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Case Update

Angel Mendez and his girlfriend were resting comfortably in the shack where they lived, when two deputy sheriffs burst into the place without knocking or announcing their presence, and without a warrant.  When he heard someone entering, Mendez picked up a BB gun and moved it so he could stand up.  Bad decision:  the cops, seeing the gun, launched a fusillade of bullets toward the pair, leaving both severely injured; Mendez had to have his leg amputated.

Well, surely the evidence the police found would be suppressed, wouldn't it?  The police didn't find any evidence.  The case, County of Los Angeles v. Mendez, dealt with the civil liability of the county for the injuries suffered by the pair.  As you may know, police officers have "qualified immunity" for suits for constitutional violations:  you have to show that the police knew their actions were impermissible before they can be held liable. 

In Mendez, everybody agreed that, once the officers observed the gun, they used reasonable force; the question was whether their prior unconstitutional actions could factor into that equation.  In a unanimous opinion, the court basically says, yeah, but not the way the 9th Circuit did it.  I read the opinion, but mostly came away from it with the feeling that this probably isn't the time to put more restrictions on the ability of people to sue the police for excessive force.  More on that later.  

Down in Columbus, the court affirmed the death penalty Donna Roberts got for hiring someone to kill her husband.  The case basically goes to illustrate the procedural quagmire that capital punishment law has become.  This is actually Roberts' third trip to the high court.  Her first sentence got vacated because the trial judge had an ex parte communication with the prosecutor, who basically drafted the sentencing opinion.  The second sentence got tossed because there was no reference to Roberts' allocution in the sentencing opinion.  So it gets sent back, with instructions to limit the resentencing hearing to that issue.

Whatever Roberts said, it didn't do her any good; the judge imposed a death sentence anyway.  But it was a different judge who did that; the original one had died.  The court finds no problem with that, and off goes Roberts for her date with the gurney.

That date, if it comes at all, is undoubtedly in the distant future.  The crime was committed in December of 2001, and the direct appeals have just been concluded.  Now there's the full slate of collateral proceedings, with post-conviction relief and federal habeas on the far horizon.

A couple of interesting search decisions from the appellate courts.  State v. Foster demonstrates the importance of examining the city's policy on inventory searches.  Foster was stopped for a traffic violation, and found to have an outstanding warrant.  The cops arrested him, and then proceeded to rummage through his vehicle for an hour as part of their "inventory" search.

An inventory search is supposed to be for the purpose of identifying valuables in the car, but that limitation is honored mainly in the breach; as far as the police are concerned, its primary purpose is to find contraband.  (My favorite case along this line was one where the police took apart the vehicle's speakers as part of the "inventory.")  That was clearly the purpose here:  you don't need an hour to find out what's in a car.

The pretextual nature of the search wasn't where the police ran into a problem, though.  The Cincinnati Police Department's inventory search policy contains a provision which directs the police not to impound a vehicle "if the driver arranges for someone to take custody of the vehicle."  Foster had repeatedly asked the police if his wife could come get the car, and in fact the police eventually allowed her to do just that.  No valid impoundment, says the 1st District, no valid inventory search.

Then there's the 8th District's decision in State v. ThomasOfficer Aaron Luther gets a call that three juvenile males, about 13 or 14, are in a parking lot with bricks in their hands, "looking to do mischief."  He got to the vicinity forty minutes later, and found only Thomas, twenty years older, sans bricks, and not in the parking lot.  But Luther noticed that Thomas "began to pick up the pace" when he saw Luther's car, which signified that he "was trying to avoid contact with us." 

Luther turned his car around, and entered a convenience store parking lot after Thomas.  He got out of the cruiser and called to Thomas, asking "if I could speak to him for a moment."  Thomas turned and walked toward the officer, his hands in pockets, certainly not unusual for a mid-November night.  Luther asked if he could pat Thomas down "for officer safety," and Thomas told Luther that he had a gun in his pocket.  He wasn't supposed to have one, and that results in a conviction of weapons under disability.

The panel notes that Luther had no basis for stopping Thomas, but that his calling to him made it a consensual encounter; Thomas was free to continue walking.  And he volunteered that he had a weapon.

That's probably the correct decision, but I read something the other day which puts a different light on it.  It's an article about "the talk" that black parents have with their children, about how to react when confronted by the police.  The main emphasis is on being compliant with their commands; as one black mother put, in a way we could only wish was hyperbolic, "don't give them an excuse to kill you."

Maybe Thomas got the talk from his parents, or learned it on the streets.  When the policeman says he wants to talk to you, turn and go to him.  Don't let him be surprised by the fact that you have a weapon; tell him in advance.  Luther testified that Thomas "readily approached" him, and "very easily complied" with Luther's directives.  I'm sure he did.

The 8th District's decision is correct, as I said, but "consensual encounter" for a young black male doesn't mean what it does for me.  The notion that a black male is "free to continue walking" from the police is belied by a YouTube video on a weekly basis.

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