Officer Robert M. Bauer, a Fairfax County Virginia police officer, investigated a complaint that a vehicle later determined to belong to Dr. Rose Merchant had forced another car off the freeway and that Merchant’s vehicle had blue flashing lights. Bauer made plans to meet Merchant and her husband. It was determined that her husband had the car during the time in question but their was no proof the car had blue flashing lights or that such lights had at some point been removed from the vehicle. During the conversation Merchant, a psychologist told Bauer that she worked in law enforcement and that she was the Deputy Director of the Department of Corrections of Prince George’s County, Maryland. He could see a concealed badge but he could not make out what it said and at no point did Merchant show it to him.

He started an investigation for impersonation of an officer. During the investigation he verified the information Merchant gave him during the meeting. He also verified that certain citizen employees of the n Prince George’s County Department of Corrections, including Merchant, were entitled to carry a badge. However, he continued the investigation. He discussed his findings with a deputy Commonwealth’s Attorney who told him he had a good case and he reviewed case law on the matter. Then he went to a magistrate and got a warrant. Merchant was arrested. But at trial the court threw the case out finding that there was no evidence to support the charges.

Merchant sued. Bauer claimed qualified immunity. The District Court denied the claim. In order to find that the officer had qualified immunity the court must find that there was no violation of a constitutional right or the right was not clearly established at the time of the incident. . The constitutional right to be free from unreasonable searches and seizures is guaranteed by the Fourth Amendment. The need for probable cause to arrest a person was well known at the time of Merchant’s arrest and no reasonable person would have thought that probable cause existed based upon the information known to Bauer. As a result the Fourth Circuit Court of Appeal upheld the denial of qualified immunity.

Hershel Oscar Rosenbaum received free tickets to the Nevada State Fair from radio station KOZZ. He did not want to use the tickets. Rosenbaum, his wife and his two young children went to the fair. His wife stayed in the car while Rosenbaum and the children got out of the car. Rosenbaum proceeded to sell the tickets for five dollar each while he was standing in front of the fair.

Deputy Sheriff Lieutenant James Forbus approached Rosenbaum, took the children to their mother and arrested Rosenbaum. He was booked on charges of child abuse, neglect, or endangerment of a child and for obtaining money by false pretenses. He was charged with only one count of receiving money by false pretenses and eventually the charge was dismissed. There is no scalping law in Nevada.

Rosenbaum and the children sued the county and several officers claiming he was arrested without probable cause and violation of their rights to family integrity in Federal Court.

The defendants moved for summary judgement on the grounds of qualified immunity. The motion was granted and the Rosenbaums appealed. Summary judgement should be denied if the plaintiff’s constitutional rights were violated and it was clearly established at the time of the arrest that the violation existed. The Ninth Circuit reversed the District Court’s decision. It held that Rosenbaum’s arrest violated the Fourth Amendment due to a lack of probable cause to arrest him. On appeal the defendants argued that there was probable cause to arrest Rosenbaum for obtaining money by false pretenses and violation of an obscure law, “collecting for benefit without authority.” The elements of obtaining money by false pretenses are this crime are: the intent to defraud, a false representation, reliance on that representation, and that the victim is defrauded. There was no evidence of any of these elements. Likewise there is no evidence that Rosenbaum attempted to defraud a charity as required by the collecting for benefit without authority statute. Since no reasonable officer could find a violation of either statute the defendants were not entitled to qualified immunity. As a result the Ninth Circuit reversed the District Court’s grant of summary judgement.

When the officers took the children to their mother they told the children that their father had done something wrong and was going to jail. The court found that the officers’ actions were inappropriate but that they did not shock the conscience and did not rise to the level of violating the right of family integrity.

Los Angeles County Sheriff’s Deputy Richard Wells pulled over Mark Anthony Young, an African-American probation officer, for failure to use his seat belt. He asked Young for his license, proof of insurance and registration. Young was not able to find his registration immediately so Wells asked him to continue looking while he went to his motor cycle to prepare the citation. When Young found the registration he got out of the truck and took the registration over to Wells. Wells ordered him back into his truck. Young refused to get into the truck and sat down on the curb. Wells, without warning, approached Young from the rear and pepper sprayed him. Young stood up and Well hit him a number of times with his baton.

Young sued Wells and the County of Los Angeles claiming excessive use of force and false imprisonment. The trial court granted Well’s motion for summary judgement. Young appealed. The Ninth Circuit Court of Appeals upheld the grant of summary judgement as to the false imprisonment claim but it granted the appeal as to the excessive use of force claim.

Considering the relatively minor offenses Young was accused of (failing to use his seat belt and interfering with a peace officer) and the lack of danger to the officer or others the appellate court found that the use of pepper spray and the baton was excessive.

On the other hand the court found that the arrest of Young was legitimate since he failed to comply with Wells’ order to get into the truck and therefore the summary judgement as to the false imprisonment was appropriate.

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.

Today the jury will start deliberating in Scranton, Pennsylvania in the trial of Brandon Piekarsky and Derrick Donchak who are charged with a hate crime and a civil rights violation for the murder of Luis Ramirez. It is alleged that Piekarsky, Donchak, and a group of their high school buddies killed Ramirez because they were upset with the increase in the Hispanic population in their hometown of Shenandoah.

According to the Associated Press article the teenagers were tried and found not guilty on serious state charges and are now being charged in Federal Court. A half dozen inebriated members of their high school football team, according to the prosecutor, acted as a team in attacking the twenty-five year old Hispanic man after they attended a block party.

At one point during the fight Ramirez walked away. Then one of the teenagers yelled racial slurs at him and he charged towards them.

Certainly the death of Ramirez is a tragedy, but a number of a number of basic American traditions are brought into question by the trial. While no strict double jeopardy question arises since the Federal charges are different from the state charges for which the men were found not guilty. But do we really want to give the government two bites of the apple. They already put the defendants through one serious trial and now they are facing life in prison in a second trial for the same act.

Ramirez left the fight and then came back to renew it. I do not know about Pennsylvania law but under California law and the law of many states Piekarsky and Donchak had no duty to retreat. They would have had a right to defend themselves. As the Supreme Court recently pointed out in McDonald the right to defend oneself, even with a gun and there were no guns involved in this case, is fundamental to the American way of life.

A third issue is that the four football players are being treated as a team. Two of them have plead and the other two are on trial but the prosecutor calls them a team. Traditionally we insist upon individual responsibility. We do not blame everyone walking home in the group because one of the group, Brian Scully yelled racial slurs at Ramirez. Nor do we hold it against the entire group that Collin Walsh knocked Ramirez out or that Piekarsky kicked him in the head while he was unconscious.

Regardless of what you think about these American traditions the law is not the best way to change them. Regardless of what the jury does, the right of self defense in strongly ingrained in our society. Likewise nothing that happens in Scranton is going to change American individuality or view about subjecting defendants to multiple trials for the same behavior. These values are taught to us as children and trials are not going to change them.

On the other hand it does not mean that the men should go free. Nothing in our traditions endorses murder and murder should be punished, unless as I suspect the jury in the state case found that the men were acting in self defense.

Wesley Lanham and Shawn Freeman were corrections officers at the Grant County, Kentucky, Detention Center on February 14, 2003 when a deputy brought “J. S” into the jail on a traffic charge. “J. S.” was 18 years old, six foot tall and weighed 125 pounds. He has blond highlights in his hair and on that Valentines Day holiday he wore a bright colored shirt and underwear with red hearts.

Sergeant Shawn Sydnor the supervising officer on duty at the jail told “J. S.” that he was cute and that he would make a good girlfriend for an inmate. He told Lanham and Freeman that “J. S.” needed to be scared. While pretrial arrestees were generally kept in the detox cells Sydnor asked Lanham and Freeman to find a cell in general population with convicted criminal serving their terms for “J. S.” Lanham found him a place in Cell 101 in 26 Hall. Twenty-six Hall was notorious for being a very rough place and for numerous incidents of sexual predatory behavior. Prior to placing “J. S.” in cell 101 Lanham and Freemen went to the cell and spoke with Bobby Wright. Lanham told Wright that they wanted the inmates to f-ck with “J. S.” Lanham and Freeman took “J. S.” to the cell and left hem there all night without checking in on him. Victor Zipp an inmate in the cell with a reputation for walking around nude raped “J. S.” and with help from other inmates roughed him up.

The next day Syndor, Lanham and Freeman agreed to report that they had placed “J. S.” in the general population because they needed to decontaminate the detox cells.

“J. S.” was released the next day and two days later his father took him to a doctor who confirmed the rape.

Lanham, Freeman and Sydnor were indicted. Sydnor plead guilty and cooperated with the prosecution. Lanham and Freeman went to trial and were convicted of conspiring to violate “J. S.’” civil rights and making a false report.

The Sixth Circuit Court of Appeals upheld the conviction. They found that while the judge should have excluded two jurors who could not promise to be impartial the defendants were not prejudiced since they used peremptory challenges to exclude the two. The Court did not find that the lack of two of the defense’s peremptory challenges affected the trial.

The defendants objected to limitations placed on their cross examination of Sydnor. But since they did not complain at trial they were limited to plain error analysis and since various appellate courts are divided on the issue any error is waived under the plain error analysis. “To obtain a conviction for conspiracy to violate civil rights under § 241, the government must prove that defendants knowingly agreed with another person to injure the victim in the exercise of a right guaranteed under the Constitution. . . The government also must prove beyond a reasonable doubt that there was specific intent to commit the deprivation.” The prosecution met the sufficiency of the evidence test. There was sufficient evidence that Syndor, Lapham and Freeman agreed to place “J. S.” in a cell knowing that he was likely to be abused and raped. To meet the sufficiency of the evidence test ir is only necessary that there be sufficient evidence that any rational trier of the fact could find the elements of the offense. Here there was sufficient evidence of both conspiracy and making a false report. As a result the conviction was upheld.