The First Circuit Court of Appeals upheld a finding of summary judgment in favor of the City of Sandown, New Hampshire, its former police chief and a police officer. Ralph Holder and his estranged wife attended their son’s soccer game. During the game it started to rain and Mr. Holder asked his wife if she had brought a long sleeve shirt for their son. She said she hadn’t. A verbal confrontation commenced. Eventually Ms Holder bumped her husband and he instinctively pushed her away.

Ms Holder called the police. When the officers arrived Ms Holder told them that her husband had pushed her. Mr. Holder then told the officers that his wife had initiated the verbal confrontation and that she made the initial contact. He urged them to talk to nearby witnesses. He was then arrested and charged with simple assault. After the arrest the officers spoke to a couple of witnesses. None of the witnesses saw the confrontation but one said he heard that Ms Holder initiated the dispute.

The trial court granted summary judgment and Mr. Holder appealed on Fourth Amendment grounds as applied to the states by the Fourteenth Amendment.

An arrest violates the Fourth Amendment if is not based on probable cause. Probable cause exists when

at the time of the arrest, the “facts and circumstances within the officer’s knowledge . . . are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.

Probable cause requires only a probability that the arrestee committee the crime. Certainty is not necessary.The officer’s decision needs only to be reasonable.

According to the court the officers have no duty to check out the suspect’s defenses. Once they decide that probable cause exists and they can do that solely on the allegation of the alleged victim, they do not have to talk to witnesses or otherwise investigate whether or not the suspect committed the offense.

Mr. Holder further argued that New Hampshire law requires the officer to determine who was the primary physical aggressor. The law states

an arrest for abuse may be made without a warrant upon probable cause, whether or not the abuse is committed in the presence of the peace officer. When the peace officer has probable cause to believe that the persons are committing or have committed abuse against each other, the officer need not arrest both persons, but should arrest the person the officer believes to be the primary physical aggressor. In determining who is the primary physical aggressor, an officer shall consider the intent of this chapter to protect the victims of domestic violence, the relative degree of injury or fear inflicted on the persons involved, and any history of domestic abuse between these persons if that history can reasonably be obtained by the officer.

N.H. Rev. Stat. Ann. § 173-B:10, II.

But according to the First Circuit a state may impose restrictions on arrest greater than what is demanded by the Fourth Amendment. But the Federal court need not consider state law. It is limited to the requirements of the Fourth Amendment, Since the Fourth Amendment only requires that the officer determine whether probable cause exists and since based upon Ms Holder’s statement probable cause existed summary judgment was properly granted.

The charges against Mr. Holder were eventually dismissed. But he had to suffer the consequences of being arrested. Perhaps he spent some time in jail. He may have had to hire a lawyer. If he had money he may have had to pay for a bail bond. He could have had consequences on his job due to time missed either while in jail or attending court appearances. His wife may have gotten a restraining order preventing hem from seeing his son. His child support may have been raised if as a result of the arrest he was not able to share custody or have visitation with his son.

All of this could have been prevented if the police had done a thorough investigation before arresting Holder. As a result of the grant of summary judgment Holder is not entitled to any compensation for the poor investigation prior to his arrest.

Saturday, outside the Richmond (California) High School gym where students were attending a homecoming dance a fifteen year old student was gang raped by as many as ten people, some of whom were students or former students while as many as ten other people watched the rape. The rape took place, reportedly, over a period of two and a half hours and no one reported it to the police. Five people are currently in custody–two adults and three juveniles. More arrests are expected.

Three questions are raised. First why did so did so many people observed the crime but not report it? Second, can the observers be prosecuted? Third, what is the responsibility of the school?

One thing is clear and that is that we still know very little about what happened at Richmond High School Saturday night and as more facts become known anything we say may have to be modified. Apparently the girl left the dance with plans of meeting her father and going home around 9:30. She met a friend who took her to a secluded area on campus where students were drinking. At some point a group of male students and their adult friends started raping the girl. Apparently members of the group went in and out of the dance, telling people inside the gym about the rape. Some of the people in the dance came out at times to observe the rape. But no one called the police or told the police officers and the chaperons who were inside the gym. Later, after a call to the police, she was found, unconscious, under a bench on the campus. She is hospitalized with non-fatal injuries.

Some experts have pointed to the “bystander effect” or the Genovese Syndrome. Under the bystander effect the larger the number of observers the less likely that the crime will be reported. People do not want to get involved and assume that someone else will or has reported it. Furthermore, people think that if its okay for the other observers not to report it then they do not have to report the rape. The bystander effect was first publicized after Kitty Genovese was stabbed on the street in front of her Queens, New York apartment building in 1964. After she made her way into the building the attacked came back and raped her. She died on the way to the hospital. A dozen people heard her screaming but did nothing. She may have lived if someone called the police.

The “bystander effect” is based upon research showing a “diffusion of responsibility.” The research shows that if three or fewer people observe a crime each is likely to report it but when the crime is viewed by ten or more people it is unlikely that anyone will report it.

I suspect that many of the observers knew the rapists who were fellow students at Richmond High School and that they did not want to report their friends or to be snitches. They may have been afraid of retribution if they called the police or brought the event to the attention of the chaperons and the police inside the gym.

Generally in the United States there is no law mandating that people report a crime. California does have a law mandating the reporting of crimes where the victim in fourteen or younger but in this case the victim is fifteen.

However non-participants in the rape could be arresting for aiding and abetting the rape. But convictions are hard to get for aiding and abetting. It is necessary to show that the individual accused of aiding and abetting did so with the intent to assist the rapists. For example the observers probably cannot be arresting for forming a circle around the victim while she was being raped. However if it can be proved that the observers intentionally made the circle in order to prevent the victim from escaping her attackers they could be found guilty of aiding and abetting the crime.

The school board may be civilly liable to the victim. Apparently the school has a history of violent acts and they took insufficient efforts to protect students arriving and leaving the dance. I suspect the victim will be able to prove that school officials violated their own rules by not surveilling the area around the gym.

In Mohamed v. Jeppesen Data Plan the Ninth Circuit reversed a Northern District of California decision upholding the Bush/Obama administrations’ use of extraordinary rendition. Extraordinary rendition is the transportation of individuals from one country to another often for the purpose of torture or to avoid the requirements of extradition treaties.

In Jeppesen five people who were abducted and transported to foreign jails run either by the CIA or foreign governments are suing a CIA contractor for its part in arranging transportation for the five. They claim that they suffered injuries in the form of torture in the foreign jails.

Upon the government’s request the Ninth Circuit has agreed to rehear the matter en banc. A panel of eleven judges will rehear the matter. Six of the twenty-seven judges on the Circuit, including Jay Bybee who while working for the Bush administration wrote a memo supporting extraordinary rendition recused themselves from the vote. A majority of the remainder voted for the en banc hearing. The government claims that if the suit proceeds important government secrets will exposed. The original panel found that since the subject of the suit is not a state secret entered into between the parties the state secret privilege did not apply. But the matter will be reconsidered in the en banc proceedings.

On September 15 Romell Broom was scheduled to be executed by the state of Ohio. Ohio uses lethal injections for executions. After two hours the executioner was unable to find a vein and inject the poison. At that point Governor Ted Strickland suspended the execution.

Since then all executions have been delayed pending a study of the best way to carry out the executions. But Ohio has a problem. They have only been able to find one doctor willing to participate in the study. Only Massachusetts doctor Mark Dershwitz who regularly consults with states on execution procedures has agreed to participate in the study. The Hippocratic Oath taken by doctors as part of their graduation exercise from medical schools states in part, “I will not give a lethal drug to anyone if I am asked, nor will I advise such a plan.” As such most doctors refuse to participate in executions. They feel that their job is to save lives not to kill people.

Another police officer has been caught on a cell phone camera beating an unarmed person. San Jose officer Kenneth Siegel was called to an apartment where two roommates were fighting. He arrested Phuong Ho on assault charges. The officer claims that Ho resisted arrest but a third roommate photographed the arrest with his cell phone. It shows numerous hits with a metal baton. At least one of the hits occurred after another officer had placed Ho into handcuffs. While Siegel is beating Ho with the baton another officer is shooting him with a Taser.

Ho is a 20 year old Vietnamese-American student at San Jose State University. He got into a physical fight with a roommate after the roommate put soap on Ho’s steak.

This follows the killing of Oscar Grant by BART police officer Johannes Mehserle in nearby Oakland which was also photographed on cell phones. The shooting of Grant also occurred after he was in handcuffs. Mehserle is charged with murder. Likewise, a criminal investigation is being initiated into the shooting of Ho.

San Jose has a large Vietnamese-American community and many members of the community remain upset over the killing of a mentally ill Vietnamese-American, Daniel Pham, by a police officer in May.

San Francisco (along with a number of other cities including Austin, Baltimore, and New York) is a sanctuary city. A sanctuary city is one that is friendly to immigrants. It does not cooperate with the Federal government when the government wants to deport illegal aliens.

There are exceptions to the sanctuary policy. For example city employees will report suspected felons to ICE for deportation. Until July this exception did not apply to juveniles in San Francisco. The San Francisco Chronicle ran a series of articles about a group of Honduran juveniles. They were placed in a group home in Southern California after being detained on drug charges in order to avoid deportation. They walked away from the home without supervision. At approximately the same time Edwin Ramos was arrested and charged with the murder of a father and two sons in a road rage incident. Ramos was in this country illegally. He was arrested twice as a juvenile on crimes of violence but he had not been deported.

The US Attorney is investigating whether San Francisco officials violated Federal law. At that point San Francisco Mayor Gavin Newsom, who is running for governor ordered city officials to report juveniles arrested on felony charges to ICE if they are suspected of being in this country illegally.

Tuesday the San Francisco Board of Supervisors by a veto proof margin of 8-2 voted to amend the policy to only deport those found to have committed a felony. The legislation was sponsored by by David Campos who originally came to this country as an illegal immigrant from Guatemala. Many juveniles are charged with felonies but due to plea bargaining or judicial orders the charges are either reduced to misdemeanors or dismissed. Newsom stated that he will not only veto the legislation but he will ignore it.

Newsom is supported by the City Attorney’s office which wrote a memo claiming that the Board of Supervisor amendment to the Sanctuary Policy is illegal and will adversely affect the city’s position in several current law suits including a wrongful death suit by the family of the alleged victims of Edwin Ramos. Newsom claims that if the amendment is enforced local authorities will be subject to Federal litigation for violating Federal law. But the City Attorney’s memo only says that the law is unsettled and that they do not know the results of any litigation resulting from the Supervisor’s amendment.

Following the reversal of the conviction of Senator Ted Stevens for discovery violations by the Justice Department, judges, defense attorneys and prosecutors have discussed means to improve the discovery process.

Some including U. S. District Judge Emmet Sullivan who presided over the Stevens trial want to revise Rule 16 of the Federal Rules of Criminal Procedure which deals with discovery issues so that it requires that United States Attorneys turn over all exculpatory evidence. Currently Rule 16 does not require the government to turn over all exculpatory evidence but the United States Supreme Court in Brady v. Maryland mandated that the government provide all material exculpatory evidence to the defense.

The problem with the Brady rule is that it allows the government to determine what is material and what is not. Since the government is not privy to the defense theory of the case even the U. S. Attorney who conscientiously attempts to provide Brady discovery may fail and their have been enough instances where U. S. attorneys purposely hold back on providing discovery.

The Justice Department came out against requiring the discovery of all exculpatory evidence. Assistant Attorney General Lanny Breuer said that providing all exculpatory evidence “seriously comes into conflict” with victim rights, witness security and, in some cases, national security. Instead he suggested, that while the rule may be amended to bring into one place the current rule and all judicial decisions expanding discovery , current discovery requirements should not be changed. He said the Justice Department would improve training in discovery issues for assistant United States attorneys and would create a position in Washington responsible for improving discovery compliance. Breuer’s comments came at the Judicial Conference of the United States’ Criminal Rules Advisory Committee in Seattle last week.

The final decision will be up to the Judicial Conference of the United States which has control over amendments to the Rules of Criminal Procedure. Its membership consists of the chief justice of the Supreme Court, the chief judge of each judicial circuit, the chief judge of the Court of International Trade, and a district judge from each regional judicial circuit. It generally holds two meetings a year in March and September. It is the principal policy making body of the Federal Courts.

The Department of Justice announced a new policy affecting the fourteen states which have medical marijuana laws. The Department directed U. S. Attorneys in those states not to prosecute medical marijuana users or provider of medical marijuana who strictly comply with state laws.

The new policy is in line with campaign promises made by Barack Obama when he ran for president and statements made by Attorney General Eric Holder.

The letters to the U. S. Attorneys said that while possession of marijuana remains illegal they should use their discretion and limited resources in deciding not to prosecute those who are in compliance with state laws.

The policy is a step forward towards a reasonable marijuana policy and it may encourage additional states to develop positive medical marijuana laws. But it raises nearly as many questions as it answers. For example, recently in Fresno, CA the local government closed down all of the dispensaries on the grounds that they were not in compliance with local zoning laws which banned medical marijuana dispensaries. Despite the fact that this may be illegal under state law, will the Federal government continue to prosecute dispensary owners and employees in Fresno because they are not in strict compliance with local zoning (marijuana) laws?

The policy gives the United States Attorneys tremendous discretion in determining what is legal under state law. Since marijuana remains illegal U. S. Attorneys will continue to successfully argue that judges and juries cannot decide whether or not defendants are violating state law. Decisions by U. S Attorneys to prosecute or not to prosecute an individual are not subject to a motion to dismiss, to a jury decision or to an appellate court.

Alameda County, California Superior Court Judge Morris Jacobson granted the motion of former Bay Area Rapid Transit police officer Johannes Mehserle for a change in venue for his trial for the murder of Oscar Grant who he shot during an investigation of a rowdy incident on the subway at the Fruitdale Station in Oakland.

Judge Jacobson looked at six factors in determining the need for a change of venue. First he considered the nature and gravity of the offense. Since the offense is murder and since Mehserle appears to have committed the murder under color of law the judge found that the facts supports a change of venue.

The second factor is the nature and the extent of the media coverage. In the eight months following Grant’s death there was at least 2000 newspaper articles, 2000 television news segments, 350 radio news strories and and an unknown number of internet downloads on the killing in Alameda County. The quantity and pervasive nature of the media coverage together with polling evidence that shows that 70 per cent of Alameda County residents have prejudged Mehserle supports a change of venue.

The third factor is the size of he county. Alameda County is a large diverse county and therefore the size of the county weighs against a change in venue.

The fourth factor is the status of the defendant. The court found that Mehserle’s status, as a white police office who shot an unarmed African American weighs in favor of a change in venue.

The fifth factor is the status of the victim. The victim’s posthoumus characterization in the press and his personalization by the press, according to the court, favor a change in venue.

The sixth factor is political activity in relationship to the case. The Court found that the extraordinary amount of political activity in the form of demonstrations and riots weighs in favor of a change in venue. There have been at least three major demonstrations that have led to violence ansd numerous other demonstrations. The court staff is afraid of violence during the trial and it may be impossible to find a jury that is not afraid of injury if they come back with a not guilty verdict. Also numerous national and local political and religious leaders have taken a stand and this contributes to a finding that venue should be changed. Considering all of the factors the judge granted the motion for a change in venue.

The next step is to select a California city where the trial can be held. But this may be a problem. In determining whether a defendant can get a fair trial precedent bases the decision on press coverage. With the internet and a world press it may be difficult to find a jury anywhere in California in which the members have not made up their minds in advance. One of the factors Judge Jacobson looked at involved statements by political and religious leaders. These are national leaders and it may effect the selection of a jury in any county in the state. The fact that the defendant is White and the victim was African American will not change in whatever county is chosen.

Moving the trial out of Alameda County, will remove some of the tension around the trial. But it is questionable whether our founding fathers would have approved of moving the trial. One of the issues in colonial America was the patriot’s objection to the removal of the trial of any Crown officer to England. Another issue was the use of the mob to close the Crown’s courts. When you consider Mehserle to be a police officer much like the Crown’s officers and when you consider the colonial mobs to be much like demonstrators today it becomes clear that the writers of the Constitution may not have approved of Judge Jacobson’s order.

The First Circuit Court of Appeals reversed a ruling by the District Court suppressing evidence on Fourth Amendment grounds and upheld a search by a Hooksett, New Hampshire police officer.

Officer Aaron Brown of the Hooksett, New Hampshire Police Department pulled over a vehicle driven by Renee LaFontaine for having a burned out headlight. After informing LaFontaine of the reason he pulled her over, Brown questioned Vincent Chaney who was in the right front seat. He asked Chaney for his ID. Chaney said he did not have it with him. (He wasn’t driving so he did not need his ID.) Chaney was not sure what jurisdiction issued the ID. Chaney gave his name as Jacob Williams. Chaney was unable to provide his Social Security number or his current address. Brown was unable to verify Chaney’s information on his radio. It took approximately five minutes to do the records check for Chaney. Brown then interviewed LaFontaine and Chaney separately. He did not learn much but he saw a bulge in Chaney’s pocket which he thought might be a weapon. Chaney was evasive about the contents of his pocket. He handcuffed Chaney and pat searched him. He found a pouch with a gun in it. Chaney was charged with being a felon in possession of a gun.

The District Court granted his motion to suppress the evidence on Fourth Amendment Grounds and the First Circuit reversed.

Citing Supreme Court precedent, The Court ruled that

“[d]uring an otherwise valid traffic stop, ‘an officer’s inquiries into matters unrelated to the justification for the traffic stop, the Supreme Court has made plain, do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.’ Arizona v. Johnson, 129 S.Ct. 781, 788 (2009).”

The appellate court ruled that once Chaney said he did not know what jurisdiction issued his ID, the officer had a reasonable suspicion of wrong doing and could continue the detention. Furthermore, the bulge in the pocket gave the officer the right to pat search Chaney for officer safety reasons. Since Chaney’s statement that he did not know what jurisdiction issued the ID came shortly after the car was stopped, the limited period of time prior to Chaney’s statement did not overly extend the stop and did not violate the Fourth Amendment.

PS I know nothing about Chaney and LaFontaine besides what I’ve written, above, but I’m willing to bet that Chaney is African-American. How do I know. An officer would not question or search a passenger in a car unless he is African- American or unless the people in the car are mixed race. Any takers?