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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.