Why we need more police on the street

Is a conversation "private" under Washington's Privacy Act when the speaker talks with his windows rolled even though he sees someone is beside his car, listening to him?

[Ed's note: This case does not add much to our understanding of section 1983. Since its facts are illustrative of modern law enforcement, I present the facts for you.]

From Johnson v. City of Sequim:

The undisputed facts show that on January 28, 2000, Johnson was videotaping several of his friends at Sequim’s public skateboard park when he noticed Chief Nelson drive up to the park in his patrol vehicle. Chief Nelson, who was on duty and had come to the park to look for a missing juvenile, stopped his patrol car in the park’s parking lot about seventy-five feet away from where Johnson was standing on an elevated cement ramp. From this distance, Chief Nelson observed Johnson videotaping him as he sat in his vehicle with his driver’s side window rolled down. After a short time, Johnson stopped recording Chief Nelson and approached the car. As Johnson approached, Chief Nelson’s police radio “was operating” and he was “dialing [his] cellular phone” to contact dispatch to obtain a description of the runaway he was attempting to locate. Johnson resumed videotaping when he reached the rear of the car. As Johnson came around to the passenger side of the car, Chief Nelson rolled down the passenger window, deactivated his cellular phone, and asked Johnson “What do you think you’re doing?” Although Johnson stopped recording Chief Nelson, he continued to point his video camera at Chief Nelson, who twice told Johnson to stop because Johnson “did not have [ ] permission to record [him] and . . . it was a violation of the law to record conversations without consent.” After the second warning, Chief Nelson got out of his car and “contacted” with Johnson, physically struggling with him to obtain the video camera. With the assistance of another officer, whom he had called for backup, Chief Nelson placed Johnson under arrest and transported him to the Clallam County Jail in Port Angeles.

After Johnson had spent three days in county jail, prosecutors filed a criminal complaint against him, charging one count of recording communication without permission, in violation of the Privacy Act, and one count of resisting arrest. Prosecutors also moved for a determination of probable cause, based solely upon a declaration from Chief Nelson that Johnson videotaped him “while [he] was making telephone contact with dispatch in an attempt to verify juvenile runaway information.” Although the state court found probable cause for the arrest, Johnson was released and the charges were dropped. Nearly two months later, prosecutors again filed charges against Johnson, this time for “attempted recording communication without permission” and for resisting arrest. On May 10, 2000, Judge Coughenour of the Clallam County District Court dismissed the charges against Johnson. Judge Coughenour found that Chief Nelson was not engaged, by cellular phone or police radio, in any conversation or communication with anyone while Johnson was recording him, and that Johnson therefore could not have “inten[ded] to record a conversation that [was not] occurring.” Moreover, Judge Coughenour found that even if Chief Nelson had been involved in a communication in his vehicle, there was no expectation of privacy because he had voluntarily exposed any such communication to the public by parking his vehicle in a public place with the windows rolled down.

10/25/2004 in Case briefs - Section 1983 | Permalink | Comments (1) | TrackBack


Sheriffs in Vermont

A sheriff in Vermont acts as a state official, and thus is not suable under section 1983. Huminski v. Corsones, 2004 WL 2248175 (2d Cir., Oct. 7, 2004) (slip opinion here).

10/08/2004 in Case briefs - Section 1983 | Permalink | Comments (0) | TrackBack


Appointed counsel is only nexus to courts required under the Due Process Clause

Bourdon v. Loughren, No. 03-196, (2d Cir., Oct. 5, 2004).

Plaintiff, a state pretrial detainee at the time relevant to the complaint, contends that he was denied access to the courts principally through defendants’ denial of materials that he requested from the jail’s law library.

We hold that the appointment of counsel is a valid means of fully satisfying a state’s constitutional obligation to provide prisoners, including pretrial detainees, with access to the courts in conformity with the requirements of the Due Process Clauses of the Fifth and Fourteenth Amendments and the Equal Protection Clause of the Fourteenth Amendment. We further hold that constitutionally acceptable access to the courts through appointed counsel is not measured by reference to the Sixth Amendment’s guarantee of effective assistance of counsel. Finally, we hold that, in the circumstances of this case, the provision of appointed counsel fully satisfied the state’s obligation to provide plaintiff with access to the courts.

This case didn't teach anything new, so I'm not sure why it was selected for publication. There is a line of cases holding that if you proceed pro se in your criminal case, that the jail does not have to give you special accomodations as to law library hours, etc. Thus, a pro se defendant who is in court all day can not demand access to to law library when he gets back from court.

It is bothersome, though, that "access to the courts through appointed counsel is not measured by reference to [ ] effective assistance of counsel." In other words, if your lawyer sucks, too bad. You'll have to lose at trial, go to prison, and then appeal your conviction under the Sixth Amendment. Disturbing.

You can read Judge Oakes' concurrence, which fully develops this criticism.

10/06/2004 in Case briefs - Section 1983 | Permalink | Comments (0) | TrackBack


Sixth Circuit says no Due Process right to sleep with student

Flaskamp v. Dearborn Pub. Schools, No. 02-2435, (6th Cir., Oct. 5, 2004).

Laura Flaskamp taught physical education in the Dearborn Public Schools. In April 2001, the board of education for the school system denied her tenure after learning that Flaskamp had a sexual or otherwise-intimate relationship with a former student within nine months of the student’s high school graduation. In acting upon the school principal’s recommendation that her tenure application be denied, the board relied in part on the view that the relationship had begun before graduation and in part on the view that Flaskamp had failed to be candid in addressing the school system’s concerns about the relationship.

Flaskamp sued the school system and the individual board members, claiming that they had violated her right to intimate association, her right to privacy and her right to be free of arbitrary state action—all in violation of the Due Process Clause of the Fourteenth Amendment. The district court granted summary judgment to the defendants on each claim. Because the board in our view did not violate the Due Process Clause in any of these respects in denying Flaskamp’s tenure application, we affirm the district court’s judgment in favor of the board, its members and the school system.

10/05/2004 in Case briefs - Section 1983 | Permalink | Comments (1) | TrackBack

Parole Officers' immunity in the Ninth Circuit

Are parole officers entitled to absolute (quasi-judicial immunity) for all acts taken in their official capacities?

No - Quasi-judicial immunity only covers a parole officer's acts that are intimately related to the decision to grant, deny, or revoke parole.

Michael Swift was sentenced to 16 months in a California prison for passing a forged check. After his prison term was over, he went to Iowa to serve his parole, pursuant to the Interstate Parole Compact. This means that Swift was potentially under the supervision of 3 bodies: California parole officials; Iowa parole officials; and the Interstate Parole Supervision Unit.

Soon enough, Swift was arrested for committing domestic violence. Since committing domestic violence is grounds for termination of parole, the IPSU suspended his parole; issued a warrant for his arrest; and reported him to NCIC. [Ed's note: The National Crime Information Center is a national database that allows law enforcement officials anywhere in the country to determine if there is a warrant out for your arrest.]

After Swift was acquitted, Iowa parole officials conducted a Morrisey hearing. [Ed's note: A parolee can be put back into jail for violating his parole even if he is acquitted of the criminal charges that gave rise to his parole violation. In other words, violating the terms of your parole is separate and distinct from violating a criminal law.] The magistrate at Swift's Morrisey hearing found only trivial parole violations that did not warrant revocation of his parole. In 1998, Swift satisfactorily finished his term of supervised release.

Iowa parole officials told the IPSU that Swift was off parole and that he was not found in violation of his parole. However, the IPSU did not tell California officials, nor recall the arrest warrant.

Fast forward to April 11, 2001: Swift has been off parole for about 3 years. He calls California's parole department (CDC) and to tell them about the invalid warrant. He speaks with an agent who releases Swift pending verification of his story.

A couple of days later, Martiza Rodriguez and Steve Christian - who both worked for CDC - decided to arrest Swift for violating his parole. [Ed's note: I know, I know. How could Swift violate the terms of parole when he was off parole? The answer is, he could not, and that's why he's suing them.]

Swift is called back into the office, arrested, sent to the San Diego County jail, and then transferred to prison - where he sat until June 7, 2001. Swift alleges that while he was in prison, Christian suppressed exculpatory material relating to Swift's satisfactory completion of parole.

At the parole revocation hearing, the hearing officer cleared Swift, saying that he had been off parole since November 16, 1997.

Swift rightfully filed a section 1983 action. Rodriguez and Christian asserted absolute immunity. In an opinion joined by Judges Nelson and Fisher, Judge Tashima wrote:

The Supreme Court has reserved deciding whether members of state parole boards have absolute quasi-judicial immunity for their official actions. We have held, however, that parole board members are entitled to absolute immunity when they perform quasi-judicial functions. Thus, parole board officials of the BPT are entitled to absolute quasi-judicial immunity for decisions to grant, deny, or revoke parole because these tasks are functionally comparable to tasks performed by judges. Absolute immunity has also been extended to parole officials for the imposition of parole conditions and the execution of parole revocation procedures, tasks integrally related to an official’s decision to grant or revoke parole.

We have also explained, however, that parole officials are not entitled to absolute immunity for conduct not requiring the exercise of quasi-judicial discretion. There is no reason to clothe actions taken outside an official’s adjudicatory role with the absolute immunity tailored to the demands of that role. Thus, while parole officials may claim absolute immunity for those actions relating to their responsibility to determine whether to revoke parole, their immunity for conduct arising from their duty to supervise parolees is qualified. [U]nder a functional analysis, parole officials may be accorded one degree of immunity for one type of activity and a different degree for a discrete function.

Slip opinion at 7-8 (citations and quotation marks omitted).

The panel found that Rodriguez and Christian were acting more like police officers than judges, and thus, were not entitled to absolute immunity.

Christian and Rodriguez’s actions requesting that the BPT initiate revocation proceedings, were more akin to a police officer seeking an arrest warrant, than to a prosecutor exercising quasi-judicial discretion to initiate criminal proceedings.
Id. at 15.

10/05/2004 in Case briefs - Section 1983 | Permalink | Comments (0) | TrackBack


City can't force its employees to make Hobson's Choice

Does a city violate its employee's procedural due process right when it requires him to choose between asserting his right against compelled self-incrimination, or continuing his employment with the city?

Yes - A city can compel one of its employees to answer questions regarding a pending criminal case only if the employee is both granted use immunity and is told that because he is being granted use immunity, a failure to answer will be held against him. Franklin v. City of Evanston, No. 99 C 8252, (7th Cir., Sept. 27, 2004) (relied on Atwell v. Lisle Park Dist., 286 F.3d 987 (7th Cir. 2002)).

Edward Franklin was arrested for possession of a small amount of marijuana (a misdemeanor offense). He was a city employee, but the arrest occured while he was off-duty. The small hick newspaper, having nothing better to cover, put the arrest in its "The Police Blotter" section. A busy body co-worker, who is probably a big loser with no life prospects, showed the newspaper to Franklin's boss, Zeltee Edwards.

Boss called Franklin into a meeting and asked him whether the charges were true. Franklin said he would not talk while the charges were pending. The city suspended Franklin (without pay) pending its own investigation.

City officials then held an ex parte meeting where they determined that Franklin should have his ability to earn a living jeopardized because he was arrested with a little weed. Pursuant to a collective bargaining agreement, Franklin was accompanied by a union representative for a full pre-termination hearing.

City officials questioned him about his arrest. Franklin said he would not answer any questions that could jeopardize his criminal case, but that if they continued the meeting, he would answer any questions after his criminal case was resolved. The city said "No," and fired him.

Franklin sued the city under section 1983, alleging, among other things, a violation of his procedural due process rights. [His other claims were very weak and thus promptly rejected by the court]. He alleged that since a formal review board fired him, it was a final policymaker for the city on this issue. As such, it was liable under Monnell.

The court quickly disposed of the city's argument that it did not violate Franklin's PDP rights. Since Franklin " was [ ] effectively forced to choose between his job and his Fifth Amendment rights, and this was an impermissible violation of his Fourteenth Amendment right to procedural due process." Slip opinion at 8.

Our concern is that in determining that Franklin had violated a City policy, the City did not provide him with a meaningful opportunity, as required by Atwell, to present his side of the story without fear of impairing his criminal defense. This was a violation of Franklin’s right to procedural due process. Because it occurred pursuant to an express City policy that skirted the need for Atwell warnings, the City is liable for a violation of § 1983.
Id. at 15-16.

(Panel: Cudahy, writing for Posner and Rovner).

10/01/2004 in Case briefs - Section 1983 | Permalink | Comments (0) | TrackBack


Genzler v. Longanbach

A 1983 case from the Ninth Circuit today thoroughly explicates prosecutorial immunity and is a worthy read. I'm finishing it up now and will blog about it soon. Genzler v. Longanbach

09/27/2004 in Case briefs - Section 1983 | Permalink | Comments (0) | TrackBack


Motley v. Gates

I was finally able to read Motley v. Gates in full. It's a very long opinion, so I am going to summarize its legal questions and answers. Then I will provide the court language relevant to those propositions. Although my version is lenghty, it takes up 75% less ink than full opinion.

To entice you to read my summary, I'll give you a teaser: A police officer in this case pointed his gun at a 5-week-old baby.

1. Is it unconstitutional to conduct a warrantless search of a woman's home when her boyfriend (a parolee) has been in jail for over six weeks? Yes - the woman told the police her boyfriend has been taken into custody six weeks prior to the search. All the police officers had to do was call his parole officer to verify this information. Since there were no exigent circumstances, and the officers did not have a search warrant, they should have errored on the side of verification.

2. Do a police officer use excessive force during the course of a when he pointed a gun at a five-week-old baby while he's laying in his crib? Yes - how the trial court judge found otherwise really bothers me.

3. Do police officers who allow a their colleague to point a gun at a baby behave unreasonably? Yes - officers are under an affirmative duty to intervene when a colleague is violating a citizen's constitutional rights.

4. Is the person who left the parolee's address information remain stale, and then provided this information to the search officers, the "moving force" behind a rights violation. Yes - the officer sent his subordinates out to conduct warrantless searches of parolees' homes. Since the only basis for the search was to "clean up" the neighborhood, he should have ensured that the addresses were fresh.

5. Would a reasonable officer have known that the answer to Questions 1, 2, 3, & 4 is, "Yes." Yes - the caselaw established at the time of the search sufficiently established the above propositions.

Janae Jameson was a gang member, Darla Motley was his girlfriend, and together they had a baby - Juan Jameson.

Father was release from prison in February 1998. The next February he was taken back into custody.

Six weeks after father was taken into custody, members of the LAPD and ATF decided to conduct a search of his (and others parolees') homes.

At 10 or 10:30 a.m., Motley heard a knock at her door. It was Officer Kading. Kading said that he and father's parole officer had a search warrant and wanted to search her apartment. Kading was lying.

Mother said that father was taken back into jail 6 weeks ago and that he was still in custody. One of the police officers told mother that father had been released from jail 3 days earlier, but mother knew that he was lying. Mother said that she would not consent to a search.

Kading said that he would arrest mother and take baby into foster care if she did not get out of his way. Mother opened the gate to her house, Kading entered, and promptly shoved his forearm into her face.

All four officers - with guns drawn - entered mom's apartment. Officers took turns pointing their guns and rummaging through mom's property.

As Kading approached the bedroom, mom told him that baby was back there. A few moments later, mom heard baby screaming. When she goes into baby's bedroom, she sees Kading pointing his gun at the baby.

One of the officers asked mom to whom baby belonged. When she told them, they laughed at her and mocked her. Kading also insinuated that he was going to steal mom's ping pong table.

As the officers left, Kading said, "Let them know that Newton Street had been there."
A few weeks later, mom moved away. She felt terrorized and was afraid the officers would come back for her. Then she sued.

Was the search unconstitutional?

The officers in this case set out to conduct a parole search. Instead, assuming that Motley’s account is true, the officers used duress to gain access to the home of an innocent mother and her baby and conducted a warrantless search in a harassing manner. It is clear that if no parolee lived at Motley’s residence at the time of the search, the search violated Motley’s Fourth Amendment right to be free from warrantless searches.

The less stringent Fourth Amendment requirements for a parole search are the only justification the officers here have offered for why this search was constitutional. However, Jamerson had been incarcerated for six weeks at the time of the search, and Motley testified that her apartment was no longer Jamerson’s residence. Without requiring a close temporal connection between a parolee and the residence to be searched, officers would have carte blanche to search, without probable cause, any place where a parolee used to live. Eventually, as in this case, these searches would not affect the incarcerated “parolee” at all, only violate the privacy of the people he left behind.


Finally, the purpose of allowing parole searches without a warrant is to assure that the parole serves as a period of genuine rehabilitation and that the community is not harmed by the parolee’s being at large. When the parolee is no longer “at large” and the search no longer affects his interests, both of these justifications are absent. Construing the facts in her favor, Motley has established that the officers violated her Fourth Amendment right to be free of warrantless searches.

Merely relying on information that father lived at the apartment was insufficient in light of contrary evidence.

It is incumbent on the officer[s] executing a search warrant to ensure the search is lawfully authorized and lawfully conducted. The Groh Court emphasized that unless there are exigent circumstances, officers are required to carefully ensure that constitutional requirements are met when searching a person’s residence, and are not entitled to qualified immunity when they do not. Id. at 1294 n.9. The same care, if not more, must be taken when the officers are searching without a warrant, under an exception to the warrant requirement.

The searching officers’ responsibilities include a duty to conduct a reasonable investigation: Although a police officer is entitled to rely on information obtained from fellow law enforcement officers, . . . this in no way negates a police officer’s duty to reasonably inquire or investigate these reported facts. Furthermore, the fact that the officer relied on information received from another law enforcement officer does not ipso facto mean that he was not reckless.


We recognize that law enforcement officers cannot always believe what citizens tell them. However, here, there were no exigent circumstances, the officers had no reasonable suspicion that Jamerson was involved in criminal activity, and Motley told them unequivocally that Jamerson was in custody, even in the face of the officers’ lies. The officers had only been given Jamerson’s name and last known address and they knew the information might not be current because of the transient nature of parolees. Once Motley informed them that Jamerson did not live there, all the officers would have had to do is make one phone call to determine whether Jamerson was in custody. They did not. If Motley’s testimony is true, it was not reasonable for the searching officers to believe that Jamerson lived in Motley’s home.

The court denied the officers' qualified immunity defense because there was no good reason to believe that father lived there (he'd been in jail for 6 weeks and the officers could easily have confirmed this). And, in 1999, the law in the Ninth Circuit was sufficiently clear that a reasonable officer would have know that you can't search even a parolee's home unless you have probable cause to believe that he lives there.

Failure to update parolee information.

Just as a warrant must be supported by probable cause, in March 1999 it was clearly established that officers must have reason to believe that a parolee lives at a certain address; without the requisite cause, the officers cannot constitutionally conduct a parole search. As the supervisor in charge of the search, Ruegg was responsible for ensuring that the searching officers had that substantial evidence. Instead, Ruegg delegated the task of checking Jamerson’s parole status to some unnamed person at least six weeks before the search took place. Ruegg then relied on the stale information, without using any of three easily available methods of checking Jamerson’s parole status on or anytime near the day of the search.7 Ruegg admitted he knew that parolees did not always live at the addresses they listed when they were first released, yet he did not even contact Jamerson’s parole officer to obtain any current information about where Jamerson actually lived. In short, Ruegg dispatched officers to conduct a parole search without any evidence that Jamerson was connected to a specific criminal activity and without sufficient evidence to support probable cause, let alone a reasonable suspicion that Jamerson lived at the given address at the time of the search.

Under these circumstances, as the supervisor of the Unit and the search in question, it was not reasonable for Ruegg to simply assume that the information about Jamerson was accurate. We therefore reverse the district court’s determination that Ruegg was entitled to qualified immunity for his role in the search.

Did Kading use excessive force when he pointed the gun at baby?
Use of a weapon against someone who is helpless constitutes excessive force. Pointing a gun at a person’s head can constitute excessive force. Most importantly, in 1999, no reasonable officer could have believed that pointing a gun at a child, particularly a five-week-old baby, was reasonable during the course of a non-exigent (and unconstitutional) search. Officer Kading is not entitled to qualified immunity for pointing a deadly weapon at a tiny infant.

Was it unreasonable for the other officers to fail to intervene?

Even if the officers had substantial reason to believe that Jamerson lived in Motley’s home, Kading, Sanchez, and Black would be liable for violating Motley’s Fourth Amendment rights, because they conducted — or allowed the search to be conducted — in an unconstitutional manner. It has long been clear that a parole search is unreasonable under the Fourth Amendment if it is conducted in a harassing manner.


Of the four officers who went to Motley’s apartment, only Webster never entered the home. Each of the other officers either participated in harassing and intimidating Motley and her child during the search, or failed to intervene to stop the harassment. An officer who failed to intercede when his colleagues were depriving a victim of his Fourth Amendment right to be free from unreasonable force in the course of an arrest would, like his colleagues, be responsible for subjecting the victim to a deprivation of his Fourth Amendment rights. A law enforcement officer has an affirmative duty to intercede on the behalf of a citizen whose constitutional rights are being violated in his presence by other officers. If Motley’s testimony is true, any reasonable officer would have known that this search was harassing and unreasonable under the Fourth Amendment. Kading, Black, and Sanchez are not entitled to qualified immunity for the unconstitutional search of Motley’s home.

09/26/2004 in Case briefs - Section 1983 | Permalink | Comments (0) | TrackBack