U.S. Fifth Circuit Case Update – 1st Amendment and Terry Stops

See the below two cases for important case law out of the U.S. 5th Circuit.  Case summaries compiled by The Federal Law Enforcement Informer, Federal Law Enforcement Training Center (FLETC).

United States v. Monsivais, 848 F.3d 353 (5th Cir. Tex. Feb. 2, 2017)

While on patrol in a marked police car, two officers saw Monsivais walking on the side of an interstate highway away from an apparently disabled truck. The officer stopped the patrol car in front of Monsivais and activated the car’s emergency lights, planning to ask Monsivais if he needed assistance. As Monsivais approached, he ignored the officers and walked past their patrol car. At this point, the officers exited their vehicle, and asked Monsivais where he was going, where he had been and if he needed any help. Monsivais told the officers where he was going, and while he appeared to be nervous, he responded politely to all of the officers’ questions. After approximately four-minutes, one of the officers told Monsivais that he was going to pat Monsivais down for weapons “because of his behavior” and for “officer safety reasons.” Monsivais then told the officer that he had a firearm in his waistband. The officer seized the firearm and the government subsequently charged Monsivais with possession of a firearm while being unlawfully present in the United States.

Monsivais filed a motion to suppress the firearm. Monsivais argued that the officer violated the Fourth Amendment because he did not have reasonable suspicion to believe Monsivais was involved in criminal activity when he detained him.

The court agreed. First, the court determined that the officer seized Monsivais for Fourth Amendment purposes when he told Monsivais that he was going to pat him down. At this point, the officer had converted an offer for roadside assistance into an investigative detention or Terry stop.

Second, the court noted that police officers may briefly detain a person for investigative purposes if they can point to “specific and articulable facts” that give rise to reasonable suspicion that the person has committed, is committing, or is about to commit a crime.

Third, the court concluded that while Monsivais’ behavior might not have been typical of all stranded motorists, the officer could not point to any specific and articulable facts that Monsivais had committed, was committing, or was about to commit a crime before seizing him. The officer testified that he never suspected Monsivais was involved in criminal activity, but rather that Monsivais was acting “suspicious.” As a result, the court found that the officer seized Monsivais without reasonable suspicion and that the firearm seized from Monsivais should have been suppressed.

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca5/15-10357/15-10357-2017-02-02.pdf?ts=1486081834

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Turner v. Driver, 848 F.3d 678 (5th Cir. Tex. Feb. 16, 2017)

In September 2015, Turner was videotaping the Fort Worth Police Station from a public sidewalk across the street from the station. During this time, Fort Worth Police Officers Grinalds and Dyess pulled up in their patrol car and approached Turner. Officer Grinalds asked Turner if he had identification, but Turner continued videotaping. When Turner asked the officers if he was being detained, Officer Grinalds told Turner that he was being detained for investigation because the officers were concerned about who was videotaping their building. After Turner refused Officer Grinalds’ continued request for identification, the officers handcuffed Turner, took his video camera, and placed Turner in their patrol car.

A short time later a supervisor, Lieutenant Driver, arrived and spoke briefly with Turner as well as Officers Grinalds and Dyess. After Lieutenant Driver left, the officers went back to their patrol car, released Turner, and returned his video camera to him.

Turner sued Lieutenant Driver and Officers Grinalds and Dyess under 42 U.S.C. § 1983 claiming that they violated his rights under the First and Fourth Amendments. The officers filed a motion to dismiss Turner’s suit, claiming they were entitled to qualified immunity.

First, the court found that at the time of the incident, in the Fifth Circuit1, there was no clearly established First Amendment right to record the police2. As a result, the court held that all three officers were entitled to qualified immunity as to Turner’s First Amendment claim.

Although the right was not clearly established at the time of Turner’s activities, the court held that going forward in the Fifth Circuit, a First Amendment right to record the police exists subject only to reasonable time, place, and manner restrictions. The court did not determine which specific time, place, and manner restrictions would be reasonable, but stated that restrictions must be “narrowly tailored to serve a significant governmental interest.”

Concerning Turner’s Fourth Amendment claims, the court held that the officers’ initial questioning and detention of Turner, before he was handcuffed and placed in the patrol car was reasonable. The court noted that an objectively reasonable person in Officer Grinalds’ or Dyess’ position could have suspected that Turner was casing the station for an attack or stalking an officer. As a result, the officers could have found Turner’s videotaping of the station sufficiently suspicious to warrant questioning and a brief detention.

However, the court held that Officers Grinalds and Dyess were not entitled to qualified immunity on Turner’s claim that handcuffing him and placing him in the officers’ patrol car amounted to an unlawful arrest. The court found that a reasonable person in Turner’s position would have understood the officers’ actions constituted a restraint on his freedom of movement to the degree associated with a formal arrest. The court commented that the officer’s actions in this regard were disproportionate to any potential threat that Turner posed or to the investigative needs of the officers. Consequently, the court concluded that handcuffing Turner and placing him in the patrol car was not reasonable under the circumstances.

Finally, the court held that Lieutenant Driver was entitled to qualified immunity as to Turner’s Fourth Amendment claims. First, under §1983, supervisors are not liable for the direct actions of their subordinates. Second, by the time Lieutenant Driver arrived, Turner had already been handcuffed and placed in the officers’ patrol car. Third, after Lieutenant Driver arrived, he immediately investigated the situation by talking with Officers Grinalds and Dyess as well as Turner, and he then promptly ordered Turner’s release.

1 The First and Eleventh Circuits have held that the First Amendment protects the rights of individuals to videotape police officers performing their duties.

2 While no circuit has held that the First Amendment does not extend to the video recording of police activity, the Third, Fourth and Tenth Circuits have held that the law in their circuits is not clearly established, without specifically determining whether such a right exists under the First Amendment.

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca5/16-10312/16-10312-2017-02-16.pdf?ts=1487291433

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What types of disciplinary investigations should I contact my #FOP attorney about?

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The short answer to this question is ALL of them.  There is no investigation too simple or straightforward.  Quite often I hear “I didn’t call you because it was just a missing court case” or “I didn’t call you because it was just a BWC case.”  Unfortunately, my response is commonly “Well, one of the rules of the Salary Reimbursement Option is that you have to be represented by one of the FOP attorneys in order to qualify for the SRO.”  What is an SRO you ask?

The FOP Legal Defense Plan includes what is known as the Salary Reimbursement Option (“SRO”).  The SRO allows officers to make up for salary lost as a result of an unpaid suspension.  In New Orleans, the SRO allows officers to recover up to 5 days of suspension at $150 per day.  In other words, when you get a 1-day suspension for missing court, the FOP will pay you $150 if you choose not to file a Civil Service appeal.

Why not file a Civil Service appeal?  Well, that is the benefit of having one of the FOP attorneys on the case from the beginning.  Your FOP attorneys have been handling disciplinary actions for years.  By the end of the investigation, your FOP attorney should be able to give you a pretty good idea of your chances of success on appeal.  So, after a disciplinary hearing, you and your FOP attorney can discuss whether you are better off filing an appeal with Civil Service or submitting the disciplinary letter for the Salary Reimbursement Option.

I deal with disciplinary investigations every day.  Most officers deal with disciplinary investigations 2 or 3 times in a career.  As such, one cannot expect officers to be thoroughly familiar with the ins and outs of being an accused officer in a disciplinary investigation.  What is the legal burden?  What evidence is allowed?  When does the 60-day rule apply?  When does the 60 days begin and end?  Is the disciplinary hearing considered part of the 60 days?  How long after a disciplinary hearing can an officer expect to receive the disciplinary letter or suspension days?  When can I file a Civil Service appeal?  What is this email I received about a hearing about an extension that cannot be continued?

The answers to some of these questions change based on rulings of appellate courts in Louisiana.  The answers to other questions changes based on changes in an administration.  The point is that even if an officer is tasked with completing disciplinary investigations, there are still aspects of disciplinary investigations which are unknown.

As a member of the FOP Legal Defense Plan, an officer is entitled to representation at no cost to the officer.  We do not judge whether or not an officer deserves legal defense.  We do not judge the accused officer.  If you are a member of the FOP Legal Defense Plan and you become the accused officer or a witness officer in an internal disciplinary investigation, your legal representation is guaranteed.  We are there to protect your rights.  Calling your FOP attorney can also make you eligible for the FOP’s salary reimbursement option when you don’t have a chance on appeal.  Call, text, or email today.

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The Standard for Use of Force

I have heard some talk recently about a need to re-visit the standard for determining whether a use of force by police officers is excessive.  This article in the New York Times written by Yale Law students illustrates the nature of the movement.  Here are some problems with the arguments presented in this article.

At the most basic level, the law in Louisiana does not give law enforcement any extra authority to use force against others except that La. C.Cr. P. Art. 220 provides:

A person shall submit peaceably to a lawful arrest. The person making a lawful arrest may use reasonable force to effect the arrest and detention, and also to overcome any resistance or threatened resistance of the person being arrested or detained.

It is the word “reasonable” which causes consternation for folks such as the authors of the above referenced N.Y. Times article.  Here, the reasonableness referred to is the degree or type of force.  Of course, the flip-side to this article is that people have the right to use reasonable force to resist an unlawful arrest.

In order for something to be “reasonable” it has to be in compliance with the law.  For that guidance, we look to La. R.S. 14:19 and La. R.S. 14:20.  It is important to note that La. R.S. 14:19 and La. R.S. 14:20 are not specifically directed toward law enforcement, but are the general rule that governs everyone within the boundaries of the State of Louisiana.

La. R.S. 14:19 reads as follows:

A. (1) The use of force or violence upon the person of another is justifiable under either of the following circumstances:
(a) When committed for the purpose of preventing a forcible offense against the person or a forcible offense or trespass against property in a person’s lawful possession, provided that the force or violence used must be reasonable and apparently necessary to prevent such offense.
(b)(i) When committed by a person lawfully inside a dwelling, a place of business, or a motor vehicle as defined in R.S. 32:1(40) when the conflict began, against a person who is attempting to make an unlawful entry into the dwelling, place of business, or motor vehicle, or who has made an unlawful entry into the dwelling, place of business, or motor vehicle, and the person using the force or violence reasonably believes that the use of force or violence is necessary to prevent the entry or to compel the intruder to leave the dwelling, place of business, or motor vehicle.
(ii) The provisions of this Paragraph shall not apply when the person using the force or violence is engaged, at the time of the use of force or violence in the acquisition of, the distribution of, or possession of, with intent to distribute a controlled dangerous substance in violation of the provisions of the Uniform Controlled Dangerous Substances Law.
(2) The provisions of Paragraph (1) of this Section shall not apply where the force or violence results in a homicide.
B. For the purposes of this Section, there shall be a presumption that a person lawfully inside a dwelling, place of business, or motor vehicle held a reasonable belief that the use of force or violence was necessary to prevent unlawful entry thereto, or to compel an unlawful intruder to leave the premises or motor vehicle, if both of the following occur:
(1) The person against whom the force or violence was used was in the process of unlawfully and forcibly entering or had unlawfully and forcibly entered the dwelling, place of business, or motor vehicle.
(2) The person who used force or violence knew or had reason to believe that an unlawful and forcible entry was occurring or had occurred.
C. A person who is not engaged in unlawful activity and who is in a place where he or she has a right to be shall have no duty to retreat before using force or violence as provided for in this Section and may stand his or her ground and meet force with force.
D. No finder of fact shall be permitted to consider the possibility of retreat as a factor in determining whether or not the person who used force or violence in defense of his person or property had a reasonable belief that force or violence was reasonable and apparently necessary to prevent a forcible offense or to prevent the unlawful entry.

Paragraph A(2) tells us that this does not apply if the force used results in a homicide.  For that we have to look to La. R.S. 14:20, which reads as follows:

A. A homicide is justifiable:
(1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.
(2) When committed for the purpose of preventing a violent or forcible felony involving danger to life or of great bodily harm by one who reasonably believes that such an offense is about to be committed and that such action is necessary for its prevention. The circumstances must be sufficient to excite the fear of a reasonable person that there would be serious danger to his own life or person if he attempted to prevent the felony without the killing.
(3) When committed against a person whom one reasonably believes to be likely to use any unlawful force against a person present in a dwelling or a place of business, or when committed against a person whom one reasonably believes is attempting to use any unlawful force against a person present in a motor vehicle as defined in R.S. 32:1(40), while committing or attempting to commit a burglary or robbery of such dwelling, business, or motor vehicle.
(4)(a) When committed by a person lawfully inside a dwelling, a place of business, or a motor vehicle as defined in R.S. 32:1(40) when the conflict began, against a person who is attempting to make an unlawful entry into the dwelling, place of business, or motor vehicle, or who has made an unlawful entry into the dwelling, place of business, or motor vehicle, and the person committing the homicide reasonably believes that the use of deadly force is necessary to prevent the entry or to compel the intruder to leave the dwelling, place of business, or motor vehicle.
(b) The provisions of this Paragraph shall not apply when the person committing the homicide is engaged, at the time of the homicide, in the acquisition of, the distribution of, or possession of, with intent to distribute a controlled dangerous substance in violation of the provisions of the Uniform Controlled Dangerous Substances Law.
B. For the purposes of this Section, there shall be a presumption that a person lawfully inside a dwelling, place of business, or motor vehicle held a reasonable belief that the use of deadly force was necessary to prevent unlawful entry thereto, or to compel an unlawful intruder to leave the dwelling, place of business, or motor vehicle when the conflict began, if both of the following occur:
(1) The person against whom deadly force was used was in the process of unlawfully and forcibly entering or had unlawfully and forcibly entered the dwelling, place of business, or motor vehicle.
(2) The person who used deadly force knew or had reason to believe that an unlawful and forcible entry was occurring or had occurred.
C. A person who is not engaged in unlawful activity and who is in a place where he or she has a right to be shall have no duty to retreat before using deadly force as provided for in this Section, and may stand his or her ground and meet force with force.
D. No finder of fact shall be permitted to consider the possibility of retreat as a factor in determining whether or not the person who used deadly force had a reasonable belief that deadly force was reasonable and apparently necessary to prevent a violent or forcible felony involving life or great bodily harm or to prevent the unlawful entry.

Again, I will point out that this is the standard that applies to all within the political boundaries of the State of Louisiana.

Specifically for law enforcement, we look to the U.S. Supreme Court’s holding in the case of Graham v. Connor, 490 U.S. 386.  Prior to Graham, the court used the test developed in Johnson v. Glick, 481 F.2d 1028, to determine if a use of force by law enforcement was constitutionally excessive.  The test in Johnson required that there be proof that the force was applied maliciously and sadistically to cause harm based on the 8th Amendment to the U.S. Constitution.

In Graham, the Court decided that the standard should be based on the 4th Amendment to the U.S. Constitution instead of the 8th Amendment.

The Fourth Amendment “reasonableness” inquiry is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.

Graham v. Connor, 490 U.S. 386, 387, 109 S. Ct. 1865, 1867, 104 L. Ed. 2d 443 (U.S. 1989).

Folks such as the authors of the N.Y. Times article referenced above, suggest that the law should embody the DOJ’s necessity standard which states:

 

The necessity to use deadly force arises when all other available means of preventing imminent and grave danger to officers or other persons have failed or would be likely to fail.

I think this is an interesting argument, particularly in light of the fact not one officer involved shooting involving an FBI agent has ever been deemed excessive.  See this N.Y. Times article.

The Graham standard has served us well and it should not be disturbed.  If the Graham standard is turned into a necessity standard, I would recommend that everyone in law enforcement get out — unless you work for the FBI.

Reasonableness and Post-Riley Smartphone Searches

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The below article was reproduced from The Federal Law Enforcement Informer, August 2015 issue.  The Informer is a product published by the Department of Homeland Security, Federal Law Enforcement Training Center (FLETC), Office of Chief Counsel, Legal Training Division.  The entire document, which contains case notes on notable federal cases, can be found here.

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2012 Enforcement Expo

As Education Chairman for the Louisiana Fraternal Order of Police, it is my pleasure to announce that I have been asked to speak on legal issues revolving around officer-involved shootings at the upcoming Enforcement Expo to held at the Morial Convention Center in New Orleans.  The Expo is being put on by the publishers of Law Enforcement Technology, Officer.com, and Law Enforcement Product News and supported by the Louisiana Fraternal Order of Police.

There will conference sessions on numerous topics of interest on October 31 and November 1, 2012.  Attendance at these conference sessions is free.  My session will October 31, 2012 from 11:00 a.m. to 12:15 p.m.

In addition, there will be many exhibitors showing off their latest and greatest equipment and tools of the trade for the modern law enforcement officer.

As I mentioned earlier, admission to the Expo is free.  The Expo will be open from October 31 through Noember 2, 2012 at the Morial Convention Center.  Come on down, enjoy the free seminars, check out the new equipment, and meet up with some fellow law enforcement officers from other departments.

FOP Legal Plan Primer

The Crescent City Lodge of the Fraternal Order of Police provides its members with an outstanding legal plan.  The FOP Legal Plan provides an attorney to any member who is the subject of an administrative or criminal investigation.  It will also provide an attorney if you become the defendant in a civil law suit arising out of the course and scope of your employment.  But wait, there’s more. . .

Fraternal Order of Police

Fraternal Order of Police (Photo credit: Wikipedia)

The FOP Legal Plan will also provide you with an attorney if you are a witness in an administrative or criminal investigation.  The FOP Legal Plan will provide you with an attorney if you become the subject of an administrative or criminal investigation because of an incident that occurred while you were off-duty.

The FOP Legal Plan will provide you with an attorney for any Civil Service appeals or other Civil Service matters.  If the matter warrants action beyond the Civil Service Commission, the FOP Legal Plan will provide an attorney for appeals through the court system.

The FOP Legal Plan provides complimentary notary services.  The FOP Legal Plan will pay for the first two hours of legal services for ANY personal legal matter.

Finally, the FOP Legal Plan will reimburse you for up to five suspension days if you choose not to appeal (you have to be represented by an FOP attorney to qualify).

These are benefits you pay for every other week by payroll deduction.  You should take advantage of these benefits.

**PLEASE NOTE that the above specifically relates to the FOP Legal Plan as administered by Crescent City Lodge #2.  Certain benefits, such as the two hours on any personal legal matter, are not available through the National Legal Plan and may not be available to members employed by agencies other than the New Orleans Police Department.  If you have any questions and are not employed by the New Orleans Police Department, please call me or the FOP Legal Plan at 1-800-341-6038.

What types of investigations should I call about?

Any type of investigation.

People frequently tell me that they did not call, or were not sure if they should call, because the investigation seemed minor.  It is as if somehow this minor investigation would be an imposition on the attorney.  Nonsense.  Wouldn’t you use your health insurance for the most minor appointment with your doctor?

In addition, you need to be represented by an FOP attorney in order to qualify for the Salary Reimbursement Option (SRO).  You don’t need to have “something to worry about” in order to call.

When should I call?

Immediately.  You should call as soon as you learn that you are either an accused or witness in an administrative or criminal investigation.

You should also call if you receive a letter from Civil Service about the department’s request for an extension of time.

Also, it is almost never too late to call.  Just because you didn’t have an attorney when you made a statement doesn’t mean you don’t get an attorney for the disciplinary hearing or the Civil Service appeal.

Finally, you should call if you have any question about an investigation or the process of conducting these investigations.

Who should I call?

If you know one of the FOP attorneys, you can call that person directly.  If you do not know who to call, you can call Jim Gallagher at 504-442-4050.  You can contact me directly by email, phone, or text.

**LEGISLATIVE ALERT**

The Louisiana Legislature is set to convene on March 12, 2012. One piece of legislation of particular interest is HB 685, authored by Representative Helena Moreno, which is an attack on the Louisiana Police Officer’s Bill of Rights.

HB 685 would change the provisions of the Police Officer’s Bill of Rights.  In particular, the legislation would change paragraph b(7) which governs the time limits for administrative investigations only for the New Orleans Police Department.

Currently, La. R.S. 40:2531(b)(7) requires that administrative investigations be completed within 60 days.  The appointing authority can request an additional 60 days, for a total of 120 days to complete an administrative investigation.  These time limits do not effect criminal investigations.

The proposed law would change the 60 days allowed to complete the investigation to 120 days and still give the department the option to request an additional 60 days for a total of 180 days.  Again, this legislation specifically states that the change would only be applicable to the New Orleans Police Department.

Those people in other parts of Louisiana should not get too comfortable.  If history tells us anything, this legislation will be implemented state-wide next year if it is passed for New Orleans this year.

STAND UP FOR YOUR RIGHTS!

I urge all of you to contact your elected officials and tell them that you oppose HB 685.

If you don’t know who your elected officials are, click here.

For information on members of the Louisiana House of Representatives, click here.

For information on members of the Louisiana Senate, click here.

I would like to encourage everyone to contact Representative Moreno and let her know that you are opposed to this legislation in addition to contacting your elected officials.  You can click here for Representative Moreno’s information.  Please remember that Representative Moreno came to the Fraternal Order of Police during the election looking for support from our members and pledging to assist us in Baton Rouge.