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U.S. Supreme Court Actions

     A police officer shot a woman less than a minute after arriving with other officers at the scene where it had been reported that a woman was acting erratically and hacking a tree with a knife. When he fired, the woman was holding a large kitchen knife, had taken steps towards her female roommate, and had refused to drop the knife despite two orders to do so. Her injuries were not life threatening and she matched the description of the suspect given by the 911 caller. All of the officers later said that they subjectively believed the woman was a threat to her roommate. She had a history of mental illness. Her roommate said that she did not feel endangered. The U.S. Supreme Court ruled in favor of the officer, stating that even assuming a Fourth Amendment violation occurred, which “is not at all evident,” the officer was entitled to qualified immunity. Although the officers were in no apparent danger, the shooting officer believed that the plaintiff was a threat to her roommate. He had mere seconds to assess the potential danger and was separated from the women by a chain-link fence. This was “far from an obvious case” in which any competent officer would have known that shooting her would violate the Fourth Amendment. None of the decisions relied on by the court of appeals supported denying the officer qualified immunity. Kisela v. Hughes, #17-467, 2018 U.S. Lexis 2066.

     Police raided a loud late-night party in a vacant house after hearing that illegal activities were going on there. The house was in disarray, with a smell of marijuana and liquor on display. There was a “makeshift strip club” in the living room, and several men with a naked woman in a bedroom. Those present told inconsistent stories, with two identifying “Peaches” as the tenant and saying that she had given permission for the party. When the officers spoke by phone to Peaches, she eventually admitted that she did not have permission to use the house. The owner of the premises indicated that he had not given anyone permission to be there. The officers arrested those present for unlawful entry. Several sued for false arrest. A jury awarded a total of $680,000 in damages to multiple arrestees. After an award of attorneys’ fees, the total awarded added up to nearly $1 million. The U.S. Supreme Court disagreed with this award, and held that the officers had probable cause to arrest the partygoers. Considering the totality of the circumstances, the officers made an “entirely reasonable inference” that the partygoers knew they did not have permission to be in the house. The condition of the house and the conduct of the partygoers allowed the officers to make “common-sense conclusions” about human behavior and infer that the partygoers, who scattered and hid, knew the party was not authorized. Their implausible answers gave the officers ample reason to believe that they were lying. The officers were entitled to qualified immunity even if they lacked actual probable cause because a reasonable officer could have interpreted the law as permitting the arrests. District of Columbia v. Wesby, #15-1485, 199 L. Ed. 2d 453, 2018 U.S. Lexis 760.

     A U.S. Border Patrol agent standing on the U.S. side of the border with Mexico shot and killed an unarmed 15-year-old Mexican boy standing in Mexico. The decedent had been playing a game that included running up the embankment on the U.S. side of the border. The decedent’s parents filed a Bivens federal civil rights lawsuit for damages against the agent. A federal appeals court upheld dismissal of the lawsuit. The U.S. Supreme Court has vacated that ruling, ordering further proceedings. It noted that a direct Bivens implied right of damages against federal officers who allegedly violated a citizen’s constitutional rights is not available “where there are special factors counseling hesitation in the absence of affirmative action by Congress.” On remand, the appeals court must consider “whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed.” Qualified immunity shields officials from civil liability if their conduct does not violate clearly established constitutional rights of which a reasonable person would have known. In this case, the lower court concluded that the prohibition on excessive force did not apply to the decedent as a foreign national on foreign soil. But the U.S. Supreme Court noted that the boy’s nationality and the extent of his ties to the U.S. were unknown to the agent at the time of the shooting. Hernandez v. Mesa, #15-118, 2017 U.S. Lexis 4059.

     The U.S. Supreme Court has unanimously overturned a 9th Circuit federal appeals court decision that imposed liability on an officer’s use of deadly force even though the force was deemed justified at the time, rejecting a “provocation” doctrine that based that liability on a finding of illegal entry under the theory that the improper entry created the conditions that necessitated the use of force. A $4 million award of damages to the two individual plaintiffs was vacated. The Ninth Circuit's provocation rule, which held that an officer’s otherwise reasonable and lawful defensive use of force was unreasonable as a matter of law if the officer intentionally or recklessly provoked a violent response and the provocation was an independent constitutional violation, conflated excessive force claims with other Fourth Amendment claims and improperly permitted excessive force claims that could not succeed on their own terms. County of Los Angeles v. Mendez, #16-369, 2017 U.S. Lexis 3396, 2017 WL 2322832 (May 30, 2017).

     A man was searched during a traffic stop and a vitamin bottle containing pills was found. Officers conducted a field test which proved negative for controlled substances. They arrested him and an evidence technician at the police station also got a negative result for controlled substances when he tested the pills but reported that one of the pills tested “positive for the probable presence of ecstasy.” He was charged with unlawful possession and a judge, relying solely on an officer’s complaint, ruled that there was probable cause to hold the detainee pending trial. A state police lab then again tested the pills and found no controlled substance, but not before the detainee had been in custody for 48 days. The detainee sued the city and its officers more than two years after he was arrested but less than two years since the criminal case was dismissed. The U.S. Supreme Court rejected lower court rulings that a two year statute of limitations barred an unlawful arrest claim and that the pretrial detention after legal process was initiated barred a Fourth Amendment claim. The Fourth Amendment prohibits detention without probable cause. When the legal process has begun, but probable cause was not satisfied, as here where the judge’s probable cause determination was allegedly based on fabricated evidence, it does not cut off a Fourth Amendment claim. The unlawful detention claim was properly brought under the Fourth Amendment, rather than the due process clause. On remand, the appeals court was ordered to hold further proceedings on when the claim accrued, unless it found that the city waived its timeliness argument. Manuel v. Joliet, #14-9496,  197 L. Ed. 2d 312, 2017 U.S. Lexis 2021, 85 U.S.L.W. 4130.
     A 911 call reported that a male motorist was a drunk driver on the highway. The women who made the call followed his car with their bright lights on. He pulled over at an off-ramp to confront them, and then drove to a secluded home where he lived with his brother. Two officers went to the residence after interviewing the women. The two men inside became aware of them and asked “who are you?” and “What do you want?” The officers said “Hey (expletive), we got you surrounded. Come out or we’re coming in,” and one shouted “Open the door, State Police, open the door.” The men inside allegedly only heard “we’re coming in” and not the identification,” They armed themselves and yelled “We have guns.” One of them fired two shotgun blasts from the back door at an officer. Then the second man opened a window and pointed a handgun in an officer’s direction.  An officer fired at him but missed. A third officer, who had arrived late on the scene, shot at this man and killed him. Both the trial court and a federal appeals court denied this officer qualified immunity. The U.S. Supreme Court reversed, finding that the officer did not violate any clearly established law. The Court declined to consider whether a reasonable jury could infer that the third officer had witnessed the other officers’ deficient performance and should have realized that corrective action was necessary before using deadly force because neither lower court addressed that argument. The lower court erred in concluding that a police officer was not entitled to qualified immunity on an excessive force claim where no settled Fourth Amendment principle required the officer, who arrived late to the scene and witnessed shots being fired by one of several individuals in a house, to second-guess the earlier steps already taken by his fellow officers or shout a warning to an armed occupant before shooting, and thus, there was no clearly established law that would have placed the constitutional question beyond debate. The Court expressed no opinion on whether the first two officers were entitled to qualified immunity. The Court found it necessary to clarify the test for granting qualified immunity to an officer: “Today, it is again necessary to reiterate the longstanding principle that ‘clearly established law’ should not be defined ‘at a high level of generality.’ … As this Court explained decades ago, the clearly established law must be ‘particularized’ to the facts of the case. Otherwise, ‘[p]laintiffs would be able to convert the rule of qualified immunity . . . into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights.’ …  The panel majority misunderstood the ‘clearly established’ analysis: It failed to identify a case where an officer acting under similar circumstances as [the third officer] was held to have violated the Fourth Amendment. Instead, the majority relied on Graham, Garner, and their Court of Appeals progeny, which—as noted above—lay out excessive-force principles at only a general level. Of course, ‘general statements of the law are not inherently incapable of giving fair and clear warning’ to officers, but ‘in the light of pre-existing law the unlawfulness must be apparent,’” White v. Pauly, #16-67, 137 S. Ct. 548, 196 L. Ed. 2d 463, 2017 U.S. Lexis 5, 85 U.S.L.W. 4027, 26 Fla. L. Weekly Fed. S 409.
     The defendant police officer and a number of co-workers routed vehicles damaged in accidents to a repair shop in exchange for kickbacks. He was criminally charged with obtaining money from the body shop owners under color of official right in violation of the Hobbs Act, 18 U.S.C. 371 and conspiring to do so. The U.S. Supreme Court rejected the argument that because the Hobbs Act prohibits the obtaining of property "from another" that a Hobbs Act conspiracy required proof of agreeing to obtain property from someone outside the conspiracy. The defendant could be convicted of conspiring to violate the Act based on proof that he reached an agreement with the owners of the property in question (the shop owners) to obtain some of their property (money) under color of official right. The Court stated that its decision did not transform every bribe of a public official into a conspiracy to commit extortion. Ocasio v. United States, #14-361, 136 S. Ct. 1423, 194 L. Ed. 2d 520, 2016 U.S. Lexis 2932, 84 U.S.L.W. 4245.
    The highest court in Massachusetts upheld a state statute prohibiting the private possession of stun guns against a constitutional Second Amendment challenge, on the basis that stun guns were not in common use at the time of the Second Amendment's enactment and therefore were not protected by it. The court also reasoned that stun guns were "dangerous per se at common law and unusual" because they were a modern invention, and that "nothing in the record to suggest that [stun guns] are readily adaptable to use in the military." The U.S. Supreme Court vacated this decision, stating that "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding," and that it had previously rejected the argument that "only those weapons useful in warfare are protected" by the Second Amendment. The case involved a woman with an abusive boyfriend who found that protective orders she obtained proved futile so she accepted a stun gun from a friend to protect herself and when she brandished it, the ex-boyfriend got scared and left her alone. She was then convicted of violating the state law that barred private possession of stun guns, Caetano v. Massachusetts, #14-10078,194 L. Ed. 2d 99, 2016 U.S. Lexis 1862.
     Both federal and state courts hearing federal civil rights claims under 42 U.S.C. Sec. 1983 have discretion to award a prevailing party (other than the federal government) reasonable attorneys' fees under 2 U.S.C. Sec. 1988. The U.S. Supreme Court, however, has restricted such awards to prevailing defendants only to cases in which the plaintiff's lawsuit was "frivolous, unreasonable, or without foundation." The Idaho Supreme Court held that it was not bound by that interpretation of the law and made a Sec.1988 award of attorneys' fees to a prevailing defendant in a Sec. 1983 lawsuit without first deciding whether the plaintiff's claim was "frivolous, unreasonable, or without foundation." The U.S. Supreme Court reversed. Sec. 1988 is a federal statute, so the Supreme Court's interpretation is final and binding on all courts, federal or state.
James v. Boise, #15-493, 136 S. Ct. 685, 2016 U.S. Lexis 947.
    Rather than submit to an officer armed with an arrest warrant, a man drove off in his car, leading officers on a high-speed chase. The pursued man twice called police dispatch, claiming that he had a gun and threatening to shoot the officers. The dispatcher broadcast these threats and the possibility that the motorist might be intoxicated. A tire spike strip was placed beneath a highway overpass in an attempt to stop the pursued vehicle. A state trooper drover to that location, radioing a plan to shoot and disable the car. He later spotted the vehicle and fired six shots. The car engaged the spikes, hit the median, and rolled. The motorist was killed by the trooper's shots. No shots hit the car's engine block, radiator, or hood. The U.S. Supreme Court reversed a denial of qualified immunity to the trooper on an excessive force claim. The Court did no address whether firing at the vehicle in this manner under these circumstances was a Fourth Amendment violation, but rather ruled that the trooper was entitled to qualified immunity because prior precedents did not indicate that it was "beyond debate" that he acted unreasonably. He had confronted a fugitive that was reported to be intoxicated, who was trying to evade arrest through a high-speed car flight, and who had twice threatened to shoot officers. At the time of the shooting, the vehicle was moments away from reaching the trooper's location. Mullenix v. Luna, #14-1143, 2015 U.S. Lexis 7160.
     Hotel owners and a lodging association challenged the constitutionality of a Los Angeles Municipal Code section requiring hotel operators to keep certain information about hotel guests on the premises for 90 days and make it available to any officer. It punished as a misdemeanor failure to make the records available. Upholding a federal appeals court ruling in favor of the plaintiffs, the U.S. Supreme Court found that the Code section was facially unconstitutional under the Fourth Amendment as it failed to give the hotel operators an opportunity for pre-compliance review, such as the issuance of a warrant or issuance of an administrative subpoena. The Court found that hotels were not a closely regulated industry lacking a reasonable expectation of privacy, that warrantless inspections were not necessary to further the regulatory scheme, and that there was insufficient constraint on the discretion of officers to decide which hotels to search under what circumstances. City of Los Angeles v. Patel, #13-1175, 2015 U.S. Lexis 4065.
     A woman living in a group home for the mentally ill started to act erratically and threatened to kill her social worker. Two officers were sent to the home to escort her to a facility for temporary evaluation and treatment. When they entered her room, she grabbed a knife, threatening to kill them. They retreated and closed the door, but later reentered, concerned about what was going on within the room, and allegedly without considering if they could accommodate her disability. She again confronted them with the knife, and after pepper spray failed to subdue her, they shot her multiple times. She sued the city for alleged disability discrimination in arresting her without accommodating her disability, and the two officers for allegedly violating her Fourth Amendment rights. A federal appeals court ruled that the Americans with Disabilities Act applied and that the issue of whether the plaintiff's disability should have been accommodated should be decided by a jury. It also held that the officers were not entitled to qualified immunity, since it was clearly established that, in the absence of a need for immediate entry, officers cannot forcibly enter the home of an armed, mentally ill person who has been acting irrationally and threatened everyone who entered.  The U.S. Supreme Court granted review, but dismissed its review of the issue of whether the ADA "requires law enforcement officers to provide accommodations to an armed, violent, and mentally ill suspect in the course of bringing the suspect into custody" as "improvidently granted." A review of this issue was based on the assumption that the city would argue that the ADA does not apply when officers face an armed and dangerous person. Instead, the city argued that the plaintiff was not "qualified" for an accommodation because she posed a direct threat to others, a threat which could not "be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services." Since the court below had not addressed the issues in that context, review by the U.S. Supreme Court was not proper. The Court also noted that the parties in the case had also failed to address the related question of whether a public entity such as the defendant city could be vicariously liable for damages under Title II of the ADA for an arrest made by its officers. The Court did hold, however, that the two individual defendant officers were entitled to qualified immunity on the Fourth Amendment claims. They did not violate the plaintiff's Fourth Amendment rights when they opened her door the first time, and could, without a doubt, also have opened her door the second time if she had not been disabled. Their use of force in response to her threats with the knife was reasonable. So the only remaining question was whether they violated her Fourth Amendment rights when they opened her door the second time rather than attempting to accommodate her disability. As there was no clearly established law on that issue, they were entitled to qualified immunity. City and County of San Francisco v. Sheehan, #13-1412, 135 S. Ct. 1765, 2015 U.S. Lexis 3200.
     A K-9 officer stopped a motorist for a traffic violation, and issued a warning after attending to everything related to the stop, including checking driver's licenses. He then asked for consent to walk his dog around the vehicle, which was refused. The officer continued to detain the motorist until a second officer arrived and then retrieved his dog who alerted to the presence of drugs in the vehicle. A search subsequently found methamphetamine. The detention lasted about seven to eight minutes following the time the warning was issued until the dog alerted. The U.S. Supreme Court, by a 6-3 vote, held that absent reasonable suspicion the extension of a traffic stop in order to conduct a dog sniff constitutes an unreasonable search. On remand, the court should consider whether the detention for the dog sniff was independently supported by individualized suspicion. Rodriguez v. United States, #13-9972, 2015 U.S. Lexis 2807. While the decision was made in the context of a criminal proceeding, the Court's reasoning would also apply in a federal civil rights lawsuit.
     The plaintiffs claimed that an officer illegally entered the backyard of their property, going onto their deck without a search warramt. A federal appeals court ruled that these actions violated the Fourth Amendment as a matter of law, as the "knock and talk" exception to the warrant requirement mandates that officers begin such encounters at the front door, where there is an implied invitation to go. The U.S. Supreme Court unanimously reversed the appeals court's determination that the officer was not entitled to qualified immunity. A government official sued for civil rights violations under Section 1983 is entitled to qualified immunity unless they violated a statutory or constitutional right that was "clearly established" at the time of the alleged conduct. There was no clearly established precedent at the time that the "knock and talk" exception to the warrant requirement had to begin at the front door. Carroll v. Carman, #14-212, 135 S. Ct. 348, 190 L. Ed. 2d 311, 2014 U.S. Lexis 7430.
     A Massachusetts start statute making it illegal to knowingly stand on a public sidewalk or way within 35 feet of the entrance or driveway to any reproductive health care facility, including an abortion clinic, violated the First Amendment rights of anti-abortion protestors. The unanimous court decision found that the law was content neutral and that an exemption allowing those who worked in the facility to enter or remain within the buffer zone was reasonable. But the statute was not narrowly tailored to serve significant governmental interests and the buffer zone compromised the protestors' ability to engage in counseling of patients on the sidewalk or to distribute literature to arriving patients. This amounted to excluding abortion protestors from areas of the public way historically open to speech and debate. McCullen v. Coakley, #12-1168, 2014 U.S. Lexis 4499.
     The U.S. Supreme Court has ruled that officers did not use excessive force when they shot the driver of a vehicle fleeing from a traffic stop to end a dangerous high-speed car chase. Both the driver and his passenger died. While the Court ruled that this conduct did not violate the Fourth Amendment, even if it had, the officers were entitled to qualified immunity when no cases were cited that clearly established the unconstitutionality of using deadly force to end a high-speed car chase. Firing a total of 15 shots during the 10-second span was reasonable when the driver never abandoned his attempt to flee. While ordinarily, a trial court order denying summary judgment is not a final decision and therefore not immediately appealable, a denial based on a qualified immunity claim can be immediately appealed, and therefore the federal appeals court had jurisdiction to hear the appeal, but erroneously did not grant the officers qualified immunity. Plumhoff v. Rickard, #12-1117, 2014 U.S. Lexis 3816
     The U.S. Supreme Court unanimously held that Secret Service agents who moved protesters away from a location where President George W. Bush was dining on an outside patio were entitled to qualified immunity on First Amendment viewpoint discrimination claims. It ruled that a federal appeals court had erred in finding that viewpoint discrimination could be inferred from the alleged lack of a legitimate security rationale for the different treatment given to two groups of demonstrators present at the event. The anti-Bush demonstrators, the agents could believe, posed a potential security risk to the President, based on their particular location, while the demonstrating Bush supporters, based on their location, did not. As the anti-Bush demonstrators, unlike the pro-Bush demonstrators, were within weapons' range, it could not plausibly be shown that the agents could show no rationale for requesting or ordering the eviction of the anti-Bush demonstrators. Wood v. Moss, #13-115, 2014 U.S. Lexis 3614.
     A unanimous U.S. Supreme Court ordered further proceedings in an excessive force lawsuit brought by a unarmed man who a police officer fired three shots at, with one of the bullets puncturing his right lung. At the time, the plaintiff was approximately 15 to 20 feet away from the officer on the front porch of his parents' home. The Court found that the appeals court, in upholding summary judgment on the basis of qualified immunity for the officer, had erred by failing to view the evidence on summary judgment in the light most favorable to the plaintiff on the facts. Instead, the appeals court improperly resolved disputed issues concerning the lighting present, the demeanor of the plaintiff's mother, the plaintiff's positioning during the shooting, and whether he had shouted a direct threat, in favor of the officer, the moving party on the summary judgment motion. Tolan v. Cotton, #13-551, 2014 U.S. Lexis 3112.
    The totality of the circumstances gave a California Highway Patrol officer reasonable suspicion that a driver was intoxicated based on his pickup truck matching the description of a vehicle that a 911 caller reported as having run her off the road. The officers smelled marijuana as they approached, and they found 30 pounds of it when they searched the truck's bed. Reasonable suspicion considers “the totality of the circumstances,” and depends “upon both the content of information possessed by police and its degree of reliability.” The 911 call had adequate indicia of reliability based on the short time before the suspect vehicle was spotted and the caller's claim of eyewitness knowledge. A reasonable officer would conclude that a false tipster would think twice about calling 911. Reasonable suspicion for a brief investigative stop does not require that an officer "rule out the possibility of innocent conduct." The fact that the officer failed to observe additional suspicious conduct during the short period that he followed the truck did not destroy the reasonable suspicion of drunk driving. The traffic stop did not violate the Fourth Amendment. Navarette v. California, #12-9490,188 L. Ed. 2d 680, 2014 U.S. Lexis 2930.
     Plaintiffs filed a lawsuit in Nevada claiming that a Georgia police officer who searched them at a Georgia airport while working as a deputized DEA agent had seized a large quantity of cash from them. After they returned to their Nevada residence, he allegedly drafted a false probable cause affidavit in support of the forfeiture of the funds. No forfeiture action was ultimately taken. The U.S. Supreme Court ruled that the Nevada federal trial court could not exercise personal jurisdiction over the Georgia police officer, because he lacked "minimal contacts" with Nevada. Walden v. Fiore, #12-574, 188 L. Ed. 2d 12, 2014 U.S. Lexis 1635.
     A protestor was barred from entering a military base's designated protest area because of alleged prior acts of trespass and vandalism. The U.S. Supreme Court ruled that the protest area was included as a portion of the military installation, making it a federal crime to reenter it after being ordered not to do so by an officer or person in command. U.S. v. Apel, #12-1038,188 L. Ed. 2d 75, 2014 U.S. Lexis 1643.
     Two officers responded to a call concerning a disturbance involving a person armed with a baseball bat in a neighborhood known for gang violence. A man was seen running towards a residence and ignored an order to halt. He did not appear to be holding a bat. He entered the gate of a six foot fence enclosing his front yard. The officer believable that the man had committed a jailable misdemeanor by disobeying the order to stop, and also feared for his safety. He kicked open the gate. A woman was behind the gate and was struck and injured by it. A federal appeals court found that the warrantless entry was unconstitutional as the woman had the same expectation of privacy in the curtilage of her home as in the residence itself, the pursued man had only committed, at most, a minor offense, and there was no immediate danger. The appeals court also found that the officer was not entitled to qualified immunity. Reversing, the U.S. Supreme Court noted that courts throughout the country were divided as to whether an officer who has probably cause to arrest a fleeing misdemeanant can enter a home without a warrant in hot pursuit. Without deciding whether or not the warrantless entry was constitutional, the U.S. Supreme Court ruled that while it was possible that the officer was mistaken in thinking that his actions were justified, he was not "plainly incompetent," and was therefore entitled to qualified immunity. Stanton v. Sims, #12-1217, 2013 U.S. Lexis 7773.
     Officers who make a lawful arrest for a serious offense may take and analyze a cheek swab of the arrestee's DNA. Like fingerprinting and photographing, it is a legitimate police booking procedure that is reasonable under the Fourth Amendment. Maryland v. King, #12-207, 2013 U.S. Lexis 4165.
     The U.S. Supreme Court has ruled by 5-4 that officers, under ordinary circumstances, must attempt to get a search warrant before compelling drunk driving suspects to submit to a blood test. "[T]he natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant." A warrantless blood test might be justified by exigency in some cases under the totality of the circumstances, determined on a case by case basis. Missouri v. McNeely, #11-1425, 133 S. Ct. 1552.
     The U.S. Supreme Court, in a 5-4 decision, upheld a decision of the Florida Supreme Court suppressing evidence of marijuana plants and drug trafficking found in a residence during a search conducted with a search warrant. The search warrant was obtained on the basis of the fact that a drug-sniffing dog that police brought onto the front porch of the defendant's home alerted there. While the police officers could, without a warrant, approach the home and knock on the door, since any private citizen could do that, their bringing of a trained police dog to explore the area around the home in the hopes of discovering incriminating evidence was a Fourth Amendment search without probable cause, as there was no customary invitation to bring such a dog onto the porch, which was part of the home's curtilage, entitled to as much protection from search as the home itself. While this was a criminal case, the same principles would apply in a civil rights lawsuit. Florida v. Jardines, #11-564, 2013 U.S. Lexis 2542.
     The U.S. Supreme Court, in a unanimous decision, rejected the ruling of the Florida Supreme Court that the state had to, in every case, present an "exhaustive set of records" concerning the reliability of a drug sniffing dog used to find probable cause to search a vehicle. The proper test as to whether probable cause existed was the totalty of the circumstances test. In this case, there was evidence of the dog's training and his proficiency in finding drugs. The officer had probable cause to search the car and the defendant had not adequately contested the evidence of the dog's reliability. Florida v. Harris, #11-817, 2013 U.S. Lexis 1121.
     Police officers were sued for preventing demonstrators from carrying pictures of aborted fetuses during anti-abortion demonstrations. The plaintiffs were granted a permanent injunction against this practice as violating their First Amendment rights but were not awarded attorneys' fees under the theory that they were not "prevailing parties" for purposes of 42 U.S.C. Sec. 1988 since they had not been awarded money damages. The U.S. Supreme Court vacated this decision, noting that the plaintiffs had prevailed because the injunction ordered the defendants to change their behavior in a way that directly benefitted the plaintiffs. Lefemine v. Wideman, #12-168, 2012 U.S. Lexis 8566 (per curiam).
     It was not clearly established, at the time of a 2006 arrest, that an arrest supported by probable cause could violate the First Amendment. The plaintiff was arrested by Secret Service agents protecting Vice President Dick Cheney after he was overheard saying on his cell phone that he was going to confront the Vice President and ask him "how many kids he's killed today." He touched the Vice President's shoulder and made statements critical of the war in Iraq. The agents were entitled to qualified immunity as the U.S. Supreme Court stated that it has never held that there is a First Amendment right to be free of a retaliatory arrest supported by probable cause, and the plaintiff's action in touching the Vice President provided probable cause for the arrest for assault. Reichle v. Howards, #11-262, 2012 U.S. Lexis 4132.
     A firefighter sued a city and a private attorney hired by the city to conduct an internal investigation of his conduct for violation of his civil rights under 42 U.S.C. Sec. 1983. The firefighter was suspected of malingering while supposedly off work on account of illness. The firefighter argued that the attorney's order to him to produce building materials stored at his home violated his Fourth and Fourteenth Amendment rights. He had been seen buying the building supplies and the issue was whether he had been installing the building materials rather than being ill. The U.S. Supreme Court held that the private attorney was entitled to qualified immunity along with other individual defendants despite not being a city employee. A private individual temporarily retained by a city to carry out its work is able to seek qualified immunity from civil rights liability. In this case, the city needed the attorney's experience and expertise in employment law. Filarsky v. Delia, #10–1018,   132 S. Ct. 1657; 2012 U.S. Lexis 3105.   
     In a federal civil rights lawsuit claiming that the chief investigator for a prosecutor's office conspired to present, and did, in fact, present false testimony to a grand jury, the U.S. Supreme Court ruled that the investigator was entitled to absolute witness immunity on all claims arising from his grand jury testimony. A witness in a grand jury proceeding is entitled to absolute immunity just as is a witness who testifies at a trial. The Court found that there is no reason to distinguish law enforcement witnesses from lay witnesses in civil rights actions. The rule that a grand jury witness has absolute immunity from any civil rights claim based on the witness’ testimony may not be circumvented by claiming that a grand jury witness conspired to present false testimony, or by using evidence of the witness’ testimony to support any other claim concerning the initiation or maintenance of a prosecution. Rehberg v. Paulk, #10-788, 2012 U.S. Lexis 2711.
     A prisoner was questioned for between five and seven hours in a conference room at a prison by two deputies who asked him about crimes he was accused of engaging in before his incarceration. He confessed and was later convicted, with the confession admitted into evidence despite the fact that he had been given no Miranda warnings during the questioning. The U.S. Supreme Court held that the prisoner had not been taken into custody for Miranda purposes, since he was told at the beginning and reminded later that he was free to leave and go back to his cell. Additionally, he was not physically restrained or threatened, was interviewed in a well-lit, average-sized conference room where the door was sometimes left open, and was offered food and water. These "facts are consistent with an environment in which a reasonable person would have felt free to terminate the interview and leave, subject to the ordinary restraints of life behind bars." Howes v. Fields, #10-680, 2012 U.S. Lexis 1077.
     The U.S. Supreme Court ruled that officers were entitled to qualified immunity and could not be held personally liable for obtaining a potentially invalid overly broad warrant when they could reasonably have believed that the warrant's scope was supported by probable cause. In this case, any arguable defect in the warrant would have become apparent only based on a close examination of the warrant application and comparison of the supporting affidavit to the warrant's terms to determine whether the affidavit sufficiently established probable cause to search for all items listed in the warrant. In this case, a shotgun was confiscated while executing a search of a home under a warrant for "all guns and gang-related material." The "fact that a neutral magistrate has issued a warrant is the clearest indication that the officers acted in an objectively reasonable manner." The Court concluded that the "officers' judgment that the scope of the warrant was supported by probable cause may have been mistaken, but it was not 'plainly incompetent.'" Messerschmidt v. Millender, #10-704, 2012 U.S. Lexis 1687.
     Police were entitled to qualified immunity for their warrantless entry into a home based on exigent circumstances and the totality of the circumstances. They were investigating reports that a student who lived there had written a letter with a threat to "shoot up" the high school he attended. The mother and son inside initially ignored the officers' knocks on the door, and she hung up on an officer when he called on the phone. The mother and son then stepped outside, and the mother ran inside, followed by her son, and refused to let them in when they asked whether any guns were present in the home. The officers responded by following them inside, and ultimately concluded that the rumors of the threat were false. Under these circumstances, a reasonable officer could believe that he had a right under the Fourth Amendment to enter the home without a warrant when there was a "reasonable basis for concluding that there is an imminent threat of violence." Ryburn v. Huff, #11–208, 2012 U.S. Lexis 910. 2012 WL 171121.
     The U.S. Supreme Court held that attaching a GPS device to a vehicle to track a criminal suspect constitutes a search under the Fourth Amendment. It upheld the ruling of a federal appeals court suppressing the evidence and overturning a conviction based on it, since the device was attached without a valid warrant authorizing it. The Court declined to consider the government's alternative argument that the attachment and use of the device was a reasonable search, because it was not raised in the courts below. U.S. v. Jones, #10-1259, 2012 WL 171117, 2012 U.S. Lexis 1063.
     A defendant's criminal conviction for driving while intoxicated was overturned by the U.S. Supreme Court because the Confrontation Clause of the Sixth Amendment does not allow the introduction of a forensic report into evidence for the purpose of proving a fact in a criminal trial using the in-court testimony of an analyst who is not the one who performed or observed the test reported and who did not sign the certification contained in the report. Bullcoming v. New Mexico, #09-10876, 2011 U.S. Lexis 4790.
     The U.S. Supreme Court ruled that a California state law prohibiting the rental or sale of violent video games to minors violates the First Amendment. Brown v. Entertainment Merchants Assn., #08–1448, 2011 U.S. Lexis 4802.
     Even though a candidate for chief of police won his election, he sued his opponent for violation of his federal civil rights, as well as claims under state law, for allegedly interfering with his right to seek public office. A federal court dismissed the federal claims as frivolous, and sent the other claims to state court. The U.S. Supreme Court held that reasonable attorneys' fees could be awarded to the defendant under 42 U.S.C. Sec. 1988, but only for costs that the defendant would not have incurred "but for the frivolous claims." Fox v. Vice, #10-144, 2011 U.S. Lexis 4182.
    The U.S. Supreme Court held that former Attorney General Ashcroft was entitled to qualified immunity in a lawsuit by a man detained after the events of 9/11/2001 under a federal material witness statute. The plaintiff claimed that the government had a policy of using this statute to detain innocent persons suspected of terrorism without charges.  The Court held that the objectively reasonable arrest and detention of a material witness pursuant to a validly obtained warrant cannot be challenged as unconstitutional on the basis of allegations that the arresting authority had an improper motive. Ashcroft did not violate clearly established law and thus is entitled to qualified immunity because, at the time of the arrest, not a single judicial opinion had held that pretext could render an objectively reasonable arrest pursuant to a material-witness warrant unconstitutional. Ashcroft v. al-Kidd, #10-98, 2011 U.S. Lexis 4021.
     The U.S. Supreme Court has vacated a federal appeals court ruling that the decision to seize and interrogate a minor at school about suspected sexual abuse without a warrant, court order, exigent circumstances or parental consent was unconstitutional, in violation of the Fourth Amendment. The Supreme Court held that it had jurisdiction to hear an appeal of the appeals court's holding by the defendants despite the fact that they were granted qualified immunity from liability. The Supreme Court did not rule on the merits of the rule adopted by the federal appeals court as to the interrogation of juveniles at school, but vacated the ruling as moot since the minor has moved to another state and therefore no longer has a stake in a ruling concerning the practices of California governmental employees. Camreta v. Greene, #09–1454. 2011 U.S. Lexis 4016.
     The U.S. Supreme Court, in a 5-4 ruling, overturned a $14 million jury award to an innocent man who spent 14 years on death row before being exonerated. The plaintiff had sued the prosecutors' officer, claiming that its failure to adequately train staff members concerning the obligation not to hide a blood test that would have established his innocence caused his conviction. While the failure to train on the obligation to disclose potentially exculpatory evidence can be the basis for government liability for violation of civil rights, the plaintiff must show that this reflected a deliberate indifference to the rights of the accused, which normally requires a showing of a pattern of similar constitutional violations by untrained employees. Connick v. Thompson, #09-571, 2011 U.S. Lexis 2594.
     Members of a church who demonstrated near the funeral of a dead U.S. soldier killed in combat had a protected First Amendment right to express their message that God was punishing the U.S. for tolerating homosexuality by the death of soldiers. The U.S. Supreme Court ruled that the church's message was on an issue of public concern, so that a jury verdict for the soldier's father against the church of $2.9 million in compensatory damages and $8 million in punitive damages (reduced by the trial court to $2.1 million in punitive damages) for emotional distress and intrusion into seclusion was improper. Additionally, the protest took place on public land adjacent to a public street and in compliance with local law enforcement's instructions that demonstrators remain 1,000 feet away from the church where the funeral services were held. Snyder v. Phelps, #09-751, 2011 U.S. Lexis 1903.
     A man sentenced to death after being convicted of murdering his girlfriend sought to challenge his conviction in Texas state court by seeking DNA testing of various untested evidence from the crime scene, including knives, an axe handle, vaginal swabs, fingernail clippings, and certain hair samples. State courts rejected his plea for DNA testing, finding that he had not made a required showing that he "would not have been convicted if exculpatory results had been obtained through DNA testing." He then filed a federal civil rights lawsuit against the prosecutor, seeking injunctive relief requiring the DNA tests. By a 6-3 vote, the U.S, Supreme Court held that claims concerning the right to DNA testing could be asserted not only in habeas corpus proceedings, but also in federal civil rights lawsuits. Success in having the testing done would not necessarily imply the invalidity of the plaintiff's conviction. The Court therefore ordered further proceedings on the merits of the plaintiff's claim that denying him the DNA testing violated his due process rights. . Skinner v. Switzer, #09-9000, 2011 U.S. Lexis 1905.
     The U.S. Supreme Court, in a 6-to-2 decision, ruled that statements made to police by a wounded crime victim who died before the trial of the case began may be admitted into evidence without violating the Confrontation Clause of the Sixth Amendment. The statements were made identifying the shooter, the majority concluded, for the primary purpose of enabling the officers to deal with an emergency (the armed man) rather than for the primary purpose of providing evidence of the crime. Michigan v. Bryant, #09-150, 2011 U.S. Lexis 1713.
      A former prisoner in an Ohio facility claimed that a correctional officer had sexually assaulted her on two consecutive nights, and sued two superintending prison officers, a case manager on her living unit, and a prison investigator. She claimed that the case manager failed to take any action to prevent the second assault after she reported the first one, and that the investigator retaliated against her for her accusations by placing her, shackled and handcuffed, in solitary confinement in a cell without adequate heat, clothing, bedding, or blankets. The trial court denied the defendants summary judgment on the basis of qualified immunity, finding that there were disputed material issues of fact, and the defendants did not appeal that ruling. After a full trial, a jury awarded the plaintiff $350,000 in compensatory and punitive damages against the case manager and $275,000 against the investigator. The defendants did not then file a motion seeking judgment as a matter of law after the verdict, nor did they seek a new trial. Instead, they argued, on appeal, that the trial court should have granted their motion for summary judgment on the basis of qualified immunity. A federal appeals court agreed, and reversed the jury's verdict. The U.S. Supreme Court disagreed, reversing the appeals court, and holding that a party may not appeal a denial of summary judgment after a district court has conducted a full trial on the merits. There was no "purely legal" issue of qualified immunity preserved for appeal, as the dispute was not over what the pre-existing law was, but instead what the facts were--such as whether the case manager was adequately informed, after the first attack, of the assailant's identity. The defendants could not argue, on appeal, that the plaintiff had not proven her case, as they failed to raise an issue of the sufficiency of the evidence by a post-judgment motion for judgment as a matter of law. Ortiz v. Jordan, #09–737, 2011 U.S. Lexis 915.
    Plaintiffs who were accused of child abuse in California, but were later exonerated, had their names added to a Child Abuse Central Index, where they would remain available to various state agencies for at least 10 years. There was no state mechanism for contesting the inclusion of their names, nor had Los Angeles County created any procedure to do so. They sued the county and public officials, claiming that this violated their constitutional rights. They sought damages, injunctive relief and declaratory relief. A federal appeals court ruled that the Fourteenth Amendment required the state to provide those on the list with notice and a hearing, and that the plaintiffs were entitled to declaratory relief and were prevailing parties entitled to attorney's fees, including $60,000 from the county. The county objected, claiming that as a municipal entity, it was liable only if its "policy or custom" caused the deprivation of a plaintiff's federal right, but a state policy caused any deprivation here. The appeals court ruled that the plaintiffs did prevail against the county on their claim for declaratory relief because the policy or custom requirement did not apply to prospective relief claims. The U.S. Supreme Court disagreed, holding that there can be no municipal liability in the absence of a finding of an official policy or custom regardless of the type of relief sought or awarded. Los Angeles Cty. v. Humphries, #09–350, 2010 U.S. Lexis 9444
     Having previously found a Second Amendment individual right to bear arms in striking down a handgun ban in the federal District of Columbia, the U.S. Supreme Court has extended that ruling, in a case involving a handgun ban by the City of Chicago. By 5-4, the Court held that the rights guaranteed by the Second Amendment also apply to the states and their subdivisions through the Fourteenth Amendment. McDonald v. City of Chicago, #08-1521, 2010 U.S. Lexis 5523. A website presents case filings, briefs, and opinions in this case at the district court, appeals court, and Supreme Court levels.
     By 6-3, the U.S. Supreme Court rejected a First Amendment challenge to a federal statute which criminalizes providing "material aid" to designated foreign terrorist organizations even when the aid provided is purportedly aimed at facilitating training for peacefully resolving conflicts or asserting human rights claims. “At bottom,” Chief Justice Roberts wrote for the majority, “plaintiffs simply disagree with the considered judgment of Congress and the executive that providing material support to a designated foreign terrorist organization — even seemingly benign support — bolsters the terrorist activities of that organization.” Holder v. Humanitarian Law Project, #08-1498, 2010 U.S. Lexis 5252.
     A man being interrogated for three hours regarding a shooting was largely silent, but did not explicitly invoke his right to remain silent, or ask for an attorney. Towards the end of the questioning, he answered yes to a question as to whether he prayed to God to forgive him for the shooting. He moved to suppress his statements, arguing that his silence invoked his Fifth Amendment right to remain silent. In a 5-4 decision, the U.S. Supreme Court disagreed, noting that a suspect's Miranda right to counsel must be invoked "unambiguously," and that the same standard applies to invoking the right to remain silent. Berghuis v. Thompkins, #08-1470, 2010 U.S. Lexis 4379.
     A federal statute, 42 U.S.C. Sec. 1988, provides for the awarding of a reasonable attorney's fee for the prevailing parties in federal civil rights lawsuits. In this case, concerning alleged problems with the foster care system in Georgia, the plaintiffs sought an award of $14 million in attorneys' fees--half of which was based on a "lodestone," (the number of hours worked by lawyers and their employees, multiplied by prevailing hourly rates in the community), and the other half of which represented a requested fee enhancement for purportedly superior work and results. The trial court, however, awarded fees of $10.3 million, reducing the number of hours because of "vague" billing records, but enhancing the award by 75% for superior work and results. A federal appeals court approved that result. The U.S. Supreme Court reversed, holding that the calculation of an attorneys' fee may be increased due to superior performance, "but only in extraordinary circumstances." The factors to be considered are spelled out by the Court's decision, and the Court held that the trial court in this case failed to adequately justify its 75% fee enhancement. The trial court in such cases must provide a "reasonably specific explanation for all aspects of a fee determination, including any enhancement." Perdue v. Kenny A., #08–970, 2010 U.S. Lexis 3481.
     A federal criminal statute that outlawed the selling of videos depicting cruelty to animals when the underlying conduct was illegal under applicable state or federal law violated the First Amendment. It was constitutionally overbroad and regulated expression based on its content, which made it presumptively invalid. The U.S. Supreme Court declined to carve out another category of speech as unprotected based on what was depicted and the nature of the underlying conduct, such as it had created for child pornography. The Court also rejected the argument that the statute was saved by a requirement that the banned videos lack “serious religious, political, scientific, educational, journalistic, historical, or artistic value," as the First Amendment protects not only speech with such characteristics. "The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.” The case itself involved the application of the statute to videos depicting dog fights. U.S. v. Stevens, #08–769, 2010 U.S. Lexis 3478.
     A Pakistani Muslim was arrested on suspicion of terrorist activity by federal agents following the September 11, 2001 terrorist attack and detained in restrictive conditions. He filed a federal civil rights action against a number of federal officials, including the Attorney General and the F.B.I, director, claiming that he had been unjustly labeled a person of "high interest" because of his race, religion, or national origin. The lawsuit also objected to the arrest and detention of thousands of Arab Muslim men during the September 11th investigation, as well as to purportedly overly harsh conditions of confinement. The Court overturned the denial of the government's motion to dismiss the lawsuit, finding that there were insufficient facts pled to show purposeful and unlawful discrimination. There was no showing that the policy under which the plaintiff was detained was the product of discrimination. The Court noted that because the September 11th terrorist attacks were carried out by Arab Muslims, "it is not surprising" that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks would produce a disparate, incidental impact on Arab Muslims, even though the policy's purpose was to target neither Arabs nor Muslims. The Court stated that the appeals court below should determine whether the plaintiff should be allowed to amend his complaint. Ashcroft v. Iqbal, No. 07-1015, 2009 U.S. Lexis 3472.
     The search by school personnel of a13-year-old female student's underwear, seeking prescription strength and over the counter pain medication barred by school rules without advance permission, was a violation of the Fourth Amendment, as the facts presented did not provide reasonable suspicion justifying extending a permissible search of the student's belongings and person to one in which she was made to pull out her underwear. Despite this, school officials were entitled to qualified immunity since there was not, at the time, clearly established law on the issue. "We would not suggest that entitlement to qualified immunity is the guaranteed product of disuniform views of the law in the other federal, or state, courts, and the fact that a single judge, or even a group of judges, disagrees about the contours of a right does not automatically render the law unclear if we have been clear. That said, however, the cases viewing school strip searches differently from the way we see them are numerous enough, with well-reasoned majority and dissenting opinions, to counsel doubt that we were sufficiently clear in the prior statement of law." Safford Unified Sch. Dist. No. 1. v. Redding, #08-479, 2009 U.S. Lexis 4735.
     The U.S. Supreme Court, in a federal civil rights lawsuit brought by a man convicted of sexual assault and other crimes, held that the plaintiff had no constitutional right to post-conviction access to the state's evidence for DNA testing for the purpose of attempting to prove his innocence. The Court also reasoned that it was a legislative task to develop procedures and rules for obtaining access to such evidence for DNA testing. District Attorney's Office for the Third Judicial Circuit v. Osborne, #08–6, 2009 U.S. Lexis 4536.
    Supervisory prosecutors were entitled to absolute prosecutorial immunity in a federal civil rights lawsuit brought by a prisoner who showed that his murder conviction had depended on false testimony provided by a jailhouse informant, a unanimous U.S. Supreme Court held. The plaintiff claimed that his conviction had been caused by the failure of the supervisors' failure to properly train and supervise prosecutors or to develop an information system containing potential impeachment material concerning such informants, in order to disclose it to criminal defendants and their defense attorneys. Absolute immunity from liability applied because the actions or inactions involved here concern how and when to make impeachment information available at trial, and, therefore, are directly connected with a prosecutor's basic trial advocacy duties. Van de Kamp v. Goldstein, No. 07-854, 2009 U.S. Lexis 1003.
     A man whose conviction for selling drugs to an undercover informant he voluntarily admitted into his residence was overturned sued Utah state law enforcement personnel who carried out a warrantless search of the premises. The trial court found that the officers were entitled to qualified immunity based on the adoption, by some courts of the "consent-once-removed" doctrine, allowing warrantless entry by officers into homes after consent to entry has previously been given to undercover officers who have observed drugs or other contraband in plain view. This was found to have entitled the officers to have reasonably believed their entry to have been lawful. Based on a two-step procedure spelled out by the U.S. Supreme Court in Saucier v. Katz, 533 U. S. 194, a federal appeals court rejected the qualified immunity defense, based on a rejection of the expansion of the "consent-once-removed" doctrine to the facts of the immediate case, in which the person initially voluntarily admitted into the home was not an undercover officer, but merely an informant. The U.S. Supreme Court unanimously reversed. The Court first found that the Saucier two-step procedure for finding qualified immunity should not be "regarded as an "inflexible requirement." The two-steps involve first determining whether the facts claimed constitute a violation of a constitutional right, and secondly, whether that right was "clearly established" at the time, with qualified immunity applying unless the conduct alleged violated such a clearly established right. While this two-step analysis may still be useful in some cases, the first step of deciding whether a constitutional right was actually violated may be avoided in instances such as the immediate case where it can be found that it was not clearly established, at the time of the conduct at issue, that the conduct was unlawful. In this case, at the time of the warrantless search, it was not clearly established that the officers' entry was unlawful, based on the adoption of the "consent-once-removed" doctrine by two state Supreme Courts, and three federal appeals courts. The officers could act in reliance on these decisions even when the federal appeals court governing their area had not yet decided the issue, particularly where no federal appeals court had then explicitly rejected the doctrine at issue. Pearson v. Callahan, No. 07-751, 2009 U.S. Lexis 591.
     The U.S. Supreme Court has announced that it will decide whether a man convicted of sexual assault and kidnapping fourteen years ago has a constitutional right to access to DNA from physical evidence collected in the case for the purpose of conducting tests which he claims will show his innocence, but which were not possible scientifically to perform at the time of his trial. District Attorney's Office v. Osborne, # 08-06, cert. granted, Nov. 3, 2008. Case below: Osborne v. District Attorney's Office, #06-35875, 521 F.3d 1118 (9th Cir. 2008).
    The U.S. Supreme Court, by a 5-4 vote, ruled that a D.C. ordinance banning handgun possession and requiring that lawfully owned firearms be kept unloaded or bound by a trigger lock violates the Second Amendment. The Court found an individual constitutional right to possess a firearm for use for lawful purposes, such as self-defense within the home. District of Columbia v. Heller, No. 07-290, 2008 U.S. Lexis 5268.
     The U.S. Supreme Court has held that an arrestee's initial appearance before a magistrate or judge, when he learns the charges against him, and his liberty is subject to restriction, constitutes the beginning of an adversary judicial proceeding and triggers the arrestee's right to counsel under the Sixth Amendment. This is true whether or not a prosecutor, as distinct from a police officer, is aware of that first proceeding or involved in it. Rothgery v. Gillespie County, No. 07-440, 2008 U.S. Lexis 5057.
     In this case, Texas police arrested a man with a prior felony conviction as a felon in possession of a firearm, and brought him before a magistrate judge, as required by state law, for a mandatory Fourth Amendment probable-cause determination. At the hearing, bail was set, and the arrestee was told the accusation against him. He was sent to jail, and released after posting a surety bond. He had no money for a lawyer, and made a number of oral and written requests for an appointed lawyer, which were allegedly ignored.
     He was later indicted, rearrested, and his bail was increased, after which he was jailed when he could not post the bail. He was later assigned a lawyer, who succeeded in getting the indictment dismissed. The arrestee then sued the county for violation of civil rights, claiming that if he had been provided with an appointed lawyer within a reasonable time after the initial hearing, he would not have been indicted, rearrested, or jailed.
     The U.S. Supreme Court agreed that the plaintiff arrestee had a Sixth Amendment right to counsel at the time he first appeared in court, even if the relevant prosecutors were not then aware of, or involved in, his arrest or appearance at the hearing, and there was no indication that the officer at the appearance had any power to commit the state to prosecute. The Court noted that the federal government, the District of Columbia, and 43 states take the first step toward appointing counsel to indigent defendants before, at, or just after an arrestee's initial court appearance The Court found that no "acceptable justification" had been presented for the minority practice of failing to do so.
      When officers have probable cause to believe that a person has committed a crime in their presence, the Fourth Amendment permits them to make an arrest, and to search the suspect in order to safeguard evidence and to ensure their own safety. The U.S. Supreme Court ruled that officers did not violate the Fourth Amendment when they made an arrest that was based on probable cause but prohibited by Virginia state law, or when they performed a search incident to the arrest. In this case, rather than issuing a summons required by state law, the police arrested a motorist for the misdemeanor of driving on a suspended license, and a search incident to the arrest produced crack cocaine. The U.S. Supreme Court reversed a decision of the Virginia Supreme Court finding that the search violated the Fourth Amendment because the arresting officers should have issued a citation instead of making an arrest. While the decision was made in the context of a criminal prosecution, the same reasoning would apply in a federal civil rights lawsuit seeking damages. Virginia v. Moore, No. 06-1082, 2008 U.S. Lexis 3674.
     In a case (Avena and Other Mexican Nationals) involving 51 Mexican nationals confined in U.S. prisons, the International Court of Justice (ICJ) ruled that the U.S. had violated Article 36(1)(b) of the Vienna Convention on Consular Relations by failing to provide them with notice of their rights to contact the Mexican consulate after they were taken into custody. The ICJ, therefore, held that each of these individuals were entitled to review and reconsideration of the U.S. state court convictions, even if they had failed to comply with otherwise applicable state rules concerning the challenging of those convictions. In a prior decision, Sanchez-Llamas v. Oregon, No. 04-10566, 548 U.S. 331 (2006), the U.S. Supreme Court ruled that the Convention did not negate the need to apply state rules. The President of the United States, however, issued a memo stating that the U.S. would "discharge its institutional obligations" and have state courts follow the ICJ decision. The Plaintiff in the immediate case, incarcerated in Texas, then filed a Texas state court habeas application challenging his capital murder conviction and death sentence because of the failure to inform him of his rights under the Vienna Convention. The U.S. Supreme Court has now held that neither the ICJ decision nor the President's memo are directly enforceable federal law which would pre-empt state limits on the filing of successive habeas petitions. The court further found that a treaty such as the Vienna Convention is not binding domestic law in the U.S. when Congress has not passed statutes to implement it, except if the treaty itself conveys an intention that it be "self-executing." The plaintiff's habeas petition was therefore properly dismissed. Medellin v. Texas, No. 06-984, 2008 U.S. Lexus 2912.
     U.S. Supreme Court rules that a passenger in a car subjected to a traffic stop by a police officer is seized for Fourth Amendment purposes, as much as the driver is, and therefore may challenge the constitutionality of the stop. While the case arose in the context of a criminal prosecution, its reasoning would also be applicable in a federal civil rights lawsuit brought under the same circumstances. Brendlin v. California, No. 06-8120 127 S. Ct. 2400 (2007).
     An officer did not violate the Fourth Amendment by trying to terminate a high-speed pursuit when it appeared to threaten the lives of by-standers, even when the manner of doing so involved placing the fleeing motorist at a risk of death or serious bodily injury. Scott v. Harris, No. 05-1631, 2007 U.S. Lexis 4748.
     An award of $79.5 million in punitive damages in a case involving an award of $821,000 in compensatory damages violated due process and amounted to an unconstitutional taking of property when the jury was motivated in part by a desire to punish the defendant for allegedly harming persons who were not parties to the litigation. The case involved claims against a tobacco company, rather than claims about law enforcement, but the analysis in it, rejecting the roughly 100-to-1 ratio the punitive damage award bore to the compensatory damages amount as "grossly excessive" may be useful in also defending law enforcement personnel against excessive punitive damage awards. Philip Morris USA v. Williams, No. 05-1256, 127 S. Ct. 1057 (2007).[N/R]
     U.S. Supreme Court rules that the statute of limitations on a federal civil rights claim for false arrest which results in a criminal prosecution starts to run on the date the arrestee is detained. Wallace v. Kato, No. 05-1240, 127 S. Ct. 1091 (2007).[N/R]
     The Westfall Act, 28 U.S.C. Sec. 2679(b)(1) provides federal employees absolute immunity from tort claims for actions taken in the course of their official duties, and gives the Attorney General the power to certify that a federal employee sued for wrongful or negligent conduct was acting within the scope of his office or employment at the time of the incident. Once that certification takes place, the U.S. government is substituted as the defendant instead of the employee, and the lawsuit is then governed by the Federal Tort Claims Act. Additionally, if the lawsuit began in state court, the Westfall Act provides that it shall be removed to federal court, and renders the Attorney General's certification "conclusive" for purposes of the removal. Once the certification and removal take place, the federal court has the exclusive jurisdiction over the case, and cannot decide to send the lawsuit back to state court. In this case, the U.S. Supreme Court also ruled that certification can take place under the Westfall Act in instances where the federal employee sued claims, and the Attorney General also concludes, that the incident alleged in the lawsuit never even took place. Osborn v. Haley, No. 05-593, 2007 U.S. Lexis 1323. [N/R]
     U.S. Supreme Court: a civil rights lawsuit for retaliatory prosecution in violation of a person's First Amendment rights must be based on, among other things, the absence of probable cause to prosecute for the asserted criminal charges. Hartman v. Moore, No. 04-1495, 126 S. Ct. 1695 (2006). [2006 LR Jul]
    U.S. Supreme Court rejects claim that woman granted a restraining order against her estranged husband had a constitutionally protected due process property interest in having police enforce it. Plaintiff alleged that the failure of police to do so resulted in the murder of her three minor daughters by her husband while violating the order. Town of Castle Rock v. Gonzales, No. 04-278, 2005 U.S. Lexis 5214. [2005 LR Aug]
     U.S. Supreme Court: Police officers did not act unreasonably in detaining an occupant of a home in handcuffs during the execution of a search warrant, and they also did not violate her rights by questioning her, during the detention, concerning her immigration status. Muehler v. Mena, #03-1423, 125 S. Ct. 1465 (2005). [2005 LR May]
     Officer who shot fleeing felon motorist in the back was entitled to qualified immunity, U.S. Supreme Court holds, when prior caselaw did not clearly establish that her conduct violated his Fourth Amendment rights. Brosseau v. Haugen, No. 03-1261, 2004 U.S. Lexis 8275. [2005 LR Jan]
     U.S. Supreme Court: a warrantless arrest is reasonable under the Fourth Amendment so long as the officer, based on the facts known to him, has probable cause to believe a crime has been committed. The crime justifying the arrest need not necessarily be "closely related" to the offense actually cited as the reason for the arrest. Devenpeck v. Alford, No. 03-710, 2004 U.S. Lexis 8272. [2005 LR Jan]
     U.S. Supreme Court to decide whether officers were entitled to qualified immunity for arresting a motorist for tape recording a traffic stop without consent, which was not a crime under applicable state law, based on the existence of arguable probable cause to arrest him for crimes "not closely related" to the charged offense. Alford v. Haner, #01-35141, 333 F.3d 972 (9th Cir. 2003). The U.S. Supreme Court granted review in Devenpeck v. Alford, #03-710, 124 S. Ct. 2014 (2004). [2004 LR Nov]
     Arrest and conviction for failing to identify himself by name while detained by an officer, in violation of a Nevada state statute requiring persons stopped to provide such identification, did not violate arrestee's Fourth or Fifth Amendment. Hiibel v. Sixth Judicial Dist. Court of Nevada, #03-5554, 2004 U.S. Lexis 4385. [2004 LR Jul]
     U.S. Supreme Court grants review on case involving the scope of permissible detention and questioning of persons, not suspected of crime, found inside a residence during the execution of a search warrant. Mena v. Simi Valley, Calif., 332 F.3d 1255 (9th Cir. 2003), cert. granted, Muehler v. Mena, No. 03-1423, 2004 U.S. Lexis 4190 (June 14, 2004). [2004 LR Jul]
     U.S. Supreme Court rules that states may be sued for damages under the Americans with Disabilities Act (ADA) for acts of disability discrimination which allegedly interfere with the constitutional right of access to the courts, and that such claims are not barred by Eleventh Amendment immunity. Court does not provide a clear answer about whether similar lawsuits against governmental employees for damages are proper in other circumstances of alleged disability discrimination in the providing of public services or programs. Tennessee v. Lane, #02-1667, 2004 U.S. Lexis 3386. [2004 LR Jun]
     U.S. Supreme Court finds that a search warrant which failed to describe the items to be seized during the search of a Montana ranch was "presumptively invalid," and that a federal agent who applied for the warrant and then led the raid executing it was not entitled to qualified immunity from liability, as the requirement in the Fourth Amendment that a warrant describe with particularity the "persons or things to be seized" is clearly stated. Groh v. Ramirez, #02-811, 124 S. Ct. 1284 (2004). [2004 LR May]
     U.S. Supreme Court holds that a punitive damages award of $145 million was excessive in a case where the compensatory damages were $1 million. Such a disproportionate award of punitive damages violates the Due Process Clause of the Fourteenth Amendment. Courts reviewing punitive damages should consider: (1) the degree of reprehensibility of the defendant's misconduct, (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award, and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases. State Farm Mutual Automobile Insurance Co. v. Campbell, #01-1289, 123 S. Ct. 1513 (2003). [N/R]
     U.S. Supreme Court unanimously upholds city ordinance requiring permits to hold more than 50-person events in a city park. Ordinance was utilized to deny a permit for a large gathering to advocate the legalization of marijuana, but was "content neutral," and therefore did not have to have First Amendment related procedural safeguards. Thomas v. Chicago Park District, No. 00-1249, 122 S. Ct. 775 (2002). [2002 LR Apr]
     347:163 U.S. Supreme Court orders further proceedings as to whether officers were entitled to qualified immunity in lawsuit brought by anti-logging protesters claiming that the use of pepper spray to compel their compliance with law enforcement orders was an excessive use of force. Humboldt County v. Headwaters Forest Defense, #00-1649, 2001 U.S. LEXIS 5482.
     344:115 Military police officer who shoved protester into a van while arresting him at the scene of a speech by the U.S. Vice President at a military based was entitled to qualified immunity; U.S. Supreme Court rules that inquiry on qualified immunity is whether an officer would have clearly known that his use of force was improper under the particular circumstances faced, not merely whether the use of force is ultimately judged reasonable. Saucier v. Katz, No. 99-1977, 121 S. Ct. 2151 (2001).
     344:115 U.S. Supreme Court rejects "catalyst theory" for the award of attorneys' fees in federal lawsuits; a plaintiff, in order to be entitled to an attorneys' fee award must receive a court judgment on the merits or a court- ordered consent decree; a voluntary change in the behavior of the defendant will not suffice. Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, No. 99-1848, 121 S. Ct. 1835 (2001).
     343:101 Rather than merely reviewing punitive damage awards for "abuse of discretion" by trial courts, federal appeals courts should conduct an "independent review" of whether such awards are so excessive as to be unconstitutional, U.S. Supreme Court rules. Cooper Industries, Inc. v. Leatherman Tool Group, Inc., No. 99- 2035, 121 S. Ct. 1678 (2001).
     342:83 Fourth Amendment does not forbid a warrantless arrest for a minor criminal offense, such as a seatbelt violation, even though it is only punishable by a fine. Atwater v. City of Lago Vista, No. 99-1408, 532 U.S. 318 (2001).
     342:83 Hospital's policy, developed in cooperation with local police and prosecutors, of subjecting some pregnant women patients to drug tests, the positive results of which were turned over to law enforcement to prosecute patients for use of cocaine, resulted in searches which were unreasonable under the Fourth Amendment in the absence of patient consent. Ferguson v. City of Charleston, No. 99- 936, 121 S. Ct. 1281 (2001).
     333:141 U.S. Supreme Court strikes down federal Violence Against Women Act (VAWA) as unconstitutional; some plaintiffs were attempting to use statute to assert claims arising out of alleged sexual assaults by law enforcement personnel. United States v. Morrison, #99-5, 120 S. Ct. 1740 (2000).
     326:19 Publishing company was not entitled to an injunction against statute placing restrictions on the release of and use of information concerning the names and addresses of arrestees, which provided that such addresses could not be used for the sale of any products or services; statute on its face did not restrict commercial speech, but merely regulated the release of information in the hands of law enforcement. Los Angeles Police Dept. v. United Reporting Publishing Corp., #98-678, 120 S. Ct. 483 (1999).
     321:131 U.S. Supreme Court rules that city ordinance allowing officers to arrest persons who refuse to disperse after being observed loitering with a gang member in a public place was unconstitutional and failed to provide adequate standards for law enforcement discretion. Chicago, City of, v. Morales, #97-1121, 119 S.Ct. 1849 (1999).
     321:131 Monetary sanctions awarded against plaintiff's lawyer in federal civil rights lawsuit were not immediately appealable; any appeal must wait until the final resolution of the underlying case. Cunningham v. Hamilton County, Ohio, #98-727, 119 S.Ct. 1915 (1999).
     319:99 U.S. Supreme Court unanimously holds that allowing members of the news media to enter private residences along with law enforcement officers during the execution of arrest or search warrants violates the Fourth Amendment rights of the residents; individual defendant officers were entitled to qualified immunity in two cases before the Court. Wilson v. Layne, #98-83, 119 S.Ct. (1999); Hanlon v. Berger, No. 97-1927, 119 S.Ct. 1706 (1999).
     318:83 U.S. Supreme Court holds that search of a defense attorney, pursuant to a search warrant, at the courthouse where his client was appearing before a grand jury did not violate due process; search of attorney, even if calculated to "annoy" or to prevent consultation with his client did not violate his right to practice his profession. Conn v. Gabbert, #97-1802, 119 S.Ct. 1292 (1999).
     315:35 U.S. Supreme Court reverses appeals court decision requiring officers seizing property pursuant to search warrant to give property owners detailed notices explaining state law procedures for asking court to return seized property. City of West Covina v. Perkins, #97-1230, 119 S.Ct. 678 (1999).
     314:19 U.S. Supreme Court to examine whether allowing media to accompany law enforcement in executing arrest or search warrants on private property violates Fourth Amendment and availability of qualified immunity, at this time, for such actions. Wilson v. Layne, #96-1185, 141 F.3d 111 (4th Cir. 1998), reported in Liability Reporter No. 311, p. 174 (Nov. 1998), cert. granted, #98-83, 119 S.Ct. 443 (1998); Berger v. Hanlon, #96-35251, 129 F.3d 505 (9th Cir. 1997), cert. granted, Hanlon v. Berger, #97-1927, 119 S.Ct. 443 (1998).
     313:3 Despite the presence, in terminated correctional officer's suit, of several claims against the State of Wisconsin barred by the Eleventh Amendment, correctional defendants could still properly remove the entire lawsuit from state to federal court, and the federal trial court had jurisdiction to consider and rule on remaining claims not barred by Eleventh Amendment immunity. Wisconsin Dept. of Corrections v. Schacht, #97-461, 118 S.Ct. 2047 (1998).
     313:3 Exclusionary rule does not apply to parole revocation hearings. The rule would apply to a subsequent criminal trial, for offenses committed while on parole, if police officers conduct an illegal search of a parolee's person or premises. Penn. Bd. of Probation & Parole v. Scott, #97- 581, 118 S.Ct. 2014 (1998).
     308:115 A police officer does not violate substantive due process by causing death through deliberate or reckless indifference to life in a high-speed automobile chase aimed at apprehending a suspected offender. Only a purpose to cause harm unrelated to the legitimate object of arrest will satisfy the element of arbitrary conduct shocking to the conscience necessary for a due process violation. County of Sacramento v. Lewis, 118 S.Ct. 1708 (1998).
     308:116 U.S. Supreme Court rejects imposition of higher burden of proof on federal civil rights plaintiffs asserting that defendants acted with unconstitutional motive. Crawford-El v. Britton, 118 S.Ct. 1584 (1998).
     308:117 Unanimous U.S. Supreme Court rules that Americans With Disabilities Act (ADA). applies to state prisons, based on "unambiguous" text of statute; Court does not address question of whether applying ADA to state prisons was a constitutional exercise of authority by Congress; ruling expected to result in many more ADA lawsuits by prisoners. Penn. Dept. of Corrections v. Yeskey, No. 97-634, 118 S.Ct. 1952 (1998).
     Editor's Note: In one example of how this may impact on local law enforcement, in an ADA suit brought in state court, the judge refused to dismiss a suit, brought by a paraplegic inmate against a sheriff and others, for transporting him in a van that was not wheelchair accessible. Davis v. Mak, 1997 WL 133410 (Conn. Super. 1997).
     306:83 Local legislators are entitled to absolute immunity in federal civil rights lawsuits brought over introducing, voting for, or signing an ordinance, regardless of their motives. Bogan v. Scott-Harris, 118 S.Ct. 966 (1998).
     306:83 Appeals court order to trial court to enter final judgment reducing amount of damages awarded to plaintiff by jury, without allowing possibility of plaintiff obtaining a new trial, violated Seventh Amendment constitutional right. Hetzel v. Prince William County, Va., 118 S.Ct. 1210 (1998).
     304:51 Prosecutor may be liable in federal civil rights suit for making false statements, under oath, in connection with application for arrest warrant; in certifying veracity of alleged facts which were basis for warrant, she acted as a "complaining witness" rather than as a lawyer, and prosecutorial absolute immunity did not apply. Kalina v. Fletcher, 118 S.Ct. 502 (1997).
     297:131 U.S. Supreme Court overturns $800,000 award against county based on alleged inadequate screening before hiring deputy with arrest record who caused injuries to arrestee; single hiring decision could not be the basis for municipal liability in absence of evidence that sheriff consciously disregarded high risk that deputy would use excessive force Bd of County Com'rs of Bryan County, Okl v. Brown, 117 S.Ct. 1382 (1997).
     286:147 U.S. Supreme Court adopts therapist-patient privilege protecting disclosures during therapy sessions from compelled disclosure in court; affirms ordering of new trial in which jury awarded $545,000 in police shooting case where jury was told it could presume withheld therapy records would be unfavorable to officer Jaffee v. Allen, 116 S.Ct. 1923 (1996).
     285:131 U.S. Supreme Court rules that an award of punitive damages which was 500 times the size of the compensatory damages awarded by a jury was "grossly excessive" and constitutionally violative of the Due Process Clause of the Fourteenth Amendment BMW of North America, Inc v. Gore, 116 S.Ct. 1589 (1996).
     275:163 U.S. Supreme Court rules that prisoner placed in disciplinary segregation following charges of misconduct was not entitled to due process procedural protections; shift in focus in determining whether state regulations create a constitutionally protected liberty interest Sandin v. Conner, 115 S.Ct. 2293 (1995).
     274:147 U.S. Supreme Court, resolving major split between U.S. appeals courts, unanimously rules that defendants in federal civil rights cases may not seek immediate appeal of denials of qualified immunity when trial court bases such denial on basis that there is a genuine issue of material fact for trial; immediate appeal in such cases is limited to reviewing whether "clearly established law" violation is alleged, not issues of sufficiency of evidence Johnson v. Jones, 115 S.Ct. 2151 (1995).
     Oregon state constitutional provision prohibiting judicial review of jury awards of punitive damages in most cases violates the due process clause of the Fourteenth Amendment, U.S. Supreme Court holds Honda Motor Co, Ltd v. Oberg, 114 S.Ct. 2331 (1994).
     Federal appeals courts reviewing the grant or denial of an officer's qualified (good-faith) immunity defense must consider all relevant legal precedents, including those which were not cited to or discovered by the trial court. Elder v. RD Holloway, 510 U.S. 510 (1994).
     U.S. Supreme Court rules that peremptory challenges of potential jurors based on gender violate the Equal Protection Clause of the Fourteenth Amendment JEB v. Alabama Ex Rel TB, 114 S.Ct. 1419 (1994).
     U.S. Supreme Court holds that courts should dismiss federal civil rights suits seeking damages when a judgment in favor of the plaintiff necessarily implies that invalidity of the plaintiff's criminal sentence, but that sentence has not already been overturned Heck v. Humphrey, 114 S.Ct. 2364 (1994).
     U.S. government not entitled to a presumption that all persons supplying information to FBI during a criminal investigation are "confidential sources" entitled to exemption from disclosure under the Freedom of Information Act. U.S. Dept of Justice v. Landano, 113 S.Ct. 2014 (1993).
     Lawsuit alleging that inadequate training led to shooting death of plaintiffs' dogs during execution of search warrant was properly dismissed; complaint had "all bark and no bite" in failing to allege specific facts regarding the alleged inadequacy of police training; U.S. Supreme Court grants review of case. Leatherman v. Tarrant County Narcotics Intelligence, 954 F.2d 1054 (5th Cir), cert granted, 112 S.Ct. 2989 (1992). U.S. Supreme Court subsequently held, in Leatherman v.Tarrant County Narcotics Intelligence, No.91-1657, 507 U.S.163 (1993), that a federal court may not apply a "heightened pleading standard" which more stringent than the usual pleading requirements of Federal Rule of Civil Procedure 8(a) in civil rights cases alleging municipal liability under 42 U.S.C. Sec. 1983. Rule 8(a)(2) requires that a complaint include only "a short and plain statement of the claim showing that the pleader is entitled to relief."
     Federal Tort Claims Act prohibition of "punitive damages" against U.S. government does not bar awards for future medical expenses or for loss of enjoyment of life Molzof v. US, 112 S.Ct. 711 (1992).
     Civil rights plaintiff solely seeking monetary damages who was awarded only $1 in nominal damages was a "prevailing party," but was not entitled to attorneys' fee award of $280,000; Court states that, in such cases, "the only reasonable fee is usually no fee at all." Farrar v. Hobby, 113 S.Ct. 566 (1992).
   U.S. Supreme Court rules that "significant injury" is not a requirement for proving use of excessive physical force against a prisoner in violation of the Eighth Amendment Hudson v. McMillian, 60 USLW 4151; 50 CrL 2051 (Feb 25, 1992).
     Arrestees seized without warrants are entitled to probable cause hearings "no later" than 48 hours after arrest County of Riverside v. McLaughlin, 111 S.Ct. 1661 (1991).
     Any person signing papers submitted to court in frivolous federal lawsuits can be assessed monetary sanctions, whether or not they are an attorney Business Guides, Inc v. Chromatic Communications Enterprises, Inc, 111 S.Ct. 922 (1991); Cooter & Gell v. Hartmarax Corp, 110 S.Ct. 2447 (1990); Paveliv & LeFlore v. Marvel Entertainment Group, 110 S.Ct. 456 (1989).
     U.S. Supreme Court holds that $10 million punitive damage award did not violate due process. Pacific Mutual Life Ins Co v. Haslip, 499 U.S. 1 (1991).
     State officials may be sued for damages in their individual capacities in federal civil rights cases, even if they were acting "in their official capacities" during the complained of conduct, U.S. Supreme Court rules. Hafer v. Melo, 502 U.S. 21 (1991).
     Punitive damages are not, per se, a violation of due process, but Supreme Court indicates that "extreme results" may be "unacceptable" under due process Pacific Mut Life Ins Co v. Haslip, 111 S.Ct. 1032 (1991).
     U.S. Supreme Court holds that claims against law enforcement officials for excessive use of force in making arrests are to be analyzed under a fourth amendment objective reasonableness standard Graham v. Connor, 109 S.Ct. 1865 (1989).
     U.S. Supreme Court allows attorneys to waive fees in settlements Evans v. Jeff D, 475 U.S. 717 (1986).
     U.S. Supreme Court allows civil rights plaintiffs to recover huge attorney's fees in modest cases City of Riverside v. Rivera, 477 U.S. 561 (1986).
     U.S. Supreme Court rules "prevailing party" cannot recover attorney's fees for first pursuing administrative remedies Webb v. Board of Ed of Dyer County, 105 S.Ct. 1923 (1985).
     U.S. Supreme Court limits fee recovery Marek v. Chesny, No 83-1437, 473 U.S. 1 (1985).
     Supreme Court overturns injunction issued against LA police regarding use of choke holds City of Los Angeles v. Lyons, 103 S.Ct. 1660 (1983).

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