Sometimes, a police officer’s hunch is right:
Columbia [Missouri] Police Officer Jessica McNabb pulled over then-19-year-old Daniel Sanders at Stadium Boulevard and Audubon Drive for running a red light and failing to use his headlights at night. Sanders didn’t have a license. He asked for an attorney almost immediately.
After a search of the trunk, McNabb found the body of Sanders’ mother beneath a tire — next to a new shovel with the price tag still on it.
Jordan Miles, who is black, thought his life was in jeopardy when three white men jumped out of a car on the night of January 11 as he walked not far from his home.
"My son tried to run thinking his life was in jeopardy," Terez Miles said. "He made three steps before he slipped and fell." After that, she said, the [Pittsburgh] police used a stun gun and beat him, pulling out a chunk of his hair.
The criminal complaint says the officers, considering Jordan Miles’ appearance suspicious, got out of the car and identified themselves as police. He tried to flee, fell, and then struggled to escape.
The officers "delivered 2-3 closed fist strikes to Miles’ head/face with still no effect," and then a "knee strike to Miles’ head causing him to momentarily stop resisting," so that he could be handcuffed, the document says.
Miles’ mother said the officers did not identify themselves as police to her son, a viola player and student at the city’s Creative and Performing Arts High School.
The complaint says the police officers believed Miles was engaged in criminal activity and possibly armed with a "large heavy object." The object turned out to be a bottle of Mountain Dew.
There’s a law for both:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Ironically, Daniel Sanders might have a better chance of avoiding a conviction for his mother’s murder than Jordan Miles has of recovering compensation for his injuries.
Last year, the Supreme Court held in Arizona v. Gant that the Fourth Amendment prohibits "a vehicle search incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle," with a limited exception for such searches "when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle."
Sanders was not pulled over or arrested for his mother’s murder, so the exception doesn’t apply. There’s no doubt that he was "secured" — he didn’t even put up a fight, he just asked for his lawyer.
His lawyer has moved to exclude from the trial all evidence found from the search of Sanders’ car, including, of course, his mother’s body:
In that motion, [Sanders’ lawyer] Slusher said McNabb continued to question Sanders after he asked for an attorney and that the search of the car was conducted without a warrant or probable cause. Slusher characterized the search and the continued questioning as unconstitutional and thus inadmissible in trial.
He might win it. I’m sure the district attorney’s office is burning the midnight oil to find some daylight in Arizona v. Gant.*
Returning to Miles, it’s quite possible that the officers identified themselves as police and that Miles didn’t hear them. Police confrontations are often fraught with confusion. Consider this instance:
Defendant Murphy approached the driver’s side window and asked Plaintiff to produce his identification and credentials for inspection. (Frohner Dep. at 39.) Plaintiff, who kept his credentials in the door pocket of the driver’s side door when driving, (Pl.’s Br. Ex. C at 4), began to reach down to retrieve his credentials. (Frohner Dep. at 39.) As Plaintiff was reaching down, Defendant Murphy shouted at Plaintiff, "keep your hands where I can see them." (Id. at 39-40.) Plaintiff, "[n]ot immediately understanding what was transpiring," continued to reach for his credentials in the door pocket, which prompted Defendant Murphy, who by this time had drawn his firearm, to again shout to Plaintiff to keep his hands in view. (Id. at 39-42.) Plaintiff complied with Defendant Murphy’s second order and ceased reaching down to the door pocket. (Id. at 40.)
Frohner v. City of Wildwood, 07-1174 (D.N.J. 2008).
Plaintiff there — who was almost shot — was an on-duty undercover FBI agent. He was approached by a uniformed police officer who had pulled him over in a marked police car. Yet, even he didn’t "immediately understand what was transpiring."
Consider what Miles would have "immediately understood" when three men in plainclothes jumped out of a car and started chasing him.
To win in a civil lawsuit, though, Miles has to show more than that the officers made a mistake.
First, he has to show his constitutional rights were violated. Then, he must overcome qualified immunity by showing "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Curley v. Klem, 499 F.3d 199, 206-07 (3d Cir. 2007). Neither is easy to prove; most plaintiffs alleging violations of their constitutional rights lose their cases.
Miles has two constitutional rights that were potentially violated: the right to be free from false arrest and the right not to be subjected to excessive force during an arrest. I don’t know what about his "appearance" was "suspicious," but the article reports "the police officers believed Miles was engaged in criminal activity and possibly armed with a large heavy object." From that, we can presume their nominal purpose was to perform a Terry v. Ohio stop and frisk to see if the Mountain Dew was an illegal weapon. If either the judge or the jury believes that, then the officers (really, the City of Pittsburgh, which will indemnify them) are free from liability for the false arrest claim.
When it comes to the excessive force claim:
In deciding whether challenged conduct constitutes excessive force, a court must determine the objective reasonableness of the challenged conduct, considering the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officer or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. Other factors include the duration of the officer’s action, whether the action takes place in the context of effecting an arrest, the possibility that the suspect may be armed, and the number of persons with whom the police officers must contend at one time.
Couden v. Duffy, 446 F.3d 483, 496-97 (3d Cir. 2006).
Hence the emphasis on the Mountain Dew: the officers want to justify their conduct by arguing "the possibility that the suspect may be armed." It also likely that, at some point, Miles was "actively resisting arrest or attempting to evade arrest by flight," given that he thought he was being assaulted. Such resistance, under excessive force precedent, makes the officers’ punching and kicking less "objectively unreasonable."
After showing all of the above, Miles must also show the judge "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted" to overcome qualified immunity. Miles can’t just show what the officers did was wrong; he has to show it was so wrong that the officers had to know it was illegal.
Can Miles do that? Maybe so. Then again, a lot of constitutional rights / qualified immunity cases — like Curley v. Klem, in which a police officer was accidentally shot — end with a jury verdict for the defendant and a speech from the appellate court like so:
The mistake Klem made has undoubtedly been terrible in its long-term consequences for Officer Curley and his family, and we do not for a moment discount the pain, sorrow, expense, and frustration that it has visited on them in their innocence. But a mistake, though it may be terrible in its effects, is not always the equivalent of a constitutional violation. … "[P]olice officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation." Graham, 490 U.S. at 397, 109 S.Ct. 1865. Those were the circumstances facing both Trooper Klem and Officer Curley at the George Washington Bridge toll plaza. Viewed from that perspective, Saucier, 533 U.S. at 205, 121 S.Ct. 2151, the seizure effected by the mistaken shooting was not unreasonable under the Fourth Amendment. It therefore was not a constitutional violation.
Law nerds out there will recognize the retroactivity / "new law" issue, since Gant was decided after Sanders’ arrest. In my humble opinion, though Scalia’s concurrence would be "new law," the majority opinion by Stevens tried hard to fit within the existing framework, so I presume the rule has retroactive applicability.