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President Trump’s Confusing New Attack on Sanctuary Cities

This morning, Attorney General Sessions announced the anticipated Trump administration crackdown on Sanctuary Cities. In his speech, AG Sessions urged state and local governments to abandon sanctuary policies, suggesting that jurisdictions continuing such policies will be denied Justice Department grants. However, while he spoke broadly of sanctuary cities, the AG narrowed his language in referencing grant denials, suggesting such would only occur where the policy leads to a violation of 8 U.S.C. § 1373. This leaves it unclear if he was announcing a new, more aggressive policy, or simply was reiterating existing policy.

This blog has previously discussed the Obama administration’s interpretation of 8 U.S.C. § 1373 and the limitations on the enforcement of that statute. (See: First Suit Filed Over Sanctuary Cities Order and President Trumps Toothless Attack on Sanctuary Cities). If the Trump Administration is attempting to go further, to force state and local governments to abandon sanctuary policies and enforce immigration law, then it may well be acting unconstitutionally. That point is well discussed here.

One thing is clear, the AG believes that state and local governments must comply with immigration detainers. He is wrong.

A detainer is a request, not an order. 8 C.F.R. § 287.7(a). Interpreting this provision, Federal District Magistrate Judge Stewart concluded in Miranda-Olivares v. Clackamas Cty., No. 3:12-cv-02317-ST, 2014 U.S. Dist. LEXIS 50340 (D. Or. Apr. 11, 2014) that detainers are not mandatory and that agencies are free to release individuals named in such a detainer.  In doing so, Judge Stewart followed the holding of the Third Circuit in Galarza v. Szalczyk, 745 F.3d 634, 640 (3d Cir. 2014). Subsequent cases have reached the same conclusion.

In Printz v. United States, 521 U.S. 898, 933, 117 S. Ct. 2365, 2383 (1997) the Supreme Court held “The Federal Government may not compel the States to enact or administer a federal regulatory program.” Federal immigration law reflects this principle. It contains no provision requiring state or local governments to enforce immigration law. In fact is signals the opposite. 8 U.S.C. § 1357(g) provides the AG authority to enter agreements with state and local governments for their assistance with the enforcement of immigration laws. Paragraph (9) of that subsection makes clear that state and local governments can refuse to enter such an agreement. This voluntariness provision cannot be squared with the AG’s speech of this morning.

Supreme Court Preview – October 2014 Term

In less than two weeks the U.S. Supreme Court will again start holding oral arguments. One of the first cases up is a search and seizure case!

Below are cases accepted for review which may be of interest to government litigators and their clients. Each case is linked with its docket on the Scotus Blog, where you can access the briefs. If available, a link to the Legal Information Institute’s argument preview has also been provided.

Heien v. North Carolina – Whether a police officer’s mistake of law can provide the individualized suspicion that the Fourth Amendment requires to justify a traffic stop.
Argument: October 6, 2014

Holt v. Hobbs – Does a prison policy that restricts beards on inmates violate the Religious Land Use and Institutionalized Persons Act (“RLUIPA”).
Argument: October 7, 2014

Dart Cherokee Basin Operating Company, LLC v. Owens – Whether a defendant seeking removal to federal court is required to include evidence supporting federal jurisdiction in the notice of removal.
Argument: October 7, 2014

T-Mobile South, LLC v. City of Roswell, GA – Must a decision denying a request to place, construct, or modify a cell tower state the reasons for the denial, for a state or local government to satisfy the Communications Act’s “in writing” requirement.
Argument: November 10, 2014

Young v. United Parcel Service – Whether, and in what circumstances does the Pregnancy Discrimination Act require an employer that provides work accommodations to non-pregnant employees with work limitations to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.”
Argument: December 3, 2014

Reed v. Town of Gilbert, Arizona – whether a municipal sign ordinance, which differentiates between certain types of temporary noncommercial signs, is consistent with the First Amendment.
Argument: Not Yet Scheduled

Mach Mining v. Equal Employment Opportunity Commission – Whether and to what extent a court may enforce the Equal Employment Opportunity Commission’s mandatory duty to conciliate discrimination claims before filing suit.
Argument: Not Yet Scheduled

Let the Prosecutor Decide!

I was all set to write a long post on the Ninth Circuit’s decision in Tatum v. Moody, then I found that Daniel Barer at the Government Liability Update had beat me to it! Read his post for the juicy details!

In Tatum, the Ninth Circuit held that under some circumstances law enforcement officers may be liable under § 1983 if they withhold exculpatory information from prosecutors. According to the court:

“Where, as here, investigating officers, acting with deliberate indifference or reckless disregard for a suspect’s right to freedom from unjustified loss of liberty, fail to disclose potentially dispositive exculpatory evidence to the prosecutors, leading to the lengthy detention of an innocent man, they violate the due process guarantees of the Fourteenth Amendment.”

Unlike a lot of court decisions, the Tatum court also tells officers how to avoid this liability, don’t hide information from the prosecutor. As the court notes, prosecutors have a global perspective on the case, a rigorous understanding of the applicable law, and legal authority to dismiss charges, if appropriate. So tell them everything and let them decide what needs to be disclosed!

For lawyers handling police practices cases, this is a must read decision. The highlights:

  • It invites Supreme Court review by following circuit precedent that post-arrest incarceration claims arise under the Fourteenth Amendment while footnoting that its holding conflicts with at least one other Circuit, and that a plurality of Supreme Court justices have also suggested the Fourth Amendment governs such claims.
  • It also reconciles some conflicting Ninth Circuit case law in the area.
  • Discusses the distinct responsibilities of jailers, investigating officers and prosecutors faced with claims or evidence that the wrong person has been arrested.

Just be sure to read the whole case as even the last footnote makes an important point!

Sixth Circuit addresses two common questions in police shootings

While this blogs primary focus is on Oregon, Washington and federal cases in the Ninth Circuit, I do keep my eye out for interesting cases from the rest of the county. One such case is the Sixth Circuits decision in Krause v. Jones et al., which upheld the District Courts grant of summary judgment to the defendants in a police shooting.

The Sixth Circuit addresses two issues often raised in police shootings, why didn’t the officers wait the suspect out, and why did they shoot the suspect so many times. It’s a thoughtful decision that gives pause for consideration of these issues. Not just the majority opinion! Judge Marbley’s concurrence is equally thought provoking, particularly in light of the post Ferguson debate over “militarization” of the police.
For those of you looking for the quick answers:

  • The court took no issue with the 20 rounds the officer shot. Earlier this year in Plumhoff v. Rickard, the Supreme Court held that once justified to shoot, officers may continue doing so “until the threat has ended.” Citing to that proposition, the Appeals Court took no issue with the number of shots fired, noting the absence of evidence that the officer continue shooting after he knew the suspect was incapacitated. The Appeals Court attributed the number of shots to the pre-entry decision to engage the automatic function of the gun. According to the court’s opinion: “If it is true that officers may fire ‘15 shots’ in a ‘10-second span’ when the suspect is not even shooting at the officers, as Plumhoff allowed, id., it must be true that officers may return fire with an automatic weapon when they are being fired upon.”
  • The Court of Appeals was similarly unimpressed with the argument that officers should have waited out the suspect, finding the ten hours they had waited to be sufficient. According to the Court:

“The assumption that waiting carried no risks of its own is belied by the reality that, so far as they knew, Krause could have emerged at any point and acted on this threat to ‘come out shooting’ or could have taken his own life during the delay. That is why continuing to wait was not, as the claimant suggests, a risk-free option. The officers reasonably waited until Krause fell asleep and opted to act then. No doubt, the plan did not end well, leaving us with the seen consequences of the officers’ actions (the regrettable death of a child and brother) and the unseen possibilities of what might have been (perhaps no death at all). Yet when the Supreme Court warns lower courts not to judge the reasonableness of an officer’s action from the peace and safety of their chambers “with the 20/20 vision of hindsight,” Graham, 490 U.S. at 396, this is what they mean.”

This decision is not binding in the Ninth Circuit. I am uncertain the Ninth Circuit would have reached the same conclusions. For example, in Sheehan v. City & Cnty. of S.F., the Ninth Circuit partially reversed the grant of summary judgment to officers who shot a mentally ill individual that attacked them with a knife. When the officers initially entered her room to conduct a welfare check, plaintiff grabbed a knife and threatened to kill them. After retreating and calling for backup, the officers reentered the room out of concern for their own safety and the possibility that the individual might escape and injure others. The court found that a jury issue existed as to the second entry, citing testimony from plaintiff’s police practices expert that they should have instead “elected to … relocate to a safer tactical position, call for special units/equipment, and determine the propriety of seeking a warrant.” While factually distinguishable from the situation addressed by the Sixth Circuit, the Sheehan opinion appears to align more closely with the concerns raised by Judge Marbley in his concurring opinion.

A petition has been filed with the Supreme Court seeking review of the Sheehan decision. A response to that petition is due on October 14, 2014. I will be following the case to see if the petition is granted. It too early to tell if further review will be sought in Krause. I would not be surprised to see it also being considered by the Supreme Court for review.

Don’t Touch That Baggie!

Patrol officers bring in an individual arrested for felony drug possession. While processing him for housing, jail deputies run into a problem when the time comes for the visual cavity search. The subject complies with directions to strip, but when instructed to bend, spread and cough, he instead moves his hand toward his right buttock in an apparent attempt to push an item inward. After a struggle, deputies lean the inmate against the wall, bracing his body in such a manner that he ends up being bent over. At that point they see what appears to be a plastic bag partially protruding from subject’s rectum. What do they do now?

Call for a warrant says the Ninth Circuit, because simply removing the bag violates the Fourth Amendment. The opinion can be accessed here.

U.S. Supreme Court turns thumbs down on blanket rule allowing warrantless DWI blood tests

I hated English class when I was in school.  Diagraming sentences and picking apart the meaning of books seemed like an exercise in missing the forest for the trees.  So I became a lawyer, where I pick apart people’s testimony and courts’ opinions. Go figure!

I’m reminded of this by this morning’s U.S. Supreme Court opinion in Missouri v. McNeilly, which rejected the argument that the natural dissipation of alcohol in the blood stream always creates the type of exigent circumstances that justify a warrantless blood test of a suspected drunk driver.  It’s another one of those Supreme Court decisions with multiple concurrences that requires you to diagram which justices agreed with which parts to fully understand the opinion.

To save you the trouble, a majority of the justices agreed in Missouri v. McNeilly that the dissipation of alcohol in the bloodstream could create exigent circumstances; it just didn’t in this case.  They also dropped a broad hint on how to show exigency in future DWI cases:

“[T]he fact that a particular drunk-driving stop is ‘routine’ in the sense that it does not involve ‘special facts,’ such as the need for the police to attend to a car accident, does not mean a warrant is required. Other factors present in an ordinary traffic stop, such as the procedures in place for obtaining a warrant or the availability of a magistrate judge, may affect whether the police can obtain a warrant in an expeditious way and therefore may establish an exigency that permits a warrantless search. The relevant factors in determining whether a warrantless search is reasonable, including the practical problems of obtaining a warrant within a timeframe that still preserves the opportunity to obtain reliable evidence, will no doubt vary depending upon the circumstances in the case.”

Interesting Twist on When Oregon Law Enforcement Must Return Seized Medical Marijuana

ORS 475.323 requires a state or local law enforcement agency to return medical marijuana it has seized if the District Attorney determines the individual from whom it was seized was “entitled to the protections” of the Oregon Medical Marijuana Act.  Such a determination need not be express, but may be evidenced by a decision not to prosecute, the dismissal of charges or an acquittal. In State v. Kama the Oregon Court of Appeals rejected law enforcement’s argument that returning medical marijuana would force it to violate the federal Controlled Substances Act.  So today’s decision by the Court of Appeals in State v. Ehrensing, reversing a court order returning marijuana, comes a bit out of left, or is it right, field! This is particularly true since this is the second time Mr. Ehrensing and the Douglas County Sheriff took this same field with the appeals court as umpire.  Last time the court called Mr. Ehrensing safe, he got his marijuana back, but only because of a fielding error.  This time the umpire called him out!

The difference this time was that the charges against Mr. Ehrensing were not dismissed by the DA.  Instead they were dismissed by the court on speedy trial grounds, which is not the same as an acquittal.  This meant ORS 475.323 did not apply.  This left ORS 133.643, the general statute applying to disputes over items seized by law enforcement.  That statute requires the party seeking return to be “lawfully entitled to possess” the property sought.  Today’s decision held that required the person to be lawfully entitled to possess the property sought under state and federal law.  Since federal law prohibited possession of marijuana by Mr. Ehrensing, he was not eligible for return under the statute.

This case leaves two issues in its wake.  First, it did not overrule Kama.  While that means Kama’s holding stands, the courts language in Ehrensing could be read as supporting an alternative basis for the court to find return under ORS 475.323 improper. Only time will tell. Second, the opinion did not address ORS 133.623 which directs law enforcement in the handling of property seized without a warrant.  That statute does not contain the “lawfully entitled to possess” language of ORS 133.643.  However, it does require the person seeking return to establish the “right to possession beyond a reasonable doubt” and “to the satisfaction of the seizing officer”. It also allows law enforcement to obtain a court order to destroy “contraband”.  These provisions make it doubtful any law enforcement agency will voluntarily return seized marijuana under this statute.

One final point. DA’s refuse prosecution of or dismiss cases for many reasons.  Under ORS 475.323  that decision should only result in the return of seized marijuana if the DA concluded the individual from whom it was seized was entitled to the protections” of the Oregon Medical Marijuana Act.  While that statute allows the court to consider the DA’s action as evidence of such a conclusion, it does not prohibit the court from considering other evidence in determining if such a conclusion was reached.  Where the dismissal is motivated by some other reason, witness availability, evidentiary problems, whatever, the DA’s office should document those reasons and oppose the return of the Marijuana.

Reichle v. Howards Revisited

I posted on Reichle when the Supreme Court issued its opinion in June  It was hoped that the court would use that case to answer the question; does probable cause bar a First Amendment retaliatory arrest claim?  Instead it avoided the issue by finding the defendants entitled to qualified immunity stating; “This Court has never recognized a First Amendment right to be free from a retaliatory arrest that is supported by probable cause; nor was such a right otherwise clearly established at the time of Howards’ arrest.”  In my post I commented on the confusing Ninth Circuit case law on this issue.  That confusion may now have cleared.

Yesterday the Ninth Circuit issued its opinion in Acosta V. City Of Costa Mesa, which addressed the constitutionality of a city ordinance governing public conduct at council meetings.  It found the ordinance overly broad but upheld the ordinance by striking the offending language.

Acosta also may have cleared up the confusion addressed in my earlier post when it found that the arresting officers entitled to qualified immunity.  In doing so it cited to Reichle for the proposition that there was no clearly established First Amendment right to be free from a retaliatory arrest that is otherwise supported by probable cause.

One caution.  The Acosta court viewed this arrest as being supported by strong probable cause.  Because existing Ninth Circuit case law denied qualified immunity only where the probable cause was weak, it could be argued that the Acosta decision broke no new ground.

My prior post can be accessed here.

Does Probable Cause Trump the First Amendment; the Supreme Court Takes the Fifth

When the Supreme Court accepted review in Reichle v. Howards, it seemed the stars had aligned for a definitive ruling on the question; does probable cause bar First Amendment retaliatory arrest claims? So much for celestial alignment! The opinion issued this morning is not the big bang law enforcement was looking for. Instead, the court avoided the issue, finding that the Tenth Circuit erred in denying defendants qualified immunity due to the lack of clear precedent in that circuit.

So where does that leave law enforcement in the Ninth Circuit? In 2006 the Ninth Circuit held that probable cause does not bar retaliation claims. In light of this, courts in this circuit are unlikely to dismiss claims resulting from arrests made on weak probable cause, so long as plaintiff has some evidence to support the retaliation element of the claim. Where strong probable cause exists, the outcome is less certain. In a 2008 opinion the Ninth Circuit held that cases with strong probable cause but weak evidence of retaliatory motive fell outside circuit precedent and are properly dismissed. This suggests that the law has not developed sufficiently to provide adequate direction to law enforcement officers acting under those circumstances, making qualified immunity appropriate.

Two Big Wins for Law Enforcement

Yesterday the Supreme Court handed down its decisions in two cases I have been closely following.  Florence v. Board of Chosen Freeholders of County of Burlington, et al., addressed correctional policies that require the strip searching of individuals prior to their housing in a jails general population.  The court upheld such a policy, which was under attack on Fourth Amendment grounds. Rehberg v. Paulk addressed immunity for law enforcement officers who testify in grand jury proceedings.  The Supreme Court ruled that the same absolute immunity that trial witnesses enjoy applies to grand jury witnesses.

I will blog more on these cases after I have a chance to read them in detail.  From a quick read of Rehberg, it appears to be a big victory, with the court limiting LEO exposure to malicious prosecution claims to conduct such as providing false information when applying for a arrest warrant or to get a DA to prosecute. Florence appears to be consistent with changes in Ninth Circuit strip search standards over the last few years.  Some commentators have suggested that the opinion is not a complete victory for jail commanders, with the court leaving significant restrictions in place.  I will write further on these later.