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I am pleased to report that the Fourth Amendment and the Fifth Amendment still have a pulse. While lately they have been barely hanging in there, they still occasionally get the respect they are due. It is fitting that this decision came out around Memorial Day which is recognized in honor of those who gave their lives for the very free
I am pleased to report that the Fourth Amendment and the Fifth Amendment still have a pulse. While lately they have been barely hanging in there, they still occasionally get the respect they are due. It is fitting that this decision came out around Memorial Day which is recognized in honor of those who gave their lives for the very freedoms those Amendments represent.
This “success” is actually not mine at all. I was hired as a consultant and to present the matter to the Court of Appeals. The analysis, briefing, and relentless pursuit of justice are due to the family. All must remain anonymous. Here is the upshot of how those Amendments were applied:
1. the police cannot interrupt a suspect when he says he needs a lawyer (three times actually);
2. the police cannot enter into an open garage attached to a dwelling without a warrant or an exception to the warrant requirement;
3. the “knock and talk” (or “knock and search” in practical terms) is a limited license to approach a front door or other socially acceptable means of ingress to get the attention of the occupant. If unwelcome, leave.;
4. the police cannot entice admissions by promising to make threats from the victim or the victim’s friends stop (I’m not making this up, they actually had to litigate this and even lost at the trial court level);
5. the police cannot entice admissions by promising that a suspect can get his job back if he “fesses up” (Did I mention that I’m not making this up).
Kudos to the family for fighting the fight. This case is a great example of why it is critically important to run motions and preserve issues even when you know the local judges are going to rule against you. My advice to young lawyers is and always will be to remember that when you are in court making a record you are always actually talking to the next higher court. I just gave away one of my secrets but it’s time to start sharing those as I throttle back.
I have a story to tell going back to 2016. The client has given permission but I’m going to omit names anyway. After 19 years on the job and a promotion to sergeant, a police sergeant is assigned to work in the city’s lock-up facility. He sees young, white police officers arresting and lodging African-American citizens. In reviewing the
I have a story to tell going back to 2016. The client has given permission but I’m going to omit names anyway. After 19 years on the job and a promotion to sergeant, a police sergeant is assigned to work in the city’s lock-up facility. He sees young, white police officers arresting and lodging African-American citizens. In reviewing the reports they turn in for these warrantless arrests, he sees a pattern of bad arrests and informs the Chief of Police – three times.
The sergeant is in the highest group under consideration for promotion to lieutenant. Three white sergeants get promoted – one of whom had a drunk driving (off duty). The sergeant files a grievance and a complaint with human resources. Overnight, a snowstorm of Internal Affairs complaints – all but one generated from within the department – dump on him. The first two were served on him two days after he filed the complaint with human resources and they just poured in after that.
The disciplines were for things that happen to all officers in a busy department but usually are overlooked by management. They culminated with a potential hearing that would likely result in termination. The sergeant resigned to salvage a portion of his pension. He sued his department and the Chief of Police. The U.S. District Court (Western District) dismissed the case. The sergeant appealed and on July 31, 2020 – yes folks four years later – the Sixth Circuit reversed part of the decision and the retaliation claim is now alive and well.
The sergeant is African-American. The moral of the story is much deeper than this one case. The behavior of the police has become so ingrained in the police culture that even warnings from within their own ranks are ignored and bullied out of existence. The City did not just disagree with the sergeant, they set out to destroy him. Well, apparently he is a lot tougher than they anticipated.
For those of you that study criminal justice or social science, there is a theory that says public bureaucracies have individual “personalities” or “cultures.” One such theory holds that the culture is generated from the top down. As I’ve said before, serious change in police misconduct is never going to occur until the legislatures and the courts begin to take their roles seriously. Police are in the executive branch. The elected members of the other two branches take an oath to defend the constitution and that includes curbing the behavior of the other branch. In this case, the Sixth Circuit stepped up. Congratulations Sarge, the City settled just before trial.
[Client] v. Rendon, et al, West. Dist. #1:09-cv-363, April, 2009
The allegations were that Defendant Rendon was irritated by critical comments a citizen had made about LPD’s lack of response to a rowdy crowd in a neighborhood and they had actually steered the crowd toward a residential area. The Plaintiff alleged that Rendon chased him dow
[Client] v. Rendon, et al, West. Dist. #1:09-cv-363, April, 2009
The allegations were that Defendant Rendon was irritated by critical comments a citizen had made about LPD’s lack of response to a rowdy crowd in a neighborhood and they had actually steered the crowd toward a residential area. The Plaintiff alleged that Rendon chased him down, noticed he was limping, threw him up against a car, stomped on his foot and broke a bone in his foot. The Plaintiff was legally blind in his near sight. The case settled at facilitative mediation.
A civil rights claim brought by a minor against a detention officer for excessive force and his municipal employer was settled for $35,000.00. The minor was 14 years old at the time and being held in an adult municipal lockup. He was close to the detention officer’s desk and apparently the detention officer took offense to his singing rap music in the holding cell. It was alleged that when the minor knocked on the glass and asked to use the bathroom, the officer jerked open the door and greeted him by grabbing him by the throat and taking him backwards to a bench until other detention officers pulled him off. Discovery disclosed that most of the detention officers, including this one, had been working extremely large amounts of overtime for several weeks. This particular detention officer had been a defendant in another civil rights lawsuit several years ago which also resulted in a settlement. He denied any misconduct in both cases. list and describe the services you offer.
A civil rights claim brought by a restaurant and bar resulted in a settlement but the amount is confidential. It was alleged that the city decided to use its code enforcement as a means of harassment and denied the bar’s application for a cabaret license (to play mechanical or live music). They falsely claimed an electrical violation and then refused to provide a process to challenge the denial of the license. The police also made false claims about violent events being associated with the bar to the media. The resulting loss in business caused the business to shut down. As part of the harassment, multiple false and frivolous reports were made by the police to the Liquor Control Commission as well. The settlement was modest and did not come close to the damage caused by the city’s conduct. The ability to settle at all, however, was the result of a quick response and demand for appeal over the license dispute. Everyone should take note that these licensing schemes and technical codes are misused and due process requires a review process. The City denied any wrongdoing.
A civil rights claim against a city and two police officers for racial harassment was settlement for $45,000.00. I was involved as a second chair on this one and the primary attorney had responded promptly when the client was “caught” with a prescription drug. He told the officer he had a prescription. The lawyers then sent the prescription to the police officer. Nonetheless, the officer submitted a warrant request months later and failed to include the prescription information. It was also alleged that the two officers had stopped the client multiple times for falsified reasons. The real reason was driving while black in an “up north” community. Again, the prompt response by the attorney to provide the exculpatory information set the incident up for a successful lawsuit. The City and the officers denied any wrongdoing.
A charge of domestic violence was dismissed after a motion to modify bond revealed that the victim did not want to proceed and the prosecutor’s office was ignoring her wishes. We only had a partial victory in the motion to modify bond conditions but the motion served the broader purpose of exposing the prosecutor’s office pursuing its own agenda instead of seeking justice.
A civil rights case against a police officer for unreasonable (warrantless) search of a purse and a baseless seizure of money resulted in a denial of immunity (he falsely claimed another officer searched the purse and seized the money and did so with consent). He appealed to the Sixth Circuit Court of Appeals. Through the appellate mediation office, that dispute was settled for a payment of $7,000.00 to the client. Other issues remain in the case to be resolved at the trial court but the client will now be compensated for the misconduct of the officer.
A charge of “soliciting prostitution” is being dismissed where a careful read of the police report and a thorough interview with the client disclosed two things: First, the female undercover officer made the solicitation, not the defendant; and, second, he drove right by the location where they were supposed to meet. The police report failed to mention that he was stopped at least a mile away while driving away from the area. He had noticed the woman standing on the corner while he was working in the area and stopped to see if she needed help. She solicited him and he drove away. Stopped and arrested anyway so you might ask why? Again, money is the answer. They seized his car and “sold” it back to him. He could not fight that part because he had to have transportation. We’ll take the dismissal and move on.
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