Police Shooting Case at Supreme Court

Today, the Supreme Court declined to review an appeal in the case of Salazar-Limon v. City of Houston  (scroll down). Of course, the Court declines most appeals and can only review a small fraction of the cases brought to it.  What is noteworthy about this case is the dissent filed by Justice Sotomayor.  She wanted to explain why the Court’s denial was a mistake.

The case involved a police shooting in Houston.  The man, Ricardo Salazar-Limon (SL), survived the shooting and later sued for excessive force.  Unfortunately, his lawsuit was thrown out before there was even a trial.  That was Sotomayor’s objection–the case was improperly decided by a judge before trial when a jury should have heard the controversy.  Salazar-Limon was shot by the police and now the government has tossed away his legal claim of excessive force.  By allowing the lower court ruling to stand uncorrected, the law is now tilting against the victims of police misconduct and puts dangerous power in the hands of police.

Here’s the background: SL was driving on a Houston freeway around midnight.  He had been drinking.  Officer Chris Thompson pulled him over, and asked for his license.  Thompson checked for warrants, but there were none.  SL was asked to exit his vehicle –probably for a sobriety test.  It seems that when Thompson moved to put handcuffs on SL, things escalated fast and their stories diverge.  SL says he started walking away, and that he was shot in the back just seconds after Thompson had called out to him to stop.  Thompson claims that SL responded to his order by turning around and making a motion toward his waistband as if he were about to draw a gun, so Thompson, who had already drawn his weapon, shot SL.   SL had no gun.

As noted, an excessive force claim was filed.  The police officer asked the district judge to resolve the case in his favor prior to trial, arguing that he was immune under the doctrine of qualified immunity.

When the facts are disputed, cases typically go to the jury.  When there is no real factual dispute, a judge might decide the case based on the law.  That’s what happened here, but it remains controversial.  Officer Thompson and the lower courts took the position that since SL did not deny reaching for his waistband, the court could decide the case without a jury.  In that situation, the courts said Thompson would have been justified in using deadly force–even if no gun is found later.  The perceived threat is sufficient.

Sotomayor said the courts were making an awful mistake.  SL’s legal claim did dispute the facts–that he did not turn to Officer Thompson till he was shot in the back.  SL is basically saying that he got shot for disobeying an order given just seconds earlier and that’s excessive force.

Sotomayor isn’t saying that Officers Thompson was wrong to shoot.  She is making a more modest argument.  The jury should have heard both sides and then decided the case after hearing all the evidence.  She believes the courts are deciding too many of these kinds of cases prematurely and that the victims of police misconduct are having their claims improperly rejected.  She’s right.  Alas, only Justice Ginsburg joined Sotomayor’s dissent.  Still, the dissent raised the profile of the problem and will help ignite a debate in this important corner of the law.

We should note that Sotomayor cites this article by Radley Balko that collects cases of persons shot by police where the justification was “reaching for the waistband” and it turned out there was no gun.  That is just too thin a basis for the use of deadly force on people.  To be clear, the officer could draw his weapon and he could take cover and issue more commands to a suspect to show his hands.  But opening fire without seeing a gun in such circumstances seems wrong.  At the least, the jury should have decided whether the shot was truly justified.

 

Worst of the Month — January

So for January we have selected the case of Philippe Holland, who was an innocent man shot by Philadelphia police.

According to news reports, here is what happened: Holland was a college student who worked part-time delivering take-out food.  Two  years ago, he was delivering a cheeseburger to a house when two officers in plain clothes responded to the area because of a report about gunshots.  Holland says he thought he was about to get robbed because the officers approached him without identifying themselves.  Frightened, Holland jumped in his car and tried to drive away quickly.  The police officers opened fire and Holland now has a permanent seizure disorder and has bullet fragments in his brain.

Last month, the city agreed to pay $4.4 million to settle a lawsuit brought by Holland, reportedly the largest settlement for a police shooting in the city’s history.

The officers involved in the shooting–Kevin Hanvey and Mitchell Farrell– claim that they feared for their lives and thus had to shoot.  They were not prosecuted.  Even after the passage of two years the department says their discipline is yet “to be determined.”  Hmm.

Worst of the Month — November

So for November, we’ve selected the Albuquerque Police Department, (APD) which is now under investigation, again, for misconduct.

Here’s the background.  After numerous complaints from community leaders, the Department of Justice (DOJ) launched an investigation of the APD.  In April 2014, the DOJ announced its finding that there was indeed a pattern of excessive force by the APD.  Police officials promised to change and improve.

Shortly thereafter, an APD officer shot and killed 19 yr old Mary Hawkes.  It looks like Hawkes stole a car and the police were trying to catch her.  The police said she was a threat and so deadly force was necessary.  Hawkes’ family sued the city for excessive force.  Prior to trial, lawyers asked to see any police body camera footage from the incident.

Now we come to the latest news reports of APD misconduct.  Reynaldo Chavez was an employee of the City of Albuquerque and his job was handling records requests.  Chavez says he was aware that the police department had a peculiar policy regarding police body camera footage.  When the footage helped the police, it was released to the public.  When the footage hurt the police, such as showing excessive force, the footage was altered or destroyed.  In other words, the APD tampered with evidence, which is a crime.

Chavez reportedly turned over incriminating body camera footage to the lawyers representing the Hawkes family.  Chavez then lost his job and he is now fighting to get his job back because he says he was punished for doing what he was legally supposed to do.

The APD has denied any wrongdoing, but the state attorney general has seen enough to launch another investigation into APD practices.

Worst of the Month — February

So for February we have selected the reported misconduct of Officer Matt Rush from Champaign, Illinois.

Last month Precious Jackson filed a lawsuit against Rush and his employer for excessive force when Rush arrested her.  According to the lawsuit, Rush’s actions caused Jackson to lose her unborn baby.  Jackson also says that she begged to be taken to a hospital but that Rush and the other officers on the scene ignored her pleas and took her to the jail instead.

Local news agencies report that the City of Champaign has settled several similar lawsuits involving Rush to the tune of $320,000.  The police chief actually fired Rush for lies in police reports and omitting important details in the incidents he was involved in.

A labor arbitrator overturned the police chief’s discipline and reinstated Rush to his job.

 

 

KVUE’s “Conduct Unbecoming” Part 3

Last week, Austin television station KVUE aired two of their four-part series on police corruption, “Conduct Unbecoming.” Last night, they aired the third installment, which tackles police misconduct’s price tag for taxpayers.

By their estimate, Texas taxpayers have paid out about $54 million in lawsuits related to police misconduct since 2009. In one case they highlight, Austin paid one million dollars to a Carlos Chacon, who was repeatedly tased and suffered lacerations to his face after he called the police at a motel. The judge in the case said, “[T]he worst decision he made that night was to call 911.”

In a separate incident, the same officer who tased Mr. Chacon was suspended 90 days for tasing a suspect twice. He is still an Austin police officer.

You can check out the full piece at KVUE here. You can read our take on part one here, and part two here.

Judge Denies First Amendment Right to Record Police

As my colleague Adam Bates noted over at Cato at Liberty, Radley Balko details a strange decision in Pennsylvania that runs counter to the most common understandings of First Amendment protections.

A federal judge ruled that there is no First Amendment right to record the police unless the person affirmatively declares their right to do so. An excerpt:

“[U.S. District Court Judge] Kearney unconvincingly compares the act of recording the police without some clear articulation that you’re doing so for the purpose of protest or expression to refusing to move along when a police officer is trying to clear a sidewalk or roadway.

Judge Yohn’s cogent and exhaustive analysis in Montgomery v. Killingsworth applies a similar test for assessing conduct protected by the First Amendment. As Judge Yohn observed last year, “Peaceful criticism of a police officer performing his duties in a public place is a protected activity under the First Amendment.” Judge Yohn noted, “this protection, however, is not absolute.” Quoting the Supreme Court in Colten v. Kentucky, and as it relates to Fields, Judge Yohn found “conduct in refusing to move on after being directed to do so was not, without more, protected by the First Amendment. “

Balko continues, “[I]t’s a pretty dangerous thing to say that you must explicitly declare your rights in order to have them respected.” Unfortunately, that danger is not entirely unprecedented. The good news is that recent First Amendment jurisprudence supports the photographers who will appeal and, hopefully, win.

For more on this case, read Adam’s post here and First Amendment scholar Eugene Volokh here. For more on the importance of recording police, check out this short Cato video.

For a broader discussion about the dos and don’ts of recording police misconduct, watch the event below featuring retired U.S. Marshal Matthew Fogg, Flex Your Rights founder Steve Silverman, and me.

Fullerton to Pay $4.9m to Family of Kelly Thomas

As longtime readers of this blog may remember, the Fullerton, California police violently beat Kelly Thomas, a 37-year-old mentally ill homeless man, who died from his injuries. The arrest was recorded, and Thomas could be heard calling for his father as the officers relentlessly beat him into a coma.

Kelly ThomasTwo officers were fired for the incident but ultimately acquitted of criminal charges in the case. As opening arguments were set to begin in the wrongful death suit, the City of Fullerton agreed to pay the Thomas family $4.9 million as a settlement.

Ron Thomas said at a news conference that while the city acknowledged no wrongdoing in the settlement, it was a clear indication to him of its liability and guilt in the death of his 37-year-old son Kelly Thomas. Thomas said he feels vindicated by the settlement.

It is not uncommon for municipalities to disavow any culpability in settlements like this. But lawsuits are important nonetheless because they bring some measure of closure to the families who do not find justice in the criminal courts and incentivize governments to prevent such incidents from happening in the future.

On Tuesday, December 1, Cato will host “Policing in America,” an all-day conference dedicated to discussing the policies and impacts of law enforcement around the country. The event will be live-streamed on the Cato website.

The Donald Gates Case

From the Washington Post:

THE DISTRICT of Columbia’s agreement to pay $16.65 million to settle the federal civil rights lawsuit of a man who spent 27 years in prison for a crime he did not commit should not be the end of this troubling case. That a jury found there to be egregious police misconduct demands rigorous review of other cases handled by the detectives involved, to ensure there haven’t been similar miscarriages of justice. Also needed is resolve by prosecutors and others in the criminal justice system to tackle the systemic issues that contribute to wrongful convictions.

Last week, Federal Judge Alex Kozinski was here at Cato to debate problems in our criminal justice system, including the problems that contribute to wrongful convictions.  That event can be viewed here.

New York Law Hides Police Misconduct

From New York Times editorial:

The uniquely restrictive New York State law that is used to conceal the disciplinary histories of police officers — even some who have committed crimes — reared its head again last week in misconduct proceedings against the officer who brutalized the retired tennis player James Blake during a mistaken arrest in Manhattan last month.

The public has the right to be kept informed of police misconduct cases, especially at a time of heightened concern over police brutality. But when the city’s Civilian Complaint Review Board substantiated excessive force charges against James Frascatore, the officer who attacked Mr. Blake, it was allowed to release its findings to Mr. Blake’s lawyer but was barred from making them available to the public. Had Mr. Blake’s attorney not released the information, the public would still be in the dark.

The state law on officers’ histories is the only one of its kind in the nation. It was enacted in 1976 to prevent criminal defense lawyers from using freedom-of-information laws to gain access to personnel records for information to use against officers in trials.

The law says an officer’s personnel record cannot be publicly released or cited in court without a judge’s approval. But municipalities and courts have since broadened the definition of “personnel record” to shield almost any information.

For additional background, go here.

Worst of the Month — September

So for September we have chosen the Chicago Police Department, particularly, the officers who were responsible for arresting George Roberts.

CBS Chicago reports on a lawsuit filed by Roberts against the Chicago Police Department.  According to Roberts, he was falsely arrested and roughed up by police following a traffic stop.  Here’s the thing: Roberts investigates police misconduct for the Independent Police Review Authority.  And it was when the police discovered that fact that the abuse of power began.  Mysteriously, several police cameras on the scene were turned off:

It is against policy in both Chicago and Illinois for a police officer to turn off his dashboard camera, CBS Chicago reports.

Vehicles belonging to two other officers on the scene were equipped with audio recording devices, though no audio of the encounter was saved, according to the lawsuit.

Roberts said in the lawsuit, which was filed on Sept. 15, that the camera was shut off after officers realized he worked for the Independent Police Review Authority — or IPRA — the agency responsible for investigating police misconduct.

Roberts said he was initially stopped for a minor traffic violation, but was then pushed in the back by one of the officers and forced to the ground. He said in the lawsuit that an officer shouted, “Don’t make me [expletive] shoot you.”

But “when the (officers) turned off the dash camera, things got worse,” his attorneys write in the lawsuit.

Roberts, who was handcuffed and placed in the back of a police vehicle, complained that the handcuffs were too tight, according to the lawsuit. The 6-foot-3, 315 pound man says that, instead, it would have have been appropriate for officers to use multiple handcuffs strung together for someone of his size.

He says in the lawsuit that one of the officers responded to his complaints: “What are you going to tell me next, you can’t breathe?” — an apparent reference to Eric Garner, a New York City man who died in 2014 as a result of a police choke hold.

Roberts also says he was told “that’s your fault,” when he pointed out that his weight made the single set of handcuffs painful.

Read the whole thing.  Roberts was suspended from his job while charges were pending.  Following his acquittal, he returned to work.