An attorney's fees award to prevailing defendants under 42 U.S.C. 1988 is relatively uncommon, at least more uncommon than fee awards to prevailing plaintiffs.  But this week in Carter v. Inc. Village of Ocean Beach, the Second Circuit affirmed a fee award to certain defendants where the plaintiffs' claims were frivolous.

Plaintiffs are five former seasonal and part-time police officers who were employed - and terminated - by a village in New York State.  They filed suit against numerous village and county defendants, alleging a variety of federal constitutional claims as well as state law claims pertaining to their termination.  The plaintiffs voluntarily dismissed some claims, the district court dismissed other claims on summary judgment, and the court declined to exercise supplemental jurisdiction over the remaining claims, which were state law claims.  The plaintiffs re-filed their state claims in state court, which dismissed all claims against the county defendants.

In the federal action, the county defendants moved for, and were awarded, attorney's fees pursuant to section 1988, to the tune of almost $64,000.  Under fee shifting statutes like section 1988, prevailing plaintiffs are ordinarily awarded attorney's fees.  But prevailing defendants are awarded fees only if the action was frivolous.  At issue on this appeal was whether the action was frivolous, and whether the defendants could be considered prevailing parties given that the claims were disposed of in various ways.

The Second Circuit had no problem finding the action frivolous, making it abundantly clear to the plaintiffs that they never should have filed suit against the county defendants because the county had nothing to do with the village's hiring or firing practices.  As for the prevailing party aspect of the analysis, to prevail for purposes of attorney's fees, a party must have gained through the litigation a material alteration of the parties' legal relationship.  A voluntary dismissal with prejudice is such an alteration because the action cannot be filed again.  Here, the plaintiffs voluntarily dismissed some claims, had other claims dismissed on summary judgment by the district court, and had the remaining claims dismissed by the state court.  Since there was no chance for any of the claims to be relitigated, there was indeed a material alteration of the parties' legal relationship and thus the defendants were properly considered prevailing parties.


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Yesterday, the Seventh Circuit ruled that Indiana’s statute regarding who may solemnize a marriage violates the Equal Protection Clause of the Fourteenth Amendment as well as the First Amendment, reversing the lower court’s decision. In Center for Inquiry, Inc. v. Marion Circuit Court Clerk, No. 12-3751, 2014 WL 3397217 (7th Cir. July 14, 2014), the Center for Inquiry filed suit under 42 U.S.C. § 1983 contending that Indiana’s marriage-solemnization statute violates the Constitution’s First Amendment, applied to the states through the Fourteenth Amendment, by giving some religions a privileged role. The statute specifies who may perform the final steps that unite persons who hold marriage licenses. The list includes religious officials designated by religious groups, but it omits equivalent officials of secular groups such as humanist societies. 


The Seventh Circuit wrote that three states (Florida, Maine, and South Carolina) authorize humanists to solemnize marriages by becoming notaries public, but Indiana does not (notaries cannot perform marriages in Indiana)—nor does it provide any other way for private secular groups to exercise this authority. Four states (Alaska, Massachusetts, Vermont, and Virginia) allow anyone to solemnize a marriage, and another six (Colorado, Kansas, Montana, Pennsylvania, New York, and Wisconsin) allow the couple to solemnize their own marriage, but neither option is available in Indiana. For hundreds of years, in the legal tradition that we inherited from England, the persons who could solemnize marriages included clergy, public officials, sea captains, notaries public, and the celebrants themselves. When Indiana codified the list in 1857 it left off captains, notaries, and the marrying couple, though it included some religious groups (and added some other religious groups later). 

The Center for Inquiry is a nonprofit corporation that describes itself as a humanist group that promotes ethical living without belief in a deity. The Center seeks to show, among other things, that it is possible to have strong ethical values based on critical reason and scientific inquiry rather than theism and faith. The Center maintains that its methods and values play the same role in its members’ lives as religious methods and values play in the lives of adherents. The Center would be satisfied if notaries were added to the list; nothing in humanism makes it inappropriate for a leader (or any other member) to be a notary public.

In the lawsuit, Indiana stated that a humanist group could call itself a religion, which would be good enough for the state. It also noted that a humanist celebrant could conduct an extra-legal ceremony, which the not-yet-married couple could follow up with a trip to the local court to have the clerk perform a legally effective solemnization. The Center and its Indiana leader, who is also a plaintiff, find these options unacceptable; they are unwilling to pretend to be something they are not or pretend to believe something they do not; they are shut out as long as they are sincere in following an ethical system that does not worship any god, adopt any theology, or accept a religious label.

The Seventh Circuit observed that the Supreme Court has forbidden distinctions between religious and secular beliefs that hold the same place in adherents’ lives. It also observed its own past holding that when making accommodations in prisons, states must treat atheism as favorably as theistic religion. What is true of atheism is equally true of humanism, it wrote, and as true in daily life as in prison.

The Seventh Circuit noted that the Supreme Court has addressed the long-established practice of opening legislative meetings with prayer, most recently in this year’s Greece v. Galloway, 134 S.Ct. 1811 (2014). But while these cases concern what a chosen agent of the government says as part of the government’s own operation, they do not concern how a state regulates private conduct. The Indiana marriage statute, by contrast, is regulatory. So although a government may, consistent with the First Amendment, open legislative sessions with Christian prayers while not inviting leaders of other religions, a state cannot limit the solemnization of weddings to Christians, while excluding Judaism, Islam, Buddhism, and—humanism.

Reversing the lower court decision, the Seventh Circuit remanded with instructions to issue an injunction allowing certified secular humanist celebrants to solemnize marriages in Indiana—to do this with legal effect, and without risk of criminal penalties. It wrote, however, that if Indiana amends its statute to allow notaries to solemnize marriages, the district court should be receptive to a motion to modify the injunction to minimize the extent to which a federal decree supersedes the state’s own solution to the problems the Seventh Circuit has identified.

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On June 27, 2014, the Seventh Circuit found that two Fourth Amendment excessive force claims were compatible with Heck v. Humphrey, 512 U.S. 477 (1994), reversing the court below on this issue. In Green v. Chvala, No. 13-3568, 2014 WL 2925182 (7th Cir. June 30, 2014), the plaintiff sued two law enforcement departments and several of their officers for excessive force in violation of the Fourth Amendment. The district court concluded that the plaintiff’s principal claims against two officers using force were barred by Heck, relying on the plaintiff’s conviction for recklessly endangering safety, which stemmed from the same course of events underlying his civil suit. But finding these claims to be compatible with Heck, the Seventh Circuit vacated the lower decision in part and remanded.

Under Heck, to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a Section 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus. Heck states that an example of a Section 1983 action that does not seek damages directly attributable to conviction or confinement but whose successful prosecution would necessarily imply that the plaintiff’s criminal conviction was wrongful would be the following: A state defendant is convicted of and sentenced for the crime of resisting arrest, defined as intentionally preventing a peace officer from effecting a lawful arrest. He then brings a Section 1983 action against the arresting officer, seeking damages for violation of his Fourth Amendment right to be free from unreasonable seizures. To prevail in this Section 1983 action, he would have to negate an element of the offense of which he has been convicted. Regardless of the state law concerning res judicata, the Section 1983 action will not lie.

Because Heck can be an important Section 1983 defense, it is important to be aware of the Seventh Circuit’s limitation of Heck as a claims bar in Chvala.

In Chvala, the facts assumed true on appeal were that the plaintiff was pulling away from a stop sign when a defendant officer approached in a squad car and activated its lights. The plaintiff pulled into a nearby lot, promptly backed out of it, and slowly drove past the squad car. The officer responded by opening fire on the plaintiff’s car, and bullets shattered the passenger and back windows. Fearing for his life, the plaintiff then sped away. Later that day, two officers apprehended the plaintiff, now on foot, at gunpoint. While the plaintiff was lying motionless and handcuffed on the ground, a defendant officer came over and kneed him in the ribs as the other officers watched. Several months later the plaintiff pleaded no contest and was convicted of a Wisconsin statute for “second degree recklessly endangering safety” for conduct committed on the date of his arrest.

The plaintiff sued based upon the shooting, the kneeing, other officers’ failure to stop the kneeing, and departmental failure to train on proper force. At screening the district court dismissed each of the plaintiff’s claims for failing to state a claim for relief under Section 1983. First, the district court concluded that the plaintiff’s excessive-force claim against the shooting officer was barred by Heck because the plaintiff’s allegation that he posed no immediate safety threat (thus making the use of deadly force unreasonable) could not be reconciled with the plaintiff’s conviction for recklessly endangering others. Concerning the plaintiff’s claim against the kneeing officer, and against the other officers for not stopping the kneeing, the district court concluded that the force was justified. It reasoned that the officers could anticipate further resistance from the plaintiff given his recent flight, which Heck prevented the plaintiff from denying. Lastly, the district court concluded that the plaintiff’s claims against two law enforcement departments must be dismissed because neither had the legal capacity to be sued.

On appeal, the plaintiff first argued that his excessive-force claim against the shooting officer was compatible with his conviction for two reasons. First: the shooting officer shot at his car before he sped off in a manner that, according to the conviction, was reckless. Second: because he pleaded no contest under North Carolina v. Alford, 400 U.S. 25 (1970), he did not admit to reckless driving.

The Seventh Circuit observed that the plaintiff’s Alford plea did not nullify the Heck bar or its application to reckless driving. Like any plea, an Alford plea resulted in a conviction to which Heck applies. Moreover, under Heck, the plaintiff could not pursue any claim that would necessarily imply the invalidity of his conviction. The plaintiff was convicted of recklessly endangering others by speeding away from the officer, and an officer may reasonably use deadly force when a suspect poses a threat of serious physical harm, either to the officer or to others. Thus, Heck would bar any allegation that the shooting officer used excessive force after the plaintiff began driving recklessly under the state statute of his conviction.

But the Seventh Circuit found that Heck did not bar the plaintiff’s claim against the shooting officer because, construing his allegations liberally, he was alleging that the shooting officer used deadly force before the reckless driving that led to his conviction. The plaintiff alleged that the shooting officer fired at him as he slowly drove past the shooting officer, before he sped away. The Seventh Circuit ruled that Heck does not bar that claim because, if it did, then resistance that did not jeopardize safety, such as the low-speed driving that the plaintiff described, would invite the police to inflict any reaction or retribution they choose. The Seventh Circuit cautioned, though, that the plaintiff survived Heck only if, as his complaint implied, the conviction was for conduct that occurred after the shooting.

In any case, the Seventh Circuit found there had been no seizure under the Fourth Amendment because if, as the plaintiff contended, he sped away after the officer fired the second shot, then he was not seized by that force because he was not stopped by the very instrumentality set in motion or put in place to achieve that result. However, because the plaintiff alleged that the officer shot at his slowly moving car, not to enforce a government interest, but to kill him, the Seventh Circuit found that the allegations stated a Fourteenth Amendment claim.

Regarding the plaintiff’s claim against the kneeing officer, the Seventh Circuit found that the plaintiff stated a claim for relief against the kneeing officer because he had alleged that the kneeing officer applied significant force after he was unable to resist arrest. 

As to the other defendants, the Seventh Circuit found that the officers who watched the plaintiff get kneed in the ribs were not liable because the plaintiff asserted that he was kneed just once, so there was no chance for other officers to step in and no need to warn the kneeing officer to stop. And the Seventh Circuit affirmed the lower decision that the named law enforcement departments could not be sued under Section 1983 because they were departments of government units.

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Harris v. Quinn

Posted on July 2, 2014 08:52 by Tim Coates

In Harris v. Quinn, 11-681, the United States Supreme Court, by a 5-4 vote, struck down an Illinois law requiring home healthcare workers paid with Medicaid funds to belong to a public employee union or pay an agency fee equivalent to union dues to support the union. The court held that requiring the home healthcare workers to belong to, or support a public employee union violated their rights of free association and expression under the First Amendment in that it required them to fund and support union activities, including lobbying activities with which they might not agree. 

In so holding, the court distinguished its prior decision in Abood v. Detroit Board of Education, 431 US 209 (1977) where the court had held that public employees could be required to pay union dues, even if not union members, so long as they were provided with a refund of the union dues reflecting an amount that had been expended by the union of for lobbying activity, as opposed to activities that benefit all workers, such as negotiation of wages and working conditions. In Harris, the court emphasized that unlike in Abood, the home healthcare workers at issue were essentially not public employees at all, with the state merely providing their wages via Medicaid, but with individual employers supervising their work and determining their working conditions on a day-to-day basis. The court concluded that the state could not demonstrate a compelling interest served by the mandatory union fee provision sufficient to offset the significant imposition on the home healthcare workers’ rights to free speech and association under the First Amendment. Since the union provided little more than wage and benefit negotiation, with the balance of work-related conditions left to individual employers of the home healthcare workers, the state was unable to show that dues paid by willing union members were insufficient to fund the relatively limited union activities that benefitted all home healthcare workers. As a result, there was no justification to impinge on the First Amendment rights of non-union members by requiring them to fund the union and its activities.

Harris is significant for two reasons. First, it may spawn challenges to similar mandatory agency fees paid by non-member public employees to unions, with the success of any challenge likely centering on the degree to which the government employer actually controls the day to day activities of the individual employee, and hence the degree to which the unions activities actually benefit the non-member employees. Second, the majority all but overrules Abood, making it clear that its prior decision rests on shaky grounds, thus inviting an outright challenge to Abood which would jeopardize the ability of public employee unions to compel non-members to fund any aspect of union activity, including collective bargaining and other measures that directly concern working conditions and wages. If Abood is eventually overruled, it would be a substantial blow to public employee unions.

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At Thursday's weekly conference, SCOTUS will discuss the petition for writ of certiorari in Myers v. Koopman. The issue raised in this case has two parts: "(1) whether a malicious prosecution claim under § 1983 exists under the Fourth Amendment against an investigating detective; and (2) whether Wallace v. Kato applies to a § 1983 malicious prosecution claim under the Fourth Amendment not involving a conviction so that the applicable statute of limitations begins running when the claimant was detained pursuant to the arrest warrant."


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In a recent unpublished[1] opinion from the Seventh Circuit Court of Appeals (decided on May 21, 2014), the court relied on video evidence in affirming summary judgment for the defendant in a Section 1983 case.  In Rivera v. Jimenez, 2014 WL 2111145, the plaintiff, a Wisconsin inmate, alleged that a prison guard violated his constitutional rights by using excessive force and parading him naked in front of other inmates. The video, recorded by another guard, captured the entire series of events which begins with guards demanding that the plaintiff remove a towel draped over the window in his cell door.  Rather than comply, the plaintiff yelled profanities and threatened to fight anyone who entered the cell.  The guards shot pepper spray into the cell which prompted the plaintiff to remove the towel.  Plaintiff was strip searched and removed from the cell naked and taken to the shower to wash off the spray. The same guards returned the plaintiff (still naked) to a new cell. Each trip took about a minute.  The plaintiff then used the mattress to block the window again and refused to comply with orders  to uncover the window. In the process of removing plaintiff to a third cell, the plaintiff resisted by refusing to stand and walk. The guards pushed him into the third cell with their knees.

On summary judgment, the defense introduced a copy of the video along with affidavits from the guards involved. The district court held that the video foreclosed any possible claim against the guards.  On appeal, the plaintiff objected to the district court’s reliance on the video arguing it was “doctored” pointing out alleged discrepancies in the recording. The Seventh Circuit rejected the plaintiff’s accusation stating that the “video shows exactly what the district court said it does” and held that summary judgment “is appropriate when a video discredits the plaintiff’s version of events” relying on Scott v. Harris, 550 U.S. 372 (2007); Poole v. City of Shreveport, 691 F. 3d 624 (5th Cir. 2012); Thomas v. Durastanti, 607 F. 3d 655 (10th Cir. 2010) and Wallingford v. Olson, 592 F. 3d 888 (8th Cir. 2010).

The Seventh Circuit’s holding in Rivera demonstrates the power of video evidence and how it can be effectively used by the defense.


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In Morris v. Town of Lexington, Ala., Dkt. No. 13-10434, the Eleventh Circuit examined the interplay between the Fourth Amendment and a warrantless home entry (which was not entitled to qualified immunity) and the homeowner's arrest after the home owner punched one of the officers for refusing to leave his house (which was covered by qualified immunity). Lexington police officers received an early morning 911 call from an intoxicated woman was standing outside the plaintiff's house and who vaguely claimed that she was in danger and that someone was beating plaintiff's horses. The woman made no accusation against plaintiff. Police knocked on plaintiff's door, which woke him from his slumber. When officers told plaintiff that the intoxicated woman said his horses were being abused, he became concerned and told the officers he was putting his boots on and was going to check on them. One of the officers told plaintiff he was not going anywhere, and when plaintiff went back into his house, three officers followed him. Plaintiff told them to leave unless they had a warrant. One of the officers remained in the doorway, holding it open. Plaintiff tried to close the door, and the officer shoved him. Plaintiff then punched the officer, which resulted in the officers re-entering the house, bringing him to the floor and tasing him. Plaintiff was charged with assaulting a police officer and resisting arrest. The district court denied the officers' motion to dismiss claims based on the warrantless entry and plaintiff's arrest.

Judge Tjoflat, in a unanimous opinion, held that the officers were not entitled to qualified immunity on the warrantless entry claim, but that the officers were entitled to qualified immunity on the arrest claim. Reiterating the long-standing Fourth Amendment principle that warrantless searches and seizures inside a home are presumptively unreasonable, the Court rejected the officers' argument that they did not require a warrant to enter plaintiff's home because they had reasonable suspicion to detain plaintiff and, thus, could enter his home to detain him. The Court doubted that "reasonable suspicion" was the correct standard to justify the officers' entry but, in any event, held that they did not even have arguable reasonable suspicion to enter plaintiff's home. The Court noted that the officers' conduct in knocking on plaintiff's door and asking him questions was within the bounds of the law. But, the Court wrote, the officers had no reasonable suspicion of anything concerning illegal conduct by plaintiff. Judge Tjoflat wrote that "[w]hat the officers faced was an unarmed man who had just gotten out of bed and was concerned about the safety of his horses. He was not a man armed and presently dangerous, or a man who had engaged in, or is about to engage in, criminal activity." Id. at 14. As such, because the officers entered plaintiff's home without a warrant "or anything remotely approaching reasonable suspicion," they violated plaintiff's Fourth Amendment rights. Id. at 14.

However, the Court held, the officers did have at least arguable probable cause to arrest plaintiff. In reviewing Alabama law, the Court noted that it is a crime to resist a lawful arrest, but that a citizen has the right to use force to resist an unlawful arrest. Moreover, the Court wrote that the officers' conduct of standing in the doorway and refusing to leave when asked constituted an unlawful detention, and that the officer committed an assault when he shoved plaintiff. Nevertheless, once plaintiff punched the officer, the officers had, at the very least, arguable probable cause to believe that plaintiff had committed an assault. Because the officers had at least arguable probable cause to believe that plaintiff had committed a crime by punching the officer, plaintiff's arrest was not a violation of plaintiff's Fourth Amendment right not to be seized without probable cause.


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As a matter of first impression, the Seventh Circuit has held that 42 U.S.C. § 1981 does not create a private right of action against state actors. Campbell v. Forest Pres. Dist. of Cook Cnty., Ill., No. 13-3147, 2014 WL 1924479 (7th Cir. May 15, 2014). In Campbell, the plaintiff was fired after a security camera recorded him having sex with a coworker in the company’s office. Two and a half years later, he sued his former employer. His suit included a claim under 42 U.S.C. § 1981 that his termination violated that statute’s prohibition on racial discrimination in the making and enforcement of contracts. (At first, his suit also included 42 U.S.C. § 1983 claims, but he amended his complaint to leave them out, apparently conceding that they were time-barred.)

The Seventh Circuit wrote that, under Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 731-35 (1989), § 1981 itself provides a remedy for violations committed by private actors, but an injured party must resort to § 1983 to obtain relief for violations committed by state actors. The Campbell plaintiff argued that the Civil Rights Act of 1991 superseded Jett by adding the following language to § 1981 as subsection (c): “The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.” As a result, argued the plaintiff, § 1981 provides a remedy against state actors independent of § 1983. The Seventh Circuit recognized that the Ninth Circuit had taken this position in 1996 but that all six circuits considering the issue since then had not.

Finding against the plaintiff—and affirming the decision below—the Seventh Circuit observed that § 1981(c) was intended not to overrule Jett but to codify an earlier Supreme Court holding that § 1981 prohibits intentional racial discrimination in private, as well as public, contracting. Further, the Seventh Circuit reasoned that the fact that Congress has created a specific remedy against state actors under § 1983 still counsels against inferring a remedy against them under § 1981, even after the Civil Rights Act of 1991. Joining the “overwhelming weight of authority,” the Seventh Circuit held that Jett remains good law, and consequently, § 1983 remains the exclusive remedy for violations of § 1981 committed by state actors.


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The Ninth Circuit issued a decision in Green v. City and County of San Francisco, Case No. 11-117892 (9th Cir. May 12, 2014) this week, a case arising out of a vehicle stop made by San Francisco police officers on a vehicle mistakenly identified as stolen by the city’s Automatic License Plate Reader.  The Court held that officers lacked reasonable suspicion to effectuate a traffic stop based on a hit from the PD’s automatic license plate reader because officers failed to visually verify the license plate and confirm that the identified license was actually one that had been reported as stolen or wanted.  The Court also rejected the lower court’s determination that, as a matter of law, where a lawful investigatory stop occurs and tactics involved in effectuating that stop form the basis of a plaintiff’s excessive force claim, such a claim must fail.  

A more detailed summary of the decision follows, and a copy of the decision can be accessed here

The San Francisco Police Department (SFPD) employs automatic license plate reader (ALPR) technology.  The technology relies on cameras mounted on SFPD’s cruisers, called “camera cars,” that capture license plate numbers of passing cars.  Captured plate numbers are then compared against wanted numbers in a database and, when a hit is made, the system alerts the officer with an image of the relevant plate.  Officers are trained that because the system sometimes generates “false hits,” the system’s identification of a hit does not, alone, justify a stop.  Instead, officers are trained they must employ a two step process before making a stop: (1) they must visually verify the license plate and (2) confirm with the system that the “hit” is real by ensuring the identified license number has actually been been reported as either stolen or wanted.  At the time of the stop at issue in the case, SFPD did not have a policy requiring verification of the hit by either the officer in the camera car, or the officer conducting the stop.

On the night in question, two SFPD officers – Esperaza and Pedersen – were in an SFPD camera car when Plaintiff Green’s vehicle passed by.  The ALPR misread the license plate on Green’s car, identifying it as belonging to a stolen vehicle.  Because it was late and therefore dark outside, Officer Esparaza could neither read the ALPR photo, nor visually confirm the license plate number on Green’s car.  Officers Esperaza and Pedersen could not personally stop Green, as they had a suspect in custody, so they radioed the hit to dispatch.  In so doing, Officer Esparaza described the vehicle as a dark Lexus and read the entire license plate number from the ALPR, which was not the actual license on Green’s car.  Esparaza confirmed with dispatch that the plate number he read – the one generated by the APLR – in fact was a wanted plate number.  Dispatch ran it and confirmed it was wanted, and that it belonged to a gray GMC truck.

In the meantime, Sergeant Kim saw Green’s vehicle and noticed the first three numbers of Green’s plate matched the plate read over the radio.  He also knew that the wanted plate number matched a GMC truck and that the vehicle observed by the camera car was a dark Lexus.  Kim did not visually confirm all seven numbers on Green’s license plate.  Nevertheless, he radioed Officers Esparaza and Pedersen and confirmed the car they’d observed was a dark Lexus.  Upon doing so, Kim decided to make a high-risk, or felony, stop, which involves handcuffing the suspect at gunpoint and therefore necessitates participation from multiple officers.

While Kim waited for backup, he followed Green.  At no point did he visually confirm her license plate.  Nor did Kim confirm Green’s plate number with dispatch as wanted.  Kim admitted that had he read the full plate, he would not have had reasonable suspicion to stop Green.  

Once backup arrived, Kim initiated the stop.  There was a dispute as to the number of officers who participated – Green said six, Kim recalled at least four officers.  As she exited her vehicle, Green saw an officer pointing a shotgun at her.  She had difficulty lowering to, and getting back up from, a kneeling position on the ground.  Green also reported that several officers had their weapons trained on her during the stop.  After searching the vehicle and patting Green down, Kim ran Green’s entire license plate and discovered that it indeed belonged to her dark colored Lexus, which had never been reported as stolen.  Green says that the stop lasted 18-20 minutes, and that she was handcuffed for at least ten minutes of the stop.  There was no fact dispute that Green was complaint and did not resist during the stop.  

Green filed multiple Fourth Amendment claims, claiming unreasonable search and seizure, arrest without probable cause, and unreasonable force.  She also alleged Monell claims against the City and SFPD, along with raising state and tort law claims.  

The lower court granted summary judgment to all Defendants.  Thought SFPD did not have a policy at the time requiring the camera car officer to verify an ALPR hit, the district court determined it was reasonable for Kim to assume Officer Esparaza had visually confirmed Green’s plate.  Thus, that court held that Kim had a good faith belief as to the match.  The lower court likewise determined the tactics the officers used in effectuating the stop were objectively reasonable.  Kim was also deemed entitled to qualified immunity based on the fact that he’d not been found to commit a constitutional violation.  That same fact led to dismissal of the Monell claims.  And all state law claims were dismissed based on the lawfulness of the stop.

The Ninth Circuit, in reversing summary judgment for the defendants, first examined whether Kim had reasonable suspicion for the stop.  The Court began by noting that an unconfirmed hit from the ALPR was indisputably not sufficient to establish reasonable suspicion.  It then noted the SFPD’s policy of both visually confirming a plate number’s match with the ALPR system and confirming the plate is actually wanted per the database.  The Court noted that Kim performed the second step, but not the first.  Green argued both steps must be taken by the officer making the stop, while Defendants argued that the camera car officer should make verification efforts.  

Noting that Kim was entitled to rely on information from Esparaza as establishing reasonable suspicion, the Court nevertheless went on to say reliance is only allowed where objectively reasonable. Esparaza neither made the visual confirmation required, nor said over the radio that he had done so.  As a result, reasoned the Court, the lower court’s determination that Kim’s reliance was objectively reasonable, while plausible, did not support a grant of summary judgment because that determination relied on an inference in Defendants’ favor.  More particularly, the Ninth Circuit discussed Kim’s “ongoing duty to make appropriate inquiries as to the facts . . . if insufficient details [were] relayed.”  Motley v. Parks, 432 F.3d 1072, 1081 (9th Cir. 2005), overruled on other grounds, United States v. King, 687 F.3d 1189 (9th Cir. 2012).   The Court noted that multiple facts suggested the need for further investigation, including that the plate identified by the ALPR belonged to a different make of car, model, and color than Green’s and that Kim was aware of the discrepancy.  

The Court then turned to whether a de facto arrest occurred.  Noting that there is no bright line rule to measure when an investigatory stop rises to the level of an arrest, the Court examined the totality of the circumstances, paying special attention to the level of intrusiveness of the methods used in light of circumstances present.  The methods used in this case were deemed highly intrusive and therefore the Court looked to whether the circumstances of the arrest justified the use of the subject methods.  The Ninth Circuit found that none of the special circumstances justifying highly intrusive methods of stop/arrest existed in the case – an uncooperative suspect or one at risk of flight; belief the suspect is armed; stop closely follows a violent crime; or where officers believe that crime that might involve violence is imminent.  The Court remarked that the number officers involved was one highly relevant factor in determining whether officers crossed the line from stop to arrest.  And ultimately, the Court concluded a reasonable jury could conclude Green was arrested based on the fact that the tactics used were “extremely intrusive,” she was complaint, the officers had no information that she was armed, the stop didn’t follow a violent crime, and the officers had no information that a violent crime was about to occur.  Moreover, the officers lacked information that Green was a proper suspect, or one that she posed a threat.  Thus, the six officers on scene who participated in the stop, assuming Plaintiff’s version of events to be accurate, was excessive.   

Ultimately, the Court concluded that the level of intrusiveness involved in the stop suggested that, in fact, an arrest had occurred.  And because it had already determined a triable issue existed as to whether reasonable suspicion existed for the stop itself, the Court went on to say the existence of probable cause was likewise a triable question.

The Court then turned to Green’s excessive force claim, which the Court indicated would be decided based on a balancing of the “nature and quality of the intrusion” against the “countervailing government interest at stake.”  In considering Green’s excessive force claim, the Ninth Circuit flatly rejected the lower court’s findings in favor of the officers on this claim.  Specifically, the lower court found that because the tactics at issue were employed in the course of a lawful investigatory stop involving suspicion of driving a vehicle with stolen plates, no reasonable jury could find excessive force.  Relying on its holding with respect to the reasonableness of the stop, the Ninth Circuit rejected the district court’s holding and noted that the existence of a lawful investigatory stop, even where it exists, cannot form the basis of a finding that force is not excessive as a matter of law.  

The Court next considered whether Sergeant Kim was entitled to qualified immunity.  The lower court found him entitled to immunity because it also concluded Kim hadn’t violated Green’s constitutional rights.  The Ninth Circuit began its immunity analysis with the second prong of the immunity rubric, which examines whether the right at issue is clearly established at the time of alleged violation.  That prong of the immunity analysis looks to (1) whether the law governing the conduct at issue is clearly established and (2) whether the facts as alleged could support a reasonable belief that the officer’s conduct conformed to established law.  Because the law was clearly established that an investigatory stop must be backed by reasonable suspicion, the Court turned its eye to Sergeant Kim’s conduct.  Again pointing to the fact that Kim did not know for certain whether Officer Esparaza had visually confirmed Kim’s plate, the Court said it could not conclusively deem him entitled to qualified immunity.  Similarly, because it was unclear what Kim knew at the time of the stop, a court could not determine as a matter of law what was reasonable regarding the amount of force used in effectuating the stop.  

Finally, the Court reversed summary judgment on Green’s Monell claims because of its rejection of the lower court’s underlying determination that no constitutional violation had occurred in the case.     


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Seventh Circuit affirms summary judgment for officers acting on emergency detention statement who force their way into home, take woman inside to psychiatric hospital, and seize her gun and concealed-carry licenses from inside locked CD case
Sutterfield v. City of Milwaukee, No. 12-2272, 2014 WL 1853080 (7th Cir. May 9, 2014).

On Friday, May 9, 2014, the Seventh Circuit affirmed summary judgment in favor of the City of Milwaukee and several of its police officers who forcibly entered the home of the plaintiff to affect an emergency detention for purposes of a mental health evaluation, opened a locked container, and seized for safekeeping the gun and concealed-carry licenses they found inside. Sutterfield v. City of Milwaukee, No. 12-2272, 2014 WL 1853080 (7th Cir. May 9, 2014). In Sutterfield, a psychiatrist had called 911 to report that the plaintiff, who wore an empty gun holster to an appointment with the psychiatrist, had just left the appointment expressing suicidal thoughts. Two officers tried but failed to locate the plaintiff over the next few hours, during which time the psychiatrist called them to say the plaintiff called her and told the doctor to “call off” the police search. The psychiatrist did not, however, indicate that the plaintiff no longer posed a danger to herself. Toward the end of the officers’ shift, they prepared a statement of emergency detention pursuant to a Wisconsin statute providing that a law enforcement officer may take a person into custody when he has cause to believe that the person is mentally ill and evidences “[a] substantial probability of physical harm to himself or herself as manifested by evidence of recent threats of or attempts at suicide or serious bodily harm.” Other officers then continued the search for the plaintiff, planning to execute the statement of detention if and when the plaintiff was located. More than nine hours after the police were notified of the suicide threat, these officers forced entry into the plaintiff’s home with the plaintiff inside, despite her statements that she was fine, that she had “called off” the police, and that she did not want them to enter. Once inside, the officers handcuffed the plaintiff and made a protective sweep of the home. In the sweep, they found and forced open a compact disc carrying case in plain view and opened it to discover a handgun and concealed-carry firearm licenses. They seized the handgun, the concealed-carry licenses, and a BB gun found in the house that resembled a handgun. The officers then transported the plaintiff to a psychiatric hospital.

The plaintiff filed suit pursuant to 42 U.S.C. § 1983 against the city and the individual officers involved in the incident, challenging the warrantless entry into her home, the seizure of her person, the search of the case containing the gun, and the seizure of the gun itself along with the concealed-carry licenses. She contended that these acts violated her rights under the Fourth Amendment (as made applicable to the States through the Fourteenth Amendment), and that the seizure of the handgun additionally violated her rights under the Second Amendment.

The Seventh Circuit observed that the intrusions upon the plaintiff’s privacy were profound. But it also recognized the important role that police play in safeguarding individuals from dangers posed to themselves and others—a role that will, in appropriate circumstances, permit searches and seizures made without the judicial sanction of a warrant. Thus, the situation required the court to balance the plaintiff’s privacy interests, as protected by the Fourth Amendment, against a community interest—and the plaintiff’s own interest—in protecting her from harm, including self-inflicted harm.

The Seventh Circuit concluded that the warrantless entry into the home was justified by the emergency aid doctrine (a subset of the exigent circumstances doctrine) as an exception to the Fourth Amendment’s warrant requirement, as the officers had a reasonable basis to believe that the plaintiff posed an imminent danger of harm to herself. The Seventh Circuit assumed that the search of a closed container for a gun, and the ensuing seizure of that gun, violated the plaintiff’s Fourth Amendment rights. But it held that even if the officers had exceeded constitutional boundaries, they were protected by qualified immunity. 

Specifically with respect to the forced entry into the plaintiff’s home, the Seventh Circuit held that it was reasonable under the circumstances. What the Fourth Amendment requires in all cases is reasonableness, and without knowing what, if any, alternative process was available to the police, the Seventh Circuit wrote that it was not prepared to say that the warrantless entry into the plaintiff’s home was unlawful under the circumstances presented to them. The police acted out of legitimate concern for the plaintiff’s safety and well-being (in other words, there was no hint that they were using the emergency as a pretext to look for evidence of a crime), they acted consistently with a state emergency detention statute, and the circumstances were objectively reasonable for them to believe that their intervention was required to prevent the woman from harming herself, notwithstanding her own protestations to the contrary. Alternatively, the Seventh Circuit held that even if the entry into the plaintiff’s home was inconsistent with the Fourth Amendment, a reasonable person would not have known that the entry violated the plaintiff’s clearly established rights; the officers would therefore be entitled to qualified immunity on the unlawful entry claim. 

Given its conclusion that the forced entry was reasonable, the Seventh Circuit found that the sweep that resulted in the discovery of the locked compact disc case containing the plaintiff’s gun and various concealed-carry licenses was also reasonable. 

The court assumed that the search of the locked compact disc case was unlawful, but it noted powerful arguments in favor of the temporary seizure of the gun as a prudential measure. In its discussion of qualified immunity, it found that the police officers had ample reason to believe that the search was permissible as a legitimate safety measure under the circumstances confronting them. And while the court assumed that the search for and seizure of the plaintiff’s gun were inconsistent with the Fourth Amendment, it emphasized that this was just an assumption, and it reserved a firm ruling on the merits of these issues for a case in which the arguments are better developed and supported.

Addressing qualified immunity, the Seventh Circuit wrote that the defense clearly applied to the warrantless entry into the plaintiff’s home, the search of the locked compact disc case, and the seizure of the gun and licenses. Given the broad sweep that Wisconsin courts have given to the community caretaking doctrine (the doctrine which recognizes that police sometimes take actions not for any criminal law enforcement purpose but rather to protect members of the public), the Seventh Circuit found that the police could have thought each of these actions was permissible in order to protect the plaintiff’s well-being. Notwithstanding the uncertainty as to which legal framework best applies to the warrantless actions of the police in these circumstances, the police could have believed that Wisconsin precedents, if not federal cases, authorized them to take the actions they did to protect the plaintiff’s wellbeing as well as the wellbeing of anyone else, including her son, who might have access to her home in her absence.

As for the Second Amendment, the court wrote that whether and to what extent it protects an individual’s right to possess a particular gun (and limits the power of the police to seize it absent probable cause to believe it was involved in a crime) is not an issue that it had addressed in the past or that it would address in Sutterfield. The court observed that, beyond a bare-boned contention that the seizure violated the plaintiff’s Second Amendment rights; the plaintiff had not developed a cogent argument as to the reach and application of the Second Amendment in the law enforcement and community caretaking context. The issue is a sensitive one, wrote the court, as it implicates not only the individual’s right to possess a firearm but also the ability of the police to take appropriate action when they are confronted with a firearm that may or may not be lawfully possessed, and which, irrespective of the owner’s right to possess the firearm, may pose a danger to the owner or others. The court also stated that (1) the fact that Milwaukee has a procedure by which a citizen whose lawfully-possessed gun has been seized may seek its return, and (2) the fact that the plaintiff availed herself of that procedure and did not contest its adequacy on appeal together counseled against addressing the merits of her Second Amendment claim.

As to the Fourth Amendment claim for seizure of the plaintiff’s person, the Seventh Circuit found that the plaintiff had waived any claim that her detention was unlawful absent the prior approval of a judge. Given the ubiquity of emergency detention statutes, and the legitimacy of the interests in both personal and public safety underlying such statutes, the court wrote that a contention that an emergency detention is per se unconstitutional without prior judicial authorization demands much more than the plaintiff’s conclusory argument to that effect. 

In a concurrence, Judge Daniel Manion encouraged legislatures to provide for a judicially-issued civil warrant process that would authorize law enforcement to enter someone’s home when there is probable cause to believe that she poses a risk to herself or others because of mental illness. He wrote that it would be very helpful, for example, if the state legislature of Wisconsin were to amend its emergency detention statute to allow the option of having an emergency detention statement approved by a judge. Then, the document could be a sort of civil warrant on par with an arrest warrant.


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