Daily Archives: September 25, 2023

From the decision earlier this month by Judge F. Kay Behm (E.D. Mich.) in Rideout v. Shelby Twp.:

This case arises from Rideout's arrest after a series of protests against the Shelby Township Chief of Police, Robert Shelide, a defendant here. On June 16, 2020, Chief Shelide was suspended for thirty days after having made multiple posts on a Twitter Account using a pseudonym supporting racist ideals and endorsing police brutality. On July 1, 2020, July 15, 2020, and July 20, 2020, Rideout participated in protests against Shelide. On the evening of July 20, 2020, local media interviewed Rideout, who criticized Shelide's return from suspension and called for his resignation.

According to the SAC [Second Amended Complaint], in response to Rideout's criticisms, the named Defendants worked together to retaliate against him for exercising his constitutional rights under the First Amendment. Rideout alleges that Shelide and the police officer defendants colluded to conduct a pretextual investigation of his activities on July 20, 2020 to fabricate a misdemeanor charge of violating Mich. Comp. Laws 257.602 (failure to comply with the order or direction of a police officer) and presented false or misleading facts to the prosecutor's office. No other protester was arrested for their participation in the July 20, 2020 protests/demonstrations.

The SAC alleges that Defendant Ermir Villa's police report, which served as the basis for the warrant, was untruthful and failed to include exculpatory evidence. The SAC further alleges that Villa, the other Defendant officers, and Shelide were all aware at the time the arrest warrant was obtained that Rideout sought to cooperate with officers at the protest, asked for more time to disperse the crowd, and the officer on the ground granted that request. Despite this knowledge, Defendants colluded to omit this information from the presentation of evidence to the prosecutor and magistrate who issued the warrant.

In 2021, Rideout filed a motion to dismiss the charges based on a lack of probable cause and insufficient evidence. After an evidentiary hearing, the state court judge dismissed the charges, ruling:

a) "I would note just as an aside, that I thought it was somewhat unusualsomewhat unusual for the Defendant ("Rideout") to be charged after the fact and arrested several days later rather than the date of the alleged incident, which typically would be the case and was the case on some of these other matters."

b) "As I've indicated, I spent a lot of time looking at the videos. The video shows aa number of times where the Defendant, Mr. Rideout, did discuss issues with the police officers involved. It did seem like he was trying to control the crowd; control the participants. At one point, directing 6 them off of the roadway, and it did appear that he was atat certain times assisting the police officers. I did see that he was, in fact, thanked by one of the police officers for that assistance."

c) "I just did not feel that there was sufficient evidence under the circumstances to sustain the charge and to go to trial on the matter."

d) Case was dismissed.

The court allowed plaintiff's First Amendment claim to go forward:

Although probable cause generally will defeat a 1983 First Amendment retaliation claim, two exceptions exist where, as here, the defendant officers are being sued in their official capacity. For the first exception to apply, the Supreme Court held that (1) there must be an "official municipal policy of intimidation"; (2) the municipality must have "formed a premeditated plan" to retaliate against the plaintiff; (3) the plaintiff must present "objective evidence of a policy motivated by retaliation"; (4) there must be "little relation" between the protected speech and the offense that led to the arrest; and (5) the protected speech must be "high in the hierarchy of First Amendment values," such as the freedom to petition. Lozman v. City of Riviera Beach (2018). The second exception applies where "a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been," the existence of probable cause will not preclude a First Amendment retaliation claim. Nieves v. Bartlett (2019).

Rideout's SAC alleges that he was the only protestor at the July 20, 2020 protest who was arrested, despite the fact that multiple protestors engaged in the same actions as he did. The SAC further alleges that Defendants' investigation of him was initiated as a pretext to execute their plan to retaliate against him and intimidate him for exercising his First Amendment rights to protest Shelide. This suggests that Rideout's retaliation claim falls within the exception outlined in Lozman and the motion to dismiss Count I is denied for this reason. Moreover, as discussed below, the SAC has sufficiently alleged a lack of probable cause such that a claim would also survive on this basis.

And the court held the same about the Fourth Amendment claim:

[This claim] is based solely on the Fourth Amendment, not the First Amendment and thus, the above-described exceptions do not apply. And claims for false arrest and false imprisonment fail when there is probable cause to support the arrest.

Rideout alleges that Defendants "omitted crucial, known details of the protest, including that Plaintiff had sought to cooperate with officers on scene, had directed protesters out of the street himself on behalf of the police, and, crucially, obtained permission from officers on scene for more time to disperse protesters from the street." Rideout points out that a facially valid warrant is not always sufficient to merit summary judgment or dismissal in an action brought pursuant to 1983 when evidence exists that a defendant intentionally misled or intentionally omitted information at a probable cause hearing for an arrest or a search warrant provided that the misleading or omitted information is critical to the finding of probable cause. [Rideout] asserts that Defendant Vila left "exculpatory evidence" out of his police report when submitting his warrant request, namely that Rideout sought to cooperate and was granted more time to disperse the crowd by an officer and that Defendants knew this. Defendants contend that the court should reject Rideout's contention because the video of the protest shows that he did not obey police commands and, therefore, there is probable cause to support the arrest warrant.

A police officer has probable cause to arrest a suspect if the "facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing or is about to commit an offense." "Generally, probable cause exists when the police have 'reasonably trustworthy information . sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.'" Moreover, an officer is required to "consider the totality of the circumstances," and cannot look only at the evidence of guilt while ignoring all exculpatory evidence when assessing probable cause. "In general, the existence of probable cause in a 1983 action presents a jury question, unless there is only one reasonable determination possible."

Even considering the evidence offered by Defendants (which in the view of the court is not inconsistent with [Plaintiff's] allegations .), neither party offers any type of analysis regarding probable cause and whether the evidence that "Plaintiff had sought to cooperate with officers on scene, had directed protesters out of the street himself on behalf of the police, and, crucially, obtained permission from officers on scene for more to time to disperse protesters from the street" would alter the probable cause analysis. In these circumstances, viewing the evidence in the light most favorable to Rideout, and given that the video does not contradict [Rideout's claims], the court cannot say there is only one reasonable determination possible regarding probable cause, and thus the complaint has sufficiently alleged a lack of probable cause.

See the original post here:
First and Fourth Amendment Claims Over Arrest at Protest of Police ... - Reason

I am writing this to make you aware of a situation that has happened in our great state of Montana. As Montanans we pride ourselves on being independent and self-reliant. We like our space, our gun ownership, and our civil rights. Statewide, and Nationwide, there is an ongoing problem with how police respond to those experiencing a mental health crisis. As I am sure you are aware, Montana has one of the highest rates of suicide in the Nation. For all age groups, Montana has ranked in the top five for suicide rates in the nation, for the past thirty years. With these statistics, Montana is bound to have issues related to how police respond to citizens struggling with suicide. Which is exactly what happened to my family.

My son, Trevor, was shot and almost killed on September 27, 2021 by Anaconda police during a welfare check. He was in an emotional crisis when a phone call from an ex-girlfriend was made to 911 for a welfare check. Police showed up and tried to make contact for approximately 40 minutes, but were unable. They decided to violate the law and the fourth amendment of the constitution and enter his house without a warrant or probable cause. Exigent circumstances did not exist either. When officers are confronting a suicidal subject who isnt committing a serious crime and isnt an active threat to anyone other than themselves, the best response is for them not to engage and to withdraw from the situation. They did not do that in this situation, and instead escalated it. Upon entering, the chief of police can be heard on body-worn camera saying my sons name Hey, Trevor, its (chief of police says his name) come talk to me buddy. My son said in his statement to the State investigator, while laying in his hospital bed 3 days after fighting for his life, I just wanted to be left alone. I didnt think they could just come into someones house. When I knew they wouldnt leave and were in my house I went to go talk to them and boom! I got shot. I thought I was coming out to people who were there to help me, not AR-15 assault rifles! My son was in the closet of an upstairs playroom for his daughter that has a curtain for a door. It was 4/10 of a second between when the curtain moved and the shot was fired. The officer, as soon as he pulled the trigger, is heard on the body camera saying oh shit; I saw the fucking curtain move and let one fly. A gun was found on a basket by the closet, and the officer who shot him is heard saying on body camera, I dont know where that came from; he could have had it. I dont know. To cover their own asses they charged Trevor with assaulting the police officer. A former Anaconda police officer and friend told us that the officers did not follow what they had been taught at the police academy. They refused to admit to wrong doing.

The District Judge Dayton banned the use of the fourth amendment in defense. My son was convicted of assault on a police officer on December 8th 2022, when in reality they assaulted him in his own home while he was exercising his constitutional right to be safe in his home. He is a veteran, a wildland firefighter and a teacher. Our family has always been connected to the community and are productive members of society. We held important jobs in the community as well as participating in a variety of community programs. My son does not have a criminal record. Does anyone feel safe if cops can lie to cover their own asses? The officer who shot my son testified that he thought he saw a gun in Trevors left hand. Body camera footage proves that to be a lie. He did not say a single word about seeing a gun directly after the incident. The ex girlfriend who called 911 testified that Trevor threatened the cops in her phone conversation with him and that she heard what she thought was a gun shot. In her call to 911, she can be heard calmly saying she heard a pop. The noise she heard was Trevor throwing his phone against his metal kitchen cabinets because he was mad. The ex girlfriend said nothing about Trevor threatening the cops in her 911 call because he didnt. The CEO, Bill Everett, and county attorney, Ben Krakowka, allowed the police to cover up an accidental shooting, and even aided in the criminal act. The county attorney, Ben Krakowka, actually prosecuted my son. I believe they prosecuted Trevor because the cops wouldnt admit to wrong doing! I just cant believe the jury believed the lies and found him guilty as well. I am worried there was intimidation or jury tampering in this case. In addition there is corruption in our police department as well as our county government.

We need to take a stand against violations from our elected officials and police officers. This could have been your son or daughter. Right now we are not safe in our homes! If they really cared for my son and thought he might have hurt himself, why didnt they call EMS to the scene? Why did they wait 40 minutes outside the home if they thought he might need medical attention? They didnt call EMS until after he was shot by them. Under oath one captain said I dont have first aide. only CPR. Same captain said when asked why they didnt have an ambulance on scene, Oh, theyre just down the road. Dont our officers have to have basic skills? Especially if they think they can go into your homes to save someone when they dont even have the basic skills. Please help me get my story out and stop our elected officials from damaging my son and our community anymore! We would love to tell our story and save lives. As a mother and friend, Im asking for support to stop the abuse of laws and our constitutional rights as voters and tax payers by our elected officials. Call them and ask for justice!

The rest is here:
Law enforcement violation of the fourth amendment - Daily Kos

The D.C. Circuit Court of Appeals heard arguments Thursday about the constitutionally permitted length of police seizures in a case brought by protesters whose phones have been confiscated indefinitely since their arrests in the 2020 Black Lives Matter demonstrations.

The protesters want their phones back, and the central question judges sought to hammer out was when a law enforcement seizure must end or become a violation of the Fourth Amendment.

The American Civil Liberties Unions D.C. chapter argued on behalf of a collection of protesters and freelance journalists that a seizure is still active, and thus must pass Fourth Amendment scrutiny, because the Metropolitan Police Department remains in possession of the phones.

Further, the ACLU argued, because the U.S. Attorneys Office in the District either has settled or never brought criminal charges against the 40-plus people arrested, there is no investigative purpose for MPD to keep the phones.

However, the D.C.s Office of the Attorney General argued that the seizure itself was legitimate and the question of when a lawfully seized item must be returned to its owner is beyond the scope of the Fourth Amendments guarantees against unreasonable searches and seizures.

Appellate judges expressed some understanding of the ACLUs position, saying the seizure could still reasonably be construed as ongoing.

It may have been OK initially, but youre still holding this many months later for no reason, Senior Circuit Judge Harry Edwards said to OAG attorney Marcella Coburn.

Judge Edwards added that the governments seizure and continued possession of the phones sounded like a Fourth Amendment problem.

Ms. Coburn countered by saying the manner in which the phones were first seized when the protesters were accused of felony rioting in 2020 was justified, as a district court judge agreed.

In an opinion issued last August, the U.S. District Court said case law cited by the ACLU to argue Fourth Amendment violations related to how police performed searches and seizures on those who hadnt been accused of a crime.

But in this case, the protesters had their phones taken when arrested, meaning the case law they were citing didnt apply.

As discussed, every Circuit has held that the Fourth Amendment does not protect against the prolonged retention of lawfully seized property, Judge Amit Priyavadan Mehta wrote in his opinion at the time. Plaintiffs have not cited a single case that says otherwise.

Appeals Court Judge Gregory Katsas on Thursday asked Ms. Coburn whether the government has an obligation to return the property it seizes from people who are arrested but not criminally charged.

Ms. Coburn agreed, but said it was applicable under Rule 41(g) of the Federal Rules of Criminal Procedure, not the Fourth Amendment grounds the plaintiffs were arguing.

She argued further that the ACLUs position, if backed by the court, could elevate every unreasonable refusal to return property after a lawful seizure into a Fourth Amendment violation.

Judges were unsure whether Rule 41(g) which stipulates that [a] person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the propertys return would apply to the civil case brought by the ACLU.

ACLU attorney Michael Perloff agreed that some of the plaintiffs were confused about how to go about that process since they didnt have criminal cases brought against them.

Mr. Perloff said the Fourth Amendment doesnt prevent the government from holding onto property for a few hours or even days to secure a search warrant, but it does prevent law enforcement officials from keeping property as long as they please.

It has been more than three years since some of the plaintiffs were arrested in August 2020.

The plaintiffs attorney argued that the Supreme Court has said in United States v. Place that taking someones property and not telling the person how to get it back infringes on their liberty regardless of the context in which it occurs.

While the named plaintiffs did get their phones after months of seizure, the Metropolitan Police Department has still not given us any information indicating that it returned the phones to the rest of the protestors, Mr. Perloff told The Washington Times in a statement.

This is concerning because, given the pending litigation, we would think MPD would have provided us with information to that effect if the phones had been returned, he said.

The court did not announce when it would release its decision in the case.

Read more:
D.C. Appeals Court weighs whether phone seizures from 2020 ... - Washington Times

Sept. 11, 2023

BY DAVE PRICE Daily Post Editor

Its always a good idea to turn off your phone at church. Not just for the obvious reason you dont want it to ring during the sermon but the Santa Clara County government might be using your phone to spy on you at church.

You might laugh at that and doubt that the county would do such a thing. After all it would be a blatant violation of the Fourth Amendment, which protects your right of privacy and requires the government to get a warrant, and the First Amendment, that allows people to exercise their right to religious freedom.

You might be thinking that the county board of supervisors would put a halt to it and promise the public it would never happen again.

But that hasnt happened.

This spying was brought out into the open in a federal lawsuit filed Aug. 22 by Calvary Chapel in San Jose.

That church has been fighting the county over its pandemic restrictions and the county has fined them more than $1 million. That case is still pending.

Calvary argues that religious services were essential during the pandemic.

Pastor Mike McClure said at a 2021 court hearing that he heard from people suffering from anxiety, depression and even thoughts of suicide.

A church might be the only refuge for a small business owner who lost everything because of Health Director Dr. Sara Codys latest edict.

Calvary alleges that county employees hired a data company called SafeGraph to geofence church members using data emitted from their phones.

The suit said the year-long surveillance operation had no boundaries. They tracked church members in the prayer room and the bathroom.

If this were happening at a Muslim mosque, activist groups would be screaming. The supervisors would have fired the employees who authorized this and denounced their actions. But in this case, nothing has happened.

By doing nothing, the supervisors are telling their employees that this kind of Orwellian surveillance is OK. Who will be their next target?

Anyway, my tip for the day is: remember to turn off your cellphone before you go into church.

Editor Dave Prices column appears on Mondays. His email address is [emailprotected].

Excerpt from:
Opinion: Why you shouldn't turn on your phone in church Palo Alto ... - The Daily Post

Bill Neri presents Hon. Dineen Riviezzo with a certificate of appreciation on behalf of the Court Attorneys of Kings Supreme Criminal Term. The gesture recognized Justice Riviezzo's contribution to legal education, during the Continuing Legal Education seminar held at the Kings County Supreme Court, Criminal Term. Photos courtesy of Bill Neri

On Monday, Sept. 18, the court attorneys of Kings Supreme Criminal Term convened for a timely Continuing Legal Education seminar. The stately chambers of the Kings County Supreme Court, Criminal Term, played host to the event that witnessed a fusion of legal acumen and collegial exchanges.

Formed by Bill and Maria Neri, both court attorneys working within the system, the group was established as a forum to deliberate on issues prominent within the courts ambit. However, the groups trajectory has since expanded. Beyond being a discussion platform, it has grown to host quarterly CLEs, promoting the continual professional development of its members.

This past event marked the groups second quarterly CLE. The highlight was an insightful lecture by Hon. Dineen Riviezzo, a distinguished judge of the Court of Claims. The discourse, aptly titled Guidelines for Assessing Expert Testimony, sought to shed light on the nuances and considerations pivotal to evaluating expert evidence in court settings.

Justice Riviezzo explained the criteria and standards by which courts evaluate the admissibility and credibility of testimony provided by expert witnesses. This encompasses ensuring the experts qualifications, determining the scientific or technical validity of the methodology used by the expert, and assessing the relevance and reliability of the testimony to the particular case at hand.

The goal is to ensure that juries receive sound and unbiased expert opinions, helping them make informed decisions. These guidelines are influenced by, and sometimes based on, legal precedents and foundational decisions, such as the Daubert standard at the federal level, which set criteria for the admissibility of expert witness testimony.

Bill Neri, one of the groups founders, shared his enthusiasm ahead of the event, saying, Exceptionally excited that the court attorneys of Kings Supreme Criminal Term will be hosting Judge Dineen Riviezzo and her presentation, `Assessing Expert Testimony, for our second quarterly CLE.

Justice Riviezzos credentials were clearly evident. Her robust legal career, spanning diverse roles, provided the backdrop for the days content. She began her journey in the legal world after earning an undergraduate degree from Boston College and subsequently, a J.D. from Georgetown University Law Center.

From being an attorney at the State Inspector Generals Office and chair of the NYS Commission of Investigation to serving at the Law Firm of Clifford Chance and undertaking duties as an assistant district attorney with the New York County District Attorneys Office, her multifaceted experiences lent an enriched perspective to the lecture.

This CLE session follows a highly successful inaugural seminar held on May 17 with Hon. Barry Kamins, the former administrative judge of the same courthouse. Justice Kamins lecture, which focused on the Fourth Amendment and the latest changes to the law, was met with an overwhelming response, underscoring the eagerness among court attorneys to learn from luminaries of their profession.

The steadily growing influence and organization of the Court Attorneys group hint at many more such enlightening sessions to come, continuing their mission of enhancing the legal fraternitys expertise and addressing the pressing issues of the day.

The group is currently in the planning stages of its next CLE meeting this coming January.

September 25 | Rob Abruzzese

September 25 | Rob Abruzzese

September 25 | Rob Abruzzese

September 25 | Rob Abruzzese

See the original post:
Court attorneys group hosts CLE seminar with esteemed Justice ... - Brooklyn Daily Eagle