In 2003 a Maryland court issued a misdemeanor warrant for Frederick P. Henry for failure to pay child support. Deputy Robert Purnell went to Henry’s trailer to serve the warrant. He met a man outside the trailer who said he was a friend of Henry’s. The man told the deputy that Henry was at work and gave the address of his employment. When Purness went to the address he was told that Henry no longer worked there. At this point Purnell realized that he had been scammed. The man at the trailer was Henry. Not long afterwards Purnell saw Henry as a passenger in a vehicle. He stopped the vehicle and Henry admitted his identity. After Henry was out of the vehicle he started to run away. Without giving any warning and meaning to shoot him with his Laser, Purnell shot him from behind with his service revolver in the knee.

After three attempts to get a summary judgement motion, the District Court granted Purnell’s summary judgement motion on qualified immunity grounds. Law enforcement officers have qualified immunity from suit unless they violate a right guaranteed by the constitution and the right was clearly established at the time of the violation. The District Court ruled that Purnell had qualified immunity because the officer’s actions were reasonable in light of the minimal training that he received in use of the Laser. A panel of the Fourth Circuit Court of Appeals affirmed the decision. But last week the court sitting en banc reversed the decision finding that long standing Fourth Amendment law required that a violation of the Amendment is determined objectively and Purnell’s subjective view that he was within the Amendment is irrelevant. There is no question that the use of deadly force to make an arrest violates the Fourth Amendment unless “probable cause [exists] to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others”. Here there was no evidence of violence. Henry had no criminal history of violence. He did not have a gun on him. His back was facing the officer. Since there was no threat of violence the officer’s use of a gun whether or not he subjectively thought he was using a Laser was a violation of the Fourth Amendment. Furthermore the law is longstanding and it was clear in 2003 at the time of the incident. Therefore the Fourth Circuit reversed the decision and remanded the case to the District Court for trial.

At times I have discussed writs of habeas corpus and civil rights suits pursuant to 42 USC 1983. A recent Third Circuit Court of Appeals cases does an excellent job of differentiating the two and explaining when each is to be used.

In McGee v. Martinez Steven McGee was convicted in a drug case. He was sentenced to 120 months and a fine of $10,000. Due to his indigence he was ordered to pay $20.00 a month while he was in custody and more when he got out. While in prison he was working on a writ of habeas corpus challenging his conviction. He was placed on the Inmate Financial Responsibility Plan (IFRP). The IFRP gives inmates incentives for paying their fines. In exchange for his promise to pay a minimum of $25.00 per quarter towards his fine he was to receive permission to use more than $25.00 per month in the commissary, eligibility for placement in a halfway house prior to his release, a promise not to receive an increased security designation, and an agreement not to receive an undesirable housing designation.

He needed the augmented commissary privileges in order to be able to buy typewriter ribbons, pads, and copying for the pro se habeas that he was working on. He borrowed money to work on the habeas. When the prison learned that he had the borrowed money in a bank account, they attempted to raise his IFRD contribution to $75.00 per quarter. When he refused to pay the increased payment he was put on “IFRP refusal status.” As such he lost his augmented commissary privileges. He was threatened with disciplinary segregation and the loss of good time. He filed a pro se habeas challenging the increased payment. The District court immediately denied the writ claiming that he should have filed a Section 1983 action instead of a habeas. The Third Circuit reversed the District Court and reinstated his habeas.

Under the common law a habeas could only challenge the ability of the state to detain an individual. But as the writ has been codified in 28 USC 2241 it can be used also to challenge the execution of the sentence. In contrast to a writ of habeas corpus a 1983 action is appropriate when the challenge is to a condition of the inmate’s confinement such that it would not necessarily alter and of the terms of the sentence.

Since requiring him to pay 75.00 per quarter ($25.00 per month) would alter the terms of his sentence, the court found that a writ of habeas corpus was the proper request and reversed the District Court’s denial of the writ.

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.

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.