cops looking for violent criminals is a miracle. "Mistaken searches" are not an acceptable outcome. Blanket statements like these issued by courts just give cops more reasons to cut corners before banging their way into someone's home in search of nonexistent criminals or criminal activity.

Filed Under: 4th amendment, 6th circuit, mistakes, police, warrants, wrong address

Federal Court: No, You Fucking May Not Force Your Way Into A Home And Strip Search Six Very Young Children

from the fire-them-(out-of-a-cannon)-[into-the-sun] dept

The facts of this case are pretty ugly so let's just dive right into them. As Lenore Skenazy reported for Reason last year, two government employees decided a single incident of a mother leaving her kids in the car was all the reason they needed to swing by the house and strip-search every one of her six children. The oldest was five years old. The youngest were a pair of 10-month-old twins.

Holly Curry stopped at a shop to get some muffins and left her six children in the car while she ran in to get them. She was gone for less than 10 minutes. It was only 67 degrees outside. When she came back to her car, two police officers told her she shouldn't leave her kids in the car and wrote up a "JC3 form" -- a hotline-type alert that would be forwarded to Kentucky's Child Protective Services.

The next day a CPS investigator showed up. So did a sheriff's deputy. Here's what happened next:

The investigator insisted on taking the youngest child from Curry's lap and, without permission, began to undress her. In the presence of the male deputy, the investigator proceeded to undress each child, male and female, down to the genitals (removing the diapers of the two youngest). Curry tried to object, but she knew she was powerless to stop the investigator from doing full-body inspections.

The last to be undressed was her 4-year-old son, taught by his pediatrician that he should never let a stranger take his clothes off without his mom's okay. But when the boy tried to make eye contact with Curry, the investigator stood directly in his line of sight, leaving him helpless. Then the investigator pointed to the deputy and said, "Show that cop your muscles!" The little boy removed his shirt and flexed his biceps as ordered. The investigator and deputy began laughing while the investigator started to pull down his pants. When the little boy finally was able to look back at his mother, she was holding back tears. The little boy's face registered shame and fear.

Two weeks after this strip search and questioning, the CPS investigation was closed as "unsubstantiated." Holly sued. And she has won. Qualified immunity has been denied to the CPS worker and deputy for their warrant entry and multiple strip searches.

The story is even worse than the earlier summation by Skenazy. This is from the decision [PDF]. It shows the CPS worker (Jeanetta Childress) intimidating Holly into "consenting" to a warrantless entry by her and Deputy Michael Furnish.

Childress and Furnish drove back to the Currys’ house. This time, Furnish knocked on the door. He was armed and in uniform. Again, Holly answered. Childress and Furnish told her they “needed to come in.” Again, Holly asked if they had a warrant. And again — when Furnish replied that they did not — Holly refused to let them in.

Childress started yelling at Holly. Holly asked if they could reschedule the visit for when her husband was home. She also offered to bring the children to the door so Childress could see them. But Furnish and Childress would not agree to that. Instead, they both told her that if she didn’t let them in, they would get an emergency custody order. When Holly asked what this meant, Furnish told her, “We’ll come back and take all of your children.” Childress and Furnish both started yelling, “What’s it gonna be?” Holly started crying. She said, “Fine, we can do this.”

That led to even more officious bullshit.

Childress interviewed the two oldest children in a bedroom, separately, while Furnish waited in the hallway. Holly stayed with the rest of the children in another part of the house. At one point, Holly tried calling her husband, but Childress sat on her phone.

Then the social worker claimed she and the officer needed to check the kids for "injuries." Apparently, this involved inspecting the genitals of all six of Holly's children.

The court says the warrantless entry was illegal and no good faith or any other government excuse (like exigent circumstances) can save it. There were no exigent circumstances. The children were uninjured, accounted for, and in no apparent danger. Holly had no history with Child Protective Services that might demand a swift removal of her children. And both government workers knew they had nothing close to what they needed to obtain and execute an emergency custody order. Therefore, the entry was coerced. And in this circuit, this particular violation of rights has been clearly established for nearly a quarter-century.

In 1998, the Sixth Circuit held that an officer’s baseless threat to take a suspect’s child “constituted an objectively improper police action.” Thus, qualified immunity doesn’t shield either Childress or Furnish for entering the Currys’ home without a warrant.

The court says the same thing about the strip searches. Strip searches require probable cause and government employees better have a whole lot of it if they want to strip search minors. Neither person involved with these searches had anything resembling faint suspicion, much less probable cause.

Here, Childress lacked even a shadow of probable cause that the Currys physically abused their children. No one had ever reported physical abuse. There was no evidence of it. Nothing about their house indicated they lived in dangerous conditions. The children didn’t tell Childress anything that pointed to “a substantial chance” of physical abuse. In fact, the two oldest children told Childress that their parents didn’t even use corporal punishment. In Childress’s own words, Holly and her husband were “attentive and loving” parents.

This is so much of a violation the court doesn't even have to look for precedent.

If Childress did what the Currys allege, strip searching the children was clearly unconstitutional. Other Circuits have reached this conclusion in similar cases. Childress’s alleged actions were “so clearly” unconstitutional under Supreme Court precedent that we don’t need to find that “the very action[s] in question have previously been held unlawful” in this circuit. To hold otherwise would permit social workers to strip search children as a matter of course in every investigation.

Apparently this social worker believed the Sixth Circuit had already "held otherwise."

Incredibly, Childress repeatedly testified that she believed she should “automatically” strip search any child who was four or under.

Incredibly wrong.

The Constitution protects against that approach to children’s privacy, and no reasonable social worker could think otherwise.

The deputy may not have removed any of the children's clothing but he's still far from blameless. No qualified immunity for him either.

Had Furnish only witnessed the strip searches — rather than talk to the children during the search and encourage them to undress — he might be entitled to qualified immunity. The law is less clear about an officer’s liability when he is simply present while a social worker unreasonably strip searches a minor. But here, a jury could find that Furnish participated in the unconstitutional strip searches of the children. And as already stated, the law against those searches under these facts is so well-established that a reasonable officer would know that the searches here were unconstitutional.

The government will certainly waste taxpayers' money (and their patience) by appealing this decision. Few people enjoy being held accountable for their abusive actions but government employees tend to be the most resistant to personal responsibility. But for now, the decision stands and these two alleged public servants will have to continue being sued for threatening to take away someone kids before deciding a half-dozen strip-searched prepubescents was punishment enough for leaving kids locked safely in a car for 5-10 minutes on a cool day.

Filed Under: 6th circuit, child protective services, holly curry, jeanetta childress, kentucky, michael furnish

Appeals Court Strips Immunity From Abusive Cops Who Assaulted A Compliant Black Man... And The City That Allowed This To Happen

from the all-hail-Lamar-Wright,-slayer-of-unicorns dept

It is exceedingly difficult to overcome qualified immunity in civil rights lawsuits against law enforcement officers. It often seems no matter how egregious the rights violation, qualified immunity still gets awarded because no previous law enforcement officer has egregiously violated rights in this exact way prior to the current case.

It's a rigged game -- one rigged by the very same institution that cursed the nation with this judicial construct more than 50 years ago. The Supreme Court conjured up this atrocity in 1967 and has spent the last several decades making it even more difficult for cops to be held accountable for their actions.

In this case [PDF], via Gabriel Malor, it's a pair of unicorns. Not only does the Sixth Circuit Appeals Court strip the qualified immunity the lower court awarded to a couple of Ohio cops, but it also strips the immunity from the city of Euclid, Ohio. It's a very rare occurrence when courts actually find a "pattern and practice" argument worthy of a sustained Monell claim and this is one of them.

Let's jump right in and see what led to this lawsuit. Surprise, surprise: it's the beat down and bogus arrest of an unarmed black man. Lamar Wright was conversing with a friend while sitting in his SUV. Unbeknownst to Wright, he and his friend were being surveilled by plainclothes cops on the lookout for drug activity. The officers presumed any short conversation between black men must be drug-related and rolled up on Wright. Here's what happened next:

After Wright pulled out of the driveway, [Officers] Flagg and Williams followed him. He turned right onto Recher Avenue and then left onto East 212th Street. The officers maintain that at both turns, Wright failed to use his turn signal…

"Maintain," eh?

… but there is no dash-cam footage or other evidence to confirm the officers’ word.

No camera here, but the cops were only getting started with Lamar Wright.

The situation escalated after Wright pulled into a second driveway to answer a text message from his girlfriend. While Wright texted in the SUV, the officers exited their vehicle, drawing their guns as they approached the SUV. One of the men caught Wright’s eye when he glanced up from his texting. In his side mirror, Wright could see this man dressed in dark clothing with a gun pointed at the SUV. Believing that he was about to be robbed, Wright dropped his cellphone in the center console and threw the car into reverse.

Hey, Wright was in a "high crime area." I mean, that's what officers use to establish reasonable suspicion for warrantless stops and searches. So, someone in a high-crime area might reasonably expect people pulling guns on them are about to rob them.

A second look cleared things up:

Glancing to his left, he saw another armed man, but this time he noticed a badge. Wright heard the men yell: “Shut the car off!” and “Open the door!” Now realizing that the men were police officers, he put the car in park and put his hands up.

Finally, we have some camera footage.

These events are corroborated by the body-cam footage.

"Just comply and nothing bad will happen to you," say a bunch of dudes with Blue Lives Matter bumper stickers.

At this point, Flagg stood beside the driver’s side door while Williams was next to the front passenger door. Both officers holstered their guns.

"Just comply..."

Next, Flagg yanked the driver’s side door open and demanded that Wright shut off the vehicle. Wright complied and then raised his hands once more.

"... and nothing bad will happen to you."

Flagg grabbed Wright’s left wrist, twisting his arm behind his back. The officer then attempted to gain control of Wright’s right arm in order to handcuff him behind his back while he remained seated in the vehicle. Flagg was unsuccessful in his efforts. As Flagg continued to twist the left arm, Wright repeatedly exclaimed that the officer was hurting him, to which Flagg responded, “let me see your hand,” apparently referring to Wright’s right hand.

Flagg then tried to pull Wright from the vehicle, but the latter had difficulty getting out. As noted, Wright had recently undergone surgery for diverticulitis, which required staples in his stomach and a colostomy bag attached to his abdomen. Though the officers apparently could not see the bag and staples, these items prevented Wright from easily moving from his seat. Wright placed his right hand on the center console of the car to better situate his torso to exit the car. By this point Williams had moved over to stand behind Flagg on the driver’s side. Williams responded to Wright’s hand movement by reaching around Flagg to pepper-spray Wright at point-blank range. Flagg simultaneously deployed his taser into Wright’s abdomen. The besieged detainee finally managed to exit the car with his hands up. He then was forced face down on the ground, where he explained to officers that he had a “shit bag” on. Officer Williams next handcuffed Wright while he was on the ground.

Two cops vs. a compliant man with a colostomy bag. All caught on video. And all of it unjustified. The court notes the cops tried to make it appear to be justified by talking it up for the benefit of their body cams.

As the body cam continued to record, Flagg made various arguably self-serving statements, including that “[Wright] was reaching like he had a f***ing gun,” and that Flagg had been afraid that Wright was going to shoot him.

But Wright had no gun. Also, no drugs. But they arrested him anyway because what else are you going to do after you've assaulted a compliant man and his colostomy bag.

Not helping their case any -- at least not at this level -- the cops admitted they really had nothing when they decided to run Wright in.

The officers conceded that they did not have probable cause to arrest Wright until after they believed he was resisting, and that they had not seen Wright engage in any illegal activity prior to the arrest apart from his alleged failures to use his turn signal.

Wright spent five hours in jail. Prior to that, the officers demanded the hospital perform a CT scan of Wright's abdomen, apparently hoping to find some drugs stuffed up in there. But the hospital refused after consulting with its legal department -- one apparently was more cognizant of applicable laws than the law enforcement officers looking to retcon their bogus arrest.

Wright was in jail for five hours for one reason: to be subjected to a full body scan -- the scan the hospital had refused to do. Again, nothing was found. Seven months later, the bullshit obstruction and resisting arrest charges were dropped.

Now, here's where it gets really interesting. Wright had to prove the city was responsible for these officers' actions. To do so, he needed to show the police department -- and its ultimate overseers -- had something to do with the brutality he experienced. Lo and behold, he could. The PD gave him everything he needed. Officers received training on "defensive tactics" -- training that included a lot of offensive content.

This training contains a link to a YouTube video of a Chris Rock comedy skit entitled “How not to get your ass kicked by the police!” The video shows numerous clips of multiple police officers beating African-American suspects. During the video, Rock says things such as:

“People in the black community . . . often wonder that we might be a victim of police brutality, so as a public service the Chris Rock Show proudly presents: this educational video.”

“Have you ever been face-to-face with a police officer and wondered: is he about to kick my ass? Well wonder no more. If you follow these easy tips, you’ll be fine.”

“We all know what happened to Rodney King, but Rodney wouldn’t have got his ass kicked if he had just followed this simple tip. When you see flashing police lights in your mirror, stop immediately. Everybody knows, if the police have to come and get you, they’re bringing an ass kicking with ‘em.”

“If you have to give a friend a ride, get a white friend. A white friend can be the difference between a ticket and a bullet in the ass.”

The city and PD claimed this was all in harmless fun. It was just supposed to lighten the mood for trainees being given implicit instruction that black people know what's coming to them if they resist. Wright did not resist, but he still got the treatment described in Chris Rock's act -- jokes that pointed out the disparity in treatment between whites and blacks when interacting with law enforcement.

But that's not all. There was also a PowerPoint presentation containing this too-on-the-nose graphic, insinuating that the best defense is a good proactive beating -- one that included the phrase "protecting and serving the poop out of you."

This was explained away by the cop shop's expert witness… who had no explanation for it.

Sergeant Murowsky testified that he did not believe that the graphic conveys that the Euclid Police Department “beat[s] the hell out of people,” R. 25 at PageID 1200, but he didn’t know what other message could possibly be taken away from the image.

The end result is this: no qualified immunity for the officers, including immunity for the false arrest and unreasonable detention claims. And the city itself must stand trial for its failure to ensure its police department didn't instruct officers to "beat the poop" out of citizens under the guise of protecting and serving. Let's ask some reasonable jurors, says the Sixth:

A reasonable jury could find that the City’s excessive-force training regimen and practices gave rise to a culture that encouraged, permitted, or acquiesced to the use of unconstitutional excessive force, and that, as a result, such force was used on Wright. Therefore, we REVERSE the district court’s grant of summary judgment on Wright’s Monell claim based on failure to train or supervise.

And here's the court's final word on the case -- a single paragraph that implicates the city in the police department's inability to control its officers.

It is very troubling that the City of Euclid’s law-enforcement training included jokes about Rodney King—who was tased and beaten in one of the most infamous police encounters in history—and a cartoon with a message that twists the mission of police. The offensive statements and depictions in the training contradict the ethical duty of law enforcement officer “to serve the community; to safeguard lives and property; to protect the innocent against deception, the weak against oppression or intimidation and the peaceful against violence or disorder; and to respect the constitutional rights of all to liberty, equality, and justice.”

Garbage in, garbage out. That's the city of Euclid and its police department, which is so laxly overseen it's creating bad apples by the barrel using little more than Chris Rock jokes and shitty PowerPoints. Everyone being sued will continue to be sued. And when it's all over, the city that can't protect its citizens from bad cops will ask citizens to pay for everything it -- and its bad cops -- inflicted on Lamar Wright. How about them apples?

Filed Under: 6th circuit, civil rights, euclid, lamar wright, ohio, police, qualified immunity

Sixth Circuit: Criticizing Refs Is Protected Speech, Even If Lots Of Sports Fans Are Assholes

from the toxic-fanhood dept

Sportsball fans are the worst.

That conclusion is immediately clear in this Sixth Circuit Court of Appeals First Amendment decision [PDF]. It opens with the court commenting on the lifelong antagonism present in Fans v. Refs, which is pretty much what this case is about.

Devoted sports fans are not known for their evenhandedness in judging referees. The sign of a true fan, it might even be said, is the hopelessness of attaining such equanimity. Veteran referee John Higgins surely was no stranger to this phenomenon before March 26, 2017. But what he experienced after that day’s game was extraordinary all the same.

John Higgins had the unfortunate duty of presiding over a close Kentucky Wildcats loss. After the game, he was criticized by the team's coach, who claimed the referee had pretty much single-handedly cost his team the game. The officiating was described as "putrid" by Matthew Jones on Kentucky Sports Radio. Jones also mentioned Coach Calipari had stated the team got "jobbed" by the officials, most prominently John Higgins.

Die-hard sports fans are unreasonable human beings. The ones that provided the impetus for Higgins' lawsuit were some real fuckwits.

Soon after the game, fans discovered that Higgins owned a roofing business: Weatherguard Roofing. Its URL is www.rooferees.com, a portmanteau of “roof” and “referee.” A video posted by an anonymous user, titled “John Higgins[’] Sabotage of Kentucky,” depicted Higgins standing by a truck bearing the insignia of his business. In text at the bottom of the video, it suggested that viewers “[w]rite a review of him here[:] http://www.facebook.com/ rooferees.” Id. at 4.

This grabbing of pitchforks was not-so-mildly encouraged by Kentucky Sports Radio broadcasters, who claimed they didn't condone what was happening even as they pointed listeners and website readers to the ongoing destruction of Higgins' other livelihood by angry fans.

The day after the game, Jones devoted airtime to Higgins’ refereeing. He read one email from a listener who contemplated “leaving a bad review on John Higgins’ roofing Yelp page.” Jones responded that this would be a “bad thing to do” and would constitute “harassment.” Jones read another email from a listener who was “against trolling John Higgins” until he “saw the name of his roofing company.” Jones laughed that Higgins went with the name “rooferees.” Even so, he did not “think [the fans] should troll the guy.”

That same day, Drew Franklin, a writer for Kentucky Sports Radio’s website, published a series of articles criticizing Higgins’ calls. He followed up the next morning with an article commenting that Higgins’ roofing business was “getting CRUSHED on its Facebook page.” He stated that he wouldn’t “link the page” because he disagreed with “attacking [Higgins’] side hustle.” He nevertheless posted a link to the video for those who could “stand to watch it.” More uncharitable posts followed. In one, he described it as a “busy day on KSR” of “contin[uing] the hatred of John Higgins.” In another, he commented that “Kentucky fans are really lighting up John Higgins’ roofing business,” while reproducing some of the fake and abusive reviews that fans posted.

Franklin added that Kentucky Sports Radio “do[es] not condone the activity” occurring on Higgins’ pages. But at the same time, he and others reproduced at least a dozen comments posted there. One of those comments suggested Higgins’ roofing business “takes money under the table from the mafia in Vegas.” Another wondered if Higgins used “illegal labor, substandard materials, and shady accounting practices.” Yet another accused Higgins of “hit[ting] on [the commenter’s] 13[-]year[-]old son.”

Yep. Some real garbage people being egged on by other garbage people trying to claim the high ground while swimming around in the internet sewer. This was the end result.

The trolling campaign took a toll on Higgins’ business. It received over 3,000 phone calls in the two days after the game, with some numbers calling 40 or 50 times a day. The calls crashed the voicemail system and made it hard for customers to get through. Higgins received many false requests for service. Reputational harm followed. Weatherguard Roofing went from being the top-rated roofing business in Omaha, Nebraska (with 4.8 stars out of 5 on Google), to the worst-rated (with 1.2 stars out of 5) based on the 181 false reviews placed. (The North Carolina fans apparently did not respond by improving Higgins’ ratings.) Higgins closed his Facebook page to stem the bleeding. Threats also came to Higgins and his family. The business received over 800 threatening calls, and Higgins’ home phone received over 30 calls. At least a dozen provided the basis for a criminal investigation. When Higgins refereed a Final Four game that year, a bodyguard accompanied him.

Higgins sued Kentucky Sports Radio and its two commentators, alleging a number of things, including intentional infliction of emotional distress and tortious interference with his roofing business. His amended complaint added more allegations, including negligence, harassment, and engaging in harassing communications.

Unfortunately for Higgins, the First Amendment protects the speech the sportscasters engaged in. Sports is a matter of public concern, right up there with politics. Limiting speech about refereeing would violate the First Amendment.

Public commentary about sports, some have said, is no less protected than commentary about “economics [or] politics.” Regan v. Time, Inc., 468 U.S. 641, 678 (1984) (Brennan, J., concurring in part and dissenting in part, joined by Marshall, J.). That sports coverage implicates public concerns is “amply demonstrated by the elaborate sports section in every daily newspaper published in this nation” and by the “numerous periodicals . . . exclusively devoted to sports.” Time, Inc. v. Johnson, 448 F.2d 378, 383 (4th Cir 1971).

That doesn't mean all the criticism is correct and even-handed. Far from it. But as biased and subjective as it is, it is still protected. The court throws a bit of shade at every fan who blames the refs for their team's loss.

Criticizing umpires serves other purposes, perhaps even healthy ones. It allows fans to suppress two unwelcome thoughts: that their team deserved to lose or that a lot of chance drives the fortunes of a team in a single-elimination tournament. How much better, after a dispiriting end-of-season loss, to be consoled by the thought that your team was robbed.

The court points out hating on the refs is a time-honored tradition, dating back to the phrase "Kill the Umpire!" in 1888's chart-topping Casey at the Bat. And General Douglas MacArthur once stated our boys fought and died to protect the "freedom to boo the umpire."

As the court notes, this protected booing can get out of hand, as it did here. That doesn't mean the broadcasters are any less protected by the First Amendment. Even when they pull their waders up and hike into the raw sewage generated by toxic fans.

Just as commentators must be able to discuss the quality of the officiating, they must be free to comment on the fans’ reaction to the officiating. That means Kentucky Sports Radio could fairly discuss the game—and could freely criticize those who participated in it, including the referees, the coaches, the players, the fans, and for that matter the commentators. For Kentucky sportscasters, Higgins’ calls and the public’s reactions to them may have been the biggest story of the news cycle. Sure, some Kentucky fans likely tuned in to Kentucky Sports Radio’s coverage of Higgins solely for the schadenfreude. But even if its discussion served only that purpose, the discussion’s “inappropriate or controversial character” would not influence our analysis as to “whether it deals with a matter of public concern.”

Higgins argued that even if that commentary was protected, it was legally wrong for the commentators to bring up his roofing business. The court points out the broadcasters did not attack the business on their own. They only commented on fans' actions and statements. It also points out Higgins' ref work and his roofing business were not inseparable, as evidenced by Higgins' decision to name his business "Rooferees." This is a pretty pointed rebuttal of this argument:

[Higgins] cannot seek damages from pundits who called attention to the existence of a business that he promoted with his status as a referee before that became a liability.

The court further points out the malicious Kentucky fans began targeting Higgins' business before the radio station got involved. Even if the commentators arguably made things worse by reporting on the actions of these fans, that reporting is protected by the First Amendment. While the commentators did almost nothing to douse the flames of referee resentment, they did not unlawfully encourage unlawful behavior.

Kentucky Sports Radio did not advocate for Higgins’ harassment. Nor did its disavowal of the fans’ conduct smack of irony—usually. Yes, it did a poor job dissuading listeners from mischief. But a party cannot be sued for incitement merely because it failed to condemn the behavior of others with sufficient firmness or clarity.

The court has sympathy for Higgins. But it does not have a ruling in his favor. The First Amendment protects the broadcasters, who did not actually engage in the attacks on his business. Kentucky Sports Radio was the biggest target, but it is not the correct target for Higgins' allegations.

Perceived missteps in the public eye these days all too often unleash torrents of anonymous online hate. One can hardly blame the victim of such onslaughts for wanting redress. Or blame him for taking aim at the only members of the mob with faces: pundits like Jones and like Franklin who at times took too much glee in reporting on the misery of others. But a gulf lies between commenting on harassment and causing it. And in that respect, the First Amendment protects the rights of sports radio talk show hosts just as it protects the rights of presidents. Those who step into the public limelight, even temporarily, must face the hazard that sometimes comes with it.

There's no line that can be drawn that will give Higgins what he wants. That sucks but the other options are what? Exempting referees from criticism? Exempting referees with sideline businesses from criticism? None of those fly. If Higgins wants to make someone pay for the damage done to his business, he'll have to start tracking down some of the Kentucky fans who said something actionable. And there won't be many of those.

As has been pointed out frequently, speech has consequences. Normally, this means someone saying stupid things should expect criticism for saying these things. But it also has consequences for those on the receiving end of things like this. Speech can damage people and their reputations without wandering out of the First Amendment's protections. But just because you can do something doesn't mean you should. These garbage fans should have limited themselves to directing their anger at the (subjectively) blown calls, not the man's outside business. But they're not smart people or wise people. They're spiteful people who are unable to exercise restraint. They're the kind of people that make other people say stupid stuff about regulating speech. Let's not encourage assholes. They're going to cost us our freedoms.

Filed Under: 1st amendment, 6th circuit, fans, free speech, john higgns, referees, reviews
Companies: weatherground roofing

Federal Court Permanently Blocks Michigan's Sex Offender Registry Law, Tells Legislators To Try Writing A Constitutional One

from the it's-only-a-230-year-old-document-that-people-have-hardly-heard-of dept

Michigan's sex offender registry has been struck down as unconstitutional. It's the result of multiple legal battles, tracing all the way back to 2010. The latest round of litigation has finally killed the law -- something legislators allowed to stay on the books after being told pretty much the same thing by the Sixth Circuit Court of Appeals in 2016.

If you really want to dig into the details of this years-long attempt to overturn the law, you really should read Guy Hamilton-Smith's guest post at Simple Justice. He quotes the Sixth Circuit's 2016 opinion, which really should have resulted in something better than the state offered in response, which was nothing. Due process isn't something very many sex offender registries do well, and Michigan's SORA was one of the worst.

SORA brands registrants as moral lepers solely on the basis of a prior conviction. It consigns them to years, if not a lifetime, of existence on the margins, not only of society, but often, as the record in this case makes painfully evident, from their own families, with whom, due to school zone restrictions, they may not even live. It directly regulates where registrants may go in their daily lives and compels them to interrupt those lives with great frequency in order to appear in person before law enforcement to report even minor changes to their information.

Since this opinion only applied to the plaintiffs in this case, legislators refused to take the hint the law was unconstitutional on its face. A second lawsuit, brought by the ACLU as a federal class action, has finally achieved what the first one didn't: an injunction permanently preventing the state from enforcing this law against anyone.

With the Michigan legislature unwilling to act to comply with Does I, and the statute not being severable, the outcome flowed naturally. Judge Cleland entered permanent injunctions as to two distinct classes of plaintiffs.

The first class was the Ex Post Facto class, which is to say that the order precludes the application of Michigan’s SORA law at all to anyone who was convicted prior to 2011.

The second class includes anyone required to register at all, regardless of when their offense was committed. Michigan’s SORA, like many around the country, contains (or, perhaps more aptly, contained) within it myriad restrictions on where people required to register may live with their families, where they may travel, where they may work, and requires them to report in person to provide minor changes in their information to authorities. Failure to abide by these often hyper-technical. if not entirely untenable, requirements would often lead to new felony prosecutions, often on a strict liability basis.

Cleland also permanently enjoined the enforcement several of these provisions on Due Process and First Amendment grounds for this class of plaintiffs, as well as reading into SORA a knowledge requirement, thus, precluding criminal prosecutions on a strict liability theory.

In practical terms, this means Michigan does not have a sex offender registry at the moment. Presumably, legislators will be far more active this time around, since the inability to ostracize certain criminals isn't going to play well with their constituents. But they'll have to be far more careful this time around, and actually allow these citizens who've served their time to become part of the communities they live in, rather than the drifters and pariahs politicians want them to be.

To be sure, there are horrible people on sex offender registries who've violated and harmed victims in horrific, incalculable ways. But there are also people on registries who've done nothing more than send sexts to their peers, or urinated in public, or happened to be a few months on the wrong side of consent laws. It's not just child rapists who end up on these lists. It's people who've made a juvenile mistake (in most senses of the word) and are now forced to navigate a labyrinthine law to live their lives -- one that makes it almost impossible to live anywhere in the United States while simultaneously erecting obstacles that prevent them from rejoining civilization on any level.

The opinion [PDF] includes a list of SORNA's demands that fall outside of the Constitution -- prohibitions and requirements state legislators won't be allowed to use in their replacement law.

(a) Provisions Void for Vagueness:

(1) the prohibition on working within a student safety zone, Mich. Comp. Laws. §§ 28.733–734;

(2) the prohibition on loitering within a student safety zone, Mich. Comp. Laws. §§ 28.733–734;

(3) the prohibition on residing within a student safety zone, Mich. Comp. Laws. §§ 28.733, 28.735;

(4) the requirement to report “[a]ll telephone numbers . . . routinely used by the individual,” Mich. Comp. Laws.§ 28.727(1)(h);

(5)the requirement to report “[t]he license plate number, registration number, and description of any motor vehicle, aircraft, or vessel . . . regularly operated by the individual,” Mich. Comp. Laws.§ 28.727(1)(j).

[...]

(c) Provisions Void under the First Amendment:

(1) the requirement “to report in person and notify the registering authority . . . immediately after . . . [t]he individual . . . establishes any electronic mail or instant message address, or any other designations used in internet communications or postings,” Mich. Comp. Laws. § 28.725(1)(f);

(2) the requirement to report “[a]ll telephone numbers . . . routinely used by the individual, Mich. Comp. Laws.§ 28.727(1)(h);

(3) the requirement to report “[a]ll electronic mail addresses and instant message addresses . . . routinely used by the individual,” Mich. Comp. Laws.§ 28.727(1)(l);

(4) the retroactive incorporation of the lifetime registration’s requirement to report “[a]ll electronic mail addresses and instant message addresses assigned to the individual . . . and all login names or other identifiers used by the individual when using any electronic mail address or instant messaging system,” Mich. Comp. Laws. § 28.727(1)(i).

The court says a Constitutional sex registry is possible, but the state has had almost a decade to fix this and has only made it worse. It now has sixty days to craft a suitable replacement. Until it does, it cannot enforce the worthless one it still has on the books.

Filed Under: 6th circuit, civil liberties, constitutional, michigan, sex offender registry, sex offenders, sora

Immunity Just Barely Denied To Cop Who Claimed Driving A Beat-Up Car And Paying For Purchases Is Suspicious Behavior

from the you-'criminals'-should-try-being-less-black dept

An arrest stemming from the most specious "investigation" has resulted in the denial of qualified immunity for one officer. But just barely. The Sixth Circuit Court of Appeals was almost able to talk itself out of denying qualified immunity to any of the four officers involved. The one officer who will now have to face a jury is was the ringleader of the investigatory debacle, but he was far from the only one guilty of rights violations.

Three men searching for a store selling space heaters late at night finished their shopping trip surrounded by cops, who arrested one of them -- Christopher Bey -- for having an expired permit for the weapon he was carrying. All three men were black. Every officer involved in the stop and arrest was white. This matters, but not to the majority writing the opinion [PDF].

Three of the cops were members of the Livonia PD's Special Operations Unit (SOU). They were on the lookout for "retail crimes" in response to a rash of break-ins at cellphone stores. Sergeant Andrew McKinley -- the only officer who's still facing Bey's lawsuit -- spotted the van driven by the men and decided to start following them.

THINGS THAT ARE SUSPICIOUS TO A POLICE OFFICER: Driving in an old vehicle.

When Sergeant McKinley observed Bey’s “beat-up” minivan at the early morning hour, he started to follow it on “a hunch”; according to his training and experience, criminals often use stolen, older vehicles for retail crimes so that police cannot trace the vehicles back to them.

Ah. Of course. People who drive "beat-up" cars are criminals. So are people who drive new cars. Or rentals. People driving cars are criminals because criminals are known to drive from place to place in vehicles, based on training and experience, etc.

This store didn't have any space heaters, so the men kept looking. They went to three different stores before they found some. During this trip, their vehicle exited a northbound freeway and immediately re-entered it going south. To the expert eye of Sgt. McKinley, this was a "cleaning maneuver" meant to shake a tail. To anyone else, it would have looked like someone realizing they were heading in the wrong direction and doubling back to get to their destination.

Once they got to their final destination -- a Walmart in Canton -- they were followed inside by another plainclothes member of the SOU, Officer Megan McAteer. McAteer saw nothing suspicious, but not for a lack of trying.

McAteer told McKinley that she watched the young men separate, with one of the three going into the hunting section and looking at guns. The three then proceeded to the electronics section, where McAteer saw nothing unusual. Though at one point she might have relayed that she thought the three were contemplating a “pushout,” she never saw the three leave or attempt to leave Walmart without paying for the merchandise in the shopping cart. To the contrary, she relayed to McKinley that Bey and his friends stood in line at the cash register, “flipped[] through some [credit] cards to . . . pick a card,” and paid for the items in their shopping cart using the card.

THINGS THAT ARE SUSPICIOUS TO A POLICE OFFICER: Paying for purchases.

McKinley also argues that “the fact that the [credit card] purchase went through does not rule out fraud,” because “the cashier does not typically compare the account number on the swiped card with the one that shows up on the receipt.” It may be true in the abstract that a seemingly successful credit card transaction does not exclude all possibility of fraud. But even deferring to the officers’ experienced judgments as we must, see Arvizu, 534 U.S. at 273, McKinley’s assertion crosses into baseless speculation in these circumstances. Under the same logic, even a cash payment would not have definitively ruled out theft because the bills might have been counterfeit—so nothing Bey could have done in the store could have prevented the officers from stopping him.

The court won't let McKinley excuse himself from this lawsuit -- not if these are the only justifications he has to offer.

McKinley testified that “[c]riminals frequently use stolen old vehicles that cannot be traced to them if they flee the scene,” and points to his testimony that the paper registration on the van’s window did not appear in a records search. He likewise contends that Bey’s reversal on the interstate was “consistent with a cleaning maneuver.” But even taken together, these meager observations are not enough to constitute reasonable suspicion. The deference we owe to police officers on the ground can only stretch so far, and here McKinley had seen nothing constituting an “objective manifestation” that Bey “[wa]s, or [wa]s about to be, engaged in criminal activity.” Cortez, 449 U.S. at 417. Driving from store to store, even at 2:30 a.m. (when the stores were, after all, open to customers), in a “beat-up” minivan, would not generate reasonable suspicion to stop a suspect when that series of events culminated in a normal credit card purchase.

But the other two members of the Special Operations Unit that participated in the unconstitutional stop are free to go. That does not sit well at all with Judge Eric Clay, who says the majority's decision to let the other involved officers skate only allows officers to engage in even more biased policing.

Bey and his friends are black males. This fact alone elicited the suspicion of three undercover Livonia police officers, all of whom are white. The three officers, driving in three separate unmarked cruisers, followed Bey and his friends for an extended period of time, pursuing them across three local jurisdictions while waiting, and perhaps hoping, for the men to commit a crime. And when the men exited the Canton Walmart with the space heaters they had purchased, a Canton officer—whom the Livonia officers had summoned—stopped Bey and his friends, ordered them out of their car, and accused them of stealing the space heaters. But the police officers’ hopes of discovering criminality had failed to materialize. The only crime Bey and his friends had committed was shopping while black.

This case is about race. It is about police officers allegedly targeting, surveilling, and detaining Bey and his friends because of the color of their skin. The majority chooses to minimize this uncomfortable truth. But the majority’s failure to sufficiently acknowledge this reality neither changes, nor obfuscates, what is apparent to anyone who objectively examines the record below: the events that unfolded in the early morning hours of March 16, 2013 would never have transpired had Christopher Bey and his friends been white—or at least a jury could so find.

This is because the Fourth Amendment isn't the only thing implicated by this suspicionless surveillance and stop. There's also the Fourteenth Amendment. The Equal Protection Clause is supposed to protect against racial discrimination. The dissent says a jury could find -- given the complete lack of justification for the stop -- that the men were targeted by the SOU because they were black. Even if McKinley said he didn't know they were black until after they went into the first store, he and his team decided to follow them across three different towns until they could find a reason to stop them and search them.

By dismissing this claim against all the officers, the court makes it easier for officers like McKinley and his SOU counterparts to continue targeting minorities without fear of repercussion.

My colleagues’ analysis is not only legally and factually incorrect. It is also dangerous. By excusing Defendants’ alleged racial discrimination, the majority allows unconstitutional race based policing to continue unabated. And by removing the prospect of liability as a deterrent for police officers in all but the rarest of circumstances, the majority invites an increase in discriminatory conduct.

If you smell smoke, it's because this is fire:

I decline to adopt the majority’s skewed view of the facts. I cannot concur in the majority’s untenable legal reasoning. And I refuse to condone unconstitutional race-based policing. I therefore dissent.

No officer would admit to biased policing under oath. But the facts of the case should have prevented every officer but Sgt. McKinley from escaping the lawsuit altogether. And it certainly should have prevented every officer from receiving qualified immunity on the Fourteenth Amendment claim. But this is what the majority has decided: it's almost impossible to hold cops accountable for deciding suspicious activity is almost anything done while black.

Filed Under: 6th circuit, andrew mckinley, christopher bey, police, qualified immunity