SCM NEWS & OPINIONS

Government Entities Case Law Update – January 5, 2022

Bond v. City of Tahlequah

View full case >>>

Use of force, qualified immunity. Officers shot and killed Dominic Rollice. The administrator of his estate brought a § 1983 case alleging the officers used excessive force against Dominic in violation of his Fourth Amendment rights. The district court granted summary judgment to the officers based on qualified immunity. The Tenth Circuit Court of Appeals reversed, reasoning a reasonable jury could conclude the officers used excessive force.

As part of its analysis, the Tenth Circuit focused on when officers create the need for deadly force, rendering the use of that force excessive, and therefore, unconstitutional. The Court began by explaining that three of its prior decisions confirm “the totality of the facts to be considered in determining whether the level of force was reasonable includes any immediately connected actions by the officers that escalated a non-lethal situation to a lethal one” and that the totality of the circumstances includes analysis of all facts from “inception through the moment the officers employed force.”

Analyzing the facts of the case, the court first addressed the severity of the crime, which was a misdemeanor trespass. The officers knew Dominic was the complainant’s ex-husband, he was intoxicated, and the complainant wanted him removed from the property but there was no indication from the body camera video that Dominic was violent or otherwise belligerent at the beginning of his encounter with the officers. The court accordingly concluded the severity of the crime was low, which weighed against the use of force.

The court next analyzed Dominic’s active resistance or evasion of arrest. It explained that because the officers did not intend to arrest Dominic when they first encountered him, he could not have been actively resisting arrest or attempting to evade arrest, which weighed against the use of force.

The court acknowledged the immediacy of threat was the “most important” factor to be considered and reminded that in making such decisions, it considers four factors:  1) whether officers ordered the suspect to drop a weapon, and whether the suspect complied; 2) whether the suspect made any hostile motions with the weapon toward the officers; 3) the distance separating the officers and the suspect; and 4) the suspect’s “manifest intentions.”

There was no dispute Dominic repeatedly refused to obey the officers’ commands to drop his weapon, and that two of the officers were within eight to ten feet of Dominic, one even closer. However, it was not clear whether Dominic made any hostile movements toward the officers, and while he raised the hammer he was holding above his head, the video shows no “winding up” movements made by Dominic in preparation for throwing it at the officers. Dominic’s statement, “I have done nothing wrong here, man. I’m in my house. I’m doing nothing wrong,” also added to the court’s assertion that “a reasonable jury could conclude Dominic did not make any movements to put the officers in fear of serious physical harm.”

The court further concluded that the officers could not have reasonably but mistakenly concluded Dominic’s defensive movements were aggressive. It explained, “Dominic had only a hammer rather than a gun or other long-range weapon, was engaging verbally with the officers, and never dropped his left arm from what can be interpreted as a defensive position . . . .”  Moreover, he was on his knees angled away from the officers when he again raised the hammer.

The Court finally addressed the argument that the officers’ conduct created the need to use force. It noted the following facts were critical:

  1. When Dominic declined Officer Girdner’s request to frisk him, Officer Girdner advanced toward Dominic, and Dominic retreated into the garage.
  2. All three officers followed, cornering Dominic in the garage where he armed himself with a hammer.
  3. The full encounter, from the request to frisk to Dominic’s collapse on the floor, took less than a minute.
  4. From these facts the court concluded the officers advanced upon an impaired individual, likely escalating the tension and fear. They followed Dominic into an enclosed space and blocked the exit, resulting in Dominic picking up an implement to defend himself. And the officers drew their weapons, in response to the individual grabbing a weapon, and fired only after the individual made what the officers perceived as offensive movements made in direct response to the officers’ conduct. The court therefore concluded, “a jury could reasonably determine that the officers . . . unreasonably escalated a non-lethal situation into a lethal one through their own deliberate or reckless conduct.”

The United States Supreme Court reversed the Tenth Circuit’s ruling. The Court did not reach the issue of whether the officers’ conduct in using lethal force was unconstitutional, instead holding, “On this record, the officers plainly did not violate any clearly established law.” Id. at *2. The Court explained, “We have repeatedly told courts not to define clearly established law at too high a level of generality. It is not enough that a rule has been suggested by then-existing precedent; the rule’s contours must be so well defined that it is clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id. (cleaned up). It held, “The Tenth Circuit contravened those settled principles” when it held that it was clearly established that the officers’ conduct “was reckless [and] that their ultimate use of force was unlawful.” Id. The Court explained that none of the cases on which the Tenth Circuit relied, including Estate of Ceballos v. Husk, 919 F.3d 1204 (10th Cir. 2019) and Allen v. Muskogee, 119 F.3d 837 (10th Cir. 1997), “comes close to establishing that the officers’ conduct was unlawful.” Id. Because “[n]either the panel majority or the respondent have identified a single precedent finding a Fourth Amendment violation under similar circumstances,” the “officers were . . . entitled to qualified immunity.” Id. at *3.

 

Estate of Harmon v. Salt Lake City

View full case >>>

Use of force, qualified immunity. Officers fatally shot Mr. Harmon while chasing him after Mr. Harmon pulled what they perceived to be a knife. The Tenth Circuit Court of Appeals reversed the district court’s qualified immunity dismissal in favor of the officers, concluding on a motion to dismiss that the officer’s body camera recording did not clearly refute plaintiffs’ assertion that Mr. Harmon was unarmed so that no reasonable jury could have believed their version of what occurred.

Addressing the most important Graham factor – the immediate threat to officer safety – the court analyzed the four non-exclusive factors stated in Estate of Larsen used to evaluate the degree of threat posed to the officers during an encounter:

  1. Whether the officers ordered the suspect to drop the weapon, and the suspect’s compliance with police commands;
  2. Whether any hostile motions were made with the weapon toward the officers;
  3. The distance separating the officers and the suspect; and
  4. The manifest intentions of the suspect.

The Court concluded that the third and fourth factors favored the officers, as there was only approximately five to seven feet separating the officers and Mr. Harmon, and Mr. Harmon was clearly trying to evade arrest by running and pushing past an officer. However, the court ruled that the first and fourth factors favored the plaintiffs, as the officers never ordered Mr. Harmon to drop a weapon, and it was not clear from the video that Mr. Harmon threw Officer Robinson to the ground or assumed a “stabbing stance.” Viewing the allegations in the light most favorable to the estate, the court concluded a jury could conclude the shooting officer incorrectly and unreasonably perceived Mr. Harmon to be armed with a knife, even though one was found near his hand where he fell after being shot. It further ruled that the law was clearly established that officers may not use deadly force against a suspect who is not armed with a knife and not charging at officers.

 

Estate of Taylor v. Salt Lake City

View full case >>>

Use of force, qualified immunity. Responding to a 911 call reporting a man had flashed a gun, officers attempted to stop Mr. Taylor and his companions, who matched the caller’s descriptions. Mr. Taylor’s companions complied with commands to stop and show their hands, but Mr. Taylor did not, turning and walking away from them. Two officers followed Mr. Taylor and repeatedly ordered him to stop and show his hands. Mr. Taylor kept walking and “verbally challenged” the officers. While doing so, he put at least one of his hands in his waistband. He then turned to face Officer Cruz while continuing to walk backward, now with both hands concealed in the front of his waistband, digging as manipulating something. Officer Cruz pointed his gun at Mr. Taylor and ordered him to stop and show his hands. Mr. Taylor verbally refused and kept walking backward. “Then, without any verbal warning, Mr. Taylor quickly lifted his shirt with his left hand—exposing his lower torso—and virtually simultaneously withdrew his right hand from his waistband,” consistent withdrawing a gun. Officer Cruz shot Mr. Taylor twice and he died at the scene. When searched after the fact, Mr. Taylor was found to be unarmed.

The plaintiffs filed a § 1983 civil rights lawsuit asserting various claims against Officer Cruz and his employer, Salt Lake City, including a Fourth Amendment excessive force claim and Monell failure to train claim. The district court granted the defendants’ qualified immunity motion for summary judgment, concluding Officer Cruz’s use of force was reasonable under the circumstances, and therefore there could be no Monell liability against the city. The plaintiffs appealed and, in a lengthy opinion, the Tenth Circuit Court of Appeals affirmed the ruling.

Despite finding the first (severity of the crime) and third (active resistance or evading arrest) factors of the Graham analysis favored the plaintiffs, the Court ruled that the most important and determinative factor – the threat to the officer or others – weighed in favor of the defendants and “controls the outcome of this case.” The court made particular note that the fact Mr. Taylor was not armed is not determinative to whether the officer acted reasonably in shooting Mr. Taylor because when “we assess whether a suspect poses an immediate threat permitting the use of deadly force, we consider the totality of the circumstances from the perspective of a reasonable officer,” and concluded “that Officer Cruz could have reasonably believed that Mr. Taylor posed a mortal threat to him or others—even though Officer Cruz was tragically mistaken.” It, like the court in Harmon, focused on the four Larsen factors:

  1. Whether the officers ordered the suspect to drop the weapon, and the suspect’s compliance with police commands;
  2. Whether any hostile motions were made with the weapon toward the officers;
  3. The distance separating the officers and the suspect; and
  4. The manifest intentions of the suspect.

It found that all four factors weighed in favor of Officer Cruz for the following reasons:

  1. Taylor either ignored or disobeyed commands to stop and show his hands;
  2. Taylor took actions that would lead a reasonable officer to conclude Mr. Taylor had a weapon and made a hostile motion toward the officers with it based on the following:
    1. Report of a man with gun;
    2. Taylor matched the caller’s description;
    3. Taylor was being evasive;
    4. Taylor was not merely walking away but verbally challenging the officers;
    5. Taylor refused to show his hands, placed them in the waistband of his pants, and was digging in his pants as if manipulating something in them;
    6. Taylor rapidly withdrew his hands from his waistband consistent with drawing a gun.
  3. When Mr. Taylor pulled his hands from his waistband, he was only 10-12 feet away from Officer Cruz, who was exposed in an open parking lot;
  4. Taylor was saying things like, “What are you going to do? Come on, . . . shoot me,” and “Nah, fool.”

The court further concluded that the officers’ actions did not create the need for force based on the fact there was no evidence that Officer Cruz would have had reason to believe that Mr. Taylor was impaired in any way by emotional or psychological problems, or that his judgment was impaired by substances.

 

Rivas-Villegas v. Cortesluna

View full case >>>

Use of force, qualified immunity. Similar to Bond v. City of Tahlequah, the United States Supreme Court ruled that prior cases did not establish that the officers’ use of force under the circumstances was clearly established. Therefore, they were entitled to summary judgment on that ground. Because the Court did not reach the question of whether the officers’ conduct violated the constitution, the facts of the case provide no guidance to officers in assessing their future conduct.

 

State v. Evans

View full case >>>

Use of force in executing a warrant for a buccal swab. Evans was arrested for murder. Police officers obtained a search warrant to obtain a sample of Evans’s DNA through a buccal swab of his cheek. When a lab technician attempted to take the swab, Evans physically resisted. Officers had to restrain his limbs and force open his mouth so the technician could safely obtain the DNA sample. They handcuffed Evans and placed him in leg irons and a belly chain. The officers applied “control holds” to control Evans’s thrashing. One officer placed his foot over Evans’s foot to prevent Evans from kicking the technician who was attempting to administer the swab. Another officer pried open Evans’s mouth. It ultimately took “four or five pretty large detectives” to hold Evans still so that the technician could reach into his mouth to perform the swab.

Testing ultimately showed that Evans was a genetic match for DNA found on a baseball cap left at the crime scene and that Evans was a possible contributor to DNA found on a broken piece of fence leading to the victim’s back door, where the victim had been shot. Evans moved to suppress the DNA evidence on the grounds that the forcible collection of the sample violated his Fourth Amendment rights. The district court denied the motion, and the evidence was admitted at trial. The jury convicted Evans, and he appealed the denial of his motion to suppress, claiming the force used by officers was excessive and therefore unconstitutional. He also argued the officers were not statutorily authorized to use any force whatsoever in executing the warrant. The Utah Court of Appeals rejected these claims, and Evans appealed to the Utah Supreme Court.

The supreme court ruled the following factors are relevant in determining whether force was reasonable under circumstances such as this:

  1. The nature and extent of the resistance officers faced;
  2. Whether the resistance jeopardized the safety of the officers or others;
  3. Whether the resistance prevented the officers from conducting the search;
  4. Whether the force used endangered the suspect’s health or safety or physically injured him or her; and
  5. Whether the force used inflicted unnecessary pain, was unnecessarily prolonged, or was otherwise out of proportion to the resistance the officers faced.

The court expressly counseled that these considerations were not an exhaustive list nor a multi-pronged test.

Turning to whether the force used was reasonable, the court concluded Evans did not provide sufficient information to show that the force used to counter his physical resistance was unreasonable and, therefore, failed to meet his burden of demonstrating the execution of the search in this instance amounted to a constitutional violation.

The court further rejected outright his claim that the use of force was not authorized absent statutory authority. It stated, “[N]o legal authority or analysis supporting his premise that statutory authority is required before officers may use reasonable force in executing a search warrant.”

 

State v. Goddard

View full case >>>

Investigatory stop, search, and interrogation. Two officers on patrol in a high-drug-use area saw Goddard hunched over some twist wrappers. The officer suspected the twists belonged to Goddard because they were directly in front of him, close enough for him to reach, and were not soiled with dirt. Moreover, the closest people were approximately 30 feet away. When the officer approached Goddard, he stood up and attempted to leave, so the officer initiated a Terry stop. Goddard acted nervous and reached to put his hand inside his coat. One of the officers asked Goddard whether he had any weapons, and Goddard told them he had a gun in his left coat pocket. The officers told Goddard to stop and put his hands above his head when he moved his hand toward that area. One of the officers reached into Goddard’s left coat pocket and retrieved a handgun. When the officers asked if Goddard had a concealed weapon permit, he admitted he did not. After giving Goddard Miranda warnings, the officers arrested him.

Goddard moved to suppress the firearm and his statements, arguing the officers lacked reasonable suspicion to conduct a Terry stop, frisked him without reasonable suspicion he was armed and dangerous, and interrogated him prior to informing him of his Miranda rights. The district court denied the motion, and Goddard appealed.

The Utah Court of Appeals affirmed the district court’s rulings. Concluding the district court’s factual findings were not clearly erroneous, the court concluded the officers had reasonable suspicion to stop and detain Goddard to investigate possible drug activity based on the location of the area, the proximity, and physical condition of the twists, and Goddard’s actions. More importantly, it announced the rule that officers are not required to have reasonable suspicion of each element of a specific statutorily defined crime for a Terry stop, as opposed to general criminal activity.

Addressing the gun seizure, the court concluded that “when Goddard reached toward the inside of his coat, subsequently admitted that he had a gun in his left coat pocket, and then moved his hand toward that pocket again, the officers had reasonable suspicion that Goddard was both armed and dangerous.” Addressing the what constituted “dangerous,” the court explained, “A detained suspect reaching toward a known firearm provides an officer with an objectively reasonable basis to believe that the suspect intends to use that weapon and therefore poses a danger to the officers.”

Finally, analyzing the interrogation argument that Goddard was entitled to Miranda warnings before being asked if he had a firearm and whether he had a concealed weapon permit, the court explained Goddard was not in custody when the officers asked those questions and was therefore not entitled to Miranda warnings. The court explained:

  1. Goddard was stopped in a public alley in full view of other people, and not in a coercive environment, such as a police station;
  2. The detention was “remarkably brief,” lasted only long enough for the officers to ask Goddard for identification, whether he was armed, and if he had a concealed carry permit;
  3. Goddard was not handcuffed, placed in a patrol vehicle, or told he was under arrest before he was questioned about the firearm;
  4. The officers did not draw weapons or employ any other physical force, threats, or coercion.

 

State v. Hoffman

View full case >>>

Search and seizure of cell phone. In this case, the Utah Court of Appeals ruled that a warrant authorizing officers to search a cell phone for “data to include, but not limited to photographs, videos, text message, and memory SD card(s),” standing along, could be overbroad. However, coupled with clear language that the warrants authorizing the search for “evidence of the crime or crimes of Sexual Exploitation of a Minor, and Voyeurism,” the warrant was sufficiently limited in scope to authorize only a search of items that might contain child pornography. This is particularly true “when child pornography is at issue” because “purveyors of child pornography might mislabel files to cloak their contents or hide them to avoid discovery,” thereby necessitating broad and thorough searches.

The court also ruled that probable cause had not dissipated at the time the warrant was executed merely because new information was learned in the interim. Indeed, the court ruled the new information must be material to the probable cause determination, and the material change in facts “serv[ed] to dissipate probable cause.” The court, however, cautioned:

[O]fficers would be wise—especially in cases not involving exigent circumstances—to return to the magistrate for a reassessment of probable cause anytime a new piece of information might make a difference to the probable cause calculus. In our current electronic age, officers can obtain the input of a magistrate relatively quickly.

The court further explained:

[I]f officers deem the new information immaterial and therefore decide not to return to the magistrate for a reassessment of probable cause prior to execution of the warrant, they run the risk that a reviewing court might later disagree with their assessment, conclude that the new information was material after all, and suppress the evidence discovered upon execution of the warrant.

 

United States v. Butler

View full case >>>

Stop, investigative detention. Defendant Butler was convicted of multiple drug-related offenses after troopers found large quantities of controlled substances concealed in a car he was transporting on his flatbed tow truck. He appealed the district court’s denial of his motion to suppress evidence found during the traffic stop. The district court denied the motion, concluding the trooper who stopped him had reasonable suspicion Butler was engaged in illegal activity, and the trooper had legal authority to direct Butler to the point of entry to conduct a Level 1 commercial vehicle inspection. The district court held that the timing of the deployment of the drug-sniffing dog under the circumstances did not prolong the Level 1 inspection. It also explained the trooper had reasonable suspicion to investigate illegal activity based on the following:

  1. The lack of a bill of lading for the car being towed;
  2. Butler’s inconsistent and non-credible explanations for not possessing the necessary paperwork;
  3. The absence of a logbook and documentation of operating authority for the tow truck;
  4. Butler’s travel history and plans, including the compressed timeline of his reported travel route in light of his duty-hour limit, his lack of knowledge regarding his destination in Nebraska, and his presence on I-80 rather than the more direct route between Denver and Nebraska;
  5. Butler’s evasiveness when asked for further information about his customer;
  6. The unlikelihood that someone would pay the high cost of hauling a salvage vehicle hundreds of miles from one state to another on a single-car commercial tow truck;
  7. The unlikelihood that a salvage vehicle titled in Rio Linda, California, would end up in Denver and be transported by Butler, whose hometown is also Rio Linda;
  8. Butler’s possession of an unexecuted title for the Ford Fusion, which the trooper testified was uncommon based on his prior experience with traffic stops, car carriers, and the salvage industry;
  9. The removal of only the rear license plate from the Ford Fusion, suggesting a desire to prevent license plate readers from checking the vehicle’s registration;
  10. The presence of a thick layer of dirt and grime on the Ford Fusion, including both windshields; and
  11. Butler being on federal supervised release for prior drug crimes.

 

United States v. Fernandez

View full case >>>

Warrantless search and seizure of abandoned property.  The Tenth Circuit Court of Appeals affirmed the district court’s denial of a motion to suppress evidence of drugs found in Mr. Fernandez’s duffel bag while traveling on a bus. The court agreed with the district court that Mr. Fernandez had abandoned his bag because when the agent who questioned him asked if the bag was his, Mr. Fernandez thrice “clearly and unambiguously” responded he did not have any luggage with him. That, the court held, coupled with the fact “Mr. Fernandez was trying to disassociate himself from the bag physically distancing himself from it, established Mr. Fernandez had abandoned any objectively reasonable expectation of privacy in the bag. Therefore the agent did not violate any privacy interest when he removed the bag from a rack in the bus and carried it up the bus aisle, which by its weight led the agent to suspect it contained evidence of drug trafficking.

The court further rejected Mr. Fernandez’s argument that abandonment could not be inferred since he was not asked specifically about the bag containing methamphetamine, only if he had any luggage in general. The court stated, “When Mr. Fernandez said that he did not have any luggage, it was more than reasonable for Agent Perry to infer that there was no luggage on the bus being claimed by Mr. Fernandez.”

 

United States v. Gates

View full case >>>

Consensual stop and development of reasonable suspicion for detention. An officer saw Gates near a coin machine at a car wash with no vehicle around. When Gates saw the officer, he tried to duck out of sight, then climb a retaining wall and run across the street. The officer activated his spotlight but not his overheads, pulled alongside Gates as Gates walked along down the sidewalk, and asked Gates for an explanation about what he was doing at the car wash. Gates responded by moving away, during which time the officer saw a bulge in Gates’s waist area. In response, the officer exited his car and instructed Gates to “come here.” Gates attempted to flee in response. The officer deployed his taser and ultimately captured Gates and found a loaded .44 revolver where the officer saw the bulge. Gates was a convicted felon and was charged with unlawfully possessing the firearm and ammunition. The district court conducted a suppression hearing and denied Gates’s motion. He appealed.

The Tenth Circuit Court of Appeals affirmed the district court’s ruling. It concluded the totality of the circumstances established Gates was not seized until the officer told him to “come here.” It based its conclusion on the following factors:

  1. When the officer first approached and inquired about Gates’s presence at the carwash, the officer was the only officer present;
  2. He remained in his patrol car;
  3. He spoke to Gates from a distance and was not in a position to restrain Gates;
  4. He did not display a weapon;
  5. He did not give Gates any commands or order him to take, or refrain from, any action;
  6. He did not activate his overhead lights;
  7. The interaction occurred on a public street;
  8. He asked a single question to obtain information without “lobbing any direct accusations at Mr. Gates, no less a series of accusatory or intrusive questions.”

The court went on to conclude the stop became a Terry stop requiring reasonable suspicion when the officer ordered Gates to him to “come here” and deployed his taser. It further concluded the officer had reasonable suspicion to detain Gates and inquire about his presence at the carwash. It relied on the following factors in making that determination:

  1. Gates’s presence at the carwash near the coin machine at 11:00 p.m. on a cold March night with snow on the ground and nothing around to wash was suspicious;
  2. Gates’s “evasive moves” when he saw the officer.

The officer’s observation of a bulge on Mr. Gates’s waistline further justifiably heightened the officer’s suspicions “that criminal activity was afoot,” justifying the detention.

 

United States v. Komsonekeo

View full case >>>

Traffic stop extension, reasonable suspicion. A highway patrol trooper stopped the defendant for speeding. While conducting the stop, the trooper saw suspicious items in the vehicle including

a potent air freshener, numerous energy drinks, and multiple cell phones. The defendant was also overly nervous and gave “abnormal and inconsistent responses” when asked about his travel plans. These circumstances led the trooper to suspect the defendant was engaged in criminal activity and ask for consent to search the vehicle. When the defendant declined, the trooper requested a drug dog. The dog alerted to the passenger side of the vehicle, leading the trooper to perform a “probable cause search” of the vehicle, during which he found two firearms and a large amount of cash in the trunk. The defendant was indicted on one count of being a felon in possession of a firearm and moved to suppress the inculpatory evidence, arguing the officer unlawfully prolonged the stop without reasonable suspicion to permit the K9 sniff. The district court denied the motion, and the defendant appealed.

The Tenth Circuit Court of Appeals affirmed. It summarized, “Although the above factors – abnormal nervousness, a strong odor of air freshener, multiple cell phones, implausible travel plans, and internally inconsistent statements – may not independently provide reasonable suspicion of criminal activity, taken as a whole they establish reasonable suspicion supporting Defendant’s extended detention.”

 

United States v. Palms

View full case >>>

Search and seizure of cell phone.  The Tenth Circuit Court of Appeals ruled in this case that a search warrant that did not particularly describe items on the phone to be seized – such as text message, emails, photos, or the like – but limited the search and seizure to evidence of “the crime of human trafficking” was sufficiently specific to satisfy the Fourth Amendment’s particularity requirement. The court reasoned that the governing state statute labeled the underlying crime as “human trafficking” and did not distinguish between sex trafficking, labor trafficking, or any other kind of trafficking. The court also concluded that a complete download of the phone, as opposed to limited file extraction, was not overly broad because the officer testified he was unable to perform a more limited file extraction based on phone or carrier settings, and he believed other agencies were limited to the same extraction options. Finally, the court ruled the search of the entire phone was reasonable because the officer limited his search of the extracted data to the time period after the suspect met the victim, and he moved quickly on when he came across information not potentially relevant to human trafficking, including attorney-client communications.

Salt Lake City Business Lawyer & Litigation Attorney Heather White

Heather S. White