Daily Archives: April 9, 2021

Every day, Kimberly Beck wakes up feeling empty.

In her head, she runs through the body cam footage that shows the last moments of her sons life.

At the end of her day, she goes to bed missing a piece of her, missing her son, and then repeats the routine the next day.

Its been over a year since Gage Lorentz, 25, died at the hands of National Park Service Ranger Robert Mitchell in New Mexico at Carlsbad National Park.

And the family says they are still seeking justice.

It doesnt get any easier, Beck told The Daily Sentinel. I think one of the most difficult things is having to sit and watch no one be held accountable and try to put together the pieces of how this could have even happened.

Beck and Lorentzs father, Travis, have employed the help of Shannon Kennedy, a New Mexico civil rights attorney who represented the family of James Matthew Boyd, a man who was shot to death by police in Albuquerque in 2014.

The family filed a lawsuit against Mitchell, the ranger involved with Lorentzs death. The suit alleges that Mitchell used excessive force in a violation of Lorentzs Fourth Amendment Rights.

Lawyers used to say that federal court is where civil rights cases go to die, Kennedy said. But were not going to let that happen. This case will not die. Justice will be served.

On March 21, 2020, Lorentz was driving home to Montrose from working in a Texas oil field when Mitchell pulled over Lorentz for allegedly speeding. Body cam footage shows Mitchell asking Lorentz to take his hands out of his pockets, then quickly draws a taser and appears to fire.

Then, the footage stops for about 26 seconds.

When it resumes, Lorentz, is on the ground and Mitchell appears to shoot Lorentz twice once in the leg and another in the chest. Mitchell claims it was out of self defense.

The rangers actions were out of line and the first shot rendered my son helpless. And there was no need for him to fire that second shot, Beck said. Where do you draw the line between what is abuse of power by these people in a position of law? Theyre supposed to serve and protect, yet theyre taking lives.

On Wednesday, Kennedy submitted a stipulated dismissal of the claim that Mitchell failed to provide adequate medical care after the first shot to Lorentz. Video shows that Lorentz didnt receive first aid until about 12 minutes after being shot. The U.S. Attorneys Office claimed qualified immunity on that count, so Kennedy said withdrawing the charge will avoid unnecessary delay in the case.

While the civil court battle ensues, the family is trying to raise community awareness.

In October, Lorentzs family and friends organized a march through downtown Grand Junction. They organized another through downtown Montrose last month to coincide with the one-year anniversary of Lorentzs death. That demonstration drew a crowd of about 50 people, which was inspiring to Beck given the size of Montrose.

Raising awareness is key to their fight. Part of the suit is to pursue monetary gains, but the family is vocal about wanting to ensure that the shooting deaths of unarmed citizens comes to an end.

Weve tried to wake people up to being aware that this is happening in your own backyard, and it can happen to you and your family. Gage was a Fruita boy and was a country boy. Youre not immune to it, Beck said. This should matter because of the fact that somebody in a position of power abused that and stole my sons life. If we dont do something, its going to keep happening.

Beck and her family arent alone.

Lorentzs death is one of the pieces in a national movement against the shooting deaths of unarmed people at the hands of law enforcement.

The trial of Derek Chauvin is underway. Chauvin, a white Minneapolis police officer, is accused of murdering George Floyd, a black man. Floyds death sparked one of the largest civil rights movements in U.S. History.

Though circumstances around Floyds and Lorentzs death differ as do the ensuing legal battles Kennedy thinks both cases are alike.

Both were denied medical care. The shot to Gages upper thigh was very treatable had he received medical care instead of a shot to his chest. In both cases, we see depravity from officers, Kennedy said. I hope this is one of the last cases like this I have to take. I think were at a turning point in our culture. With the death of Gage and the footage of George Floyd, I hope well take a look and say that we need to invest in change.

Kennedy and Beck are calling for cultural change, too. Kennedy said that Mitchell displayed whats called the warrior mindset, a mantra that argues for officers to act as a soldier or fighter.

Instead, Kennedy said, they want park rangers to abide by the guardian mindset, which considers officers as defenders.

On the legal side, Kennedy is pushing for the missing 26 seconds of body cam footage to be released.

Nothing will fill the hole left by her son, but Beck hopes systemic change will spare other families from the same pain.

Everything else across the country has steps and things taking place. Here, we have no answers, Beck said. Its been one of the most difficult things, and all I can do is stay strong because I know thats what my boy would want.

Read the rest here:
Montrose family continues fight after shooting death of son - The Grand Junction Daily Sentinel

In the 1950s and '60s we were taught government, including the U.S. Constitution, in a boring fashion by the football coach. Most people my age can relate to that experience. Here are three thoughts (from unlimited examples) of how our government is abusing our Constitution and how we are allowing it to happen.

Voting rights 10th Amendment: the states specifically are in control of their voting laws. By U.S. law the federal government has no say on this. Georgia, Iowa and many other states are trying to make voting more secure, while the federal government and a few states in the last election are trying to loosen voting requirements under the guise of voting rights being too restrictive. This interference is prohibited by the constitution. Nancy Pelosi finally gave up to overturn a legally certified vote in Iowa as this is an attack on our U.S. Constitution and U.S. law. President Joe Biden has even been on TV claiming the legal system of states rights in voting is despicable, terrible, racist, sick and un-American. Pelosi, Biden, and all other politicians are sworn to defend, not attack, the Constitution. Federal interference is illegal.

Unreasonable search and seizure Fourth Amendment: There is a case before the U.S. Supreme Court where a man had two guns illegally taken by police with no warrants or cause. The government and Biden are arguing in court this is somehow legal. If this illegal search and seizure is allowed to become precedent, then the Fourth Amendment is gone and gun seizure will happen.

Right now the U.S. Capitol is surrounded by Federal troops to protect our government officials. You cant call the White House to leave a message. Our government is ignoring federal law by not closing our southern border. This is the United States?

Read the original post:
LETTER: We are allowing abuse of the Constitution - Dyersville Commercial

Together, the Declaration of Independence and the U.S. Constitution form what Gunnar Myrdal called the American Creed. The Declaration, written in eloquent, glittering generalities, invokes the Deity and inalienable rights, speaks of self-evident truths and asserts the right of revolution in the event that government grows tyrannical. It reflects passion, drama, hope and certitude. It speaks of majestic ends, which Abraham Lincoln characterized as the sheet anchor of the republic. It is relevant, personal and present. No wonder the masses gravitate to its trumpet call. The Declaration is warm and emotionally available.

If, for Americans, the Declaration of Independence is poetry, the Constitution is prose. The Declaration supplies the ends, the Constitution the means. But lets be fair to the Constitution, which, while it lacks the elegant expressions and grand language that shape the Declaration, is not without its own glory, creation story and unique standing in the history of the world.

The Constitution is also relevant, present and personal. It is the nations governing document, indeed, the law of the land, but it is not remote. In fact, its limitations on governmental power are real, reassuring and protective in nature. Its declaration of rights, liberties and freedoms asserts the nobility, integrity and dignity of the American people. The relevance of the Constitution to every generation is self-evident, glimpsed in the availability of the Amendatory Clause, which may be utilized to render the Constitution more adequate to changing circumstances and needs of the times. In fact, the Constitution has been amended 27 times by the citizenry across a vista of two centuries for the purpose of expanding the rights and liberties of more Americans as views and values about inclusion have evolved over time.

The Preamble to the Constitution waded hip-deep into the centuries-old debate about the purpose of government and boldly declared the American perspective, grounded in the radical, democratic idea that We the People through ratification, do ordain and establish this Constitution. That lofty statement, alone, deserves a salute, for it represents the culmination of an historic effort, launched by dissenters in 17th Century England, to place the ultimate legal and political authority of a nation in the hands of the sovereign people.

Approval of the Constitution by the citizenry, the fulfillment of the Declarations assertion of the right of the people to consent to governmental authority, made it personal. The Constitution had not been imposed or forced upon the nation; rather, it reflected choices made by the people themselves. No other nation in the history of the world could lay claim to such a unique status.

The Constitution is relevant to the lives of the American people, often on a daily basis. Consider, for example, that because of the First Amendments Free Speech Clause, the government in the United States cannot tell us what to think or believe about politics, religion, art, science or literature. This libertarian philosophy was beautifully captured by Justice Robert H. Jackson in his landmark opinion in West Virginia Board of Education v. Barnette (1943), in which the Supreme Court struck down a compulsory flag salute statute. If there is any fixed star in our constitutional constellation, Jackson wrote, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.

The personalized Constitution protects the right of Americans to exercise freedom of religion, if they choose to do so, the right of the press to inform the citizenry through the Free Press Clause, the right to keep and bear arms through the Second Amendment and protection against unreasonable search and seizure by virtue of the Fourth Amendment.

Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality.

Send questions about the Constitution to Dr. Adler at NDWTPColumn@gmail.com and he will attempt to answer them in subsequent columns.

This column is provided by the North Dakota Newspaper Association and Humanities North Dakota.

The personalized Constitution, moreover, protects the right to privacy and birth control on the basis of the Ninth and 14th amendments, the protection of private property through the Fifth and 14th amendments, the guarantee of equal protection of the law as a consequence of the 14th Amendment and, on the basis of the Sixth Amendment, the critical right to counsel, a speedy and public trial and the right to an impartial jury.

Many parts of the personalized Constitution still command our loyalties, respect and even affection. As much as anything else, this personal Constitution invites us to think critically about its adequacy, for we are free to amend it when desirable.

Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality.

Send questions about the Constitution to Dr. Adler at NDWTPColumn@gmail.com and he will attempt to answer them in subsequent columns.

This column is provided by the North Dakota Newspaper Association and Humanities North Dakota.

See original here:
Personalizing the Constitution | Columnists | willistonherald.com - Williston Daily Herald

Torres v. Madrid et al.U.S. Supreme CourtMarch 25, 2021

Officers Madrid and Williamson entered an apartment complex to execute an arrest warrant for a woman accused of white collar and violent crimes. The officers observed Torres standing near her car in the parking lot and approached her. Torres, at the time experiencing methamphetamine withdrawal, got into the drivers seat and, thinking the officers were carjackers trying to steal her car, hit the gas to escape them. Both officers fired 13 shots to stop Torres, striking her twice in the back and temporarily paralyzing her left arm. Torres sought damages alleging a civil rights violation under 42 U. S. C. 1983. She argued the shooting was a seizure under the Fourth Amendment, even though she was not subdued; and that the officers used excessive force. The District Court granted summary judgment to the officers and the Tenth Circuit affirmed.

The Supreme Court analyzed whether the application of physical force is a seizure if the force, despite hitting its target, fails to stop the person. In a 5-to-3 split decision, with Justice Barrett taking no part, the Court held that the application of physical force to the body of a person with intent to restrain is a seizure even if the person does not submit and is not subdued. As such, the officers seized Torres by shooting her with intent to restrain her movement.

The majority reasoned that the application of physical force to a persons body for the purpose of arresting him or her is an arrestnot an attempted arresteven if the person does not yield. Mere touch is sufficient for arrest; and no party or amicus curiae had argued that use of bullets to restrain Torres made a difference in the analysis. The majority also clarified that the use of force must be made with objectively manifested intent to restrain in order to constitute an arrest. The seized persons subjective perceptions do not alter the objective test, which is measured by the officers conduct.

The dissenting Justices criticized the majority for applying principles of common law civil arrests (of debtors) to a criminal arrest. They argued that criminal arrest requires an officer to acquire possession, focusing on intentional acquisition of physical control. It warned that the majority was creating a new cause of action in exceedingly rare cases: non-conscience-shocking-but-still-unreasonable batteries intended to result in possession that dont achieve it. The dissent also tested the scope of touchings by giving examples of other weapons possibly used during arrest. The majority had limited its holding to force used to apprehend and declined to opine on matters not presentedpepper spray, flash-bang grenades, lasers, and the like.

The decision was limited to the seizure issue and did not address Torres claim that the seizure was unreasonable. The Court remanded the case for decisions on the reasonableness of the seizure, damages caused by the seizure, and the officers entitlement to qualified immunity.

See more here:
The Application of Physical Force to the Body of a Person with Intent to Restrain Is a Seizure Even if the Person Does Not Submit and Is Not Subdued -...

On January 8, 2014 Alexander Baxter was sitting on the basement floor of a Nashville home with his hands in the air. He had been chased by the police after committing a burglary and now he had surrendered. According to Baxters court claims, even though he was not a threat to police, they released a police dog named Iwo on him and the K-9 proceeded to bite him. Availing himself of the protections of the Civil Rights Act of 1871, he sued officers Brad Bracey and Spencer Harris for violating his constitutional rights. But his claim quickly ran into the buzzsaw of qualified immunity, a judicially created principle which protects government agents from being personally sued.

Qualified immunity is not a law passed by Congress and signed by a president, but a doctrine created by the Supreme Court in the 1960s and expanded in the 1980s. It began as an attempt to shield government officials who, acting in good faith, had nonetheless violated someones rights. In less than two decades the protection expanded to protect even those who had knowingly violated someones rights. Decade after decade the bar that a victim had to clear in order to seek relief got higher and higher, finally culminating with the idea that the constitutional violation had to be clearly established by another court in a previous ruling. Courts, including the Supreme Court, interpreted this to mean that in order to sue, a victim would have to point to another very similar case in which a court had ruled that someones rights had been violated and could sue the person responsible.

In Baxters case it seemed like even that high bar would be cleared: a precedent appeared to be in place that would allow him to sue. In a 2012 decision the Sixth Circuit Court of Appeals had ruled in Campbell v. City of Springboro that a man who had lain down on the ground to surrender to police and was nonetheless attacked by their dog could sue the officers involved for excessive force. In the Campbell and Baxter cases both men had already surrendered to police; both men were on the ground and both men were attacked by police dogs. It seemed clear that these similarities would allow the high bar of qualified immunity to be overcome.

The district court agreed and said that the police officers could be sued. However, a different three-judge panel of Sixth Circuit Court of Appeals, the same court that had ruled previously in the Campbell case, decided the officers involved in Baxters case could not be sued, writing in their decision that the officers conduct...did not violate any clearly established right. Moreover, they wrote we have held that officers cannot use an inadequately trained canine, without warning, to apprehend two suspects who were not fleeing. But just as clearly, we have upheld the use of a well-trained canine to apprehend a fleeing suspect in a dark and unfamiliar location.

For the three judges of the Sixth Circuit who heard Baxters appeal the differences between his case and Campbells were significant enough to mean that Baxter did not have a clearly established constitutional right to not be bitten by a properly trained police dog after surrendering while sitting on the floor with his hands in the air.

Rather than decide if the officers conduct was constitutional to begin with, when it comes to qualified immunity a court need only consider a different question: whether the constitutional right being violated had previously been clearly established by another court. If the answer is no, then the case is dismissed without ever answering the first question.

Through qualified immunity law enforcement officers and other government employees enjoy a kind of personal legal shield that members of the private sector do not. Even after a year of Black Lives Matter protests the doctrine of qualified immunity remains unknown to most people though it is one of the strongest protections law enforcement officers have.

In August of 2020, Baxters case was one of seven involving qualified immunity that the U.S. Supreme Court declined to hear, effectively ending his search for justice. Strikingly, conservative Associate Justice Clarence Thomas dissented, stating that the court should have given Baxter his day in court. Justice Thomas noted the history of the Civil Rights Act of 1871 in his dissent, writing: Congress sought to respond to the reign of terror imposed by the Klan upon Black citizens and their white sympathizers in the Southern States. In his dissent Thomas stated that the law gave individuals a right to sue state officers for damages to remedy certain violations of their constitutional rights and that I continue to have strong doubts about our qualified immunity doctrine.

The central problem of qualified immunity is that it allows officers to get away with violating the Constitution, said Scott Michelman, legal director the ACLU of Washington, D.C., who represented Baxter. Because the court of appeals held that immunity applies, Mr. Baxter will get no compensation for the vicious dog attack that he experienced and that sent him to the hospital. So qualified immunity is the difference between compensation for constitutional violations leading to serious injuries and completely being shut out of court, he added.

Ignorance of law excuses no one except perhaps a police officer

It is a concept ancient enough to be enshrined in the Old Testament in Leviticus and have its own Latin catchphrase, ignorantia juris non excusat. Just because you dont know that you are breaking a law doesnt mean that you wont be held responsible for your misdeeds. Except, perhaps, if you are a police officer accused of stealing more than $200,000. The U.S. Ninth Circuit Court of Appeals ruled that Fresno, California police officers who were accused of stealing money while serving a search warrant, were protected by qualified immunity.

Judge Milan Smith wrote in his opinion for the three-judge panel that At the time of the incident, there was no clearly established law holding that officers violate the Fourth or Fourteenth Amendment when they steal property seized pursuant to a warrant. For that reason, the City Officers are entitled to qualified immunity.

The court found that even though there was a previous case that ruled that theft by police officers was unconstitutional, the facts in this case differed enough that the high bar to overcome qualified immunity was not satisfied. Going further, Judge Smith wrote, Although the City Officers ought to have recognized that the alleged theft of Appellants money and rare coins was morally wrong, they did not have clear notice that it violated the Fourth Amendment.... Not all conduct that is improper or morally wrong, however, violates the Constitution.

When it comes to really anybody except for government officials and law enforcement officers theres an expectation that people will follow the law, Amir Ali, deputy director of the Supreme Court and Appellate Program at the MacArthur Justice Center, said in an interview. And you can show that a law enforcement officer violated your constitutional rights, meaning that a police officer did something that no reasonable officer would have done in the circumstances to you... and thats not going to be good enough. A court will tell you thats fine, but to overcome the defense of qualified immunity youve got to show something more and governments have really been handed this powerful defense that allows them to escape accountability for even rather egregious acts, he added.

A hard fight made harder

Even when someone is allowed to sue, and a jury finds police officers liable, qualified immunity can still be used as grounds to reverse the jurors decision.

It was a spring evening in 2015 when Matthew Jones walked down the stairwell of his East Harlem apartment building in New York City. He was meeting his uncle to return a prescription bottle and some cash that he owed him. As he met his uncle, they were stopped by officers Michael Vaccaro and Adam Muniz on suspicion of selling drugs. The officers told Jones and his uncle to step out of the stairwell and into a hallway, which they did. Jones also consented to be searched which is when the officers found the prescription bottle, and they then used this as grounds to arrest him. The uncle fled and the officers tried to handcuff Jones who began asking what he did wrong.

The officers claimed that Jones tried to turn around and swing at them which is why they swept his legs out from under him and pinned him to the ground face down. They called for backup and other officers soon arrived on the scene. At this point Jones was still face down and pinned but not fully cuffed and, according to court records, officers hit him with a metal baton on his arm and used pepper spray on him as well, claiming he was resisting arrest, which Jones claimed during the trial was false.

Sergeant Christopher Treubig (who was later promoted to lieutenant and captain) arrived on the scene and, according to court records, Lt. Treubig announced that he was going to use his taser which Jones said he did not hear. The lieutenant used his Taser once for five seconds, sending a powerful electric shock through Joness body, which left him lying on the ground, helpless. Still, the lieutenant felt Jones was not sufficiently incapacitated and pressed the trigger on his Taser again, sending more electricity into the suspect. After this Jones was handcuffed but had sustained enough injuries that he was brought to the hospital. According to court documents he was charged with resisting arrest among other things, but the charges were eventually dismissed.

Jones filed a civil rights lawsuit against Lt. Treubig for excessive use of the Taser and a civil jury found in his favor, awarding him $30,000 in punitive damages. During the trial Lt. Treubigs attorneys tried to get the case dismissed under qualified immunity, but the judge denied that motion and allowed the case to go to the jury. The NYPD lieutenant then challenged the verdict against him, again claiming that he was protected by qualified immunity. The district court at this point found in his favor because, at the time of Jones arrest, the court said there was no clearly established law that using a Taser two times in rapid succession constituted excessive force under the particular circumstances of this case.

If any other person had violated Mr. Jones rights, if it were a doctor who violated the law or a construction worker who violated the law, the question in court would be: did that person violate Mr. Joness rights? And thats what he would be expected to prove to get relief. But thats not so when it is a police officer or other public official, Amir Ali, who is representing Jones in his lawsuit, told the Amsterdam News.

In that case, its not enough to show that the person violated your rights. In fact, in Mr. Joness case, a jury specifically found that his constitutional right to be free of excessive force was violated, and neither the District Court nor the city disputed that after the trial. Everybody agreed that this officer, by Tasing Mr. Jones when he was already incapacitated, violated his constitutional rights, he added.

When Jones appealed, the U.S. Court of Appeals for the Second Circuit did something astonishing: it threw out Lt. Treubigs claim of qualified immunity and ruled in favor of Jones. The court ruled that before Lt. Treubig used his taser on Jones that it was clearly established in this Circuit that it is a Fourth Amendment violation for a police officer to use significant force against an arrestee who is no longer resisting and poses no threat to the safety of officers or others.

The case the court cited involved the excessive use of pepper spray and not a Taser, which other courts could have used as a reason to uphold a qualified immunity defense. But the Second Circuit ruled otherwise writing notwithstanding that the focus of this appeal is the use of a taser, not pepper spray, we have warned that [a]n officer is not entitled to qualified immunity on the grounds that the law is not clearly established every time a novel method is used to inflict injury.

This is significant because the Supreme Court has essentially instructed lower courts that they need to find a nearly identical case that proved an officers actions were already considered unconstitutional. But this court ruled that it was not the detail of pepper spray or Taser that was important, it was that excessive force was used even after the suspect was not a threat that was central to the claim.

The high bar the Supreme Court has set has been a huge obstacle to those trying to file civil rights lawsuits.

Because courts can dismiss cases by saying the violation was not clearly established at the time the officer acted, the courts never actually get around to deciding whether what the officer did was, in fact, a violation, said Brian T. Fitzpatrick, the Milton R. Underwood chair in Free Enterprise at Vanderbilt Law School, in an interview about the challenges qualified immunity poses.

The courts never get to the merits of the actual case. They just dismiss it at the beginning by saying Oh, even if this was wrong, it wasnt clearly established, so we never get law that is clearly established that people can use to sue later, because the courts dismiss every new factual case that comes before them on qualified immunity grounds. So, it basically never allows the law to develop and never allows new things to become clearly established, and so it really puts people who have been victims of illegal conduct by government officials in a no-win situation. You cant sue because it wasnt clearly established, and you cant clearly establish it because youre not allowed to sue, he added.

In the end Jones, unlike hundreds of others, was able to hold a police officer accountable for violating his civil rights, though he is still waiting for his settlement. Treubig is now a captain in the NYPD and, according to a search of publicly available records, he was not disciplined by the NYPD for actions that a jury found were an unconstitutional violation of Jones rights. Without the ability to sue Treubig directly it is possible that Jones would have never found even the small measure of justice his modest jury award will give him.

Cases like these, along with the continued outrage provoked by the unjustified killing of Black and Brown Americans by police officers, has led to a movement to reform or outright abolish qualified immunity as a protection. In part three of this series, we will explore the legislation that has been proposed, and in a few cases already passed, to chip away at this invisible legal shield.

This series was made possible by grants from the Fund for Investigative Journalism and the Solutions Journalism Network

Originally posted here:
The invisible shield: how qualified immunity prevents victims of police abuse from seeking justice, Part 2 - Amsterdam News

from the training,-sure...-but-is-it-really-'expertise?' dept

It doesn't happen often, but it's always good to see a federal court push back against claims of "training and expertise." This phrase is often used to excuse rights violations and horrendous judgment calls -- somehow asserting that the more cops know, the less they should be held directly responsible for their acts.

The case being handled by the Fourth Circuit Appeals Court deals with some drug warriors and their willingness to work backward from their assumptions to something they sincerely wanted to believe was probable cause for a search. But the Appeals Court sees no "training and expertise" here. Instead they see officers motivated by hunches, which are not synonymous with probable cause, much less reasonable suspicion.

Here's the court's ultimate conclusion [PDF], which is supported by the lack of support for the cops' arguments, which relied heavily on assertions of "training and expertise."

In order to sustain reasonable suspicion, officers must consider the totality of the circumstances and, in doing so, must not overlook facts that tend to dispel reasonable suspicion. Here, officers relied on general information from a confidential informant; two interactions that officers believed were consistent with the manner in which illegal drugs are bought and sold, but in which no drugs were found; and a single officer witnessing a handshake between Appellant and another man and concluding that it was a hand-to-hand drug transaction, even though the officer did not see anything exchanged. Moreover, the officers concluded this amounted to reasonable suspicion, overlooking the facts that the interaction took place in a public space, in broad daylight, outside of the vehicles, and in front of a security camera; and after the interaction, Appellant went into a store, rather than immediately leaving the scene. On these facts, we agree with Appellant that the officers did not have more than a mere hunch that criminal activity was afoot when they stopped Appellant.

The broad brush of this summary is pretty damning. The details, even more so.

It all started with a "tip" from a confidential informant. The informant told law enforcement a black fellow might sell some drugs. As the court notes, the CI's "tip" contained nothing that would turn this into probable cause. It didn't say the person had sold drugs in the past. It offered no suggestion the person was going to sell drugs to the CI in the future. The only solid info officers had was that the vehicle tags provided by the CI were linked to someone who had been arrested for drug offenses in the past.

The cops got the tip in August 2017. But they did nothing until October 2017. Surveillance of the house listed on the vehicle registration began. The house was surveilled ten times and no drug transactions were witnessed. Investigators moved on to surveilling the resident of the suspect's assistant. The residence was "observed" over 30 times and no drug transactions were seen.

A car driven by someone who had sat in a car with the original suspect was stopped. No drugs were found, despite the drug dog's "alert." Detectives speculated the presence of syringes in this car indicated the driver was a drug user.

Officers began tailing the suspect. They observed him sitting in a gas station parking lot where he never interacted with anyone. They observed him going home. They observed him visiting a house and later leaving carrying a bag to his car. And their informant later told them that the suspect had called and said he had drugs to sell.

No controlled buy was ever set up using the informant. Instead, officers followed the suspect to a car stereo dealer. And this is where the "training and experience" apparently kicked in.

Detective Moore testified that the surveillance team was expecting someone to meet [Appellant] and this to be like the other occasions when somebody would meet him. J.A. 78. Detective Moore testified that this stop was consistent with how he would expect a drug transaction to occur.

If this was a drug transaction, it was a terrible place to engage in illegal activity. First off, the alleged incident happened in broad daylight in a busy public parking lot. Second, it occurred directly in front of the business's surveillance cameras.

Despite this, Detective Douglas Moore was sure the suspect was engaging in drug sales. He testified that his "training and experience" made it clear regular-ass handshakes are "hand-to-hand" drug transactions.

[O]n cross-examination, when specifically asked if he saw drugs or money exchange hands, Detective Murphy testified that it was just the actions and mannerisms that indicated to him that it was a drug transaction. He did not actually see drugs exchanged. Nor did he see money exchanged. See J.A. 120 (Q. So you didnt see any drugs or money exchange, just the actions and the mannerisms and it being a second handshake and it being longer than the first handshake, you believed it to be a hand-to-hand? A. Yes, sir.). Detective Murphy provided no further detail about why this second handshake led him to conclude that a hand-to-hand drug transaction had occurred. In fact, when asked to describe why he thought the second handshake was a hand-to-hand transaction versus just another greeting, Detective Murphy testified, only, Well, the first interaction was brief. The second, what I believe to be the hand-to-hand transaction, was more deliberate and it wasnt as brief as the first action.

So, the difference between a legal handshake and an illegal handshake is in the eye of (only one) beholder. And that's what instigated a search and the discovery of drugs.

No good, says the Appeals Court. Give this "training and expertise" bullshit a rest. It dismantles every single one of the detective's arguments in favor of presumed probable cause. First, the information obtained from the confidential informant:

[T]he only information that proved useful to detectives in connecting the informants tips to Appellant was the vehicle tag number that was connected to him. But that alone does not connect him to drug trafficking. It connects him to a vehicle and that is it.

Then the second handshake, which Detective Moore claimed was actually the consummation of a drug transaction:

As to the notorious second handshake, the Government contends this second handshake provided the officers with reasonable suspicion because Detective Murphy testified that the second handshake was a hand-to-hand transaction. However, Detective Murphy never provided more than this conclusory testimony. In fact, Detective Murphy never witnessed drugs or money change hands, and his testimony did not provide any details about the handshake that allows us to view this second handshake as suspicious.

Do better, says the court:

[W]e cannot hold that officers bare suspicion of drug trafficking -- without more -- can allow even an experienced officer to reasonably conclude that such a benign and common gesture can be viewed as an exchange of drugs. This cannot amount to reasonable, particularized suspicion.

The ends cannot be used to reverse-engineer justification for the means.

The Fourth Amendment does not allow the Government to label a person as a drug dealer and then view all of their actions through that lens.

And here's the concurrence, setting fire to speculative "training and expertise" assertions. Trying to convert a seemingly harmless handshake into "reasonable suspicion" just because it seemed more "deliberate" than the first one the detective observed does direct harm to citizens, especially when courts decide an officer's speculation is more trustworthy than actual facts.

We therefore have thin factsthe handshake appeared long and purposeful bolstered by a thinner interpretation of those factsthe handshake was consistent with a drug transaction. Such meager testimony would not have received the same degree of deference had it come from someone other than a law-enforcement officer. But in the half-century since Terry v. Ohio, we have afforded greater and greater weight to officers training and experienceoften at the expense of the robust judicial scrutiny that the Fourth Amendment demands.

[...]

Our practice of affording strong deference to training and experience has costs. [...] It incentivizes veteran officers to lean on their impressions instead of doing the hard work of building a case, fact by fact.

As the concurrence points out, granting this much deference to cops does little more than offer judicial blessing for biased policing and rights violations. If cops want to be trusted in court, they need to earn it, not expect it.

In my view, judges can begin to curb these ill effects by dialing down the deferenceeven slightlyand treating police officers like other expert witnesses. Doing so would be consistent with both precedent and common sense. If a veteran officer catches something that would elude a novicea code word, a pattern, etc.he may of course rely on it, so long as he can later explain in court why the fact is significant. But if an officer's explanation is paltry or conclusory, as in this case, the judge must not hesitate to assign it less weight.

That would be a welcome change from the current status quo -- one that says cops are full of knowledge and everyone accused of a crime is full of lies. The burden of proof still remains on the government. And this burden should include offering evidence that supports "training and experience" assertions made by officers, rather than assuming anyone with a few years on the force is inherently an expert on illegal activity and human behavior.

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Filed Under: 4th circuit, police, qualified immunity, training and expertise

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Fourth Circuit Appeals Court Takes Aim At Police Officers' 'Training And Expertise' Assertions - Techdirt