Colorado Court of Appeals People v. Cardenas 11CA1954

Decision here.

   Cardenas was pimping a 17 year old and an 18 year old.  He got caught when the 18 year old got arrested, and was convicted of pimping an adult, pimping a child, pandering a child, inducing child prostitution, and trafficking in children.

   On appeal, his conviction for trafficking in children was reversed, because that statute prohibits the sale or lease of a child, but not of a child's services. Given that he wasn't selling the girl into slavery, the statute doesn't quite apply.  His other convictions were affirmed.

Tenth Circuit Booker v. Gomez 12-1496

Decision here.

   This a qualified immunity case, so it's important to note that the court is currently resolving all factual disputes in favor of the plaintiff (Mr. Booker's estate).  It's possible that should this case eventually go to trial, the court will find that the below facts are not actually true.  On the other hand, there is video evidence in this case, and even the version of events that the defendants (that is, the officers involved) put forward doesn't look good for them.  This is ugly.

   Booker, a 56 year old man, was arrested for an FTA warrant on a drug charge.  During the booking process, he was apparently uncooperative (the defendants claim that he was cussing at them, but this fact is in dispute).  At some point, he walked away from the officer who was booking him.  She tried to grab his arm, he took a swing on her, and he missed.

   The next part is no surprise: a lot of detention officers took Booker to the ground.  So far, so good.  But during the struggle to restrain him, there were officers controlling each hand, an officer controlling his legs with nunchakus, an officer kneeling on his back (he would later estimate that 75% of his weight was on Booker, which would be more than what Booker weighs), and an officer applying a carotid neck restraint.  That officer would maintain the carotid neck restraint for about two and a half minutes, which is WAY outside of what his training guidelines allow for that technique.  

   The officers were able to handcuff Booker, but continued to maintain the neck restraint, the pressure on his back, and the control of his legs even after he was handcuffed.  While he was handcuffed and at the bottom of a pile of officers, they even called for a taser.  Booker was given an 8 second drive stun, and then carried limply and unconsciously to a cell.  

   He was unresponsive, so they checked on him about 20 seconds after leaving him in the cell.  He was dead.

   Unsurprisingly, his estate sued.  The officers tried to claim qualified immunity, which was denied.  They appealed, and now the Tenth circuit has spoken.

   Since Booker was a pre-trial detainee (already in the jail), the use of force is governed by the 14th Amendment (as a due process violation) rather than the 4th (as a seizure).  It doesn't matter that much, because the facts alleged would be excessive force under either standard, but they are different standards.  Under 4th amendment analysis, the court would consider the objective reasonableness of the force used.  Under 14th amendment analysis, the court considers: 1- the relationship between the force used and the need presented, 2- the extent of injury inflicted, and 3- the motives of the officer (that last one is not a factor in 4th amendment cases).

   Given that Booker was handcuffed, on his stomach, and not resisting (really, unable to meaningfully resist), the court held that the force used was disproportionate to the need for force.  The extend of injury in this case is death.  And the motives of the officers... for due process violations, the standard is force inspired by unwise, excessive zeal amounting to an abuse of official power that shocks the conscience, or by malice rather than mere carelessness.  So the court looks at things like holding the carotid hold for two and a half minutes, applying an 8 second drive stun to a handcuffed prisoner, and putting more weight on Booker's back than what Booker weighs while he's laying prone and completely restrained.  In light of all that, a reasonable jury could find that the defendants acted with the requisite mental state for a due process violation.

   So a constitutional violation has been shown, but in order to overcome qualified immunity the plaintiffs also have to show that the law was clearly established.  The defendants argue that since most excessive force case law relates to the 4th rather than the 14th amendment, the law was not clearly established.  The court held that since 4th amendment case law is informative as it relates to the relationship between force used and the need presented, and since the result is the same under either standard, the law here was clearly established.  Qualified immunity was denied.

   Qualified immunity was also denied (for similar reasons) on claims of supervisory liability and denial of medical care.

   This next part is important: The defendants also argued that each officer should be entitled to or denied qualified immunity separately, rather than collectively.  After all, they each used different force and some of them may not have actually used excessive force (for example, the ones who just applied the handcuffs weren't necessarily doing anything excessive.  This guy did just take a swing on one of them, and handcuffing him was entirely appropriate).  But the court was not having it.

   There are two different approaches that the court took to resolve this problem.  First, the court noted that sometimes it is appropriate to analyze the conduct of different officers together.  They were all working together towards the same objective, each participating in the overall conduct.  If the overall use of force was excessive, they each participated in and contributed to that even if some of them played a bigger part than others.

   Second (and, in my opinion, much more importantly): a law enforcement official who fails to intervene to prevent another law enforcement official’s use of excessive force may be liable under § 1983.  So even if some of the officers didn't do anything excessive themselves while restraining Booker, they also didn't do anything to stop the obviously excessive force going on right in front of them.  Their inaction makes them liable even if the actions they did take wouldn't.

Tenth Circuit US v. Fonseca 12-3325

Decision here.

   Fonseca and his girlfriend burglarized a gun shop, then drove across state lines to sell the guns for money to pay their bills.  Unsurprisingly, a lot of the money actually went to hotel rooms and drugs during their weird little vacation, which led to an argument because Fonseca didn't think his girlfriend was being responsible about the whole thing.

   So Fonseca took a bag with the last 8 guns that they had (out of 36) and set off walking on his own.  His girlfriend found a couple other people to get high with, and eventually the three of them went to go pick up Fonseca when he called to ask for a ride.

   By then, a cop was already watching Fonseca.  It was late at night and Fonseca had been walking around in an area with nothing but a lot of closed businesses, and where there had been a rash of auto burglaries.  The cop had been standing around in the parking lot, watching for anyone suspicious.  He called out to Fonseca and asked if he could talk to him.  During the stop, the officer would repeatedly ask for consent to search Fonseca, but Fonseca never agreed.

   Fonseca (who was on the phone with his girlfriend) put the bag down, walked away from it, and then spoke to the officer.  He was very emphatic on the phone about getting his girlfriend to come pick him up, and was giving sketchy answers to the officer's questions.  Fonseca's girlfriend (and the two she was with) showed up right around the time that a backup officer did, and stopped after Fonseca told her on the phone that if she sped off she'd just get pulled over.

   At Fonseca's direction, she surreptitiously picked up the bag of guns and put it in the car (one of the backup officers saw her do it, but didn't say anything about it until later because he was an FTO and his trainee had his hands full dealing with the other two suspects.  The officer who made the stop didn't see her do it, but did notice that the bag had disappeared).  When she was initially asked about it, she gave the officers a different bag (which fooled everyone except the FTO, who still didn't say anything).  

   After Fonseca had been detained for about 20 minutes, the officers found that there was a warrant for his arrest.  It was another 10 minutes before the warrant was confirmed and Fonseca was arrested.  Afterwards, the FTO finally spoke up about the bag, the girlfriend admitted to lying, and then gave consent to search the car.  The cops did search the car, and found the guns in Fonseca's bag (two of which were loaded, and all of which were traced back to the original burglary).

   Fonseca was eventually convicted of possessing stolen firearms.  He appealed his conviction, arguing that the guns should have been suppressed because they were found as the result of an illegal detention.

   To be lawful, a Terry stop must be justified at its inception and reasonably related in scope to the circumstances which justified the stop.  Fonseca acknowledged that the stop was initially justified by reasonable suspicion, but argued that when a few minutes of questioning didn't yield incriminating information then he should have been released.  After reviewing the testimony and video in this case, the court ruled that Fonseca's mannerisms, actions, and answers during the stop were all sufficiently suspicious to justify a few more minutes of detention (the court particularly seemed to notice the sketchiness of Fonseca's responses to questions, and the vanishing bag trick).  Detaining somebody while waiting for NCIC clearance isn't always reasonable, but in this case it was.  And once the officers became aware of the warrant, continuing the detention even further is a given.

   The denial of the motion to suppress was affirmed, Fonseca's conviction upheld.

Tenth Circuit US v. Mosley 13-3101

Decision here.

   Police responded to an anonymous tip that two black males were handling a gun in a black Ford Focus in a Denny's parking lot.  The first two officers to show up found only one black Ford Focus in the parking lot, and there were two black male occupants, but they didn't actually see any gun.  They ordered the occupants at gunpoint to show their hands, and the driver complied.  Mosley (the passenger) did not; he began making movements consistent with either retrieving a gun from under the seat or hiding one under the seat.

   The officers (who it seems were standing WAY to close to the car) started kicking the car to "shock" Mosley into compliance.  Eventually he did put his hands up, so they opened the door and ordered him out.  He wouldn't get out of the car, so they dragged him out and cuffed him.  Later, they checked under the seat where he had been sitting and found a gun.  Mosley was charged with being a felon in possession of a firearm.  After the district court denied his motion to suppress, Mosley entered a conditional guilty plea and appealed.

   Mosley's argument is that the police did not have justification for stopping him in the first place, and that the amount of force used during the stop converted the stop into an arrest for which the police lacked probable cause.

   One of the officers testified to a history of shootings and other crimes at that particular Denny's, and the Tenth Circuit sort of hinted that based on all of that and the anonymous tip the officers had reasonable suspicion.  But the court took a different path to actually deciding this case.  

   Someone is seized for Fourth Amendment purposes when one of two things happens: 1- the police attempt to stop them by means of a show of authority and the person submits to their authority, or 2- the police apply physical force to a person to effect the seizure.  In this case, that means that although the driver was seized when the officers started giving orders at gunpoint, Mosley was not.  Rather than put his hands up as ordered, he did the exact opposite.  By the time Mosley did put his hands up, his furtive (I'd have said threatening, but the court said furtive) movements had already provided justification for the stop even if it hadn't been justified in the first place (the court made it clear that it was not deciding that the stop wouldn't have been justified, but only assuming that for the sake of argument).

   As far as Mosley's second argument, that the amount of force used against him converted the stop to an arrest... he misses the point.  During a Terry stop, officers are permitted to use force to ensure their own safety and to "maintain the status quo" during the stop.  Under the right circumstances, that can include pointing guns at someone or forcing them to the ground.  The important question is whether the facts available to the officer at the moment of seizure (in this case, the moment where Mosley finally put his hands up) would make a reasonable person believe the action taken by police was appropriate.  Given all of the information available to the officers at the time of this stop, conducting the initial stop at gunpoint was reasonable.

   The court chose not to decide whether or not everything the police did after that (kicking the car, dragging Mosley out of the car, etc...) converted the detention to an arrest because it doesn't matter.  By then, because he had been failing to comply with lawful orders, the police had probable cause to arrest him for violating the Kansas statute for Interference With Law Enforcement.  So even if dragging Mosley to the ground converted the detention to an arrest, the arrest was justified.

   Since Mosley's Fourth Amendment rights were never violated, the gun was not the fruit of an illegal stop.  The lower court's decision was affirmed, and Mosley's conviction upheld.