The Ninth Circuit Court of Appeals upheld the blanket search of all inmates entering general population at the San Francisco County jails. In Bull v. San Francisco the court reversed a twenty-five year policy and allowed the Sheriff’s Department to strip search all inmates entering general population without an individualized suspicion or probable cause.

The District Court denied the sheriff’s request for partial immunity finding that the searches violated the Fourth Amendment and that the law was clear at the time of the searches. While stating that inmates do not give up all of their Fourth Amendment rights when they are incarcerated, the court found that inmate’s rights must be subject to the administrative and security needs of the institution.

However, the Ninth Circuit reversed alleging that Supreme Court precedent allowed the searches and required the courts to give deference to law enforcement officers in the area of inmate and deputy safety. Considering the problems that the San Francisco jails had with contraband entering the jail the court determined that the search policy was not unreasonable and therefore it did not violate the Fourth Amendment.

The dissent points out that the searches are not reasonable. Among the defendants challenging the searches is one who is charged with pour fake blood during a demonstration and another who is charged with writing bad checks. Furthermore only a small percentage of those who enter the jail bring contraband with them. The long history of litigation in the Ninth Circuits and most of the other circuits has upheld the need fior an individualized evaluation and not the blanket acceptance of strip searches accepted by the majority opinion.

The Ninth Circuit denied an appeal by the Coronado, California Police Department and Officer Brian McPherson from a denial of a summary judgment motion in a 42 U. S. C. 1983 action by Carl Bryan after McPherson used a taser on Bryan during a stop for failure to wear a seatbelt.

The defendants moved to dismiss the action claiming qualified immunity. The court refused to dismiss the action finding that use of the taser was unconstitutionally excessive and a violation of Bryan’s clearly established rights.

One day in the summer of 2005 McPherson stopped Bryan for failure to have his seatbelt on. He ordered Bryan to pull his car over to the curb and to turn down his radio. After first blankly staring ahead Bryan complied with the order. There is some question about what happened next. McPherson says he ordered Bryan to stay in the car. Bryan said he did not hear McPherson and and he got out of the car. McPherson claims that Bryan took a step towards him but the physical evidence showed that Bryan was fifteen to twenty five feet away from McPherson and not facing him. McPherson then shot Bryan with his taser causing hospitalization.

When a motion for summary judgment, based on qualified immunity, is denied on appeal the court must determine whether, taking the facts in the light most favorable to the plaintiff, the officer’s conduct violated a constitutional right and whether the right was “clearly established in light of the specific context of the case”

When excessive force is used the Fourth Amendment is violated. The court “balance[s] the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” The court found that the taser which uses an electrical impulse to override “the victim’s central nervous system, paralyzing the muscles throughout the body, rendering the target limp and helpless” to be a weapon of intermediate or medium force requiring “a strong government interest that compels the employment of such force.”

The government’s interest is determined by examining three core factors:

(1) the severity of the crime at issue,
(2) whether the suspect poses an immediate threat to the safety of the officers or others, and
(3) whether he is actively resisting arrest or attempting to evade arrest by flight.

The court found that none of these exist. The charged crime was an infraction and even if McPherson thought that misdemeanor had occurred violence was not involved. The trial court and the evidence before the appellate court showed no evidence of any attempt to resist arrest or of a threat to the officer. Furthermore the officer failed to warn Bryan of the possible use of force and McPherson knew that back up officers were on the way and would soon arrive. As a result the Ninth Circuit found that considering all of the circumstance McPherson use of the taser was the use of excessive force.

Finally the court found that McPherson was not entitled to qualified immunity because a reasonable officer facing a situation where it was only a minor crime alleged and knowing that a taser injury can cause severe damage should know that the use of the taser would violate the Fourth Amendment.

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.

Last May the Ninth Circuit ruled that it was not a violation of Charles Byrd’s civil rights to be searched by a female sheriff’s deputy during a pretrial detention at Maricopa County (Phoenix) Durango jail. Apparently the Court is now having second thoughts because a majority of the judges on the Ninth Circuit voted to grant an en banc hearing where eleven of the judges will reconsider the issue.

During a search of his housing area in the jail for contraband, Byrd was ordered to strip to his underwear. Then a female cadet was ordered to search him including his groin area through his underwear even though male officers were nearby and could have performed the search. The opinion states:

When it was Byrd’s turn, the officers ordered Byrd to walk
over to the cadets, stand facing away from them, raise his
arms above his head, and spread his legs. O’Connell
approached Byrd from behind and conducted the search as
follows: She ran her hands across the waistband of Byrd’s
boxer shorts and pulled the waistband out a few inches to
check for anything hidden or taped inside; she did not look
into his boxer shorts. She lightly frisked over his boxer shorts
and down the outside of his thigh, stopping at the bottom of
the shorts. Through the boxer shorts, O’Connell moved
Byrd’s scrotum and penis with the back of her hand in order
to frisk his groin, applying light pressure to feel for contraband.
She then placed her hand at the bottom of his buttocks,
ran it upward over his boxers, and separated the cheeks to
search for any contraband taped, placed, or hidden inside

The original Ninth Circuit panel stated:

We are troubled by the overall circumstances
of the search in question. The scope of the search was
invasive in that it involved contact with Byrd’s genital region,
albeit through his boxer shorts. The embarrassment inherent
in such a pat down and partial strip search was amplified by
several factors: the cross-gender aspect; the fact that it took
place in the presence of many officers and cadets, one third
of whom were female; and that it took place in the presence
of a person with a hand-held camera, notwithstanding the fact
that the record does not give rise to the inference that Byrd’s
search was recorded.

But it found that the search did not violate the Fourth or the Fourteenth Amendments to the Constitution. It found that the search was done for a legitimate security need of the jail and it was done pursuant to jail regulations limiting the cross gender physical connection. Therefore it complied with the reasonableness requirement of the Fourth Amendment.

Judge Fernandez dissented from the panel’s finding that the search complied with the Fourth Amendment’s reasonableness requirement. While he admitted that cross gender searches might in some circumstances be necessary, he found no emergency or particular need for a cross gender search in this case and without an emergency he stated the reasonableness requirement was not met.

Now the Ninth Circuit will have a chance to review and reconsider its decision.

Joseph Thomas was pulled over by an officer for a traffic violation. The officer then properly checked to see if Thomas had any warrants. The officer found no warrants in the name of Joseph Thomas but he did find a warrant in the name of Joshua Thomas for having six outstanding parking tickets. For some unknown reason Joshua Thomas’ warrant had Joseph Thomas’ drivers license number on it, although it had different addresses.

Thomas sued in Federal court on various state and Federal grounds, including violation of his Fourth Amendment and Due Process rights. He argued that under Illinois law officers had no right to prosecute individuals for failure to pay parking tickets.

The Seventh Circuit ruled that Thomas did not have standing to sue under the grounds that there was no right to arrest someone for failure to pay parking tickets since it was Joshua Tomas, not Joseph Thomas who failed to pay his parking tickets.

Thomas’ Due Process claim was that he did not receive notice that he could be arrested for not paying traffic tickets. But the Court easily denied this claim since Joseph Thomas did not have any outstanding parking tickets he would not have received notice even if the city gave such notices.

As to the Fourth Amendment claim the court citing Supreme Court decision in Atwater found that if there is probable cause for the arrest there is no Fourth Amendment violation even if there is no right to arrest the defendant under the statute.

But the problem here is that Thomas suffered a grievous wrong. He was arrested and forced to put up bail for a crime he did not commit. But there appears to be no remedy for the wrong. Usually in these cases you argue the lack of probable cause. But that’s a tough standard to meet. Without really discussing it the Seventh Circuit seems to accept that the officer had probable cause to arrest Thomas based on the fact that the warrant for Joshua Thomas had Joseph Thomas’ license number on it.

The Ninth Circuit Court of Appeals ruled yesterday that the warrantless, forced taking of a DNA sample from a pretrial incarcerated individual who is not on probation or parole is a violation of the Fourth Amendment where the taking of the sample is unrelated to the pending charges.

Kenneth A. Friedman sued Dolphus Boucher and Elissa Luzaich for violating his civil rights. Boucher is a Las Vegas police officer. He wanted to take a DNA sample from Friedman who was charged with exposing himself and lewd behavior. Friedman had a history of sex crimes in Montana and Ohio but at the time of his arrest he lived in Las Vegas and he had completed his most recent parole in Montana. Friedman refused to give Boucher a sample. Boucher then went to Assistant District Attorney Elissa Luzaich and obtained permission to take a sample by force.

When Friedman again refused to give Boucher a sample and asked to talk to his lawyer. Boucher refused. Another officer threatened to hurt him if he did not comply. They also threatened to have other officers beat him up. At this point he was sitting on a bench in chains and shackles, chained to a metal bar on the bench.

Boucher then forced Friedman’s mouth open and took a buccal swab.

Friedman filed suit. The District Court granted a motion for summary judgment after the defendants claimed partial immunity. The Ninth Circuit ruled that since Friedman’s Fourth Amendment rights were violated and since the rule was well known at the time of the violation Boucher and Luzaich’s claim of immunity should have been denied.

Boucher and Luzaich alleged the existence of three exceptions to the Fourth Amendment’s warrant requirement but the court refused to accept them. First they claimed a “special needs” exception. But that only applies for non-law enforcement reasons and the defendant’s claim that they they were going to use it to find cold cases was a law enforcement purpose. Second they said that they were complying with a Montana law requiring the taking of a DNA sample from convicted sex offense felons. But the law appears to apply to only those who are on probation or parole and Boucher did not comply with the requirement that the sample be turned over to Montana authorities. Finally they claimed that since Friedman was incarcerated he had only limited privacy rights and they did not apply to the taking of a DNA sample which could be used for identity. But it was not being used to test his identity or for anything connected to the pending charges. Nor was it being used for a legitimate custodial purpose.

The Ninth Circuit reversed the grant of summary judgment and sent the case back to the District Court for trial.

The Supreme Court reversed a New York Court of Appeals decision finding that a state statute (Correction Law Section 24) preventing state trial courts from hearing state and federal law suits brought against correction officers unconstitutional.

42 USC 1983 is a Reconstruction era law allowing plaintiffs to sue state officers who violate the civil rights of individual under color of law. In recent years it has been used frequently to sue corrections officers for violations of inmate’s civil rights. Under long standing law plaintiffs can raise 1983 issues in either Federal or State Courts.

The New York legislature made a finding that most suit against correction officers were frivolous or vexatious. Therefore it passed a law denying jurisdiction to its trial courts for suits brought by inmates against correction officers, whether it be based on Federal or State grounds.

Under Correction Law Section 24 state courts could continue to hear 1983 litigation brought against anyone who is not a corrections officer.

The State alleged that Correction Law Section 24 came under “neutral state rule regarding the administration of the courts” exception to the requirement that state courts hear 1983 litigation. Such exceptions to the rule have long been recognized. The New York Court of Appeals found that since Correction Law Section 24 prohibited trial courts from hearing both state and Federal monetary actions against corrections officers it was neutral and therefore appropriate under the neutral state rule exception.

The Supreme Court, in Haywood v. Drown, et al.,found that Correction Law Section 24 violated the Supremacy Clause of the Constitution. It ruled that while neutral jurisdictional rules can forbid a state court from hearing 1983 litigation, the rules cannot be content based. For example a court can refuse to hear a 1983 matter if its rules of venue prevent it from hearing the case but it cannot refuse to hear a case such as Haywood solely because the state has decided that it disagrees with the Federal government decision to hold liable a particular group of defendants or because the Federal rule governs a particular type of behavior.

The Supreme Court held that Correction Law Section 24 allowed the state to effectively modify the Federal statute and therefore it violated the Supremacy Clause of the Constitution.

Several days ago we discussed Unus v. Kane a case in which a Muslim family sued for an alleged violation of its Fourth Amendment rights to be free of unreasonable searches and seizures. Today we take a look at another case in which the plaintiff claimed an illegal search of her residence. Luckily for the plaintiff in this case, Maira Guzman the Seventh Circuit Court of Appeals reversed the trial court grant of summary judgment to the defendant, the City of Chicago. Guzman sued the City of Chicago pursuant to 42 USC Section 1983 for a violation of her civil rights.

Sergeant Marvin Bonnstetter of the Chicago Police Department was investigating gangs in Chicago. While he was at the jail he was approached by a man who claimed to have information. Together with an FBI officer he met with this man (known as John Doe). The officers asked the man a number of questions. He seemed knowledgeable about Chicago gangs and he was able to identify pictures of gang members.

John Doe told the officers that he had seen a convicted felon, Ruben Estrada coming out of his residence, located at 1536 West Walton in Chicago, with a gun. Doe told the officers that the West Walton address was a single family residence. The officers and Doe drove by the building and it appeared to be a single family residence. There was a real estate sign in the window and the officers thought it was a home run business.

Bonnstetter used the information to write an affidavit and submit it to the court to get a search warrant for the residence. A magistrate signed the search warrant.

Fourteen police officers and FBI agents, including Bonnstetter went to the residence to serve the search warrant. Shortly after arriving they discovered that it was not a single family residence. The real estate office was separate from the rest of the building and their were two residential apartments in the building. Furthermore no one by the name of Ruben Estrada lived in the building. They searched the upstairs apartment where Maira Guzmen, a pregnant woman, her husband, and their nine year old son lived.

The Seventh Circuit found that while Bonnstetter acted appropriately in obtaining the search warrant the police did not properly execute the warrant. The court citing Maryland v. Garrison stated that since the officers realized that it was not a single family residence prior to the search, they were required to withdraw.