Burbank Police received a call from Bellarmine-Jefferson High School reporting a rumor that a student, Vincent Huff, planned to bomb the school. Four officers arrived. They began an investigation. They learned that Huff had been absent from school for two days and that he was often subject to bullying. ¹ They decided to go to the Huff’s home and interview him. When they arrived and knocked on the door,neither Huff or his mother answered the door or the house phone. ² Eventually his mother answered her cell phone and agreed to answer questions. Vincent and his mother met the police outside the residence. But Vincent’s mother refused a police request to come into the house and when the police asked her if there were any guns in the house she turned around and ran inside. The police followed her into the house. But after a short while determined that the rumors were unsubstantiated and terminated the investigation.

The Huffs sued several police officers. The District Court granted the officers’ motion to dismiss based on qualified immunity. As to a couple of the officers the Ninth Circuit reversed and reinstated the suit. The Supreme Court in a stringing rebuke reversed the Ninth Circuit finding that the police officers had no right to enter the residence. The Supreme Court held that reasonable offiers under these conditions would fear for their safety when Ms Huff turned around and went into the house. As a result it granted the officers’ motion to dismiss based upon officer safety grounds.

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.

In a rather strange case, yesterday, the Supreme Court decided to dismiss a suit by Abdullah al-Kidd against former Attorney General John Ashcroft on qualified immunity grounds.

Shortly after 9/11, al-Kidd, an American citizen, was arrested as he got on a plane for a trip to Saudi Arabia. He was arrested as a material witness in the trial of Sami Omar al-Hussayen for visa fraud. The government never called Al-Kidd as a witness. He sued Ashcroft alleging that the material witness allegation were merely a pretext to arrest him and to prevent his travel to Saudi Arabia.

To withstand a motion for summary judgment by a prosecutor or law enforcement officers a plaintiff must prove “(1) that the official violated a statutory or constitutional right, and (2) that the right was “clearly established” at the time of the challenged conduct.” If either of the elements are not present the motion for summary judgment is granted. The Court found both elements present. ¹ Justice Scalia writing the opinion pointed to existing law which states that with only a few exceptions an objective test governs the issues of warrants and the subjective views of law enforcement are immaterial. Therefore, assuming that al-Kidd was a material witness it did not matter whether the government actually planned to call him as a witness or the unstated reasons that he was arrested.

One question is what is the value of this case. The answer is little if anything. Since half to the justices participating in the case disagreed with Scalia finding that Ashcroft did not violate al-Kidd’s constitutional or statutory rights it does not have precedential value. The finding that the law was not clearly established at the time of al-Kidd’s prosecution adds nothing to the case law. Furthermore the way the court was presented with the issues prevented several important issues from being presented. As Justice Kennedy pointed out neither party challenged and therefore the court did not decide whether the use of the material witness statute was legal when the prosecution had no intention of calling al-Kidd as a witness in al-Hussayen’s trial. Justice Ginsberg pointed out that also left undecided is the validity of the material witness warrant.

The Court would have been better off denying certiorari or issuing a brief per curiam brief reversing the decision on the grounds that the law was not clear at the time of the arrest.,

Brad Cavanaugh called the Wood Cross City, Utah police claiming that his wife, Shannon, who has a history of suicide attempts, had run out of the house with a knife following a domestic dispute. Three officers arrived at the house. One stayed with Brad while two went out looking for Shannon. Shortly thereafter. Shannon returned home. Officer Davis who had stayed in the house went outside. Shannon did not have a knife in her hand. She walked right past him. He followed her and Tasered ¹ her in the back, causing her to fall down and hit her head on the concrete steps, causing traumatic injury.

The Cavanaughs sued Davis and Wood Cross City for excessive use of force. The defendants moved for summary judgment claiming qualified immunity. The District Court denied the motion and the defendants appealed to the Tenth Circuit Court of Appeals. The Court denied the appeal. To refute a claim of qualified immunity the plaintiff must show that their constitutional rights were violated and that the violation was clear at the time of the incident.

The court looks at the facts in a manner favorable to the plaintiff to determine if any jury could agree with the plaintiff. The use of a Taser is a clear violation of the Fourth Amendment in that it is a seizure. The only question is whether it is justified. Assuming that the facts are as described by the plaintiff the Tenth Circuit found that the seizure was not justified. Shannon Cavanaugh was shot in the back. She was not holding a knife and did not appear to be a danger to anyone. Furthermore she was heading towards the house and she could have been arrested once she got in the house. ² Thus it was not justified and based upon the plaintiff’s declarations and evidence the Fourth Amendment was violated.

Furthermore, the Court ruled that based upon prior decisions of the court the fact that a Taser was used against a non-violent misdemeanant is a violation of the Fourth Amendment was clearly established prior to the incident. As a result the appellate court denied the appeal and sent the case back to the District Court for trial.

The Tenth Circuit Court of Appeals denied immunity to a prosecutor who reviewed a search warrant affidavit for the residence of an on-line journalist at the University of Northern Colorado.

Thomas Mink published The Howling Pig. For its editorial column he chose the name of Junius Puke with an altered photograph of Junius Peake, a professor at the school. Mr. Peake was not amused. He contacted the Greeley police. They drafted a search warrant affidavit for the home that Mink shared with his mother and presented it to Susan Knox, a deputy district attorney for review.

Mink eventually filed suit, naming among others, Knox. Knox moved for summary judgment claiming immunity and qualified immunity as a prosecutor.

The Tenth Circuit rejected both arguments. It ruled that prosecutors are only entitled to immunity for the work of an advocate and that the review and approval of a search warrant affidavit is not advocacy.

The Court stated, “Government officials performing discretionary functions generally are granted a qualified immunity and are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” However it found that Mink alleged that Knox violated his clearly established constitutional rights and therefore she is not entitled to qualified immunity.

To successfully allege that one’s constitutional rights have been violated it is necessary to show a casual relationship between the defendant’s action and the violation of constitutional rights, an actual violation of the plaintiff’s rights and that the law was clear at the time of the violation. The Tenth Circuit found that Mink met all of the criteria. There was a direct causal relationship between Knox’s approval of the warrant and the illegal search. The search was illegal in that it was without probable cause and it was overly broad. It was without probable cause because parody is constitutionally accepted and it cannot be criminally charged as libel. Furthermore the warrant was not sufficiently particularized in that it ordered the seizure of all computers found in the residence without specifying what they were looking for on the hard drive. Thus no reasonable district attorney could believe that the affidavit met Fourth Amendment mandates for problable cause and specificity.

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 Supreme Court last week ruled that it violated the Fourth Amendment for school officials to strip search a thirteen year old girl who was suspected of possessing prescription medication at school without prior permission.

Savana Redding was a thirteen year old student attending middle school. The assistant principal showed her a Daytimer and asked her if it was hers. Inside the Daytimer were knives and a few prescription pills. She said, yes, but she had loaned the Daytimer to her friend, Marissa. When Marissa was confronted she said she got the pills from Savana. The assistant principal, after receiving permission searched Savana’s back pack and other clothes. Finding nothing he asked the administrative assistant and the nurse both of whom were women to have Savana strip to her underwear. When nothing was found they had her move her bra and open up the elastic on her underwear which exposed her private parts.

Her mother sued the school district, the assistant principal and others who participated in the strip search. The defendants moved for summary judgment on the grounds that they did not violate the Fourth Amendment and if they did violate the Fourth Amendment they were protected by qualified immunity.

Citing New Jersey v. T. L. O. the Court pointed out that for a search at a school probable cause is not needed but the search must be reasonable. In determining whether a search is reasonable the age of the student and the possible harm to society must be considered. In this case the student is 13 years old, a particularly vulnerable age for being strip searched. The number of pills was a personal use amount and unlikely to cause much harm. Furthermore there was no specific evidence leading the school authorities to believe that drugs would be found inside Savana’s underwear Under these conditions, in an 8-1 vote, with Thomas dissenting, the Supreme Court found that it was not reasonable to perform a strip search.

Last week we discussed the issue of qualified immunity. Its comes up again. The test is whether “clearly established law does not show that the search violated the Fourth Amendment.” But this time the Supreme Court granted the defendant’s claim of qualified immunity. The Court pointed out that in several cases lower courts, in similar situations found that there was not a Fourth Amendment violation and that the Ninth Circuit was divided on this case. While a division among judges is not necessarily determinative, in this case the Supreme Court upheld the claim of qualified immunity,

Thus while Savana won the issue, she lost the case.