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Supreme Court Rules in favor of Officers' Right to
Search Passenger Belongings, Adopting Reasoning of Rights Center Legal
Brief.
In our last bulletin, we told you about our
submission of an amicus brief to the U.S. Supreme Court in the case of
State of Wyoming v. Houghton. We were seeking to reverse a
Wyoming decision, favoring defendants in vehicular search cases. The
Wyoming court ruled that a search of a passenger's purse, found in the
back seat of a car stopped for a traffic violation and driven by a man who
had a syringe and admitted to using drugs, was unreasonable under the
Fourth Amendment. Passenger Sandra Houghton's purse contained a syringe
with 60 cc's of methamphetamine and other drug
paraphernalia.
We are glad to report that on
April 5th, the Supreme Court ruled in our favor in a 6-3 vote,
upholding the right of officers to search a passenger's personal
belongings when there is reason to believe that there is contraband or
evidence of a crime hidden in a vehicle. We argued that Wyoming's loophole
required officers to make difficult, if not impossible, choices as to
which containers in a vehicle belong to which person. Drivers and
passengers have the opportunity to transfer an item into a container or to
develop a story of who should claim its ownership. Therefore, this
loophole would have enabled those committing crimes to easily evade a
reasonable search. Justice Scalia stated that a " 'passenger's property'
rule would dramatically reduce the ability to find and seize contraband
and evidence of crime," especially as the rule "became widely
known."
NAPO's May 12, 1999, Statement to House
Judiciary Committee on High-Profile Cases
Excerpts of statement: "In recent
months, the law enforcement community has been under great scrutiny and
the subject of fervent and often unfair attack for isolated instances of
alleged police abuses by some .. officers. There has been a rush to make
sweeping conclusions of blame and unfair judgments, ignoring the
importance of the judicial process in determining the facts and imposing
punishment." While condemning proven officer wrongdoing, NAPO's
statement observed that there are adequate remedies in law to investigate
and discipline or otherwise punish such officers.
Rights Center's 1999 Legal Rights and
Legislative Seminar Was Huge Success
The National Association of Police
Organizations' Annual Legal Rights and Legislative Seminar, held in
Washington, DC, on April 24-27, 1999, at the Hyatt Regency on Capitol
Hill, was a great success.
Various topics were discussed during
the seminar, including: the perspective of an arbitrator in disciplinary
and grievance hearings, as well as interest (collective bargaining)
arbitrations; "Civilian review boards: Why do they not work? Why are
officers wary?"; "Public Safety Organization Fund-Raising: How to Protect
Your Organization"; the "U.S. Dept. of Justice, Civil Rights Division's
Pursuit of 'Pattern & Practice' cases"; "Violations of Privacy Rights
of Law Enforcement Officers"; and a 1999 update on the "Americans with
Disabilities Act (ADA)." Also covered during a legislative briefing were
updates on mandatory social security, public pensions, collective
bargaining, right to carry for law enforcement officers, law enforcement
scholarships, Police Officers' Bill of Rights, and Crime Bill/COPS
II.
Case
of Unfounded Accusations Against a Police
Officer
On February 4, 1999, the Rights Center
filed an amicus curiae brief with the California Court of Appeal
in support of a Los Angeles police officer in the case of Richard
Womack v. Susanne Greene. (In California, NAPO represents 45,400
individual active and retired officers through approximately 670 police
officer associations.)
Statement of
Facts
This brief was filed in support of Detective
Richard Womack, to uphold the Los Angeles Superior Court's jury verdict
and decision against Defendant defense counsel Susanne Greene. The jury
found that Greene's false accusations in a crowded courthouse hallway and
elevator during a recess, accusing Detective Womack of "sexually
molesting" and "doing drugs" with Cassandra Olsen, a witness in the drug
trial of Gary Dale Steward, were defamatory and harmed the plaintiff's
reputation and career. These accusations against Womack were false, and
Defendant Greene knew that they were false, because only several weeks
before Ms. Olsen told Greene that there was no truth to the statement that
Womack had molested or used drugs with Olsen. Greene had never even
mentioned this claim in court, on or off the record.
Womack's
supervisors, like all LAPD officers, are under a non-discretionary duty to
initiate an investigation upon becoming aware from any source of
allegations of officer's misconduct. Accordingly, after Greene accused
Womack of sexual molestation and participation in drug use, an LAPD
investigation was initiated.
As a result of these accusations,
Detective Womack was publicly embarrassed; he suffered a protracted period
of emotional distress, consisting of anguish, shame, shock, bitterness,
anger and worry; and his position within the Los Angeles Police Department
was compromised by the internal affairs investigation that followed. It
took well over a year for Womack to be completely vindicated of the
charge. And, even with total vindication, the permanent record of the
personnel complaint has permanently impaired Womack's effectiveness in his
career and his health. There is some question as to whether Womack will
ever be able to fully overcome the reference to this investigation in his
personnel record. Thus, these accusations impair his effectiveness as a
witness in any criminal prosecutions. As a result and with great
frustration, Womack confines himself to doing essentially clerical work as
a narcotics detective.
On July, 1, 1997, after a nearly two week
trial in the Los Angeles County Superior Court, the jury returned an
eleven-to-one verdict in favor of Womack and awarded him $300,000 in
damages, including $50,000 in punitive damages, against attorney Greene.
The judge rejected the Defendant's effort to overturn that verdict, but
did reduce the compensatory damages by $100,000. Susanne Greene appealed
that verdict, and the Rights Center seeks to have the appellate court
affirm the jury's verdict and award.
In a press release, Robert T. Scully,
NAPO's executive director said, "As a result of unfounded accusations of
criminal conduct, an officer who once enjoyed the respect, confidence and
esteem of the community and the police department, was subjected to public
contempt and ridicule and suffered humiliation, shame, and mental pain. A
Los Angeles narcotics detective was seriously harmed by these accusations.
Also, the City of Los Angeles effectively lost the expertise of an officer
who can no longer conduct major investigations, at a cost to criminal
enforcement. This fully justified the damages that the jury imposed.
Wrongfully- accused police officers must be able to clear their names and
obtain damages for injury to their reputation and careers."
Summary of the Brief's
Argument
The Rights Center urged the California Court
of Appeal to uphold the Superior Court of California's jury verdict and
court decision, rejecting Defendant Greene's attempt to invoke the
litigation privilege to bar Womack's defamation suit. In addition to the
points above, the brief argued:
A decision by the court is expected by year
end.
Right
Center Supports Law Enforcement Officers' Use of Force in Self
Defense
On March 23, 1999, the National Law
Enforcement Officers' Rights Center submitted an amicus curiae
brief with the U.S. Supreme Court in support of law enforcement officers
who are sued in civil rights cases for alleged excessive use of force. The
brief was filed in support of Sidney Trepagnier, a New Orleans, Louisiana,
police officer, who was sued for shooting a suspect, James Snyder, in
apparent self-defense after a high speed police chase. (NAPO represents
the Police Association of New Orleans.)
Facts of the
Case
James Snyder, the Petitioner, and his companion,
Todd Taylor, arrived in New Orleans on July 4, 1992, after leaving
Pennsylvania to avoid arrest for an attempted armed robbery. Before
arriving in New Orleans, they had also stolen a car and committed other
crimes. (Snyder had recently been released from prison, where he had been
incarcerated for committing a previous armed robbery.)
After the
stolen car was observed speeding and an ensuing high speed police chase on
Interstate 10, Officer Sidney Trepagnier joined the chase after the car
and Officer Valiente's police car passed at a speed of approximately 110
mph. Eventually, Trepagnier forced the car off the road.
As the
occupants leaped out and ran into a wooded and swampy area, both police
officers saw what appeared to be a small gun in Snyder's right hand. As
Officer Trepagnier chased the occupants into the woods, he heard a shot
coming from their direction. Trepagnier caught up to Snyder, who was
getting bogged down in the mud and water. As Trepagnier approached,
intending to push Snyder down with his left hand and disarm him with his
right hand, Snyder peeked around, saw Trepagnier coming, and started
turning around with an object resembling a handgun. At this point,
Trepagnier pulled his gun and fired a single shot, striking Snyder in the
back.
Snyder's weapon was never found, and Snyder contended that
he never had a weapon (although his companion testified that Snyder had a
rifle). Officers on the scene called in a dive team to find the gun. The
commander of the Marine division testified that the swampy area had a
suction effect, so that standing in the muddy water for any period of time
resulted in sinking deeper, up to waist-deep. The three officers who
searched for the Snyder weapon kept sinking lower into the mud, in fact,
so low that they were forced to give up the search as
futile.
Paralyzed from the waist down because of this shooting,
Snyder filed a federal civil rights suit for damages in court in 1992.
After a two week trial in October 1995, the jury rendered special verdicts
finding that Snyder's constitutional rights were violated because, in
retrospect, Trepagnier had used excessive force, but that he was entitled
to qualified immunity based on a reasonable belief that his actions were
appropriate. In May 1998, the Fifth Circuit Court of Appeals affirmed the
judgment for Officer Trepagnier and reversed the judgment against the City
of New Orleans. On January 18, 1999, the U.S. Supreme Court granted
review.
Summary of the Brief's Main
Points:
The brief emphasized that the court's
resolution of this case will determine, first, whether qualified immunity
is a viable doctrine, allowing law enforcement to use that force which
appears to be reasonably necessary. Second, it will determine whether an
officer still has a right to have a jury resolve factual disputes
concerning qualified immunity, as guaranteed by the Seventh Amendment of
the U.S. Constitution, a right which has been ignored by a number of
federal appellate courts.
Our brief forcefully argued that
qualified immunity serves to allow government officials, including
officers, the necessary authority to perform their job effectively. In
order to protect the public, law enforcement officers have to make rapid
decisions under dangerous circumstances that are tense, uncertain, and
rapidly evolving, and for that reason they are given substantial latitude
in determining whether and what type of force can be used. Therefore, the
reasonableness of a use of force must be judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision of
hindsight. If an officer fears liability and, as a result, is reluctant to
use the necessary force to apprehend an armed suspect or one perceived as
armed, then the officer's hesitation endangers both the officer and the
lives of others.
"Officers are often placed in dangerous situations
where they may be called upon to use deadly force. High speed pursuits of
those who have committed a traffic offense and who may be fleeing because
they have committed other crimes, the situation in this case, requires
split-second decisions. Officers must be able to draw their guns and use
them in self-defense, when they perceive the suspect as ready fire a gun
against them," said Robert T. Scully, NAPO's executive director in a
statement to the press.
Scully continued, "In diligently pursuing
their duties in good faith, officers should not have to fear harassing
litigation or monetary damages, which could cause them to freeze up.
Officers must have the right to present evidence to a jury to prove that
they had a reasonable belief that the use of deadly force under the
circumstances appeared necessary to protect them or another person, even
if it is later determined by a jury that they were mistaken and that the
force used was unreasonable and excessive."
Recent Development:
Unfortunately, after the Rights Center brief was filed and just before
oral argument, the parties settled the case for an undisclosed amount, and
the case was dismissed. Thus, these important issues remain unsettled. The
Rights Center will look for a similar case to file another brief, in order
to eventually restore the rights of officers to present evidence of
self-defense in these cases.
Update on
Recent Development in Court Challenges to the Lautenberg/Barr Amendment to
the Gun Control Act
There have been recent developments in
court challenges to the constitutionality of the Lautenberg/Barr
Amendment. This provision in the federal Gun Control Act makes law
enforcement officers subject to the disabilities of the Gun Control Act,
if convicted of a misdemeanor crime of domestic violence at any time in
the past or the future.
Unfavorable Decision by the
D.C. Circuit Court of Appeals
On April 16, 1999, the
U.S. Court of Appeals (D.C. Circuit) issued a ruling unfavorable to law
enforcement officers. Background: In August 1998, the court held in the
case of F.O.P. v. United States that the Lautenberg/Barr
Amendment was unconstitutional because it denied officers equal protection
of the law. The court ruled that the provision was unlawful because it
irrationally allowed the States to arm officers convicted of violent
felonies, while withholding this privilege from officers convicted of
domestic violence.
After another hearing, the same panel of judges
reversed its earlier decision and held that the Amendment was
constitutional. It stated that the issue had not been fully briefed by the
parties during the first hearing and that, therefore, the court had not
considered all of the arguments in favor of the Amendment the first time
around.
Accordingly, with this decision and an unfavorable
September 1998 decision from the Eleventh Circuit Court of Appeals
(Atlanta), there have been no favorable decisions for law enforcement
officers challenging this provision. We are currently awaiting a decision
from the Seventh Circuit U.S. Court of Appeals (Chicago) involving an
Indianapolis Police Officer. It will be several months before a final
decision is made whether to appeal the D.C. case to the Supreme
Court.
Status Report on Colorado
Lawsuits
On Monday, April 12, 1999, U.S. District
Judge Daniel B. Sparr dismissed three separate cases brought by three
Denver police officers and NAPO challenging the constitutionality of the
Lautenberg/Barr Amendment.
Background: In January 1999, Denver
Police Officer Alex Woods and NAPO filed a lawsuit in federal court in
Colorado to declare this provision unconstitutional and also to challenge
its application to Woods as a denial of his due process rights. The City
mistakenly interpreted federal law and fired Woods, based on its erroneous
belief that Woods could no longer carry a gun due to a misdemeanor
conviction of third degree assault in an incident three years ago. Woods,
who otherwise holds an exemplary record as a police officer, had never
been convicted of domestic violence because the victim in this incident, a
former girlfriend at that time, was not in an intimate spousal
relationship with him, one of the law's requirements.
Thereafter, a
second lawsuit was filed by Denver Police Officer Jim Ward and NAPO. Ward
had been denied his right to a jury trial, notwithstanding the requirement
in the Amendment that there must be a knowing waiver of a jury trial, in
terms of fairness, before the firearms disability takes effect. Once
again, the Bureau of Alcohol, Tobacco and Firearms (BATF) had initially
concluded, as it did with Woods, that the firearms disability did not
apply, but in response to congressional pressure, the Treasury Department
reversed BATF, and the Denver officials decided to cave in to this
pressure. A third case involving another officer, James Huff, was also
filed.
The federal court dismissed all three challenges on the
ground that it was too early in the process to consider the constitutional
issues. This is because all three officers have appealed their dismissals
to the Denver Civil Service Commission, and until these officers have
exhausted their administrative remedies, the federal court has declined to
consider these challenges on their merits. If any one of these officers
loses his appeal to the Commission, then Marc Colin, the Denver attorney
representing these officers and NAPO, has the option to re-file these
cases.
We will keep you informed. We would ask attorneys
representing police officers to please keep us apprised of any
developments in your state.
Copies of
any of the briefs or other material submitted by the Rights Center and
NAPO's statement to the Judiciary Committee are available. Please contact
us at 800-322-6276 or E-Mail us at napo@erols.com.
Message from Stephen R. McSpadden,General
Counsel, to Rights Center Members and
Friends
The Rights Center recently published its
1999 "National Survey of State Collective Bargaining Laws Applicable to
State and Local Law Enforcement Officers", which is the only compendium of
its type. It can be purchased from our office for $19.95. A complimentary
copy of the 110 page study has been provided to each NAPO-member
organization.
The Rights Center has just begun another extensive
survey. We are in the process of locating and examining each state's laws
and court decisions, to determine the due process rights and procedures
available to law enforcement officers. This information will help support
NAPO's legislative efforts, to pass an 'officer bill of rights' at the
federal level, and could be helpful when we receive inquiries from
officers who have been disciplined. We would ask attorneys representing
police officers to share any information on your state's laws and court
decisions concerning due process rights, to ensure our survey's
accuracy.
A recurrent request to Rights Center members and
attorneys: If you are at the appellate stage, and you believe that an
amicus brief from us would be helpful, please give me a telephone call as
early as possible and let me know the deadlines. (Our phone number is
800-322-NAPO.) We will evaluate the case, and if we are not tied up on
another amicus brief, we may be able to research and write a brief. In
other words, keep us in mind.
Message of Appreciation from Robert T.
Scully, Executive Director
We thank members of the National Law
Enforcement Officers' Rights Center for your support. Your
membership dues provide the resources for us to research and write these
legal briefs, in support of officers' rights. If you are not a
member of the Rights Center, or if your membership has lapsed, we would
ask you to become a member or renew your membership. Minimum annual
dues are $30. Please write us at 750 First St, NE, Suite 920,
Washington, DC 20002, or telephone us at 800-322-NAPO, and we will send
you an application.
Once again, your support is
appreciated!
http://www.napo.org/
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