Appeals Court Says It's Entirely Possible For Cops To Pinpoint Marijuana Odors In Moving Cars

from the also:-finding-contraband-will-salvage-unbelievable-claims dept

Cops are still claiming they can detect the odor of marijuana in moving vehicles. Not only that, they claim they can pinpoint the source, even when in traffic.

Not every court has been supportive of this speculative fiction. A federal court in Indiana found an officer's testimony literally "incredible" when he claimed he could smell the odor of marijuana emanating from two sealed plastic bags located inside a car traveling in heavy traffic with its windows up. The court said this testimony was not only "implausible" but "contrary to the laws of nature."

The same can't be said for this decision from the Eighth Circuit Appeals Court, which originated in Iowa. The same claims were made here by two officers, who used their apparently superhuman olfactory senses to locate weed in a passing car -- one that similarly travelled through heavy traffic. In this case, both the cop car and the targeted car had some windows down. But even so, it's difficult to believe officers were capable of pinpointing the odor in traffic while dealing with "swirling winds."

The cops lucked out on this stop. They discovered some marijuana ash and an unsmoked blunt during the stop. They also recovered a handgun, which led to the federal charges Vernon Shumaker was hoping to have dismissed due to the apparent unreasonableness of this search.

Here's how the stop was effected, according to the Eighth Circuit's decision [PDF]:

On October 5, 2019, the officers were on patrol in a marked squad car. Officer Steinkamp drove the car, Officer Garrett sat in the front seat, and Officer Minnehan sat in the back seat. The squad car’s front windows were up, but its back windows were down. At 5:49 p.m., the officers were driving westbound on a city street behind a black sedan that had its windows up. According to weather records, the wind was traveling between 13 and 17 miles per hour. The officers did not smell marijuana while driving behind the black sedan.

As the officers approached a four-way intersection, they saw a red Chevrolet Impala traveling eastbound abruptly turn left in front of the oncoming black sedan. The Impala’s “passenger side window was down.” At the intersection, the officers turned right and started driving northbound on the same street as the Impala. Shortly after making the right turn, the officers “started smelling the odor of marijuana, and that’s what drew [their] attention” to the Impala.

The squad car was approximately 100 meters behind the Impala when the officers first smelled the odor. The Impala was in the left lane, while the squad car was directly behind the black sedan in the right lane. The officers did not believe that the black sedan was the odor’s source because its windows were up and they never smelled marijuana while following the black sedan before turning right.

Both officers claimed to have smelled burning/burnt marijuana. They also made other ridiculous claims -- ones ignored by the court.

The officers changed lanes and sped up to position the squad car close behind the Impala in the left lane. A black truck was immediately in front of the Impala. An SUV was farther ahead in the right lane. The road was busy at that time. The officers drove directly behind the Impala “for several blocks”—approximately 30 seconds—to “make sure that [they] kn[e]w for certain without a shadow of a doubt that [it was the] vehicle that has the odor of marijuana emitting from it.”

You can't travel "several blocks" in thirty seconds, not even if you're on a freeway. The cops either followed the car for several blocks or thirty seconds. They could not have done both. And they still insisted this method of wandering around in traffic allowed them to pinpoint the location of the odor.

The officers claimed the driver had been smoking and driving, thus justifying the search. The search uncovered no evidence of this claim.

In addition to the marijuana cigarettes, the officers also recovered a digital scale with trace amounts of marijuana residue on it and a loaded nine-millimeter pistol in the center console. They did not find embers or smoke in the ashtray or a lighter.

Expert witnesses on both sides offered their findings, which were contradictory. The court decided to side with the officers' expert, who claimed it was possible to pinpoint marijuana odors while driving in heavy traffic. But he also said this, which applies directly to this case:

He admitted that marijuana cigarettes are hard to smell if they are in a closed container and that none of the marijuana cigarettes found in Shumaker’s ashtray appeared to be burning.

The Appeals Court sides with the cops and lower court's findings. Why? Because the officers were consistent in their claims they smelled marijuana.

Videos of the stop show the officers making statements both before and during the stop indicating they smelled burnt marijuana coming from Shumaker’s car while driving behind him.

So what? This is like saying no excessive force was applied because officers kept chanting "stop resisting" while they attacked an unresisting suspect. A conclusion like this simply encourages officers to maintain steady chatter about suspected illegal activity whether or not they've actually observed any. As long as officers talk a good game on camera, courts can be expected to grant deference to their cover stories.

The court also says the ends can be used to justify the means.

“Officers Steinkamp, Minnehan, and Garrett testified consistently that they smelled burnt marijuana while driving behind Shumaker” and their testimony was “corroborated by their on-video statements, Shumaker’s behavior, Frye’s expert testimony, and the evidence recovered from Shumaker’s car.”

Well, I guess that's it. If an officer claims to smell marijuana -- even in situations in which it would seem almost impossible to do so -- and then finds marijuana, the stop and the search are justified. In the cases where the officer's nose has failed him and no contraband is found, the officer loses almost nothing by rolling the dice on this unsupported claim. People stopped but never cited or charged rarely sue. Lawsuits like these are mainly filed by people facing criminal charges. The court says the discovery of contraband excuses flimsy pretenses for stops and searches. And that's binding in this circuit.

Filed Under: 4th amendment, 8th circuit, iowa, marijuana, police, probable cause, reasonable suspicion, smells

Eighth Circuit (Again) Says There's Nothing Wrong With Detaining Innocent Minors At Gunpoint

from the underdeveloped-suspicion-and-overreactions dept

What's unreasonable for law enforcement to do when searching for a criminal suspect? Not much, apparently. The Eighth Circuit Appeals Court has handed down a ruling that says detaining minors at gunpoint is just good policework when they're in the general vicinity of a suspected criminal act. (via FourthAmendment.com)

Here's what prompted this apparently excusable violation of rights, taken from the Appeals Court decision [PDF]:

At 3:21 p.m. on April 24, 2016, a Cedar Rapids police dispatcher issued an alert for “a disturbance with a weapon” at “Higley Avenue and Wellington Street” based on a 911 call from a complainant named Elaine. It is undisputed that the dispatch transmitted to officers reported, “Complainant stated that there are three black males they live at the corner house by the alley. They are outside arguing, one displayed a 10-32 [gun] that subject is a black male white t-shirt heavier set. Another black male is in all blue.” There was no description of the third individual, nor did the dispatcher provide the complainant’s name or address.

This information was obtained by the officers being sued twice. While driving to the scene of the reported crime, Officer Tyler Richardson ran into the 911 caller (although he did not know this at the time). The woman again described the suspected individuals, describing one of the suspects as wearing a white shirt and blue pants.

So, Officer Richardson had two suspects: one with a white t-shirt and another described alternately as being in "all blue" or with a white shirt and blue pants. Here's who the officer decided were the most likely suspects:

He saw two people -- later identified as Bates and Irvin -- walking away from him along the left side of the street. The dashcam video shows Bates wearing a red shirt and black pants and Irvin wearing a blue shirt and blue pants.

This is what happened next:

Officer Richardson got out of his car and yelled, “Stop. Stop.” Irvin and Bates turned their heads, then stopped. Richardson said, “Yeah, you guys.” Bates replied, “No, we didn’t do nothing.” Richardson yelled, “Stop right now! Stop!” and drew his gun, pointed it at Irvin and Bates, and ordered them to get on the ground. Officer Jupin, whose squad car had arrived from the opposite direction, drew his gun and did the same. Irvin and Bates slowly got down on their knees. Richardson yelled, “Face down!” Richardson handcuffed Irvin. Jupin handcuffed Bates. A pat-down determined that neither was armed.

Handcuffed and seated on the ground, 16-year-old Irvin remained quiet. Bates, 33 years old, became agitated, speaking loudly and expressing anger that the officers had pulled their guns on him. Jupin stayed with Irvin and Bates while Richardson went a block away and talked to a heavyset black man in a white t-shirt the officers spotted while detaining Irvin and Bates. Richardson ordered the man to stop and put his hands on a stone wall next to the sidewalk. The man complied. Richardson patted him down for weapons, found none, and soon released him.

The pair remained handcuffed for twelve minutes as officers spoke to the witness. The witness confirmed they were not the ones she had seen involved in an altercation earlier. They were released.

The Eighth Circuit says there's nothing wrong with this. As far as the court sees it, cops should be able to stop nearly anybody when a crime has been reported nearby.

It is well established that, “if police have a reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony, then a Terry stop may be made to investigate that suspicion.” United States v. Hensley, 469 U.S. 221, 229 (1985). Thus, Irvin and Bates could be stopped if there was reasonable suspicion that either or both were any of the three men involved in the reported disturbance.

Second, even limiting our focus to more serious gun offenses, Officer Richardson had descriptions of two of the three men. Irvin arguably fit one of the descriptions; Bates did not but the third participant had not been described.

That's the rule in the Eighth Circuit: if you're in the area a crime has been committed, you can be treated like a suspect and detained for as long as it takes to clear you of suspicion. In this case, it only took twelve minutes. But it could have taken longer. And, as this court sees it, time isn't a factor when it comes to turning being detained into being arrested. If it had taken six hours, the court may have still considered this to be an investigative stop.

Here, Officers Richardson and Jupin actively investigated the disturbance after detaining Irvin and Bates, delayed by their refusal to cooperate. When backup arrived, Richardson interviewed a cooperative third individual and searched the area for a weapon. Jupin contacted a witness, who said that Irvin and Bates were not involved in the reported disturbance. Jupin promptly removed the handcuffs and told Irvin and Bates they were free to go, ending their detention. The entire encounter lasted approximately 13 minutes. We agree with the district court that Irvin and Bates “were detained no longer than was necessary for the officers to pursue their investigation” and therefore the lawful Terry stop “did not evolve into an arrest.”

So, what's the endpoint? The court says this:

The circumstances here are readily distinguishable from the handcuffing and extended -9- detention in our recent, divided panel opinion in Haynes v. Minnehan…

But that decision held that a five minute detention was unlawful due to a lack of reasonable suspicion and the fact that officers didn't appear too interested in investigating the alleged crime. That doesn't clear much up. Instead, it creates a gray area where officers can detain someone indefinitely, so long as they have a little suspicion and some interest in pursuing an investigation.

The decision also cites another case where the Eighth Circuit found it acceptable to point guns at unarmed minors just because a criminal act was suspected to have occurred somewhere in the vicinity. That case is currently sitting before the Supreme Court. Whether or not the nation's top court will do anything with it remains to be seen. But that case, summarized here by Jacob Sullum for Reason, is used as justification for the conclusion reached in this case.

On a rainy January evening in 2018, 14-year-old Weston Young and his 12-year-old brother, Haden, were walking home from their grandparents' house in Springdale, Arkansas, after a family dinner. A police officer ordered them to stop, pointed a gun at them, forced them to lie on the ground, handcuffed them, and, together with a colleague, searched them. Their mother and stepfather tried to intervene, explaining who the boys were, where they had been, and where they were going. But the officer, Lamont Marzolf, rebuffed both of them, seemingly uninterested in information suggesting that he was treating two innocent boys like criminals.

"Neither [Weston] nor [Haden] did anything wrong" that night, the U.S. Court of Appeals for the 8th Circuit later observed. "The boys simply happened onto the stage of a dangerous live drama being played out in their neighborhood because of criminals fleeing police nearby. [Weston] and [Haden] acted bravely, respectfully, and responsibly throughout the encounter, and their family would rightly be proud of them. Likewise, their family acted responsibly and respectfully during what would have undoubtedly been a frightening experience. In this situation, though, Officer Marzolf was doing his job protecting the people of Springdale from fleeing criminal suspects under challenging conditions."

That's the standard as far as the Eighth Circuit is concerned. If a cop is doing their job, then pointing guns at minors and violating rights is just acceptable collateral damage. The decision here rests on the court's conclusion there was plenty of reasonable suspicion underlying this chain of events. The dissent is not so sure.

Viewing the record in the light most favorable to Irvin and Bates, Officers Richardson and Jupin lacked reasonable suspicion to stop and detain them. The dispatcher relayed an anonymous 911 call, but did not provide any information indicating the basis of the caller’s knowledge. The only corroboration identified is the information Officer Richardson received from the woman on the street. But at the time of the stop, Officer Richardson did not know the woman’s name or even that she was the 911 caller. Moreover, the woman did not corroborate the dispatcher’s report or report any criminal activity; she simply gave Officer Richardson a description of what a person who had just walked around the corner was wearing—wavering in her description and never mentioning a person in a red shirt—and said nothing more. In short, nothing the woman said to Officer Richardson linked the person she had just described to the conduct reported in the 911 call.

Even setting aside the reliability of the tip, neither Bates nor Irvin matched the description of the person who displayed the firearm—a heavyset man in a white t-shirt.

The dissent points out it's not enough for race and gender to match the description. And without any further corroboration, Officer Richardson had, at best, conflicting descriptions of the suspects. On top of that, Richardson had no reason to believe they were involved in the reported criminal act. The caller had reported only one person with a weapon and that description matched neither of the two people Richardson detained at gunpoint.

The only suspicious activity the 911 caller described was that a heavyset man in a white t-shirt displayed a gun. There was no reason to believe any other person had a weapon, concealed or not, and a suspicion otherwise was nothing more than a hunch. While the 911 caller reported an argument where one man displayed a gun, she reported no threats, assaults, or shots fired. And when Officer Richardson turned the corner, the reported crime had ended, and neither Irvin nor Bates was behaving in a manner as to indicate they were armed or were engaged in––or about to engage in—criminal activity.

Making someone a suspect because someone else brandished a weapon isn't how reasonable suspicion works. Citing another case where qualified immunity was awarded despite the "suspects" not matching the description and being accused of "fleeing" despite walking towards the police officer's car doesn't exactly shore up the shaky reasoning underpinning this decision.

This decision will also likely be appealed to the Supreme Court. The earlier case might be a better fit for reversal, given the disparity between the detainees and the description, but both are questionable. And both serve as cover for bad judgment calls by police officers -- ones that culminate with weapons being pointed at minors.

Filed Under: 4th amendment, 8th circuit, law enforcement, minors, police

Appeals Court Tells Lying Cop No 'Reasonable' Officer Would Think It's OK To Tear Gas Journalists For Performing Journalism

from the pretty-much-as-clearly-established-as-something-can-get dept

For some reason, we, the people, keep having to shell out cash to employ a lot of unreasonable law enforcement officers.

We've already seen some federal courts respond to violent law enforcement responses to the mere presence of journalists and legal observers during protests. The targeting of non-participants by law enforcement has been met with injunctions and harsh words for the officers participating in these attacks.

Much of what's been covered here deals with months of ongoing protests in Portland, Oregon and violent responses by federal officers. But this appeals court ruling (via Mike Scarcella) shows the problem isn't confined to the Northwest or federal law enforcement. Cops are attacking journalists in other cities as they try to do nothing more than cover highly newsworthy events.

And the problem isn't new either. This case [PDF], handled by the Eighth Circuit Court of Appeals, deals with an attack on three Al Jazeera reporters covering protests in Ferguson, Missouri following the killing of Michael Brown.

Local law enforcement officers may not have been wearing cameras, but the journalists brought their own. The events that transpired were captured in the course of their attempted coverage of Ferguson protests. Fortunately, this footage exists. The version of events offered by the sued deputy is a lie. Here's what was captured by Al Jazeera cameras:

The SWAT Team approached the reporters as they prepared the live broadcast, a block and a half from the street where most of the protests occurred. Their video shows a calm scene. An unidentified officer begins shooting rubber bullets at them. They yell, identifying themselves as reporters. Anderson then deploys a single canister of CS gas (also known as “tear-gas”). It lands in front of the reporters. They move away from the camera, but can be heard talking in the background. An unidentified person walks past the camera. Other people stop in front of it. The police do not fire at them. One reporter re-appears in front of the camera, is shot at, and leaves. Another person walks past the camera (possibly the same unidentified person as before). A second group poses in front of the camera, thinking they are on CNN. They talk to the camera for over two minutes.

Minutes later, police deploy another canister of tear-gas at men standing on the corner, several feet from the camera. Over a speaker, the SWAT Team appears to ask the reporters to “turn the spotlight off.” SWAT Team members then lay down the lights and turn the camera lens toward the ground. The reporters re-appear. After speaking to the officers, they pack their equipment and leave.

As the court notes, this narrative (the one captured by cameras) is "disputed." But it's only "disputed" because Deputy Michael Anderson (the defendant) would prefer to use an alternate history to exonerate himself.

Anderson claims the reporters were told to disperse and turn off the lights but refused. He also claims he saw projectiles launched from the area of the bright lights. He says he had difficulty seeing what was going on. He believes there was an imminent threat to safety. He stresses that his sergeant ordered him to deploy the tear-gas.

Submitted in support of this narrative is Anderson's sworn declaration that everything he said is true, even when nothing on record supports his version of the incident.

Before the SWAT Team arrived, the reporters counter that their location was a calm scene. The videos support this. None records any orders to disperse. They also do not show any projectiles thrown from the reporters’ area. They do not show orders to turn off the light before Anderson deployed the tear-gas.

The court doesn't call Anderson a liar. It might have, if other questions had been presented. It's limited to determining whether or not Deputy Anderson should be awarded qualified immunity. Once this returns to the lower court, Anderson will get another chance to prove he's not lying. It seems unlikely he'll be able to, but he is definitely going back to the lower court and is definitely going to have to defend himself against at least one allegation.

The Appeals Court says Anderson's actions clearly violated the reporters' First Amendment rights. No qualified immunity on this count.

The videos confirm the reporters’ version of the facts. They do not show dispersal orders or flying projectiles. They do not show orders to turn off the lights before the tear-gas. Rather, they show a peaceful scene interrupted by rubber bullets and tear-gas. Anderson presumes disputed facts in his favor, which this court cannot do because he moved for summary judgment. See Duncan, 687 F.3d at 957. Taking the facts most favorably to the reporters, Anderson did not have arguable probable cause to use the tear-gas.

Even if the court were inclined to believe Anderson's apparent bullshit, he still wouldn't be granted qualified immunity.

Anderson is not entitled to qualified immunity even if his sergeant told him to deploy the tear-gas. Anderson cites the Heartland case for the proposition that §1983 “does not sanction tort by association.” Heartland Acad. Cmty. Church v. Waddle, 595 F.3d 798, 806 (8th Cir. 2010). True, but nothing in Heartland says that a government official is immune if a superior instructs him to engage in unconstitutional conduct. Instead, Heartland says that defendants must be individually involved in the unconstitutional act to be liable under §1983. Id. See also White, 865 F.3d at 1076 (“[A] plaintiff must be able to prove ‘that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.’ ”), quoting Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Here, it is undisputed Anderson was involved. He is the one who deployed the teargas at the reporters.

The deputy argued the reporters weren't engaged in First Amendment activity. Instead, they were ignoring a dispersal order. Again, the court points to the recording which shows no dispersal order being given during the entirety of the incident. Even if one had been, there's no reason to assume a dispersal order requires reporters to leave the scene. Reporters reporting on newsworthy events are not engaged in unlawful activity.

The deputy also argued the plaintiffs were required to provide proof of his motive -- his alleged desire to retaliate against the reporters for engaging in protected activities. Wrong again, says the court. There's enough doubt in here a jury should examine it.

To support its conclusion that the reporters had alleged enough about causation to survive summary judgment, the district court noted that the videos show a peaceful scene interrupted by Anderson’s tear-gassing of the reporters, but not others. Quraishi, 2019 WL 2423321, at *7 (“The raw footage from Al Jazeera, however, showed that numerous people came into the area where the reporters were standing, but only the reporters were shot at and tear gassed.”). The reporters were singled out—other people were in their immediate area but only the reporters were tear-gassed at the scene. (Minutes later, men were tear-gassed several feet from the camera.) Anderson’s motive is not “so free from doubt as to justify taking it from the jury.”

And, again, the court highlights the video that shows a chain of events that contradicts Anderson's claims.

The district court’s summary judgment facts are not based on allegations of actions by unknown individuals. They come from videos showing Anderson deploying the tear-gas. As noted, the district court does not have to rely solely on Anderson’s account of events to discern what motivated him.

It is clearly established that firing tear gas at journalists to prevent them from covering newsworthy events is a violation of their rights, the Appeals Court says, rattling off a list of ten previous decisions reaching the same conclusion. Any assumption otherwise is unreasonable.

A reasonable officer would have understood that deploying a tear-gas canister at law-abiding reporters is impermissible.

Deputy Anderson is headed back to the district court to face the reporters' First Amendment allegations, as well as state-level excessive force claims. (The Appeals Court grants qualified immunity on the Fourth Amendment claims, noting that being tear-gassed is not a "seizure" as there is no detention or other form of police custody.) And it would seem he's destined to lose. His version of the events isn't supported by anything tangible. The other side has plenty of footage showing things didn't happen the way Deputy Anderson apparently wishes they would have happened. This isn't a "factual dispute." This is a recording contradicting a law enforcement officer's lies. Hopefully, the district court will further highlight this, shall we say, "disparity" upon his return.

Filed Under: 8th circuit, journalism, michael anderson, police, protests, qualified immunity, tear gas
Companies: al jazeera

Eighth Circuit Strips Qualified Immunity From Cop Who Pulled Over A Driver For Flipping Her Off

from the so-powerful...-and-yet,-so-sensitive dept

It should be pretty clearly established by now that giving the finger to public officials (in every case listed here, police officers) is protected expression. Even if the expression isn't protected, it sure as shit doesn't justify detainment, arrest, or the seizure of someone's property.

Decisions have been handed down by both state and federal courts saying giving a cop the bird is protected expression. And if it isn't necessarily protected (due to courts not seeing anything that justifies deciding this point in certain), it's pretty clearly not evidence of any criminal act, no matter how much offended cops wish it to be.

If you're a cop on the receiving end of this hand gesture, it's best to just move on. Choosing this hill to die on just means the officer now has multiple ways to lose their qualified immunity. First, there's the Fourth Amendment violations, which include detaining people when no actual criminal activity is suspected. Then there are the First Amendment issues, which included illegally retaliating against people for exercising their rights.

The Eighth Circuit Court of Appeals is the latest to add to this body of case work that says engaging in any law enforcement response to a flipped bird is unwise, at best. In this case, the officer who decided it was impossible to ignore an erect middle finger has lost her qualified immunity. This decision [PDF] not so gently reminds cops that being an asshole isn't a crime. (If it was, can you even imagine the number of cops under indictment?)

Ruben Garcia sued officers from the New Hope, Minnesota police department after being hassled excessively by Officer Kaitlyn Baker, whom he first encountered near a local school.

The first encounter was innocuous, but somehow laid the groundwork for officious retaliation later in the day.

On February 1, 2016, Officer Baker was on school patrol at Sonnesyn Elementary in New Hope, Minnesota. That morning, Garcia drove by the school and saw Officer Baker motion for him to stop his vehicle. He stopped. Officer Baker shouted for him to slow down, but Garcia responded that he was going the speed limit. Garcia then drove away. Officer Baker did not issue Garcia a citation.

Had this been the end of it, there would be no federal case. But both parties persisted. Unfortunately, the party with the thinnest skin had the power, the gun, and the badge. Ruben Garcia rolled by the school later that day, again encountering Officer Baker. He sent his love.

Later, in the afternoon, Garcia again saw Officer Baker at the school. This time, he extended his hand out of his car window and raised his middle finger at Officer Baker as he drove past her.

This was apparently too much for Officer Baker. She activated her dash cam and followed Garcia. Her only reason for this initial pursuit was captured by her camera: that Garcia had "flipped [her] off" and supposedly had "argued about speed when children" were present.

Engage bullshit. Baker pulled Ruben over and began to make stuff up.

Officer Baker approached Garcia on his passenger side window. Using his phone, Garcia began to video the traffic stop and then asked Officer Baker why she pulled him over. She replied, “You drove by and you flicked me off and I’m curious as to why you did that.” Id. at 01:07–01:11. Garcia asked if his actions were illegal, and Officer Baker replied that there was a woman with her children at the school patrol and that his actions constituted disorderly conduct.

"There was a woman with her children at the school patrol." That was the alleged reason for the stop. The real reason was in the first part of Officer Baker's statement: "you flicked me off and I'm curious as to why you did that."

Baker demanded ID and insurance info. Twice. Garcia refused. Twice. He stated the officer was violating his First Amendment rights. Baker did what cops often do when faced with accusations of rights violations: she called for backup. Garcia escalated.

Officer Baker asked Garcia for his license several more times. He replied that he would give her the license but repeatedly asked her if she was going to shoot him.

Garcia then asked for Baker's badge number. She stated he could find it on the citation she was going to write him.

Two more officers showed up. Baker demanded Garcia hand her his "goddamn D.L." He refused. Officer Anthony Gust approached the vehicle. Garcia still refused to hand over his license. Having run out of lawful options, Officer Baker decided to try some unlawful approaches.

Officer Baker walked around the vehicle to Garcia, yelling for Garcia to get out of his vehicle. She opened the driver’s side door and demanded that Garcia get out of the vehicle. Officer Baker then grabbed Garcia as he stepped out of the vehicle, placed him against his vehicle, and handcuffed him. Officer Baker threw Garcia’s wallet on the ground. Officer Gust helped Officer Baker hold Garcia against the vehicle.

This "suspicion" was helpfully corroborated by another backup officer, but one who had (wisely) chosen not to respond to an extended middle finger with a search and seizure.

Officer Baker also told the arriving officers that Garcia would not give her his license and “that’s why he’s taking a timeout for right now.” Id. at 05:02–05:05. Officer Johnson related that once he saw Garcia’s license plate, he realized that Garcia had raised his middle finger at him before.

Having found nothing criminal about Garcia's admittedly abrasive actions, Baker and the other officers gave him back his wallet and sent him on his way. Garcia got the last word.

Officer Baker held Garcia in the car for around seven minutes, and during that time, he continued to talk to her about how the officers were dangerous and unprofessional. Officer Baker issued Garcia a citation. Officer Gust then took Garcia out of the squad car and removed his handcuffs. As Garcia left, he yelled “f**k you” at the officers. Id. at 12:56–12:58. He then drove away in his vehicle.

A hero drives among us.

Garcia was cited for disorderly conduct and [checks police recording] a license plate violation. Let's hear more about this "violation."

As to the license plate violation, Officer Baker noted in her incident report: “During the traffic stop, I observed the license plate having a plastic cover over the entire plate and a red plate frame obstructing the view of the month and year stickers.” Ex. 1 at 38, Garcia v. City of New Hope, No. 0:17-cv-03574-NEB-ECW (D. Minn. Nov. 19, 2018), ECF No. 51-1. She later clarified that she noticed the license plate during the crosswalk encounter and mentioned the violation in the wrong portion of her incident report. Officer Baker also stated that she did not inform Garcia of the license plate violation because she could not have a conversation with him. Garcia denies that he had a cover or frame over his license plate.

Ohhhhhhhhh. It wasn't about Officer Baker's "curiosity" about Garcia's hand gestures. And it wasn't really about the people in the crosswalk. It was about a license plate violation the court says it can't clearly see on the recording and the protected speech the court says is protected.

The court says the record isn't clear either way when it comes to the license plate violation. It's possible there was a legitimate reason to stop Garcia.

[T]he district court determined that even if Officer Baker made a mistake, it was a reasonable mistake. The court noted that the other officers saw the frame, the license plate was not clearly discernible on the squad car video, and Garcia entered into the Agreement instead of disputing the violation.

But there's also no exoneration. The facts are still disputed. No other officer offered testimony that backed up Officer Baker's claims about a license plate violation. As long as this question remains unsettled, even an honest mistake of the law isn't enough to grant qualified immunity… especially given the other facts at hand.

It is true that we have found that an officer made a reasonable mistake about a license plate violation where the license plate was not centered on the front bumper and “it was dark outside, making it difficult for [the officer] to fully scan the vehicle for a front license plate.” United States v. Payne, 534 F.3d 948, 951 (8th Cir. 2008). But the blurry video does not show that Officer Baker’s view of the license plate was hindered. In fact, the video depicts a clear day and shows that Officer Baker—who was right behind Garcia’s car—had a clear view of the license plate. Officer Jacobs’s testimony and the blurry video are not enough to show that Officer Baker had an objectively reasonable belief—based on the totality of the circumstances—that the license plate was unlawfully covered.

The court then says Garcia's decision to enter into an agreement on the license plate charge has no bearing here. It's not an admission of guilt. The agreement he signed does not contain any admission or stipulation that Garcia's license plate violated state law. No qualified immunity on the BS "license plate violation" excuse for this stop.

Therefore, at this stage of the litigation, Officer Baker is not entitled qualified immunity based on the absence of a Fourth Amendment violation because there is a genuine dispute of material fact as to whether she had probable cause to conduct a traffic stop of Garcia’s vehicle.

That cues a reversal of the lower court's decision. It was clearly established -- and Officer Baker does not contend otherwise -- that probable cause is required for a traffic stop. An extended middle finger is not probable cause.

And there's no qualified immunity for targeting a single finger. The court reiterates that indicating the police should fuck themselves is protected speech.

Garcia’s raising his middle finger at Officer Baker is a rude and offensive gesture but nonetheless, under current precedent, is a constitutionally protected speech activity.

Any detainment originating from this would logically deter people from engaging in protected speech. No qualified immunity here either.

Officer Baker does not dispute that Garcia’s right to be free from First Amendment retaliation was clearly established at the time of his arrest. “Criticism of law enforcement officers, even with profanity, is protected speech.”

[...]

Based upon the record before us, we hold that the district court erred in granting qualified immunity to Officer Baker on Garcia’s First Amendment retaliation claim.

There's a dissenting opinion. And it's ridiculous. Judge Shepherd prefers to believe First Amendment speech should be subjected to the same standard as Fourth Amendment violations. If anyone did everything Garcia did during these interactions with local officers, Officer Baker should have been free to believe making some shit up to justify detaining someone for offending her was cool and Constitutional.

In my view, Garcia’s conduct was prolonged and goes beyond that of constitutionally protected speech. Garcia made the obscene gesture while driving through a school zone in broad daylight while a crossing guard was present. He extended his head and entire arm out of the car while raising his middle finger. Further, Garcia’s aberrant and aggressive behavior, which included the obscene gesture, occurred after a previous contentious encounter that morning with Officer Baker at the same school crossing. Although an officer is expected to exercise more restraint than the average citizen in responding to offensive or critical speech, I believe the facts here demonstrate an escalation of offensive and aggressive behavior that both disrupted and interfered with Officer Baker’s ability to monitor the school crossing.

[...]

Further, even if Garcia has shown the violation of a constitutional right, it was not clearly established on February 1, 2016, that driving through a school zone during school hours and in the presence of a crossing guard, leaning his entire head and arm out the window of his vehicle to raise his middle finger, all following a confrontation about Garcia’s rate of speed in the same location earlier that day, was protected by the First Amendment.

Sorry, Judge. But that's not how the First Amendment works. Even under the extremely permissive qualified immunity guidelines, the limits of the First Amendment are pretty clearly defined. And it's pretty clear Officer Baker's -- despite her belated obfuscation -- real reason for pulling over Garcia was to punish him for being rude to her. This addition to the opinion only shows one judge would forgive officers for punishing citizens for hurting their feelings. Ridiculous.

Filed Under: 1st amendment, 4th amendment, 8th circuit, anthony gust, free speech, giving the finger, kaitlyn baker, minnesota, new hope, police, qualified immunity, ruben garcia

Court: No Immunity For SWAT Team That Hurled A Flash-Bang Grenade In The General Direction Of A Two-Year-Old Child

from the nice-to-see-some-stunned-officers-for-a-change dept

It usually takes very extreme behavior from law enforcement officers to punch holes in the qualified immunity shield. Fortunately/unfortunately, there's seems to be no shortage of extremely-badly-behaving law enforcement officers.

In this case, fielded by the Eighth Circuit Court of Appeals, the Kansas City Police Department was investigating a homicide. Detectives managed to track the victim's cellphone to an apartment. They also managed to track down the suspect by using a combination of phone records and old fashioned police work. They arrested the suspect and applied for a search warrant for his residence.

The warrant request omitted the fact they had heard the targeted phone ringing in an apartment on Winchester Street, rather than the apprehended suspect's residence (the "Bristol residence"). The SWAT team also met prior to the search and were informed the homicide suspect was already in custody.

The SWAT team proceeded to the Bristol residence with a normal search warrant. Once the SWAT team arrived, it decided to do SWAT team things, even though it only had a normal warrant that didn't authorize the things it chose to do.

Here's how it began, according to the Eighth Circuit decision [PDF]:

At 7:00 p.m., the SWAT team, dressed in tactical gear with weapons drawn, approached the front door of the Bristol residence. The front entrance had both an inside wooden door and an outside metal screen door, each of which were “double-keyed,” meaning they required a key to open from both the inside and the outside. Because the warrant did not authorize a “no knock” entry, the SWAT team knocked on the door and announced: “Police, search warrant!” At the time, there were four people inside the residence: the plaintiff, Z.J., a two year old girl; Laverne Charles, age 84; Leona Smith, age 68; and Carla Brown, age 24. Carla grabbed the keys to the door and opened the inside door.

So far, so good. There was no suspect to apprehend so the SWAT team's presence seems a bit extraneous. But the resident was offering to unlock the door to let them in to search the place. But time waits for no one, not even the Fourth Amendment.

She then held up the keys to the door in her hand and jingled them for the SWAT team to see in order to indicate that she was going to open up the door. Before she had the opportunity to open it, the SWAT team knocked out the screen and threw in a flash-bang grenade over Carla’s head into the living room of the house. Carla testified that she would have opened the screen door had she been given the opportunity to do so.

The officers involved in the raid disputed this account. And by "dispute," I mean "basically agreed that's what happened, but with a bunch of exonerative explanations."

Sgt. Rusley claimed waited "five to ten seconds" before starting to pry off the screen door. He claimed the resident refused to open the door and walked away. Feeling the element of surprise had been compromised, he tried to regain it by sailing a flash-bang grenade into the residence. Another officer said roughly the same thing, only varying the narrative by claiming the team couldn't immediately discern what the waving of keys by the resident meant, but that the introduction of a flash-bang grenade would clear up any confusion.

This is what followed the flash-bang grenade's "appearance" on the scene:

The flash-bang grenade caught the living room drapes on fire. The SWAT team had to remove the drapes from the house and place them in the front yard before continuing through the rest of the house. The SWAT team found two-year old Z.J. in the living room. One officer acknowledged Z.J. was “very shaken from the whole situation.” The team placed Carla and Leona in zip tie restraints, but was unable to place restraints on Laverne because of her advanced age and physical condition.

Because the person at the door didn't wave the officers in quickly enough, the officers threw a flash-bang grenade into a room containing a two-year-old. Fortunately, it was only the drapes that caught fire.

Why the flash-bang? Well, habit, apparently. The SWAT team always has them, and pretty much always finds a reason to use them.

As the district court noted, the Board did not have any policy about the use of flash-bang grenades — such as when their use is appropriate and how to use them safely. One officer estimated that in executing search warrants, flash-bang grenades were used 80-90% of the time; another officer estimated that in his experience they were used about 50% of the time; and a third officer estimated they were used about 75% of the time.

The SWAT team members asked for the lawsuit to be dismissed, claiming qualified immunity shielded their attempt to set someone's living room on fire during normal warrant service. The court disagrees, finding that flash-bang grenades are rarely justified, especially in situations like these. As the court points out, a flash-bang isn't some sort of supercharged noisemaker: it's a weapon that causes very real damage.

The record evidence shows the flash-bang grenade used here is four times louder than a 12-gauge shotgun blast and emits a light 107 times brighter than the brightest high-beam vehicle headlight. It has a powerful enough concussive effect to break windows and put holes in walls. The flash-bang burns at around 5,000 degrees Fahrenheit, creating an obvious and serious risk of burning individuals, damaging property, and starting fires (as occurred here). In some cases, they can even be lethal. And as this case illustrates well, they pose a risk of traumatizing unsuspecting occupants — particularly small children like two-year old Z.J.

The court says there are cases where flash-bang use may be justified. But this case contained zero of those elements.

Whether the use of the flash-bang grenade here was reasonable is not a close question. The SWAT team knew the suspect, Charles, was already in custody. Any potential justification based on the fact Charles was (at the time) suspected of murder is eliminated by the fact the SWAT team knew they would not encounter Charles there. Nor did they have any indication that other people at the residence would pose any threat. In fact, they had no idea who was inside the house because they failed to do any investigation into that question beyond a quick drive-by to check the address. The use of a flash-bang grenade under these facts was not reasonable. “The use of a [flash-bang] grenade must be justified by the particular risk posed in the execution of the warrant.” Terebesi v. Torreso, 764 F.3d 217, 239 (2d Cir. 2014). Nor was the manner of use reasonable. They threw the flash-bang grenade into the house blindly without knowing whether children, elderly, or other innocent individuals were inside.

In defense of their blind flash-bang toss, the officers claimed there still may have been some danger present in the house. The police may have already had a suspect in custody but the sued officers theorized the homicide could have been part of a larger criminal conspiracy, which could have meant the residence housed even more dangerous criminals. The court has no time for this distended post facto rationalization.

Of course, they had no actual information to support this after-the-fact speculation. More to the point, however, this argument relies on a dangerously flawed premise. The argument that the SWAT team was justified in using a flash-bang grenade because they did not know for certain it was unnecessary is precisely backwards; it makes using that dangerous level of force the default. This type of “flash-bang first, ask questions later” approach runs headlong into the Fourth Amendment. Law enforcement officers like the SWAT team members here need an actual justification for using a flash-bang grenade; the mere hypothetical possibility that someone dangerous could be in a house they are entering — without any actual facts to indicate that is true or likely to be true — is not sufficient.

The court finds the argument that knocking and alerting the residents of the home removed the "element of surprise," forcing the SWAT team's grenade-lobbing hand.

The explanation that the flash-bang was used because the SWAT team believed it was “compromised,” meaning “that occupants of the residence knew [the SWAT team officers] were there and that [the officers] no longer had the element of surprise,” is unpersuasive. The search warrant did not authorize the SWAT team to conduct a “no-knock” warrant, and so they knocked on the front door and announced their presence, which obviously defeated the element of surprise. After all, the purpose of the constitutional knock-and-announce requirement is to allow a citizen the chance to come to the door and allow entrance to an officer who is legally entitled to enter.

The court says this is all clearly-established at this point, so no one involved in the SWAT team's flash-bang use will be able to dodge this lawsuit.

Only the plainly incompetent officer announces his presence at a house with no known dangerous people and then decides to throw in a flash-bang grenade because the occupants know he is there.

Sometimes, vague, unsupported beliefs about the dangerousness of the general public aren't enough to allow officers to dodge culpability for their dangerous decisions. This is one of those (rare) cases.

Filed Under: 8th circuit, children, flash bang, kansas city, kansas city pd, qualified immunity, swat team