Section 1983 - How can we limit its impact on officers?

Section 1983 is having a serious impact on pocketbooks of officers, their departments -- and their taxpayers.

We need to limit its impact by getting Congress to pass an amendment requiring some malicious or wanton and willful state of mind by the officer in order for the plaintiff -- and his attorney -- to collect for constitutional torts.

In many states the impact of common law torts have been greatly mitigated by state legislatures requiring some relatively high level of either bad conduct or bad intentions by the officer who are sued. Many states, for example, require that the plaintiff prove that the act of the officer must be "wanton and willful" in order to create a cause of action for a plaintiff.

I think that if officers could get the American people and Congress to understand the cost of these 1983 law suits -- and that THEY -- the citizens -- are paying for them, they will be happy to support legislation limiting 1983 actions.

If you are interested in getting involved in this fight, please let me know at my e-mail -- DAA2000@aol.com

Gant -- The biggest case at the USSC for this term

Well, I guess it's almost official. The United States Supreme Court should decide Arizona v Gant this year.

This case will probably have the biggest affect on law enforcement of any other case, especially if the Court rules in favor of Gant.

Here's a little background --

The vast majority of states have interpreted New York v Belton to mean that officers can search the passenger compartment of vehicles incident to a valid custodial arrest even if the arrestee is handcuffed and in the back seat of the patrol car.

The Arizona Supreme Court in Gant held that officers may not search the arrestee's vehicle once the arrestee is placed in the patrol car as at that time the arrestee has no reasonable liklihood of gaining access to his vehicle and procuring a weapon or destroying any evidence.

Although the Arizona decision makes some sense -- as the reason for the search is to avoid the problem of arrestees lunging for a weapon or to destroy evidence -- the United States Supreme Court -- and most state supreme courts -- have determined previously that officers should not have to endanger themselves by letting an arrestee remain near the arrestee's vehicle while the officers search it. Obviously, if offficers wanted to take such risks, they could (and once did) complete such searches. In other words, if the officers could have searched the vehicles moments before, why should they lose that ability simply because they want to protect themselves?

Unfortunately, a number of Supreme Court Justices have recently voiced their distaste for this "bright-line rule" giving officers this "free" search -- and have suggested that such searches should be unconstitutional.

One such Justice is Scalia, a Justice who is very conservative -- and normally on the side of officers.

He stated in the recent Thornton case that he saw no reason to permit officers to search vehicles once the arrestee was safely tucked away in the officer's vehicle. You can bet that there are at least three (hopefully not four) other justices who feel the same! One thing you can be pretty sure of -- This will be a 5-4 decision -- one way or the other.

I am not sure when this case will be accepted for cert or argued -- but I noticed some law enforcement organizations have filed amicus (friend of the Court) briefs in favor of reversal. These briefs simply tell the court how important this decision is for law enforcement.

I will keep you apprised of the progress of this case on this blog -- so check back.

Until then -- unless you are in Arizona -- you can still search the passenger compartment and closed containers therein incident to the lawful custodial arrest of an occupant of the vehicle.

Vehicles -- Consent Searches

Officers in Illinois have been confused about their power to ask for consent to search a vehicle for the past several years as there have been a series of cases seeming to permit the power and then take it away.

One thing is sure -- if an officer has reasonable suspicion, he /she may ask for consent. That has always been the case. However, in most states it is constitutional to seek consent without reasonable suspicion.

Since the Illinois Supreme Court case of People v Gonzalez a few years ago, officers have been given signs on many occasions that possibly it is ok to seek consent and search as long as the search takes no longer than it would take to write the ticket(s). This inference has been drawn from United States Supreme Court cases where that Court has reversed the Illinois Supreme Court ruling that officers may not have a dog sniff the vehicle of a traffic offender (CABELLES) and that officers may not "run" a passenger (HARRIS) even when these can be accomplished within the time of a traffic stop.

In other words the USSC has held that bringing out a dog, running passengers (and probably seeking consent) are constitutional as long as they can be accomplished within the time it takes to conduct a traffic stop.

Now we have some Illinois Court of Appeals cases that will confuse officers even more.

First, People v Starnes, which I discussed in another blog -- the court said it was ok to seek consent.

Now, in a very recent case (Halloween of 2007), the court of appeals, People v Roa, implies that officers must have reasonable suspicion to seek consent.

However, the reasonable suspicion in this case seems a bit thin. In Roa, the officer who had stopped thousands of vehicles as an interdiction specialist, noticed that the driver was unusually nervous and had new air freshener.

The court ruled that the consent search was constitutional because there was reasonable suspicion for the search.

There was a strong dissenting opinion in the case that nervousness and an air freshener have never before been sufficient to provide reasonable suspicion.

So we can "suspect" that this case will be appealed to the Illinois Supreme Court. Hopefully, the Supreme Court will decide whether reasonable suspicion is still required to seek consent.

In my opinion, officers should always be able to articulate SOME suspicion before seeking consent anyway. Again, in my opinion, one of the reasonas why the court began requiring reasonable suspicion to seek consent was that some officers were getting bad publicity in the media for seeking consent to search virtually every car they stopped.

There is lots more information on consent searches in the Illinois Legal Source Book.

Force when using tasers -- How much us too much?

"Reasonable Force" and Tasers

Recently there has been a spate of controversy over tasers -- check out Youtube.com and do a search for tasers. Also, almost daily there is another story in the news about somebody getting tased -- with a video for graphic exaggeration.

Most citizens believe that officers do not need to use force -- or as much force as they use -- to subdue suspects. This is primarily a result of media bias against the the device.

The recent case of the student dissident at the John Kerry speech is a classic example. (Again, check this out on Youtube.)

Here is a brief summary of what occurred. The student asks Kerry a series of questions. Apparently, the student takes too much time -- and then someone cuts off his microphone. Officers then step in to escort the student from the premises -- or arrest him (it is not clear to me which). The student, sort of passively resists. He then begins yelling for help. The student will not put his hands behind his back, so the officers tase him. The student then screams in pain. The student then is cuffed and the officers escort him out of the building.

Most officers who watch this believe the force is reasonable. Most citizens believe that it is excessive.

When these cases have been tried, most jurors tend to side with officers -- as experts for the defense testify that tasing is a lot safer than trying to physically subdue a suspect -- and that the pain induced by the taser is not dangerous -- and only temporary in order to gain compliance.

Which brings me to my final point. Force used to subdue suspects must be "reasonable." Courts and juries normally bend over backwards to try to see it from the officer's point of view. But the media is hurting officers here -- and many in society now believe that tasing suspects -- except for aggressive resistance -- is excessive.

We have not not heard the final word on this. So until we do, I would suggest that officers should be careful about using a taser during the passive resistance of a suspect.