New Mexico Civil Rights Law Blog

Arrest of Children Under Eleven

Joe Kennedy — Thu, 06 May 2010 14:10:48 -0800

We have recently had complaints from parents about children as young as eight to ten years old being placed in handcuffs. The Kennedy Law Firm believes that placing handcuffs on children, in most situations, is excessive force.

That our children are protected from certain law enforcement actions should not surprise us. This protection is a surprise to many law enforcement officers, however. When a juvenile commits an act that would be a crime if an adult had committed the same act, the law treats the juvenile differently, especially when the child is younger than eleven years old.

In New Mexico, police may not hold a child under eleven in detention. New Mexico Statues Annotated, Section 32A-2-10(C)("A child under the age of eleven shall not be held in detention"). So, if a police officer or school official restrains a child eleven or younger in handcuffs, the officer is violating the law. Restraining children can cause long lasting psychological harm. There is usually no reason to restrain children under eleven years old, as they typically weigh 60 pounds or less.

Civil Rights of Children Include the Right to be Free of Abuse

Joe Kennedy — Wed, 05 May 2010 18:29:17 -0800

Most people have their greatest contact with their government at school. When we send our children to public school, we are entrusting them to our government. When we hand our children off to the local school's administrators, teachers, security officials and police we trust our children to government employees. They have a great opportunity for good, but they also have great power to damage.

Sexual abuse or physical abuse of a child in school deprives them of their right to education and their right to bodily integrity. These rights are guaranteed under the Fourteenth Amendment to our constitution. See, SH.A. v. Tucumcari Municipal Schools, 321 F.3d 1285 (10th Cir. 2003)(You can read the opinion in the link below). Horrible acts like sexual abuse cry out for justice and reparation. When sexual abuse happens in school, it violates the child's civil rights. For that reason, parents of children who suffer sexual or physical abuse in school should seek out a law firm experienced in civil rights work. Civil rights work requires in depth knowledge of federal statues and laws that allow for maximum recovery of damages in abuse cases. In the Kennedy Law Firm, our background is civil rights. We have represented clients in civil rights cases, including sexual abuse survivors, for over twenty years. If your family should suffer the tragedy of abuse, the Kennedy Law Firm is ready to fight for you.

ca10.washburnlaw.edu/cases/2003/03/02-2108.htm

Defining Unreasonable Searches under the Fourth Amendment

Joe Kennedy — Sat, 01 May 2010 06:38:09 -0800

Law enforcement officers and the public often have the misconception that an entry into a person's home, absent an active "looking for something or someone", is not a search under the Fourth Amendment. However, the physical act of crossing a home's threshold constitutes a "search" within the meaning of the Fourth Amendment. Payton v. New York, 445 U.S. 573, 576 (1980). Always remember that "search" is a legal term of art that means more than simply seeking out something or someone. Our courts describe a "search" as an intrusion upon a person's reasonable expectation of privacy.

Any entry into an area in which a person has a reasonable expectation of privacy is a search. Rakas v. Illinois, 439 U.S. 128, 143 (1978); United States v. Brack, 188 F.3d 748, 755 (7th Cir. 1999)(hotel room). A warrantless search violates the Fourth Amendment when it is an unreasonable infringement on an objectively reasonable expectation of privacy and there is no exception to the warrant requirement. United States v. Jacobsen, 466 U.S. 109, 113 (1984). Warrantless searches are presumptively unreasonable. Minnesota v. Dickeson, 508 U.S. 366, 372 (1993).

The "advance of technology" necessarily changes what people can expect to be reasonably private, such as the ability to view property from the air. Kyllo v. United States, 121 S.Ct. 2038, 2043 (2001). However, use of a thermal imager to obtain information about the interior of a home was a search and an unreasonable search. Taking a urine sample is a search. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 617 (1989). Drawing blood is a search. Schmerber v. California, 384 U.S. 757, 770 (1966). Extraction of DNA samples is a search. Shaffer v. Saffle, 148 F.3d 1180,1181 (10th Cir. 1998). A dog sniff is not a search. United States v. Place, 462 U.S. 696, 707 (1983). A canine sniff on the exterior of a vehicle during a lawful traffic stop does not implicate legitimate privacy interests. Illinois v. Caballes, ___ U.S. ___, 125 S.Ct. 834, 838 (2005). Romo v. Champion, 46 F.3d 1013, 1018 (10th Cir. 1995)(as long as item is lawfully seized, dog sniff not unreasonable). The use of electronic devices to capture conversations is a search. Berger v. New York, 388 U.S. 41, 51 (1967). However, there is no reasonable expectation of privacy in cordless phones. United States v. Mathis, 96 F.3d 1577, 1583 (11th CIr. 1996). Touching or movement of luggage is not a search. Bond v. United States, 529 U.S. 334, 338-39 (2000). However, inspection of the interior of luggage is a search. Illuminating an area that is subject to public view is not a search as long the officer is legally present. Texas v. Brown, 460 U.S. 730, 739-40 (1983). The act of moving property (stero)that is not contraband in a manner to inspect its serial numbers to determine if it was contraband was held to be a search. Arizona v. Hicks, 480 U.S. 321, 327 (1987).

In sum, always ask two questions: 1) Do you expect privacy in the place or property? 2) Is your expectation of privacy reasonable? If so, the police viewing of the place or thing (or any other sensory intrusion into the place or thing) is a search.

Child Sexual Abuse Decision Permits Prior Conviction

Joe Kennedy — Sat, 01 May 2010 05:25:30 -0800

The Tenth Circuit affirmed the conviction of a man for child sexual abuse after deciding that the trial court correctly admitted evidence of a 1995 conviction for sexual assault of a minor. You can read the opinion here: http://www.ca10.uscourts.gov/opinions/09/09-8079.pdf

In United States v. Batton, 2010 U.S. App. Lexis 8509, the defendant was convicted of taking a fourteen year old boy to Chicago and sexually assaulting him. The defendant appealed his conviction and complained that the trial judge should have excluded evidence of a 1995 conviction for child molestation. The Tenth Circuit examined Federal Rule of Evidence 413 and held that the district court properly admitted evidence of a conviction for a similar sexual assault in 1995.

Typically, evidence of prior acts that are similar to the act a person is accused of are excluded from evidence. Federal Rule of Evidence 403(A). However, Rule 413 is directed specifically toward defendants being prosecuted for sexual assault. Rule 414 allows admission of prior acts in child molestation cases. The reasoning for the rules, as the Court explained, is that evidence other than testimony is many times unavailable in prosecutions of child molestation cases and child molestation is often a repeated act. As the Tenth Circuit stated:

As we noted in United States v. Enjady, 134 F.3d 1427

(10th Cir. 1998), Congress enacted these rules because these types of cases often

raise questions regarding the victim’s credibility and a defendant’s prior conduct

can be especially probative. Id. at 1431. Additionally, the rules are “based on the

premise that evidence of other sexual assaults is highly relevant to prove

propensity to commit like crimes.” Id.

Arizona's "Stop and Identify" Law

Joe Kennedy — Fri, 30 Apr 2010 14:30:37 -0800

Arizona's new law compels law enforcement officers to make inquiry into the immigration status of a person who law enforcement has "reasonable suspicion . . . is an alien who is unlawfully present in the United States". Many on the radio and on the web suggest that this provision only applies when a law enforcement officer has lawfully stopped someone for suspicion of criminal activity or for a traffic violation. This is untrue.

The new statute presupposes a "lawful contact" between law enforcement and the person suspected of being an illegal alien. However, "lawful contact" between law enforcement and citizens includes police walking up to people in a public area and asking for identification. Florida v. Bostick, 501 U.S. 429 (1991); Florida v. Royer, 460 U.S. 491 (1983). However, the police may not demand identification and may not arrest for a refusal of a person to identify himself, unless reasonable suspicion exists that the person refusing to identify himself is engaged in some criminal act. Hiibel v. Humboldt County, 542 U.S. 127 (2004). So, while the police may not have probable cause to arrest the person detained for the crime he is suspected of committing, they can arrest the person, under most state laws, if the person refuses to identify himself, while being lawfully detained. In my experience, police understand that a verbal identification, which includes date of birth, is sufficient identification in most circumstances.

The genius [some would say evil genius] of the Arizona "stop and identify" law is that it creates a new crime under state law - illegal alien trespass. Thus, "lawful contact" is expanded to include all sorts of factors that did not amount to suspicion of a criminal conduct before the criminalization of illegal alien trespass. Thus, what would normally be considered profiling is transformed into reasonable suspicion of trespass. Lawful contact can now include detaining persons who appear to be Mexican and speak Spanish or speak English with a foreign accent. Once lawfully detained, law enforcement may require identification under threat of arrest.

New Mexicans and Arizona's Immigration Law

Joe Kennedy — Wed, 28 Apr 2010 20:13:07 -0800

My focus in this post is the "stop and identify" feature of the new Arizona immigration law and its potential impact on New Mexicans traveling to Arizona.

In 1928, Supreme Court Justice Louis Brandeis famously observed that the most cherished American right is the right to be let alone. Our country has a long antipathy toward "stop and identify" laws. In Brown v. Texas, 443 U.S. 47 (1979). our Supreme Court stated that police may not demand, under threat of arrest, identification of persons in public. In Hiilbel v. Humboldt County, 542 U.S. 177 (2004), the Supreme Court allowed law enforcement officers to enforce identification statutes if the person who refused to identify himself is lawfully detained for suspicion of criminal activity. The Court left open the question of what type of identification the state can require. However, I read the Hiilbel case to suggest that anything beyond verbal identification would be difficult to justify.

The most noxious feature of the Arizona statute is that it allows police officers to demand identification of person's suspected of being illegal aliens. Through experience we know that many suspects are innocent. Many suspected of being illegal aliens will be citizens and visitors legally in the United States. Reasonable suspicion requires a minimal level of objective information that a person is committing or has committed a criminal act. Illinois v. Wardlow, 528 U.S. 119, 123-24 (2000). This minimal level of information will involve police accounts detailing "furtive movements", "an area known for the pick-up of day laborers", 'failure to make eye contact" , and "Spanish speaker" in order to justify detentions and demands for identification.

Whether the failure to produce identification, once a person is detained on suspicion of being an illegal alien, provides sufficient cause for arrest will likely be for the courts to decide. The legislature gave law enforcement no guidance as to what constitutes reasonable suspicion of illegal alien status invoking law enforcement's right to demand identification. That lack of guidance and the failure to explain whether lack of accepted identification provides probable cause upon which an officer may make an arrest for trespass are troubling in a country that prides itself on freedom of movement.

The statute provides: "Any person who is arrested shall have the person’s immigration status determined before the person is released." Whether that provision is related to all arrests for any crime or simply to arrests for illegal alien trespass is not clear. The arrest provision in the "stop and identify" portion of the statute implies that one can be arrested for trespass if one does not have the required documents. Most notable for New Mexicans is that our state issued driver's licenses are not proof of legal residency in the United States, under Arizona law. Additionally, if the provision refers to all arrests, it is in direct conflict with our Eighth Amendment right to reasonable bail.

Here is the relevant portion of the law:

B. For any lawful contact made by a law enforcement official or a law enforcement agency of this state or a law enforcement official or a law enforcement agency of a county, city, town or other political subdivision of this state where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation. Any person who is arrested shall have the person’s immigration status determined before the person is released. The person’s immigration status shall be verified with the federal government pursuant to 8 United States code section 1373(c). A law enforcement official or agency of this state or a county, city, town or other political subdivision of this state may not solely consider race, color or national origin in implementing the requirements of this subsection except to the extent permitted by the United States or Arizona Constitution. A person is presumed to not be an alien who is unlawfully present in the United States if the person provides to the law enforcement officer or agency any of the following:

1.  A valid Arizona driver license.
2.  A valid Arizona nonoperating identification license.
3.  A valid tribal enrollment card or other form of tribal identification.
4.  If the entity requires proof of legal presence in the United States before issuance, any valid United States federal, state or local government issued identification.

New Mexico is one of a handful of states that does not require proof of citizenship or legal residency to obtain a driver's license. Another Arizona neighbor - Utah - also issues driver's licenses without proof of citizenship. Again, the statute does not state whether the failure to produce adequate identification will lead to an arrest. However, a police officer could reasonably believe he has the power to make an arrest of a person whom he suspects to be an illegal alien who, also, cannot produce evidence of legal status. To me that places far too much discretion in the hands of officers. Many citizens and legal residents of New Mexico could be affected by this law. Because the standard of reasonable suspicion, as a general concept in the law, calls for a minimal amount of evidence, a foreign accent or appearance, in the right circumstances, could raise a reasonable suspicion that the person is an alien and subject him to the identification obligations. A New Mexico driver's license does not create a presumption of legal residency.

The Arizona immigration law sets itself squarely in opposition to our cherished right to be let alone. The government's exercise of its police powers often results in restrictions of liberties for all. The Arizona immigration law is such an exercise of police powers.

Grooming Evidence Permitted in Child Sexual Abuse Prosecution

Joe Kennedy — Fri, 23 Apr 2010 15:03:08 -0800

The Tenth Circuit affirmed the conviction of a man for child sexual abuse after deciding that the trial court correctly admitted evidence of grooming behavior of predator abusers. You can read the opinion here: http://www.ca10.uscourts.gov/opinions/09/09-8079.pdf

In United States v. Batton, 2010 U.S. App. Lexis 8509, the defendant was convicted of taking a fourteen year old boy to Chicago and sexually assaulting him. The defendant appealed his conviction and complained that the trial judge should have excluded testimony from an expert about "grooming" behavior of predatory child abusers. The Tenth Circuit permitted the following testimony:

Dr. Heineke testified that sex offenders are generally not strangers to their

victims and their families but are more often than not close family members,

friends, or well-respected individuals in a community who often use their

positions to groom their victims into trusting them. He also informed the trial

court that many lay persons carry a common misconception that sex offenders are

only strangers or fit some misconceived criminal caricature.

The Court went on to explain that other courts have allowed similar testimony to explain how sexual predators develop a trusting relationship with their victims.

Tenth Circuit Affirms Deadly Police Shooting for Jury to Decide

Joe Kennedy — Sat, 10 Apr 2010 17:11:32 -0800

In Zia Trust Company v. Montoya, 2010 U.S. App. Lexis 5016 (March 9, 2010), the child of a victim of police use of deadly force brought a lawsuit against the police officer and Dona Ana County. In this police shooting case, the police officer filed a motion for summary judgment in district court. The district court denied the motion holding that the law related to excessive use of deadly force was clearly established. The Officer appealed and the Tenth Circuit affirmed that a reasonable jury could find that the officer's use of force deprived the child's father of his fourth amendment right to be free of excessive force. The opinion can be read here: ca10.washburnlaw.edu/cases/2010/03/09-2006.pdf.

In this case, police were called to a home where a father and an adult son were having a dispute. The son was reported to have mental health problems. When police arrived, the son was in a car lodged on a pile of rocks. The car lurched forward about a foot and Officer Montoya fired a single shot into the car killing the son. The Tenth Circuit found that a reasonable jury could conclude that Officer Montoya used excessive force in shooting the adult son.

For practitioners, the Tenth Circuit explained, in greater detail, the factors a jury may consider when deciding whether deadly police force is unlawful:

We may also consider a number of factors, including: "(1) whether the officers ordered the suspect to drop his weapon, and the suspect's compliance with police commands; (2) whether any hostile motions were made with the weapon towards the officers; (3) the distance separating the officers and the suspect; and (4) the manifest intentions of the suspect." Estate of Larsen, 511 F.3d at 1260. "The use of deadly force is justified under the Fourth Amendment if a reasonable officer in the Defendant's position would have had probable cause to believe that there was a threat of serious physical harm to themselves or others." Walker, 451 F.3d at 1159 (internal quotations omitted).

Tenth Circuit Holds Wife's Consent to Search Home Tainted

Joe Kennedy — Sat, 10 Apr 2010 17:07:56 -0800

Law enforcement likes consent to search a home. With consent to search a home, law enforcement does not need to apply for a search warrant. The law prefers search warrants, but allows consent when "freely given".

In USA v. Fox, 2010 U.S. App. Lexis 5804, the Tenth Circuit reversed a felon in possession of a gun conviction because officers illegally searched a defendant's home based upon the defendant's wife's consent to search the home. The problem for the police was that the consent was obtained after an illegal detention of the wife. The full opinion can be read here: ca10.washburnlaw.edu/cases/2010/03/09-5131.pdf

The Tulsa police arrested Mr. Fox outside his home for an outstanding warrant. When Mrs. Fox arrived home, she stopped in the street and asked the officer what was going on. One officer hopped into the passenger side and told Mrs. Fox to pull into the parking lot of a local convenience store. Once there, the officer checked Mrs. Fox's license and checked her for outstanding warrants. The officer then conducted a "consensual" search of Mrs. Fox's car and found an illegal drug - likely methamphetamine. A that point, the officer told her that he had bigger fish to fry - Mr. Fox. The officer asked for consent to search the family home. Mrs. Fox said "yes". The officers from Tulsa searched the home and found a shotgun. Mr. Fox was a convicted felon.

The opinion focuses on whether Mrs. Fox was seized when the officer hopped in her car and directed her to another location. The Tenth Circuit held that, indeed, Mrs. Fox was seized and that there was no legal basis for the seizure. Thus, the consent resulting during the illegal seizure was, as a matter of law, coerced or not "freely given".

For the practitioner, the Tenth Circuit re-stated the factors it considers when deciding whether a seizure occurs:

In determining whether an individual has been seized, we have considered several factors, including:

(1) the threatening presence of several officers; (2) the brandishing of a weapon by an officer; (3) physical touching by an officer; (4) aggressive language or tone of voice by an officer indicating compliance is compulsory; (5) prolonged retention of a person's personal effects; (6) a request to accompany the officer to the police station; (7) interaction in a small, enclosed, or non-public place; and (8) absence of other members of the public.

United States v. Rogers, 556 F.3d 1130, 1137-38 (10th Cir. 2009). No single factor is dispositive, and this list is not exhaustive. Id. at 1138. Another relevant factor that suggests an encounter is not consensual is whether the officer advised an individual that she is free to leave. United States v. Ledesma, 447 F.3d 1307, 1314 (10th Cir. 2006).

Breastfeeding Mom Vindicates Her Right to Physical Privacy

Joe Kennedy — Thu, 08 Apr 2010 18:06:31 -0800

In Shroff v. Spellman, 2010 U.S. App. Lexis 6018, Amy Shroff vindicated her right to privacy when she and her attorneys successfully defended the appeal of Officer Spellman's denial of his qualified immunity defense to his arrest of Ms. Shroff after he ignored the clear terms of a restraining order she had obtained against the physically abusive father of her child. The full opinion can be read here: ca10.washburnlaw.edu/cases/2010/03/09-1084.pdf.

Officer Frank Spellman of the Denver Police Department arrested Amy Shroff. She had obtained a restraining order against the father of her child after several acts of physical abuse. The restraining order prevented her ex from coming within one hundred feet of her, but it was not a mutual restraining order.

One day while driving to drop her daughter off for supervised visitation, she noticed her ex's truck parked outside the local bar. Amy got out of her car and took a picture of the truck in front of the bar. Unknown to her, her ex was simultaneously taking a picture of her. The ex complained to Officer Spellman, who ignored the clear language of the restraining order and arrested Ms. Shroff for coming within 100 feet of her ex. The Tenth Circuit ruled that the arrest lacked probable cause of a crime.

At the police station, Amy pleaded not to be arrested because of her child's aversion to formula. When that appeal was denied, she pleaded for a chance to pump her breasts. Officer Spellman placed Amy in a conference room with a female cadet where Amy pumped her breasts. The Tenth Circuit held that Amy did not voluntarily expose her breasts and held that her claim was analogous to prohibited strip searches of misdemeanants in police custody.

Of note for the practitioner is further explanation of the qualified immunity defense and the need for an action to have been held unconstitutional in a previous decision. The Tenth Circuit wrote:

In Fogarty v.Gallegos, 523 F.3d 1147 (10th Cir. 2008), this Court held that

“our circuit uses a sliding scale to determine when a law is clearly established.

Under this approach, ‘[t]he more obviously egregious the conduct in light of

prevailing constitutional principles, the less specificity is required from prior case

law to clearly establish the violation.’” Id. at 1161 (quoting Pierce v. Gilchrist,

359 F.3d 1279, 1298 (10th Cir. 2004)) (alteration in original).

"De Minimis" Injury in Excessive Force Claims Defined by 10th Circuit

Joe Kennedy — Sat, 13 Feb 2010 21:48:59 -0800

What makes a seizure unreasonable when interpreting the Fourth Amendment to the United States Constitution? How should reasonable be interpreted at the summary judgment stage, for the purposes of determining whether a police officer is entitled to qualified immunity? Recently, the United States Court of Appeals for the Tenth Circuit significantly clarified competing doctrines in this area, releasing an opinion authored by Judge Tymkovich in the case of Robert and Mary Fisher v. The City of Las Cruces, 2009 U.S. App. LEXIS 22825 (10th Cir. N.M. Oct. 19, 2009).

The Court recited the background of this strange case:

“After consuming at least two doses of Xanax, an anti-anxiety prescription medication, and the better part of a pint of vodka, Robert Fisher passed out in his backyard. When he awoke, he began to hallucinate that a large animal was threatening him. Fisher ran inside, retrieved a 9 millimeter handgun, and returned to the backyard to confront the illusion. Staggering and delirious, Fisher instead accidentally shot himself in the stomach. As he fell to his knees, his gun discharged again and a second bullet struck him in the left bicep.”

Id. at 22825. Las Cruces police department Officers Joann Schnell and Roberto Gutierrez responded to the scene, finding a bewildered Robert Fisher in the backyard, with his shirt off, nursing his wounds.

After retrieving Fisher’s gun, Officer Gutierrez ordered Fisher to lay on his bleeding stomach and spread his arms over his head. Fisher resisted this order, telling the officers that he could not comply due to his injuries. After repeating these orders, Fisher again did not comply. Officer Schnell then proceeded to handcuff Fisher behind his back. Because of the swelling to Fisher's bicep, she placed her knee into Fisher's back, in order to leverage his arms behind his body.

“Fisher begged not to be handcuffed in this manner. As he later reported: "I protested the handcuffing behind my back. I told the officers that it was not necessary and to consider my wounds. . . . I begged her not to handcuff me behind my back." Aplt. App. 77. The manner in which he was handcuffed--with a knee to his back, placing pressure on his stomach wound, and with his arms brought behind his body--caused, in Fisher's words, ‘excruciating pain. It felt like my bicep was tearing.’ Id. at 78.”

Id. at 22825. Fisher sued the officers under Section 1983, claiming the officers used excessive force, in violation of his rights under the Fourth Amendment. The District Court ruled against Fisher at summary judgment, claiming his injuries were minor, and he had not offered enough evidence “that he suffered a non-de minimis injury.” Id.

After surviving the two-part test laid out for qualified immunity explained in Martinez v. Carr, 479 F.3d 1292, 1295 (10th Cir. 2007) , the Court reviewed United States Supreme Court doctrine found in Saucier v. Katz, 533 U.S. 194, 121 (2001). The Court requires establishment of 1) a violation of a Constitutional right and 2) that the right was clearly established.

Following this analysis, the Court moved on to several balancing factors found in Graham v. Connor, 490 U.S. 386 (1989) to explain that a seizure’s reasonableness turns not just on why or when it is made, but also on how it is accomplished. In some circumstances, an inquiry into objective reasonableness won’t just focus on why, but also how. The Court cited Cortez v. McCauley, 478 F.3d 1108, 1127 (10th Cir. 2007), for the proposition that, “If the plaintiff can prove that the officers used greater force than would have been reasonably necessary to effect a lawful arrest, he is entitled to damages resulting from that excessive force."

Applying prior doctrine, the Court analyzed, “[1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396. The Court drew extensively on Buck v. City of Albuquerque, the war protestor case from 2003, in which the city was sued for excessive force in dealing with individuals exercising their 1^st Amendment rights:

“We do not agree with the concurrence that Buck v. City of Albuquerque, 549 F.3d 1269, 1290 (10th Cir. 2008), rejected a de minimis injury requirement where the injury occurs during the course of handcuffing. The facts of the case make it clear why not. Doyon (the only person even handcuffed) did not attempt to flee, or pose a threat to any officer or individual, but nonetheless, the ‘officers grabbed him, dragged him, and pushed him face down on the pavement. One officer kneed him in the back and pinned him to the ground. An officer pushed him face forward onto the roof of a police car, and he was exposed to tear gas while handcuffed in the car.’ Id. at 1290. … Doyon was exposed to gas while handcuffed in the police car. Buck, in short, cannot fairly be read as a case in which excessive force arises solely from the manner in which officers applied handcuffs, rather than from force independent of the handcuffing itself.”

Fisher at 22825.

Finding that discharge of a gun in the city limits of Las Cruces is only a petty misdemeanor, and therefore not a severe crime, and viewing facts in light most favorable to the Plaintiff, the Court concluded in Fisher’s favor on all three Graham factors. The Court found that a reasonable juror could find injury, if even tiny injury. Either way, physical injury was not required, so long as emotional injury, or dignitary injury, could also be independently found. Remand for further proceedings and trial was appropriate.

Stating a clear rule of law, “In Cortez we explained that in a handcuffing case ‘to recover on an excessive force claim, a plaintiff must show: (1) that the officers used greater force than would have been reasonably necessary to effect a lawful seizure, and (2) some actual injury caused by the unreasonable seizure that is not de minimis, be it physical or emotional." Id. at 1129. Fisher at 22825.

In a concurrence on the judgment by Judge Gorsuch, he took issue with a rule requiring a showing of actual injury. “[O]utside the context of a claim alleging overly tight handcuffing, proof of injury [either physical or emotional] is not essential to an excessive force claim. See [Cortez] at 1129 n.24. “… [T]he circumstances of an encounter . . . may themselves be so outrageous as to demonstrate excessiveness’ without any evidence of a consequent injury).” Fisher at 22825.

-Derek Garcia for the Kennedy Law Firm

LULAC Joined by Southern Christian Leadership Conference Calling for Federal Ban on Tasers

Joe Kennedy — Wed, 23 Sep 2009 09:33:09 -0800

Last week, the League of United Latin American Citizens (LULAC) was courageously joined by the Southern Christian Leadership Conference (SCLC) in its call to ban the use of the Taser device nationwide. On September 8, 2009, the SCLC, whose first President was Martin Luther King, Jr., joined the Latino organization’s call to stop this brutal and inhumane practice by police officers. LULAC started to build momentum for this push to end the use of tasers in Albuquerque, New Mexico on August 15, 2009, holding a national press conference on the steps of City Hall. SCLC will be putting major pressure on the Obama administration (pressing Congress in the coming months) to outlaw a practice already classified as “torture” by the United Nations.

The push came after 14-year-old Kailee Martinez of Tucumcari, New Mexico was brutally struck in the head by a Taser dart. She now has 18 staples and 6 stitches on her head, thankful that she did not lose her life, compared with New Mexico’s 4 other lethal cases.

According to Truth Not Tasers, there have been 443 individuals killed by tasers in North America, as of July 1, 2009. Amnesty International placed the fatality number at 330 since 2001, while excluding cases resulting in severe brain damage, acoma, or a vegatative state.

Other recent cases of police brutality include a 14-year-old middle schooler with autism from Indianapolis, IA, who was tasered twice for “acting out” in school. Instead of following the IEP and individual discipline plan for the autistic child, school authorities resorted to police intervention. Robert Smith of Indianapolis despicably labeled the incident as simply “enabling” the child, only encouraging him to “cross the line” further and disrespect police authority in the future. One wonders what would have occurred to Rosa Parks had tasers been in use in Montgomery, Alabama in 1955.

Several lawsuits have unsuccessfully challenged TASER International, Inc.’s claims that use of the device is a “non-lethal” alternative to older-fashioned methods of police brutality, challenging the device on products liability grounds. These lawsuits have met with limited success, however, and have yet to thoroughly penetrate America’s political consciousness. An incomplete list includes: Powers v. Taser Intern., Inc., 2007 WL 5446674; Williams v. Taser Intern., Inc., 2007 WL 1630875 (N.D.Ga. 2007); Neal-Lomax v. Las Vegas Metropolitan Police Dept. 2006 WL 2668190; and other big cases.

Over the summer, in a huge victory against TASER International, a California jury awarded $6.2 million to a man wrongfully and excessively tased. The victory is the first ever against Taser International in a product-liability claim. TASER is appealing the award.

In Merced, California, an unarmed black man in a wheelchair, Gregory Williams, was excessively tased for no justifiable reason. Gregory had no legs at the time of incident (and therefore fleeing was not a possibility), as shown in this video. Mr. Williams lost his legs to gangrene previously, along with his job as a truck driver. No resolution from the incident is known at this time.

In Michigan, a 15-year old was tasered to death after bailing out of his Dodge Stratus, having done nothing more than drive on an expired license plate. After being shocked a single time by police, he paid the death penalty for driving on expired tags. A second Michigan case was that of 15-year-old Brett Elder, who was executed by taser after wanting to fight the police bare-handed. In all of the cases, the juveniles were completely unarmed.

“50,000 volts of shock can damage your nerves, can cause cardiac arrest and death. Your nervous system is a series of delicate cords,” said Ralph Arellanes of Albuquerque, New Mexico, LULAC’s District 1 Director and Chairman of the Hispano Roundtable of New Mexico. “We have medical professionals that say it hasn’t been tested enough by science, and there is no statistical evidence that Tasers actually save lives. If anything, lethal encounters between officers and civilians have actually increased.”

Arellanes attributes this to the fact that Albuquerque’s police training manuals falsely list a Taser as equal in force to that of mace or pepper spray, another assertion without any credible evidence. He believes there is a high percentage of police officers abusing tasers and too many innocent people are getting tased and dying at the hands of these police officers as a result of this abuse.

“Even good officers lose their temper from time to time ... Some love to watch people squirm and scream,” Arellanes observed, noting that it is often fun for officers to deploy the devices. “The abuse of these devices by police departments is widespread. Some of them enjoy watching people electrocuted,” while others he characterizes as simply numb or insensitive to the damage being caused.

In Tucumcari, Police Chief Roger Hatcher is back on the job six weeks after using a Taser stun gun to deliver 50,000 volts to apprehend a 14-year-old girl, all to stop her from running away from her mom and sending text messages to her friends. Perhaps because of misleading information provided in training or various other issues, this young girl suffered unnecessary damage by the Taser. All in a day’s work and simply business as usual, without a second thought to the damage, both physically, psychologically, and to the community at large.

-Derek Garcia for The Kennedy Law Firm

Albuquerque Jury's Verdict in Favor of Officers in Home Invasion Case Overturned by the 10th Circuit - Feelings and Hunches Not a Basis of Cause

Joe Kennedy — Tue, 11 Aug 2009 16:16:27 -0800

The decision in Danny Manzanares v. Sean Higdon, 07-2156, an officer of the Albuquerque Police Department, is a major victory for the rights of citizens being interrogated by the police in their own homes. The 7 yr. old case was brought by Dennis Montoya of Rio Rancho, New Mexico.

Danny Manzanares first consented to the officers entering his home to investigate allegations of rape made against a co-worker and friend, Miguel “Rick” Maestas. Danny later revoked consent, commanding the officers to leave and stop asking him questions. Instead of leaving, the officers arrested Manzanares, who was neither a material witness nor accessory to the crime of rape, but merely stopping short of informing on his friend’s address.

Continued ...

The Appeals Court in Denver overruled an Albuquerque jury’s decision in favor of the officer (which was erroneously upheld by the lower federal court).

Officers can’t arrest people in their own homes without a warrant, even if they have certain fears and suspicions of criminal activity. Having a hunch or a feeling that Danny Manzanares knew more than he was saying, Officer Sean Higdon decided to place handcuffs on Danny, hauling him out of his home and placing him in his patrol car.

Manzanares was then detained for more than three, perhaps up to seven hours in Higdon’s patrol car, while the officer drove him to the residence of his friend and primary suspect. The Court cited United States v. Place, 462 U.S. 696, 709-10 (1983) for the fact that a detention of over 90 minutes automatically constitutes an ‘arrest’ and cannot be newspoken into merely an ‘investigative detention.’ Officer Higdon expressed his feelings of fear that “Manzanares might have alerted Maestas (the rape suspect) to the police investigation if freed.” Id. at 22. Officer Higdon also expressed his fear of guns, testifying that “ ‘I was in somebody’s house. I don’t know anything about this person or what weapons he may have accessible to him in his own house.’ He further explained, ‘I felt the need to put him in handcuffs, so I mean, I wouldn’t have just put him in handcuffs for no reason.’ Higdon acknowledged that Manzanares was not suspected of a crime.” Id. at 4.

After thoroughly reviewing landmark U.S. Supreme Court cases, concerning castles in Payton, 445 U.S. at 601, Mapp v. Ohio, 367 U.S. 643 (1961), and Randolph, 547 U.S. at 115, and even going all the way back to 1928 in Olmstead v. United States, 277 U.S. 438, 463, Circuit Judge Lucero affirmed the long-standing tradition that there is simply no place for the subjective feelings of an officer in the law, especially when the Constitutional rights of citizens are at stake.

“We will not lower the drawbridge to invite police into a home without a warrant or an established substitute therefor whenever officers ‘feel’ that a resident might impede an ongoing investigation. Such an exception would stand the Fourth Amendment on its head. See Randolph, 547 U.S. at 109 (exceptions to the warrant requirement must be ‘jealously and carefully drawn’ (quoting Jones, 357 U.S. at 499). A jealous drawing of exceptions also was important in Melendez-Garcia, 28 F.3d at 1052 and Cortez, 478 F.3d at 1115-16. Even local, seemingly-futile and near-forgotten 2003 war resistance cases like Buck v. City of Albuquerque, 549 F.3d 1269, 1281-82 (10th Cir. 2008) was cited for the notion that “neither the officer’s subjective beliefs nor information gleaned post-hoc bear on this inquiry.” Manzanares at 12. Keylon v. City of Albuquerque, 535 F.3d 1210, 1218 (10th Cir. 2008) was asserted for the notion that there are areas of law which are strictly “objective legal questions,” and shouldn’t require years of painfully waiting for justice.

Inexplicably, Higdon’s attorney obtained jury instructions regarding an ‘accessory’ in the commission of a crime, aiding a felon to avoid arrest, and whether Manzanares “helped, encouraged, or caused the [sexual assault] to be committed.” Manzanares at 13, fn. 9. Not even officer Higdon alleged that Danny had anything to do with the crime at the time of the arrest, leading the Court to the inescapable conclusion that, “no reasonable jury could have found for Higdon on the basis of either of these statutes.” Id.

The Court continues, quoting Groh, 540 U.S. at 559, “ ‘[E]ven when a felony has been committed and there is probable cause to believe that incriminating evidence will be found within” a home, police may not enter without a warrant absent exigent circumstances. Warrantless searches and seizures in the home are presumptively unreasonable. Groh v. Ramirez, 540 U.S. 551, 559 (2004). And, “[L]abeling an encounter in the home as either an investigatory stop or an arrest is meaningless because Payton’s requirements apply to all [such] seizures.” United States v. Reeves, 524 F.3d 1161, 1166 (10th Cir. 2008).

The case marks the third recent major reversal of a major civil rights case, beginning with Keylon, which could have settled much earlier (and at far less emotional cost to Plaintiffs) in the legal process, but for the City of Albuquerque’s blanket “no settlement” policy in civil rights cases. The case began on March 16, 2002 and is just now being remanded for a new jury trial on damages, which will include the costs of the appeal.

When asked for comment, Rio Rancho attorney Dennis Montoya said, “The principal value of the case is that it serves to more clearly define what police officers CANNOT do when they are dealing with an individual in his own home. The case outlines for police officers when they do and more importantly when they DO NOT have probable cause to arrest someone.”

The 10th Circuit also strictly followed the U.S. Supreme Court’s ruling in Jimeno, 500 U.S. at 251, regarding a Plaintiff who initially agrees to talk with officers by letting them into his home, but later revokes consent. “Similarly, the Court has clearly established that the scope of a consensual encounter is controlled by the consenting person.” Id. A citizen commanding a public servant to leave her own home should be regarded as a clear order. The law will not play games with an individual citizen’s right to end any encounter, which may have initially started with consent.

If “at the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion,” retreating home must always be respected, less the foundations of our country crumble. Payton, 445 U.S. at 589-90.

-Derek Garcia for the Kennedy Law Firm

10th Circuit Rules: Lending a Red Sweater to a Friend in July Does Not Support Probable Cause in "Shoes on a Shoestring" Robbery

Joe Kennedy — Wed, 05 Aug 2009 15:37:00 -0800

In a recent, split decision by the United States Court of Appeals for the 10th Circuit, the Court reversed a lower court’s judgement against Sylvia Avila, a Hispanic girl, 13 years old at the time of the incident. The decision in Glenda Sherouse and Sylvia Avila v. Suzanne Ratchner, et al., No. 08-2105, was written by Circuit Judge McConnell. The case and appeal was brought by Mary Y.C. Han, Paul J. Kennedy, and Caren I. Friedman for the Plaintiffs-Appellants, in a hard-fought case spanning years.

The wrongful arrests of the teenage girls arose after three armed robberies, one of which occurred in an Albuquerque Shoes on a Shoestring, a store known for its quality shoes, priced within grasp of the reasonable. However, because there was enough probable cause supporting the jury’s verdict against Sylvia’s African American friend, then 14 -year-old Glenda Sherouse, the district court denied Sherouse’s Motion for Judgment as a Matter of Law. Civil Rights attorneys are sedulously scouring the opinion, in order to understand its doctrine and reasoning.

Contd ...

After three quick armed robberies in the area, Glenda and Sylvia were casually sitting outside of their apartment, quietly enjoying Albuquerque’s unique curbsides in July. An unrelated call to the police came from an area resident, reporting that two young females were acting “suspicious.” The basis of the area resident’s suspicion? “The call reported that the black female had put on a sweater given to her by Ms. Avila.... Concluding that Ms. Sherouse matched the description of the robber ... Officer Stone, handcuffed Ms. Sherouse ‘because she potentially was the one that was armed,’ patted her down, and placed her into the back of the police car. Aplt. App’x 715.” Id.

The two girls sued the police for violations of their civil rights. A jury found in favor of the Defendants and the City of Albuquerque, believing that because of a positive, but questionable, eyewitness identification of Glenda by witness Inez Rubio, the officers had enough probable cause to make the arrests. The unduly suggestive identification took place while Sherouse was in the back of the police car, and not utilizing a double-blind line-up or photo array, making it per se faulty compared with national policing standards. One officer wrote in his report that, “[n]o one was able to positively identify Sherouse as the offender. All witnesses were uncertain.” Id. at 10. The witnesses also testified at trial that police misrepresented whether they had positively identified Ms. Sherouse. Still, one of the witnesses acknowledged at trial that she had told the officer that Ms. Sherouse “looked similar to the robber.”

The lower court issued Jury Instruction 12, which reads, in part: “A police officer’s probable cause determination is not negated if the officer reasonably but mistakenly believed that probable cause existed at the time of the arrest.” Id. at 5. Reviewing this instruction, the 10th Circuit wrote that, “whether a situation indicates probable cause for arrest depends on an officer’s subjective understanding of the facts, as well as the objective application of the law to those facts.” Citing United States v. DeGasso, 369 F.3d. 1139, 1144-45 (10th Cir. 2004), the court said that while an officer’s reasonable but mistaken understanding of the facts justifying a search or seizure does not negate the legitimacy of a probable cause determination, an officer’s reasonable but mistaken understanding of the applicable law he is enforcing does. " Id. at 6.

In this case, because a teenage girl giving a red sweater to her friend is still not against the law in America, judgment as a matter of law was appropriate against the officers, as to Sylvia. In the words of Judge McConnell, “Ms. Avila may have retrieved the sweater so the two could leave, or she may have provided it to her friend for warmth. Where an officer observes inherently innocuous behavior that has plausible innocent explanations, it takes more than speculation or mere possibility to give rise to probable cause to arrest.” Id. at 12.

In practical terms, the City of Albuquerque will have to pay attorneys’ fees at both the trial and appeals level, for a matter of law that could have been settled much earlier in the legal process. The case and others like it is leading some to question Mayor Martin Chavez’s “no settlement” policy, when obviously unlawful arrests take place. The City is one of the few in the country where citizens must suffer several years before receiving compensation for clear violations of their civil rights.

Overall, because of the mistaken identification made by a third party of Glenda, the jury’s determination in the officer’s favor will stand. The Court believed that Officer Stone had enough probable cause to make the arrest of the African American girl in a borrowed red sweater, despite the fact she was suggestively identified (there was no other possibility in the back of a police car). One wonders out loud: if Avila were black, and not Hispanic, whether the Court would believe there was probable cause to arrest? Perhaps every black female under the age of 30, in the vicinity of Shoes on a Shoestring that fateful day in July, had ample cause to fear wrongful arrest by City officers.

-Derek Garcia for The Kennedy Law Firm

U.S. Supreme Court Clarifies Standards for School Strip Search Cases

Joe Kennedy — Thu, 25 Jun 2009 15:50:03 -0800

Today a 13 year-old student from Arizona won an important victory for the privacy of minors in a school setting. Middle-schooler Savana Redding was accused by a fellow student of distributing prescription-strength drugs to other students. She was forced to endure a humiliating strip search by Helen Romero, the school administrator, in addition to a second search by Peggy Schwallier, the school nurse. Savana’s mother, April Redding, sued on behalf of her daughter, while simultaneously managing to avoid any liability issues associated with her minor daughter allegedly throwing unsupervised parties in her own house, where alcohol and drugs were present. In the just-released slip opinion in Safford Unified School District #1, et. al. v. April Redding, 2009 WL 178472, the Court held that the search was a violation of Savana’s Fourth Amendment rights, but also that school officials were entitled to qualified immunity.

In a carefully reasoned opinion by Justice Souter, the Court found the facts to be such:

    “The events immediately prior to the search in question began in 13-year-old Savana Redding’s math class at Safford Middle School one October day in 2003. The assistant principal of the school, Kerry Wilson, came into the room and asked Savana to go to his office. There, he showed her a day planner, unzipped and open flat on his desk, in which there were several knives, lighters, a permanent marker, and a cigarette. Wilson asked Savana whether the planner was hers; she said it was, but that a few days before she had lent it to her friend, Marissa Glines. Savana stated that none of the items in the planner belonged to her.” Id.

    The school had previously received reports from one Jordan Romero, another student, who had told the principal and Wilson that students were bringing drugs to school and that he had gotten sick from some pills. He had also attended a party where alcohol existed in greater quantity than parental involvement. The school had already found illicit substances on Marissa, Savana’s friend. Outside of the report of her ‘friend’ Marissa, who was already definitively caught with drugs, Wilson and the school had no independent basis for believing that Savana had any pills on her person, let alone in her underwear.

    “At that point, Wilson instructed Romero to take Savana to the school nurse’s office to search her clothes for pills. Romero and the nurse, Peggy Schwallier, asked Savana to remove her jacket, socks, and shoes, leaving her in stretch pants and a T-shirt (both without pockets), which she was then asked to remove. Finally, Savana was told to pull her bra out and to the side and shake it, and to pull out the elastic on her underpants, thus exposing her breasts and pelvic area to some degree. No pills were found.” Id.

    The Court reviewed prior holdings in New Jersey v. T.L.O., 469 U.S. 325 (1985), and qualified immunity claims by Saucier v. Katz, 533 U.S. 194, 200 (2001) to determine that a Fourth Amendment violation had occurred. The Court cited evidence that strip searches and other privacy violations can result in serious emotional and psychological damage to young people:

    “Savana’s subjective expectation of privacy against such a search is inherent in her account of it as embarrassing, frightening, and humiliating. The reasonableness of her expectation (required by the Fourth Amendment standard) is indicated by the consistent experiences of other young people similarly searched, whose adolescent vulnerability intensifies the patent intrusiveness of the exposure. See Brief for National Association of Social Workers et al. as Amici Curiae 6-14; Hyman & Perone, The Other Side of School Violence: Educator Policies and Practices that may Contribute to Student Misbehavior, 36 J. School Psychology 7, 13 (1998) (strip search can ‘result in serious emotional damage.’). The common reaction of these adolescents simply registers the obviously different meaning of a search exposing the body from the experience of nakedness or near undress in other school circumstances. Changing for gym is getting ready for play; exposing for a search is responding to an accusation reserved for suspected wrongdoers and fairly understood as so degrading that a number of communities have decided that strip searches in schools are never reasonable and have banned them no matter what the facts may be ...”(Souter, J.) Id.

    Sympathetic to the notion that severe violations of privacy can, according to leading psychological literature, actually lead to delinquent behavior, loss of self-respect and dignity, loss of respect for society’s rules (and Fourth Amendment protections), and a generally anarchistic sense of being out of control, Justice Stevens would have even gone so far as to deny qualified immunity from liability of the school itself, including the principal in his personal capacity:

    “Nothing the Court decides today alters this basic framework. It simply applies T. L. O. to declare unconstitutional a strip search of a 13-year-old honors student that was based on a groundless suspicion that she might be hiding medicine in her underwear. This is, in essence, a case in which clearly established law meets clearly outrageous conduct. I have long believed that “ ‘[i]t does not require a constitutional scholar to conclude that a nude search of a 13-year-old child is an invasion of constitutional rights of some magnitude.’ ” Id., at 382, n. 25 (Stevens, J., concurring in part and dissenting in part) (quoting Doe v. Renfrow, 631 F. 2d 91, 92-93 (CA7 1980)).” Id. (Stevens, J., concurring and dissenting in part).

    Justice Ginsburg, outraged by the school’s presumption of authority, lambasted the conduct of officials:

    “Wilson had no cause to suspect, based on prior experience at the school or clues in this case, that Redding had hidden pills-containing the equivalent of two Advils or one Aleve-in her underwear or body. To make matters worse, Wilson did not release Redding, to return to class or to go home, after the search. Instead, he made her sit on a chair outside his office for over two hours. At no point did he attempt to call her parent. Abuse of authority of that order should not be shielded by official immunity. In contrast to T. L. O., where a teacher discovered a student smoking in the lavatory, and where the search was confined to the student’s purse, the search of Redding involved her body and rested on the bare accusation of another student whose reliability the Assistant Principal had no reason to trust.” (Ginsburg, J.) Id.

    Justice Thomas took issue with what he considered an uncommonly silly and unworkable rule adopted by the Court, which essentially places federal judges in the shoes of middle school teachers and administrators. Reminiscing on the bygone days of in loco parentis, where teachers had all the authority of parents for “commanding obedience, to control stubbornness, to quicken diligence, and to reform bad habits,” (citing State v. Pendergrass, 19 N.C. 365, 365-366 (1837) employing corporal punishment), Justice Thomas would have found that the search did not violate the Fourth Amendment.

    Justice Thomas, known for his opposition to affirmative action, warned the Court that it was recklessly elevating the decision-making capacity of a teenager, perverting it into something actually deserving Constitutional protection:

    “By declaring the search unreasonable in this case, the majority has ‘surrender[ed] control of the American public school system to public school students’ by invalidating school policies that treat all drugs equally and by second-guessing swift disciplinary decisions made by school officials. See Morse, 551 U. S., at 421 (Thomas, J., concurring) (quoting Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 526 (1969) (Black, J., dissenting)).” Id. (Thomas, J.) (emphasis added).

    In attempting to fight back against an apparent victory for large pharmaceutical companies, which are addicting children to prescription pain killers (used for recreational purposes), at an alarming rate, Justice Thomas warned the Court that it was today not protecting the Constitution, but instead “announc[ing] the safest place to secrete contraband.” Id. He then cited several alarming statistics about the abuse of prescription drugs and their deadly consequences, including their increasing use in suicidal behavior:

    “ ‘[t]eenage abuse of over-the-counter and prescription drugs poses an increasingly alarming national crisis.’ Get Teens Off Drugs, The Education Digest 75 (Dec. 2006). As one study noted, “more young people ages 12-17 abuse prescription drugs than any illicit drug except marijuana-more than cocaine, heroin, and methamphetamine combined.” Executive Office of the President, Office of National Drug Control Policy (ONDCP), Prescription for Danger 1 (Jan. 2008) (hereinafter Prescription for Danger). And according to a 2005 survey of teens, “nearly one in five (19 percent or 4.5 million) admit abusing prescription drugs in their lifetime.” Columbia University, The National Center on Addiction and Substance Abuse (CASA), “You’ve Got Drugs!” V: Prescription Drug Pushers on the Internet 2 (July 2008); see also Dept. of Health and Human Services, National Institute on Drug Abuse, High School and Youth Trends 2 (Dec. 2008) (“In 2008, 15.4 percent of 12th-graders reported using a prescription drug nonmedically within the past year).” Id. (Thomas, J.)

    Pain killers have a long history of being the most readily accessible method of ending one’s own life. Today’s decision means school administrators no longer have parental authority for “they are tasked with ‘watch[ing] over a large number of students’ who ‘are inclined to test the outer boundaries of acceptable conduct and to imitate the misbehavior of a peer if that misbehavior is not dealt with quickly.’ Id., at 352. In such an environment, something as simple as a ‘water pistol or peashooter can wreak [havoc] until it is taken away.’ Ibid. The danger posed by unchecked distribution and consumption of prescription pills by students certainly needs no elaboration.” Id. (Thomas, J.).

    Essentially calling teenagers stupid, and parents negligent in the care of their own children, Justice Thomas warned that “[t]eenagers are nevertheless apt to ‘believe the myth that these drugs provide a medically safe high.’ ” Id. Prescription drugs are essentially the new cigarettes, supported by multi-million dollar ad campaigns.

    As some drug dealers, already profiting from extremely rewarding and lucrative careers in drug dealing (more so than the law), also don’t have the attention spans to absorb exactly what-sized container is now the safest to secrete contraband (See Horton v. California, 496 U.S. 128, 141 (1990), the search must be limited to the areas where the object of that infraction could be concealed), Justice Thomas’s wise warnings, coming at the end of the opinion, will probably go unread anyway:

    “(‘In 2002, abuse of controlled prescription drugs was implicated in at least 23 percent of drug-related emergency department admissions and 20.4 percent of all single drug-related emergency department deaths’). At least some of these injuries and deaths are likely due to the fact that ‘[m]ost controlled prescription drug abusers are poly-substance abusers,’ id., at 3, a habit that is especially likely to result in deadly drug combinations. (“Boomers made marijuana their ‘gateway’ … but a younger generation finds prescription drugs an easier score”); see also National Survey 17 (noting that teens report ‘that prescription drugs are easier to buy than beer’).” (Thomas, J.). Id.

    Justice Scalia was uncharacteristically mum, filing a concurrence with Justice Souter without issuing an opinion. In an decision noted more for its absence than presence, how the new standards apply to other types of contraband (outside of drugs) is left untested.

    Perhaps the best means of preventing deadly drug abuse by teenagers and adults alike, is to actually make the Fourth Amendment powerful enough to deter invasions of privacy, to provide people with enough sense of self-worth that they too are actually worthy of protection through the Constitution. Today the Court stopped short of actually punishing the principal’s profound lack of respect for the bodily integrity of Savana Redding.

    -Derek Garcia for the Kennedy Law Firm

Supreme Court Rules in Favor of Rights Inside Vehicles

Joe Kennedy — Fri, 12 Jun 2009 13:56:40 -0800

     In a come-from-behind, but dubious victory for the Fourth Amendment, Justices Stevens and Scalia teamed up to deliver a surprise concurrence in the recent case of Arizona v. Gant, 129 S. Ct. 1710, 2009 U.S. LEXIS 3120 (2009). After thoroughly reviewing the Court’s previous holdings in N.Y. v. Belton, 453 U.S. 454 (1981); Thornton v. United States, 541 U.S. 615 (2004); and Chimel v. California, 395 U.S. 752 (1969), commentators were shocked to learn there is actually something on which the liberal and conservative wings of the Court agree:
    Police may search the passenger compartment of a vehicle incident to a recent occupant's arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest.
    Continued ....

    Gant’s license had been previously suspended and there was an outstanding warrant for his arrest for driving with a suspended license. Gant pulled up in the driveway of a house suspected of being a hot spot for drug trafficking, got out of his car on foot, and approached the officers. At that point, he was arrested and handcuffed immediately.
    Gant was locked in the backseat of a patrol car, handcuffed, when his own vehicle was searched. A gun was found in the interior of his car, along with a bag of cocaine in the pocket of the jacket on the backseat. Gant argued that Belton did not authorize the search of his vehicle because he posed no threat to the officers while he was handcuffed in the patrol car. Additionally, he was arrested for a traffic offense (driving with a revoked license), not for trafficking drugs.
    Gant was eventually charged with two offenses - possession of a narcotic drug for sale and possession of drug paraphernalia (the plastic bag in which the cocaine was found). When asked why the search was conducted, Officer Griffith responded: “Because the law says we can do it.” Gant, 129 S. Ct. at 1715. Justice Scalia, after proverbially clearing his throat, was forced to step in and lay down the law:
    “It seems to me unacceptable for the Court to come forth with a 4-to-1-to-4 opinion that leaves the     governing rule uncertain. I am therefore confronted with the choice of either leaving the current understanding of Belton and Thornton in effect, or acceding to what seems to me the artificial narrowing of those cases adopted by JUSTICE STEVENS. The latter, as I have said, does not provide the degree of certainty I think desirable in this field; but the former opens the field to what I think are plainly unconstitutional searches -- which is the greater evil. I therefore join the opinion of the Court.” Id. at 1725.
    In further clarifying the rule, civil rights attorneys hailed the decision as a true victory for the Constitution. Unclear is how this new vehicle rule clarification might apply to travel by less conventional methods, such as bikes, trains, or even horseback.

-Derek Garcia reporting for the Kennedy Law Firm

The Fourth Amendment Prevails in Illegal Search of Family's Home

Joe Kennedy — Thu, 14 May 2009 16:02:39 -0800

In a remarkable victory for the rights of citizens whose family members are suspected of criminal activity, the United States Court of Appeals for the Tenth Circuit decided that family relationships alone do not justify searches of homes, even when officers can convince a state district court judge to issue a warrant. Poolaw v. Marcantel, 2009 U.S. App. LEXIS 9483 (10^th Cir. N.M. May 4, 2009).

The owners of the home illegally searched (in this case mere in-laws of the primary suspect), were related by nothing more than marriage. The criminal suspect was wanted for the tragic homicide of a sheriff’s deputy, with the innocent family members caught in the middle of the ongoing dragnet. The ruling is a victory for the cause of civil rights, the Constitution, and the rule of law.

Continued . . .

In addition to having their property unlawfully searched, (in what the court found were clear violations of the Fourth Amendment to the United States Constitution), one officer also ordered the stop of the criminal suspect’s sister-in-law’s car, based on little more than a familial relationship. In a striking and detailed opinion by Judge Lucero, the court held that a familial relationship was “insufficiently particularized to justify invading an individual's reasonable expectation of privacy.” Id. at 2. George L. Bach, Jr. argued the case (Jane Gagne and Philip B. Davis with him on the briefs), with the ACLU of New Mexico for the Plaintiffs-Appellees.

Background

Bernalillo County Sheriff’s deputy James McGrane was tragically shot and killed on March 22, 2006, while conducting a routine traffic stop. Investigators later determined that the stopped truck belonged to Michael Paul Astorga, who was already wanted in connection with the November 2005 homicide of Candido Martinez. A large manhunt ensued, following a determination that Astorga was the primary suspect in the shooting.

Sheriff’s Office investigators tracked Astorga to #31 Lark Road, about 15 miles from the scene of the homicide. Neighbors informed investigators that someone matching the suspect’s description had recently moved in with his pregnant girlfriend. After searching the area, officers discovered the truck Deputy McGrane had stopped the night of his death.

Investigators then sought out Marcella Poolaw “Astorga,” who was listed as the suspect’s spouse and emergency contact, following a prior arrest. Marcella was the daughter of Rick Poolaw, a retired New Mexico Police Officer. When she failed to turn up at her own registered address, Lieutenant Marcantel telephoned Rick Poolaw directly, whom he knew as an acquaintance. Rick informed Marcantel that she had spent the night on March 21 at Rick’s house (343 Calle Del Banco), but that she could not be located now, and had uncharacteristically called in sick to work. Rick Poolaw lived at the residence with his wife Cindy and daughter Chara.

Based on this information, BCSO investigator Hix prepared his affidavit for a search warrant, asserting what lawyers argued was a tenuous connection between Astorga and the Poolaw’s property. Hix asserted that a reasonable assumption could be made that Astorga may have hidden evidence in the home, due to the family connection.

A New Mexico judge issued the search warrant for the Poolaw residence based on the assumptions Hix offered. Sergeant Scott Baird supervised the search, but Marcantel was not present. During the search, Rick Poolaw (the retired officer) and Cindy were handcuffed outside their home and subjected to a humiliating search of their house and property. The search produced nothing of use in the investigation.

A few days later, Officer Marcantel learned that Rick’s daughter Chara had called her mother and asked whether she could "get in trouble" for having a gun. Relying on, "the fact that Chara was a loved one of Michael Paul Astorga's wife" and "her admission that she had a gun," Marcantel ordered her stopped to determine whether the gun was the McGrane homicide weapon. Chara was detained, handcuffed, and held in a squad car while her car was searched, without a warrant. After the gun found in her car was determined not to be the murder weapon, she was released. As a general statement of law in New Mexico, it was not illegal for the daughter to lawfully carry a weapon inside her car. See N.M. Stat. § 30-7-2(A).

Legal Claims

Alleging flagrant violations of the Fourth Amendment, civil liberties lawyers brought the §1983 action in Federal Court. Plaintiffs asserted that both the warrant to search the property and the stop of the Poolaw’s daughter Chara lacked probable cause, the District Court granted summary judgment in the Poolaw’s favor, denying the individual defendants’ claims of qualified immunity. The Federal Court found the information asserted by the officers "provided only inferences and assumptions of dubious reliability." Marcantel and Hix also argued that because they were not physically present during the time of the unlawful searches, they could not be held responsible for the acts they set in motion. The Tenth Circuit rejected the defense as well, finding that liability extended to those who provided information.

Confining the appellate review to the legality of Hix’s affidavit, the District Court reviewed the sufficiency of the warrant de novo, paying great deference to the probable cause determination made by the judge who issued the warrant. United States v. Perrine, 518 F.3d 1196, 1201 (10th Cir. 2008). Generally, reviewing courts will uphold a warrant if the issuing judge had a "substantial basis for . . . conclud[ing] that a search would uncover evidence of wrongdoing," citing Illinois v. Gates, 462 U.S. 213 (1983). The court also thoroughly reviewed holdings surrounding the Leon doctrine, which provides that evidence seized pursuant to a warrant issued by a neutral and detached magistrate, later found invalid, is admissible if the executing officer acted in objective good faith and with reasonable reliance on the warrant. See United States v. Leon, 468 U.S. 897 (1984). Leon applies a four-part inquiry to determine good faith reliance, whether “1) the issuing judge ‘was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth’; 2) the issuing judge ‘wholly abandoned his judicial role’; 3) the warrant was ‘so facially deficient--i.e., in failing to particularize the place to be searched or the things to be seized--that the executing officers cannot reasonably presume it to be valid’; and 4) ‘[the] affidavit [is] so lacking in probable cause as to render official belief in its existence entirely unreasonable.’ Id. at 923.

Holding that a mere familial relationship does not establish probable cause, and that reliance on familial relationship for imputing criminal behavior is unreasonable, the Tenth Circuit affirmed the District Court’s ruling, denying qualified immunity and granting summary judgment to Plaintiffs. In addition, “Chara's status as Astorga's sister-in-law and her conversation with Cindy about a gun did not establish a reasonable suspicion that she was committing or had committed a crime.” Mere ‘talk’ about guns, unconnected with criminal activity, does not establish reasonable suspicion.

In a vigorously written dissent, Judge O’Brien would have found that there was probable cause to search the property, there were no Constitutional violations, and because of the good faith reliance exception, the seizure of Rick and Cindy was lawful. In addition, he would have found enough reasonable suspicion to justify the stop of Chara Poolaw. According to Jane Gagne, attorney for the plaintiffs, the Poolaw defendants are seeking a rehearing of the case en banc.

Attorney Frances Crockett, who helped prepare the briefs at the District Court level, said this about the importance of the case: "They relied on many assumptions. Fortunately, our Constitution does not."

-Reporting by Derek Garcia for the Kennedy Law Firm

Bertha Keylon secures $60,000 verdict in wrongful arrest claim

Joe Kennedy — Thu, 30 Apr 2009 11:49:34 -0800

In a case tried at the U.S. District Court for the District of New Mexico over two days in January of this year, Bertha Keylon -- who persevered for four years to get justice from the City of Albuquerque -- secured a $60,000 verdict stemming from a 2003 wrongful arrest charge.

Ms. Keylon was wrongfully arrested on September 28, 2003 in Albuquerque and charged with resisting arrest and concealing her identity. At the initial trial, the Court ruled against the Kennedy Law Firm's argument that Ms. Keylon should win her case as matter of law. At the initial trial, the jury returned a verdict for the defense.

The Kennedy Law Firm appealed and won. The Tenth Circuit appeals court found error with the District Court decision to deny Ms. Keylon her motion for judgment as a matter of law and with jury instructions given at the first trial. At the second trial, Ms. Keylon was the lone witness and testified that the arrest diminished her enjoyment of life. The arrest made her reluctant to travel from her home out of fear of rogue police officers. The $60,000 verdict included a sum of $20,000 for punitive damages.

Jury returns $1000 verdict against City of ABQ Police

Joe Kennedy — Wed, 25 Mar 2009 19:01:27 -0800

On January 27, 2009, an Albuquerque jury returned a verdict in a wrongful arrest claim against a City of Albuquerque police officer in the amount of $1000.

In his claim, Mr. Richard Mora of Albuquerque stated that Albuquerque police officers unlawfully ordered him from his home and then one officer unlawfully patted him down. The justification offered for the pat-down from the Albuquerque police officer was that Mr. Mora was telling the officer that he was going to sue them and he was looking at him in an angry manner.

The District Court agreed that the officer had no cause to attempt a pat-down search of Mr. Mora. The law was clearly established that the officer needed some information that Mr. Mora was armed and dangerous before the officer could lay hands on Mora. Mr. Mora was gratified that his lawsuit resulted in a victory for him and helped solidify the law in the area of police/citizen encounters.

The City of Albuquerque has appealed the judgment to the Tenth Circuit Court of Appeals.

Kennedy Law Firm Wins Tenth Circuit Appeal

Joe Kennedy — Tue, 16 Dec 2008 13:51:47 -0800

In a wrongful arrest claim brought on behalf of a 58 year old Albuquerque woman, the Kennedy Law Firm prevailed on an appeal of a jury verdict in favor of the defendant police officer. The Tenth Circuit Court of Appeals reversed the jury verdict with instruction to the district court to enter judgment in favor of the Kennedy Law Firm's client, Bertha Keylon.

On a Saturday morning, September 28, 2003, Albuquerque Police Department, Scott Barnard, arrested Bertha Keylon. Officer Barnard arrested Ms. Keylon for resisting an officer under state law and concealing identity under state law. Officer Barnard alleged that Ms. Keylon lied about the date of birth of her 30 year old son, who was accused of damaging a tow truck. Ms. Keylon denied lying to the officer.

The Kennedy Law Firm argued and the Tenth Circuit agreed that even if the officer's testimony was taken as true, the officer had no probable cause to arrest Ms. Keylon for resisting and had no basis to demand identification from Ms. Keylon. The opinion focused on the qualified immunity defense and the objective reasonableness standard. The opinion cautions that the officers subjective belief, unless based upon objective facts, is not relevant to the question of reasonableness under the Fourth Amendment. Finally, the Tenth Circuit criticized the District Court's submission of the qualified immunity question to the jury, stating again that in the Tenth Circuit qualified immunity rarely should be submitted to the jury.