Summary Judgement on Unlawful Arrest, Excessive Force Claims Properly Denied to Officers

Morris v. Noe, -- F.3d --, 2012 WL 604170 (10th Cir. 2/27/12) (OK) - A 42 USC § 1983 civil rights case holding the district court properly denied summary judgment based on qualified immunity to defendant police officer who threw Morris to the ground, severely injuring him, despite the fact Morris presented no threat to officer safety and had not engaged in suspicious activity. An unreasonable level of force transforms a Terry detention into an arrest requiring probable cause. Here because Morris was unarmed and did not threaten anyone, the officer could not have reasonably believed there was probable cause to arrest Morris for assault. The officer had no reason to arrest Morris for any offense. And because Morris posed no threat to the officer or anyone else and did not resist or flee, Morris had a clearly established right to be free from a forceful takedown. Thus, the police officer defendant was not entitled to qualified immunity on either the unlawful arrest or excessive force claim.

1988 Sentences Finally Corrected

US v. Williams, 2012 WL 560071, No. 10-6290 (10th Cir. 2/22/12) (unpublished): Ms. Williams is finally going to get her illegal sentence for Travel Act convictions, which was imposed in 1988, reduced under the 1985 version of Fed.R.Crim.P. 35. She was sentenced under the guidelines for pre-guidelines offenses, and that was wrong. The district court was ordered to correct her sentence asap.

Court Considers Invocation of Right to Dispense with Counsel

US v. Loya-Rodriguez, 2012 WL 561050, No. 11-1051 (10th Cir. 2/22/12) (published): Mr. Loya-Rodriguez did not clearly and unequivocally invoke his right to represent himself at his trial for illegal reentry, even though he constantly rejected his appointed counsel’s services and sent a letter to the district court before trial. It was reasonable for the district court to conclude, in light of Mr. Loya’s initial request for appointed counsel, that his unwillingness to cooperate with his attorney was a different matter from a desire to represent himself. The letter could also be fairly read as expressing frustration with his attorney, not a request to do without counsel altogether. However, he did explicitly ask to represent himself at sentencing, when, in a letter delivered a month before sentencing, he said, “All I’m asking you is to let me represent myself. I don’t need no attorney, or legal representation.” Defendant gets a new sentencing proceeding, presumably pro se.

Drug, Gun Convictions Affirmed

US v. McGehee, No. 11-3068 (10th Cir. 2/22/12) (published): Defendant convicted of drug-trafficking and firearms offenses. Conviction and sentence affirmed. Traffic stop was reasonable under the 4th Amendment where the officer initially observed the car parked illegally but car was parked legally when he walked up to. The ensuing detention was not unlawful where the officer had reasonable suspicion of other criminal activity, including the smell of PCP and the observation of a bottle of vanilla extract, which apparently is commonly used to hold PCP, and Mr. McGehee kicking a gun under his seat. Thus, the motion to suppress was properly denied.

There was sufficient evidence to support the conviction for possession of a firearm in connection with a drug-trafficking offense, based on the companion conviction for PWID cocaine, the type of gun, the fact it was loaded, and the fact that it was in close proximity to the drugs.

Defendant had waived his argument regarding the denial of the adjustment for acceptance of responsibility because his counsel affirmatively stated he had no objection to the guideline calculations in the PSR and thus his request was properly treated as a request for a variance rather than as an objection to the procedural application of USSG § 3E1.1.

13-year-old Transaction Properly Considered Relevant Conduct

US v. Damato, 2012 WL 561018, No. 10-3191 (10th Cir. 2/22/12) (published): Mr. Damato appealed the inclusion as relevant conduct of drugs involved in a drug transaction that occurred 13 years before the offense of conviction. The Tenth broadly discusses relevant conduct for purposes of the guidelines. The government argued only that the transaction was part of the “same course of conduct” as the offense of conviction under USSG § 1B1.3(a)(2). The Court says no, the gap was too great and there was no strong evidence of similarity or regularity. However, on its own, the Court says that the prior transaction qualifies as relevant conduct because it was part of a “common scheme or plan” featuring common co-conspirators who worked together to receive drugs from SoCal. The Court’s opening for this holding was that the defendant acknowledged in his opening brief that the district court failed to identify which theory it had applied. In that situation apparently, the district court can be right for any reason. In other issues, the sentencing court properly found Damato was a leader/organizer, and the sentence was reasonable.

A few 10th Circuit cases:

U.S. v. West, 2012 WL 4456488 (2/14/12) (Kan.) (Published) - The 10th interprets 21 U.S.C. 860(e)(1)'s definition of "playground": "an outdoor public facility containing three or more separate apparatus intended for the recreation of children including, but not limited to, sliding boards, swingsets, and teeterboards." The principle of ejusdem generis does not apply to this definition to restrict the relevant apparatus to only equipment that are like slides, etc.. The phrase "including, but not limited to" and the fact that the specific items followed, not preceded, the general term, indicates that principle does not apply. Plus, Congress did not intend to narrow the definition of "children" from people under 18 to those young enough to play on slides, etc. At a minimum the baseball field with a backstop qualified as an apparatus. So together with a jungle gym and a swingset, there was sufficient evidence of a playground within 1,000 feet of the drug activity. Judge Lucero concurred in the judgment. He saw no need to hold ejusdem generis did not apply. An application of that doctrine would lead to the conclusion a baseball backstop was like the other named apparatus in relevant respects.

U.S. v. Coulter, 2012 WL 453642 (2/14/12) (Okl.) (unpub'd) - 4th Amendment decision by Judge Gorsuch. Officers cruised a neighborhood in an unmarked pickup to keep an eye on a house in a cul de sac. The defendant, who was outside talking on a cell phone, got upset and made a gesture as though he was flagging the truck down. The officers confronted the defendant, identifying themselves and asking what he meant by the gestures. He said he didn't have to talk with them and refused to honor their request that he finish his phone call. An officer tried to grab the phone, the defendant drew it back, the officer escorted the defendant to the ground and handcuffed him. In response to their questions, the defendant indicated his girlfriend was in the house. The girlfriend answered an officer's knock, was initially "verbally aggressive" and then calmed down. The officer asked for an ID. She went to get it in the house. An officer explained he did not want her to go in the house alone. She looked back at the officer, but kept walking. She gave no indication she didn't want the officer to follow her. So he did, right into the house where he saw drugs and eventually a gun.
The treatment of the defendant is totally irrelevant. His detention did not set in motion the chain of events leading to the evidence of illegal activity. The defendant had flagged down the truck in a manner suggesting a need for help or a wish for confrontation [because a pickup was casing the area]. That and his refusal to speak and the sighting of a woman exiting the home earlier would have prompted the officers to see if anyone was home regardless of the detention. The officers needed to see if anyone needed help in the house or if the defendant had backup while they resolved the conflict. It was the defendant's refusal to explain himself [a constitutional right], not his detention, that created an ambiguous situation the officers had to investigate. The girlfriend consented to the officers' entry by silence and acquiescence. A reasonable officer would interpret the girlfriend's actions as allowing the officer to follow. And, of course, a reasonable officer would not think she felt she had no choice in the matter.

U.S. v. Lewis, 2012 WL 503859 (2/16/12) (Col.) (unpub'd) - The d. ct. plainly erred in violation of Tapia when it explained its sentence was meant "to provide the defendant with an opportunity for rehabilitation both in and out of prison." But the defendant did not prove the error made any difference as to the length of his sentence because the d .ct. made the problematic statement as part of a sort-of boilerplate discussion at the tail end of the announcement of the sentence.

U.S. v. Jordan, 2012 WL 476491 (2/15/12) (Col.) (unpub'd) - The habeas petitioner was not entitled to equitable tolling where his attorney abandoned him 2 weeks before the AEDPA deadline. He managed to file the petition timely anyway. But because of the time limit, he was not allowed to amend the petition after the deadline passed to add issues that did not relate back to the issues he raised in the original timely petition. The petitioner could not prevail on his claim that counsel should have presented a certain witness because the petitioner only alleged what the witness would say, but did not supply an affidavit or other competent evidence establishing what the witness would have said if called to testify.

Myers v. Koopman, 2012 WL 453632 (2/14/12) (Col.) (unpub'd) - An officer was not immune from § 1983 lawsuit for malicious prosecution. Not even a prosecutor would be immune from suit for falsifying information in affidavits and giving false testimony at a preliminary hearing.

U.S. v. Strandlof, 2012 WL 247995 (1/27/12) (Col.) (Published) - The 10th elects to decide an issue with lengthy opinions by the majority and the dissent on an issue the S. Ct. will decide by this June in U.S. v. Alvarez, 2011 WL 3626544 (U.S. 10/17/11): whether the Stolen Valor Act, which prohibits making false claims about receiving military honors, violates the First Amendment. The 10th's explanation for why it is going to the trouble of reaching a decision when the S. Ct. will soon render it irrelevant is: "We've always done it this way," "Our practice as a court has been to decide cases that are ripe even while parallel cases are under review by the S. Ct." The 10th didn't explain why that practice made sense. In any event, the next time you hear a court express concern for the waste of judicial resources, remember this case.
The majority holds that knowingly false statements are not constitutionally protected in and of themselves. A law regulating such statements is unconstitutional only if it unduly chills speech that matters, i.e., it is so suffocating as to afford inadequate breathing space for constitutionally valuable speech. The majority felt there was almost no danger anyone would suppress constitutionally valuable speech to avoid punishment under the Act, which the 10th interprets to require an intent to deceive. Making false claims about military medals does not contribute to any conceivable public debate. A person is very unlikely to mistakenly claim to have been awarded a medal and the accuracy of any such statements is objectively verifiable. And, in any event, it reaches no farther than necessary to protect the legitimate interest involved. Dissenting Judge Holmes believed the government can only suppress knowingly false statements if they cause, or pose a significant risk of causing, injury. The Stolen Valor Act unconstitutionally prohibits statements that cause no injury, such as "grandpa bragging at the kitchen table about his war exploits."

U.S. v. Enriquez, 2012 WL 247961 (1/27/12) (N.M.) (unpub'd) - This case involves the co-defendant of a woman who was acquitted. The 10th finds it was just fine for the d. ct. to admit 404(b) evidence that Ms. Enriquez was found driving a green Excursion that had unusual smudges in the dust inside the car's rear quarter panels to which a drug dog had alerted, where no actual drugs were found. [10 grams of cocaine was found elsewhere in the car]. Ms. Enriquez was on trial for being a passenger in a blue Excursion 8 months later in which a bunch of marijuana was found in the gas tank. The 10th stressed how easy it should be to get evidence in through 404(b) and that Rule 403 should be used sparingly. In this case, the evidence showed Ms. Enriquez knew about the marijuana.

Hernandez v. Story, 2012 WL 207059 (1/25/12) (N.M.) (unpub'd) - Probable cause can be negated by information unlawfully disregarded by officers. But the disregarded evidence here did not negate probable cause.

Secsys, LLC v. Vigil, 2012 WL 171876 (1/23/12) (N.M.) (Published) - A firm's equal protection rights were not violated when it lost out on a bid for a state contract because state treasurer Robert Vigil awarded the contract to someone who was willing to give a certain woman a job on the terms she wanted. An intent to discriminate is required to establish such a violation. Here there was no such intent, only an intent to further Mr. Vigil's political career.