Impounding Vehicles and Section 1983

Two cases -- one a 9th Circuit case (jurisdiction - Arizona) -- and the other a 7th Circuit case / district court case (jurisdiction - Illinois) are representative of the movement of the federal courts to deter impoundment of vehicles for relatively minor traffic offenses based upon 4th Amendment violations.

Both cases begin with terrible facts which tick off the courts (and juries).

About 5 years ago there was a case, Miranda v Cornelius, where the 9th Circuit held that, basically, it's unconstitutional to tow somebody's car for "fun" even when technically there might be an ordinance supporting - or even demanding - the impoundment.

That is, the 9th Circuit held that just because the driver does not happen to have a license, police cannot tow the car when it is safely parked on the owners' driveway.

No officer in this country could have created worse facts than in Miranda to start this snowball sliding down the slippery slope of disaster for officers all over the country.

So here goes. An officer sees a car being driven very slowly and uncertainly in a residential area. The officer, believing that the driver was impaired, decided to stop the car.

After the officer turned on his lights, the driver pulled onto a driveway.

The officer soon learned that the driver was an old lady, Mrs Miranda, being taught by her husband to drive. The husband, who was a passenger, was licensed, had a registration and was insured.

The officer "threw the book" at both Mirandas -- giving them both tickets -- and having the car towed under an ordinance authorized by statute that permitted the tow if the driver was unlicensed.

The 9th Circuit ruled the seizure of the vehicle to be unconstitutional because it did not "fit" the community caretaking doctrine (or any other exception to the warrant requirement).

I need to make a couple of important comments here --

1. The federal courts don't give a (pardon my french) _ _ _ _ about statute or an ordinance that runs contrary to a constitutional principle. The general rule here is that officers can (almost) never use an ordinance or state statute to defend against a Section 1983 action.

2. The 9th Circuit can be a bit wacky - but it is very influential as it is the jurisdictional / power center for the entire west coast (including AZ, e.g.). When another federal court in the country (like the 7th Circuit in Illinois) runs into a legal issue, they will often have to resort to the cae law of the 9th Circuit as the 9th Circuit will have often already decided the issue as that court decides many more legal questions than any other jurisdiction because of its size.

So that brings me to a recent ILLINOIS case, Harrington v Harvey, where the Federal District Court relied on Miranda to decide a similar issue.

Here are the facts of that case - Harrington's son, Jeffrey, was driving the parents' car and was stopped for speeding.

Because Jeffrey did not have a valid license -- as he had failed to renew it -- the officer decided to issue two tickets, and tow the car, based on a local ordinance.

During the stop, Jeffrey's parents showed up and begged the officer to turn the car over to them. The officer responded that he couldn't do that.

Mrs. Harrington sued the officer under Section 1983.

The District Court ruled that the plaintiff must be awarded damages and reasonable attorneys fees. One of the cases relied upon in the decision was the Miranda case, above.

The problem is that the court doesn't really explain any in detail justification for impoundment during a traffic stop except community caretaking.

These are very dangerous precedents for all communities in Illinois and Arizona.

I have warned officers in my seminars for the past 10 years -- be very careful about impounding vehicles if the vehicle is lawfully parked and / or there is a licensed, sober person there to whom the offender wishes to give the keys.

Some officers will be caught between an ordinance that REQUIRES towing and the Constitution, which forbids it -- which are you going to obey???

Best -

DA

The Impact of MONTEJO AND SHATZER on state case law

Q: Yes, officers are reading this information. Does Montejo v Louisiana USS CT 2009 have an impact on Maryland v Shatzer or People V Lira? I thoroughly enjoyed your class and highly recommend it to ALL sworn officers. Too many officers fail to continue to learn and grow in this area. Thank you for all your input, advice and feedback you give to law enforcement around the country.


A: Thanks.
First off -- I always thought the Lira case was great in theory but total nutty in reality. But as looked around I saw more and more cases where courts were opining that the 6th amendment was case specific but the 5th amendment was not. Lira, an Illinois Court of Appeals case ruled that once a suspect asserts his
5th Amendment right to an attorney, no officer from any jurisdiction can approach him to ask any questions -- about ANY case. This is even if the officer has no idea that the suspect has asserted his right to an attorney. SHATZER, below, would impact this ruling -- but MONTEJO, below, would not.

MONTEJO is actually a 6th amendment case that says a suspect can waive his 6th amendment right to an attorney unless he has previously asserted that right at the initial appearance (or some other critical proceeding / formal proceeding).

SHATZER is a 5th amendment case that says that once a suspect has asserted his 5th amendment right to an attorney an officer may normally go back to see if he has changed his mind if the officer waits two weeks (14 days).

Note: If a suspect asserts his 5th Amendment right to remain silent an officer may normally return in an hour or so and see if he has changed his mind.

Best -

DA

What is impact of MONTEJO AND SHATZER

First off -- I always thought the Lira case was great in theory but total nutty in reality. But as looked around I saw more and more cases where courts were opining that the 6th amendment was case specific but the 5th amendment was not.

Lira, an Illinois Court of Appeals case ruled that once a suspect asserts his 5th Amendment right to an attorney, no officer from any jurisdiction can approach him to ask any questions -- about ANY case. This is even if the officer has no idea that the suspect has asserted his right to an attorney. SHATZER, below, would impact this ruling -- but MONTEJO, below, would not.

MONTEJO is actually a 6th amendment case that says a suspect can waive his 6th amendment right to an attorney unless he has previously asserted that right at the initial appearance (or some other critical proceeding / formal proceeding).

SHATZER is a 5th amendment case that says that once a suspect has asserted his 5th amendment right to an attorney an officer may normally go back to see if he has changed his mind if the officer waits two weeks (14 days).

Note: If a suspect asserts his 5th Amendment right to remain silent an officer may normally return in an hour or so and see if he has changed his mind.

Best -

DA

What courts do officers have to pay attention to??

A really good officer / friend of mine once told me that officers are never told about jurisdiction within the court system -- and so, never know what cases govern their conduct.

Officers send me cases from Connecticut, etc. all the time, asking me about the law. I tell them to be careful about following case law from other "jurisdictions."

So here is the short - long answer.

The most important cases, most of the time, are the USSC opinions as those cases create the rules you have to follow.

The Illinois (Arizona) Supreme Court and Illinois (Arizona) Court of Appeals cases are the stories / facts of cases where the state courts explain how the facts of the case in front of them / at bar fit the rules of the US Supreme Court.

Some times the USSC has not yet created a rule for a particular circumstance -- in such cases the Illinois Supreme Court creates the rule -- a good example would be whether you can enter a home to arrest for misdemeanors -- and if so, when.?? Over and over the Illinois Supreme Court and the Illinois Court of Appeals have had to create the rules related to these types of problems (e.g. the rule related to entering noisy and / or underaged drinking parties!!!)

The trial court generally does not have the power to create rules per se that are different from the higher courts, but they do have discretion as to whom to believe. Most of the time a trial court can suppress evidence and not worry about getting reversed by just saying they believe one side or the other based on the credibility of the witnesses. But if there is a case on point, the trial court must follow the case -- as on legal issues, the courts of appeals control.

Cases generally do not get appealed from the state courts to the federal courts of appeals -- they go directly from the Illinois (Arizona) Supreme Court to the USSC.

The federal court system has the federal district court as the trial court, then the federal court of appeals and then the USSC at the top of the pyramid.

The main way officers are impacted by the federal system is if you / officers are sued under Section 1983. This is the federal statute that was enacted to permit law suits to be brought by citizens if officers / state officials violate constitutional rights of citizens.

The main cases here are USSC cases that (again) set the rules related to Section 1983 -- and the 7th (9th) Circuit Court of Appeals -- where there is an ever increasing number of cases that explain when officers can / cannot be successfully sued.

I should mention that when a court of jurisdiction is reviewing a case of "first impression" (the court has never seen the facts before -- or the law is not immediately apparent) -- the court may "borrow" from other jurisdictions that have reasoned through the problem out before. Because the 9th Circuit is much bigger than any other jurisdiction, it decides many many more cases than any other jurisdiction -- therefore the 7th Circuit some times borrows ideas from that -- and other -- circuits.

Some times the federal district courts in Illinois (Arizona) are important, but most of those important cases eventually get appealed to the 7th (9th) Circuit Court of Appeals for (sort of) final resolution. Very very rarely does the USSC take a Section 1983 action.

Clear as mud? If you have questions about this e-mail me.

Best -

DA

Officers in schools -- are they "officers" -- or not?

First, let me say something I should state as a warning in every blog about civil liability / section 1983 -- if you ever read that an officer got "qualified immunity" there is nothing wrong with feeling good for him.

But the decision is not good for you.

"Qualified immunity" means the officer violated the citizen's right(s) -- but since there was no case or doctrine on point to give the officer notice that he was violating the right, he shouldn't be punished.

Please remember that as it is very important.

The case where the officer got qualified immunity puts you / officers on notice that the officer violated the constitution, so if you do the same thing the officer did, you can be successfully sued.

In other words, that officer took the one bite of the apple.

Now to make a short story long about an interesting new case --

This is mainly an Arizona / 9th Circuit type case -- but for many reasons (which I will not go into now), I think this is an important case for all officers as this case does represent a trend IMO --

Here are the facts --
Officers had very good reason (maybe even PC) to believe that a man, Nimrod (what a name!) Greene, was a child molester.

The child protective case worker, and an officer, went to the elementary school where Greene's daughter attended. They took the child from class and questioned her for two hours. The child denied the allegations for about and hour -- then admitted that they were true. The case worker then took the child for a medical exam.

Here is the ruling --
The 9th Circuit ruled that when non-school, government officials (i.e. police and case workers) take people from class and put them in a room, that is a seizure under the 4th Amendment.

The court held that officers / the case workers must have a warrant / court order, exigency, emergency, or the parent's consent to seize a child in this circumstance. In this case there was no exigency / emergency as the case worker waited three days after notification to "seize" the child for questioning.

Both the officer and case worker got qualified immunity with respect to the fourth amendment claims in this case.

(The case worker did not get qualified immunity for requiring the medical examination without notifying the mother.)

Ok -- Here's what concerns me about this case --
Around the country, officers think that if they are just present with a teacher, or a case worker, etc, then the Fourth Amendment prohibitions do not apply in the case.

More and more courts and cases are saying that an officer's presence can create the same rules as in the case of a non-student.

In the Greene case above, the officer did nothing but observe -- but he did have a uniform and gun.

So if you are from Texas, Illinois -- or any other state, I would hesitate to be around when a student is seized or searched, unless there is the requisite suspicion / theory to search or seize a non-student in the same circumstances.

Note
The above rule (that an officer must get a court order) does not apply if an officer has reasonable suspicion or probable cause to believe that the student committed a crime.

Best -

DA