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Posts from Joshua Newville, a Minnesota employment lawyer, civil rights attorney, and mediator.

Video Technology Helps Police … And Victims of Police Misconduct

Minnesota police departments, like many across the nation, are rapidly expanding their use of video technology by individual police officers. Gone is the day when officers were limited to using traditional COPS-style dash-cams to record what was happening directly in front of their police cruiser. Individual officers can now wear cameras on their heads, which allow them to record virtually everything they see in the course of their duties. Police departments are also using a plethora of other technology to supplement video evidence. Such video documentation has been critically important in protecting police and providing crucial evidence; such as in this case from Burnsville, Minnesota.

As video camera technology expands for police, however, so it does for the average citizen. In a Texas case, Christopher Moore was wearing a helmet camera while riding his motorcycle on a Dallas highway. The video (click here for raw the raw version and click here to see it analyzed by RightThisMinute) shows Deputy James Westbrook initially stating that he pulled Moore over in order to seize his helmet-cam to use as evidence for various crimes allegedly committed by other motorcyclists. The problem, as Moore quickly points out, is that the officer didn’t have valid authority to conduct such a search and seizure of Moore.

The Fourth Amendment to the United States Constitution serves to protect the privacy of individuals from unreasonable government intrusion; it does so by requiring a valid search warrant in order for the government to search and seize one’s “person, houses, papers, and effects[.]” While there are several exceptions to the warrant requirement, Moore will likely argue (in a civil rights lawsuit against Westbrook and the Dallas Police Department) that Westbrook’s actions were illegal from start to finish. In fact, Moore said as much several times during the actual incident, to which Westbrook responded by conducting a physically aggressive arrest of Moore (for a purported license plate violation). Thus, it is likely that Moore will have a potential civil lawsuit against Westbrook and the DPD for 1) unlawful arrest and 2) excessive force.

Below are the elements required for each, as explained by Judge David Doty of the United States District Court of Minnesota in Carter v. Bailey, a case in which we successfully represented an excessive force victim at trial.

Excessive Force

The Fourth Amendment right to be free from unreasonable seizure protects against the use of excessive force in the apprehension or detention of a person. See Graham, 490 U.S. at 395. “To establish a constitutional violation under the Fourth Amendment’s right to be free from excessive force, the test is whether the amount of force used was objectively reasonable under the particular circumstances.” Brown v. City of Golden Valley, 574 F.3d 491, 496 (8th Cir. 2009) (citations omitted). “[T]he right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Cook v. City of Bella Villa, 582 F.3d 840, 849 (8th Cir. 2009) (quoting Graham, 490 U.S. at 396).When evaluating the reasonableness of an officer’s use of force, a court considers “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of defendants or others, and whether he is actively resisting arrest orattempting to evade arrest by flight.” Graham, 490 U.S. at 396. “The `reasonableness’ of a particular 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.” Id. (citing Terry v. Ohio, 392 U.S. 1, 20-22 (1968)). The “calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.” Id. at 396-97; see Brown, 574 F.3d at 496. In short, “[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment.” Cook, 582 F.3d at 849 (8th Cir. 2009) (quoting Graham, 490 U.S. at 396).

Unlawful Arrest

A warrantless arrest violates the Fourth Amendment unless it is supported by probable cause. Amrine v. Brooks, 522 F.3d 823, 832 (8th Cir. 2008) […]“Probable cause exists when the totality of the circumstances shows that a prudent person would believe that the arrestee has committed a crime.” Id. at 832. An officer may be wrong as long as his belief is reasonable: to prevail on a claim of unlawful arrest, a plaintiff must show that the officer lacked “arguable probable cause.”Walker, 414 F.3d at 992 (citation and internal quotation marks omitted). “If an officer alleges conduct by an arrestee giving rise to probable cause and those facts are undisputed, the officer is entitled to qualified immunity.” Kukla v. Hulm, 310 F.3d 1046, 1049 (8th Cir. 2002) (citation omitted). If a plaintiff “challenges the officer’s description of the facts and presents a factual account that would not permit a reasonable officer to make an arrest” then the officer is not entitled to qualified immunity at this stage in the litigation. Id.

#JamesWestbrook #4thAmendment #UnlawfulArrest #Texas #ChrisMoore #HelmetCam #DashCam #Dallas #SearchandSeizure #Warrant


Joshua Newville is an attorney and mediator based in Minnesota. He litigates employment and civil rights cases, serves as a mediator for civil disputes, and provides employment law advice.

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