11 7 12 0204 62337 Bates 1 To 618 Pleading Created by Zach Coughlin Volume 1 SBN Violates SCR 105 (2) (C) With Link

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Doculllcnt Code:
Zah Coughlin, Esq.
Nevlldf LmNo: 9473
1422 E. 9th St., 12
Reno. NV 89512
Tetc: 775 338 8118
Fax: 949 6G7 7402
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Co-counsel for Dcfcndanl Coughlin
IN THE JUSTICE COURT OF RENO TOWNSHIP
IN AD FOR THE COUN1Y OF WASHOE, TATEOFNEVADA
STATE OF NEY ADA;
Plaintif,
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CASE NO: RCR2012-05630
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DEPT. NO; 2
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)_ ZACHARY COUGHLIN;
Defendant.
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To all those in Reno, Wllshoo Comty, and beyond wlto walll to pcrpcIuatc this
hcm:cry. "ky ]ur|M o0n, tt/wha(" 0gn 0Uo//n/
COMES NOW, ZACH COUGHLJN, ESQ., and 1|cthe 3bove titled doClUllent on his own behalf
aud it is bnsw on the argment and authorities hnin, and !hcattalunents. Ccutu8 tilis cour
to order the WCPD to just give him some money andlet him 6_Hd it he sees ft to fulfill the
requi rement Ihat Couglil1. who is indigent. be provide coullselulder the Sil1h Amendment
Plelse illcorpolltc by r.;fcn:nct lhe 1lt3terials at1achcd herein. But vIshort, the araignment ill
this matter was set for Febnlary 14th, at 9:30 am. The lllldersigned o the understanding tat
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U0JCL Of APPEARANCE, EHTR Of PIl' O HC" GUILTY, iAIVER OF RIGHT TO ARRAIGNItT
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4C5D D5D Bira< Dogan, Esq. >as his attorne< at that ?oint, having discussed the case >ith Dogan
.or hours =< that ?oint and having had a .ace to .ace discussion >ith Dogan >here it >as agreed that
Dogan >ould enter a Not 9uilt< 5lease on =ehal. o. the accused at the )e=ruar< 4, !,!
arraignment in this matter, and >aive an< such right to an arraingment to the e*tent necessar< to
allo>ed the accused to have Dogan a??ear on his o>n =ehal. at the arraignment. )urther, the
undersigned >as o. the understanding that Dogan had alread< =egun settlement negotiations >ith
DD6 7oung, even ?rior to meeting >ith the undersigned on a??ro*imatel< )e=ruar< 9th, !,!, and
that D5D Chris )ortier has, curiousl<, contacted the undersigned, some>hat to DoganDs
consternation. (he undersigned sent an email to Dogan shortl< a.ter the arraignment should have
seen Dogan enter a not guilt< ?lea on the undersignedDs =ehal. to inquire a=out ho> things >ent and
>hether DD6 7oung and Dogan had an< ?rogress to>ards a reasona=le ?lea agreement.
53/N(" 6ND 62(03$/(/E"
6n arraignment is the .irst time in a criminal ?rosecution >hen the de.endant is =rought
=e.ore an o?en court to hear the chargeEs;, and to enter a ?lea. N$" 74.,'. (he ?rimar< ?ur?ose o.
an arraignment is to in.orm a de.endant o. his rights. # 6sB the de.endant hisFher legal name. N$"
74.,!' e*?lains >hat to do i. a di..erent name is used. # /n limited Curisdiction courts, read the
com?laint to the de.endant =e.ore the trial commences i. requested. (he de.endant should =e given a
co?< o. the indictment or in.ormation =e.ore heFshe ?leads. # /n.orm the de.endant o. hisFher right to
counsel. 6lthough the de.endant has alread< =een in.ormed o. hisFher right, this should =e done at
ever< stage o. the ?roceedings. /. the de.endant >ishes to secure counsel, the matter should =e
continued to allo> the de.endant to consult an attorne<. /. the sentence includes the ?ossi=ilit< o. Cail
time8 the de.endant must =e a..orded an attorne<. /. a de.endant >ants to re?resent himsel.Fhersel.,
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NOTICE OF APPEARANCE, ENTRY OF PLEA OF NOT GUILTY, WAIVER OF RIGHT TO ARRAIGNMENT
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?lease see the cha?ter on sel. re?resentation. #/. a de.endant >aives the right to counsel or in
a??earance a.ter counsel is retained or a??ointed, asB >hat the ?lea is: guilt<, not guilt<, or nolo
contendere Eno contest;. (he de.endant ma<, in the alternative, or in addition to an< one o. the ?leas
?ermitted =< su=section , ?lead not guilt< =< reason o. insanit< not less than ! da<s ?rior to trial.
N$" 74.,3'E4;. # /. the de.endant re.uses to enter a ?lea, Gthe court shall enter a ?lea o. not guilt<.H
N$" 74.,3'E';.
CONCLUSION
(he undersigned here=< request this Court allo> this .iling to serve as an entr< o. a ?lea o.
Not 9uilt<, and >aive an< requirement or right to the reading o. the chargesFarraignment, etc. and
.urther that this Court allo> the undersigned to enter this .iling as a Notice o. 6??earance o. the
undersigned as co-counsel in this matter along >ith >hoever ultimatel< is the a??ointed de.ender,
and that sanctiosn in the amount o. I,,,, =e a>arded to the undersigned in light o. the e*?ense in
?re?aring this motion and the .act that Dogan is com?ensated >ell, <et .ailed to a??ear .or the
arraignment E>hich can ha??en, >hatever, not the end o. the >orld;, =ut com?ounded that =< his
=lase re.usal to .ile something addressing this matter a.ter>ards or other>ise em=racing this DholisticD
a??roach and re?resentations o. such made =< the 4C5D, and an< other relie. this court .eels is Cust,
including dismissing this case .or .ailure to ?lead >ith su..icient ?articularl< or maBe a ?rima .acie
sho>ing o. the crime .or >hich the accused is charged, es?eciall< considering that @aster
Edmondson granted the undersigned t>o ?rotection orders in connection >ith the domestic violence
.or >hich $5D "argent "ig.ree curtl< dismissed re?orts o., rather Eand this ma< >ell =e on ta?e,
$5D; "argent "ig.ree engaged in some =lame the victim =ashing and .rat =o< retaliator< ?olice >orB
>hile a..ecting the manner and a??earance o. a character on the @(% realit< television sho>, the
J1erse< "horeJ >ith, Eand Dogan commented on >hat a great descri?tion this >asFis; "argent
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"ig.reeDs J>earing a su?er tight su?er short sleeve $5D shirt, des?ite the arrests Ehe also had the
undersigned arrested .or JCa<>alBingJ u?on in.ormation and =elie. as a J.avorJ to $ichard 9. 0ill,
Esq., >hom gets his 5rotection 3rder signed and stam?ed =< $1C 1udge "chroeder >ithin 4,
minutes o. .iling it on F4F!, and 1udge "chroeder screamed at the undersigned at the F3F!
0earing to E*tend (em?orar< 5rotection 3rder , JDo <ou >ant to go to CailKJ >hen the undersigned,
in res?onse to 0ill a??earing and ?rom?tl< >ithdra>ing his insi?id (53 a??lication =rought u? the
s?ecter o. actuall< considering >hether 0ill might =e a=using the ?rocess .or an im?ermissi=le
?ur?osed. B< that ?oint 0ill had achieved >hat he >anted, to ?revent Coughlin .rom collecting the
video evidence he >as in the ?rocess o. collecting, ?eacea=l< and .rom a ?u=lic ?lace, on F4F! o.
0illDs contractorDs having .raudulentl< using CoughlinDs o>n ?l<>ood to =oard u? CoughlinDs .ormer
home la> o..ice Ea .raudulent =ill >as attached as an e*hi=it in $1C $ev!,-,,7,& .or this
JsecuringJ des?ite such an unla>.ul rent distraint =eing outla>ed =< N$" &6.'!, and N$"
&6.4+, not allo>ing .or JsecuringJ e*?enses E?articularl< >here I9,, >as alread< =eing charged
.or having .urniture at the ?ro?ert< and clientDs .ile .orm a la> ?ractice, >hich 0ill re.used to turn
over, then lied a=out his re.usal to the $5D and the $1C Court...sue me $ichardK /. / am l<ing sue
meK 7ou are a ?athetic ?o* on the legal ?ro.ession, 0ill, >ho uses a=use o. ?rocess to sti.le o??osing
counselDs discover< in a >rong.ul eviction matter.;;
6s .or dismissing this case Eunless the s<stem >ants to ruin m< .amil< some more....none o.
<ou Bno> the e*tent to >hich our relationshi?s have crum=led under the strain o. this gang =ang;
consider:
Lings EBrooBl<n; Count< Criminal case- 5e?le v. @cDu..ie, !, LN374'43, N7:1 !,!'34774,
at M ECrim., L/, Decided 3cto=er !7, !,;- >hich illustrates the level o. ?roo. required to ?ro?erl<
charge Eand convict; a de.endant o. 5etit :arcen< ENe> 7orB 5enal :a> ''.!'; and Criminal
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5ossession o. "tolen 5ro?ert< in the )i.th Degree ENe> 7orB 5enal :a> +'.4,;. (o clari.<, ?ursuant
to N7 5: ''.!', a ?erson is guilt< o. 5etit :arcen< >hen he or she steals ?ro?ert< Ean< ?ro?ert<;
>ith a value o. one thousand dollars or less. 6dditionall<, ?ursuant to N7 5: +'.4,, a ?erson is
guilt< o. Criminal 5ossession o. "tolen 5ro?ert< in the )i.th Degree >hen he or she Bno>ingl<
?ossess stolen ?ro?ert< >ith the intent to =ene.it him or hersel..
"o, the =ring a charge that has destro<ed the accusedDs li.e, .orever altered the accusedDs
relationshi? >ith his immediate .amil< to an alarmingl< negative e*tent, damaged the accusedDs
?ro.essional standing and re?utation, caused the accuseds to gain 3' ?ounds and have trou=le
slee?ing that a..ects him on a dail< =asis, and other>ise send the accusedDs li.es into vast turmoil and
anguish, DD6 Zach 7oung cra.ted, ever so care.ull< the .ollo>ing Criminal Com?laint:
JZ6C0 732N9 o. the Count< o. 4ashoe, "tate o. Nevada, veri.ies and declares
u?on in.ormation and =elie. and under ?enalt< o. ?erCur<, that Z6C06$7
B6$LE$ C3290:/N, the de.endant a=ove-named, has committed the crime o.:
Einsert Jmisuse o. 9J N$" cite here; in the manner .ollo>ing, to >it: (hat the
said de.endant on or a=out the 1anuar< 4th, !,!, at $eno (o>nshi?, >ithin the
Count< o. 4ashoe, "tate o. Nevada, did >ill.ull< and unla>.ull< Einsert elements
listed in N$" cite here; at Einsert 4!! E. 9th "t. #!, $eno &9'! address here;,
$eno, 4ashoe Count<, Nevada, >ith the intent to Einsert ?rohi=ited volitional act
here;..
C32N( //. 53""E""/3N 3) "(3:EN 5$35E$(7, a violation o. N$"
!,'.!7', a misdemeanor, in the manner .ollo>ing, to >it: (hat the said de.endant
on or a=out the !,th da< o. 6ugust, !,, at $eno (o>nshi?, >ithin the Count<
o. 4ashoe, "tate o. Nevada, did >ill.ull< and unla>.ull< ?ossess or >ithhold
stolen goods having a value less than (>o 0undred )i.t< Dollars EI!',. ,,;, to
>it: an i5hone, at or near North Center "treet, $eno, 4ashoe Count<, Nevada,
such ?ro?ert< =eing o>ned =< C3$7 93B:E, .or his o>n gain or to ?revent the
true o>ner .rom again ?ossessing said ?ro?ert<, Bno>ing that the ?ro?ert< >as
o=tained =< means o. larcen< or under such circumstances as should have caused
a reasona=le man to Bno> that such goods >ere so o=tained.J
6nd thatDs it. (hat. 3r that >ill =e it, not sure / even have a co?< o. the Com?laint, =ut all
73ung is going to do is .ile a ro=o-?leading inserting the te*t o. the statute .or Jmisuse o. 9 or
emergenc< services, etc...J (hat conclusor<, circular, com?letel< devoid o. an< .actual assertions
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other than indicating that the ?erson charged did the things that are listed as elements o. the o..ense
charged is >hat ?asses .or stating a ?rima .acie case at the 4CD6 3..ice and >ith Zach 7oung. /t
>as m< understanding the gu< getting ?aid I,,L in salar< and =ene.its could sho> u? to >atch
the arraignment video >here the court >arns ?ro seDs that the< >ill =e ?unished .or challenging the
?rimac< o. the s<stem and its ?arasites....those DD6Ds >ho sa< JNo, 7our 0onorJ at the ?re-trial
hearing >hen asBed i. the< have an<thing to add, >ith a tone o. voice that suggests the< have =een
dee?l< immersed in a scra==le ?uNNle or cross>ord, and those D5DDs liBe 9oodnight, >ho actuall<
argued in $C$!,-,+334 that he didnDt even thinB the de.endant needed a 5D as the state >asnDt
liBel< seeBing Cail time E9oodnight also has no idea >hat N$" &9.,, is a=out or >hat JrenditionJ
means;. Enter 1udge ".erraNNa, >ho EliBe >hen $ichard 0ill >anted to get the "ummar< Eviction
3rder en.orced via locBout >ithin , minutes o. the (rial ending; >isel< reminded @r. 9oodnight
that, not onl< did the accused have a la> license, >hich >ould liBel< sustain heav< collateral
damage u?on a conviction o. the nature o. the crime charged in that matter, =ut )2$(0E$, it >as
the 5D itsel. >ould insisted on maBing Coughlin get a Com?etenc< Evaluation, >hich >ent on to
entail several ridiculous attem?ts at getting it done =< this one ?articular entit< Esel. dealing 5DO
quid ?ro quoO onl< one ?lace can do a com?etenc< evalO; =ut also resulted in a =ill .or I7, to the
$1C, >hich 1udge ".erraNNa >isel< .ashioned in a ?a?er air?lane and ?roCected right on =acB to @r.
Bosler. 1udge ".erraNNa doesnDt hit <ou over the head >ith it, =ut he is enormousl< intelligent.
5lease donDt revoBe m< =ail, it >as I3,, / reall< didnDt have at the time, =ar dues o. I4', are due
@arch , !,! and the ?u=lic doesnDt ?a< mine EenCo< it 9oodnight, Dogan, 7oung, "?encer, et alK;
nor does it ?a< the ! credits o. C:E / need Escratch that BL emFec. BnocBed 3 out .or me, so /
need 9;, / o=viousl< need to do the 5DDs Co= and ?re?are .or trial, >hich >ould =e im?ossi=le get
6=u 9raih=ed and having all m< Jtier timeJ denied =< (hor and the 9ang u? at the 4ashoe Count<
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Detention Center E/ do liBe a lot o. ?eo?le there though, and on the $5D .orce, including "argent
Zach (he>, >ho told me / could call him an<time to discuss an issue / >as having >ith the
circumstances o. the last + months, and .or >hich "argent "ig.ree liBel< =ought the $eno Cit<
6ttorne< a civil suit to de.end. (o all those in $eno, 4ashoe Count< and =e<ond >ho >ant to
?er?etuate this chicaner<: J3Ba<, <ourDre a goon, =ut >hatDs a goon to a go=linOJ
AFFIRMATION AND DECLARATION
I ecl!"e, #u"su!n$ $o NRS %&'()%, une" #en!l$* o+ #e",u"* une" $-e l!.s o+ $-e S$!$e
o+ Ne/!! $-!$ $-e +o"e0o1n0 1s $"ue !n co""ec$ !n $-!$ $-1s ocu2en$ oes no$ con$!1n !n*
soc1!l secu"1$* nu23e"s, #u"su!n$ $o NRS &456'(4(, !n !++1"2!$1on $o $-!$ e++ec$ $-1s -e"e3* 1s'
D6(ED this 7th o. )e=ruar<, !,!:
PFsF Zach Coughlin
Zach Coughlin, Esq.
De.endantF Co-Counsel to 9oodnight
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PROOF OF SVICE
ON Ihis dat. I causld a copy of the foregoing document s to be served lIpon the following by
sending to their rcgi3lcrcd email addn:ss and fax number as found 1 ,llvbar.og, hnd delivery
to dropslol or `onIdesk, and by placing a tme axCOl'c copy o tho foregoing docwnellt in the
U.S. mail addreS!ed to:
Zachary N. Young Esq.
Washoe County OA
1 8othSIct1P.O. Box 30083
Reno. NV 89520
Phone Number: 77.-328-3200 laxnmuhc:77.-325-6703
Email: zyoung@dl.washoecounly.lIs
Biray D081I\, Esq.
Wa\hoe County Public Defnder's Ofce
P.o. Bx 30083 K=IoNV 89509
Phone Number; 775-337-4868 Flx number: 775-337-4856
Emllil: bdognn@washoecouuly.us
JRMY T. BOSLER, Esq.
BarNo. 4925
One Clilifomil AVI
Reno, NV 89509
(775) 3374800
Attorney for Defendant
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DEFENDANT
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Zah Coughlin
Nevada Ba No: Y4J
1422 E, 9- SI. #2
Reno. NV b9J12
Tele: 77J-JJ8-811
Fax: 949-T-T4U2
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Attorey for Pro Se Anomey Plaintiff Denied Sixth Amendment Right to Counsel
IN TIiE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA
IN AND FOR THE COUNIT OF WASHOE
CITY OF RENO;
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PLAINTIFF,
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C:C No: 11 CR 26405
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l3 ZACH COUGHLIN; ) Dept No: 2
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DEFENDANT,
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COMES NOW, Defendant, Zruh Coughlin, by and through him:e1f co-counsclto
Defendant nnd file the above title document on his own beh<lf

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IDtfoUUlO
The defendant, Zach Coughlin ("Coughlin") is charged with criminal trespass under
the Reno Municipal Code (RMC) .` h ractual allegations in the complaint are to the effect
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that both counts occurred on the same date, at about the same time, and in the same
general icinit!. "ach count, though, inoled a separate incident.
#ana $rec%enridge was operating a ehicle that had been traeling each on &est 'treet,
approaching the intersection of $la%e (enue and had the right of wa!. Coughlin)s ehicle failed to
stop fo the stop sign and entered the intersection. $rec%enridge)s ehicle was forced to ta%e easie
action and steerred to the right, causing the ehicle to sideswipe a fire h!drant . . . . Coughlin failed
to stop for the accident . . . .#ana $rec%enridge complaint of pain to her legs and was transported to
(ll 'aints *ospital b! Rescue.
&ith regard to the second incident, the complaint alleges+
Coughlin)s ehicle continued east and went through the red light at the intersection of north
Memorial ,rie and &est street, 'tratman, who had been operating a ehicle owned b! Mic%)s (uto
-arts southbound on .orth Memorial ,rie, was struc% b! Coughlin)s ehicle . . . . "rnesto
(Coughlin) then ran from the ehicle leaing the secene of the accident. . . ( passenger in
Coughlin)s ehicle, /.*. . . . complained of pain to his nec% and bac% and was transported to (ll
'aints *ospital b! Rescue.
0inall!, the complaint alleges that "rnesto Coughlin was interiewed b! police and said that
he ran from the ehicle because, ""rnesto stated that his brother, /.*., did not want him
arrested for an accident and told him to run."
Argument
I. The compl!nt mu"t llege "u##!c!ent #ct" $!th!n the #our corner"% $hen &!e$e' !n common
"en"e mnner% to e"t(l!"h pro((le cu"e to (el!e&e tht the 'e#en'nt comm!tte' the o##en"e
llege'. )ere% the compl!nt !" 'e#!c!ent the tre"p"" chrge RMC *.+,.,+,.
, criminal com<laint mu0t meet <ro>a>le cau0e re@uirement0 to con.er <er0onal Auri0diction. State v.
White" 97 8i0. 2d 193" 197" 29% N.8.2d 34*" 347 B19$+;. , criminal com<laint i0 a 0el.'contained
charge that mu0t 0et .orth .act0 ?ithin it0 .our corner0 that are 0u..icient" in them0elve0 or together
?ith rea0ona>le in.erence0 derived there.rom" to allo? a rea0ona>le <er0on to conclude that a crime
?a0 <ro>a>l- committed and that the de.endant i0 <ro>a>l- cul<a>le. State v. Haugen" %2 8i0. 2d
791" 793" 191 N.8.2d 12" 13 B1971;. 1. the criminal com<laint .ail0 to e0ta>li0h <ro>a>le cau0e" the
court doe0 not o>tain <er0onal Auri0diction" and the charge mu0t >e di0mi00ed. &he criminal
com<laint" ho?ever" i0 not to >e read in a h-<ertechnical 0en0e >ut" rather" i0 to >e revie?ed on a
rea0ona>le >a0i0 a<<l-ing ordinar- common 0en0e. State v. Gaudesi" 112 8i0. 2d 213" 219" 332
N.8.2d 3+2" 3+% B19$3;. &here.ore" the .act0 alleged and the in.erence0 that ma- >e dra?n .rom
them mu0t >e 0u..icient to e0ta>li0h in a common 0en0e ?a- that there i0 <ro>a>le cau0e to >elieve the
de.endant committed the o..en0e charged. See id.
2ere" the com<laint <ur<ort0 to allege that Coughlin violated !=CC0 tre0<a00 0tatute $.1+.+1+ &he
element0 o. that o..en0e are: Element" o# the Cr!me Tht the Stte Mu"t Pro&e
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NOTICE OF APPEARANCE AS CO-COUNSEL AND MOTION TO DISMISS
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Reno Mun!c!pl Co'e "ect!on *.+,.,+,% pro&!'e" !n rele&nt prt- E&er. per"on $ho . . .
$!ll#ull. goe" or rem!n" upon n. ln' or !n n. (u!l'!ng #ter h&!ng (een $rne' (. the
o$ner or occupnt thereo# not to tre"p"" !" gu!lt. o# m!"'emenor.
A. The cr!m!nl tre"p"" compl!nt #!l" to e"t(l!"h pro((le cu"e (ecu"e !t #!l" to "ho$
n. not!ce or "er&!ce o# the $r!tten OR'er #or Summr. E&!ct!on $" con'ucte' !n l$#ul
mnner n' not too "oon n' thu" &o!'..
(or the0e rea0on0" the criminal com<laint mu0t >e di0mi00ed.
1 realiDe -ou ?ill liEel- not read all o. thi0. &he main thing i0 1 am re0<ect.ull- re@ue0ting that
-ou con.irm ?ith De<ut- =achem that he did" in .act" F<er0onall- 0erveF the Summar- Eviction
3rder on me at 121 !iver !ocE St." !eno $9%+1 on Novem>er 1" 2+11 at 4:3+ <m" in connection ?ith
<er.orming the locEout. 1t i0 m- <o0ition that 1 ?a0 not F<er0onall- 0ervedF and 1 am tr-ing to .igure
out ?hether De<ut- =achem i0 l-ing or ?hether the <hra0e F<er0onall- 0ervedF mean0 0omething
other than ?hat 1 >elieve it mean0" etc." etc. 1 a<<reciate -our attention to thi0.
1 am ?riting to in@uire a>out and com<lain ?ith regard to an ,..idavit o. Service .iled >- or .or 8CS3 De<ut- =achem
?ith re0<ect to the 0ervice o. a 3rder :ranting Summar- Eviction again0t me Bin m- la? o..ice ?here non'<a-ment o.
rent ?a0 not alleged" no le00 in violation o. N!S 4+.2%3 and ?here a G2"27% rent e0cro? de<o0it ?a0 .oi0ted u<on me in
violation o. 4+.2%3B*;" e0<eciall- ?here a 0ta- o. eviction ?a0 not granted even ?hile the !4C held on to mo0t all m-
mone-...;.
=- i00ue ?ith the 8CS3 i0 that =achemC0 ,..idavit o. Service indicate0 that he F<er0onall- 0ervedF me" ?hich Eind o.
remind0 me o. all that ro>o'0igning and =E!S .raud 1 come acro00 in m- da- Ao> Band do -ou ?onder ho? man-
attorne-0 in the .oreclo0ure de.en0e game 1 am in con0tant contact ?ith ?ho are ?atching and ?itne00 the <otential !1C3
violation0 thi0 ?riting mention0H;" ?hich include0 >eing a .oreclo0ure de.en0e attorne-. So ?hich i0 itH Did =achem
F<er0onall- 0erveF me the Summar- Eviction 3rderH !ichard :. 2ill" E0@. liEe0 to argue that 1 ?a0 F0ervedF in
com<liance ?ith all time related rule0 >ecau0e it ?a0 done in the Fu0ual cu0tom and <ractice o. the 8CS3. 8hat" e)actl-"
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i0 the Fu0ual cu0tom and <ractice o. the 8CS3H 1 hear a lot a>out thi0 F?ithin 24 hour0F 0tu... So" 1 go hunting .or 0ome
>lacE letter la? to 0u<<ort ?hat tho0e at the !4C and in the cluele00 communit- at large B?hich o.ten include0 Nevada
6egal Service0 and 8a0hoe 6egal Service0" the <eo<le -ou gu-0 had 0uch trou>le actuall- 0erving in the la?0uit0 1 .iled"
?hich ma- have actuall- hel<ed im<roved legal 0ervice0 in thi0 communit-" i. the- ?ere not di0mi00ed due to
in0u..icienc- o. 0ervice o. <roce00" even ?here the 1(/ re@uired the 8CS3 to 0erved the de.endant0....;. ,n-?a-" >acE to
the F?ithin 24 hour0F <hra0eolog-: F
&hi0 ?hole >u0ine00 a>out I&he court ma- thereu<on i00ue an order directing the 0heri.. or con0ta>le o. the count- to
remove the tenant ?ithin 24 hour0 a.ter recei<t o. the order...J i0 ina<<lica>le to thi0 0ituation" ?here an 3rder :ranting
Summar- Eviction ?a0 0igned >- 3cto>er 27th" 2+11. &hat language i0 onl- .ound in 0ituation0 ina<<lica>le to the
current one. N!S 4+.2%3B3;B>;B2;" and N!S 4+.2%3B%;Ba; are the onl- 0ection0 o. N!S 4+ ?here thi0 I?ithin 24 hour0J
language occur0" and tho0e 0ituation0 onl- a<<l- ?here" in:
4+.2%3B3;B>;B2;: I 3. , notice 0erved <ur0uant to 0u>0ection 1 or 2 mu0t: ...B>; ,dvi0e the tenant: K. B2; &hat i. the court
determine0 that the tenant i0 guilt- o. an unla?.ul detainer" the court ma- i00ue a 0ummar- order .or removal o. the tenant
or an order <roviding .or the nonadmittance o. the tenant" directing the 0heri.. or con0ta>le o. the count- to remove the
tenant ?ithin 24 hour0 a.ter recei<t o. the orderJ
and"
4+.2%3B%;Ba;: I%. 5<on noncom<liance ?ith the notice: Ba; &he landlord or the landlordL0 agent ma- a<<l- >- a..idavit o.
com<laint .or eviction to the Au0tice court o. the to?n0hi< in ?hich the d?elling" a<artment" mo>ile home or commercial
<remi0e0 are located or to the di0trict court o. the count- in ?hich the d?elling" a<artment" mo>ile home or commercial
<remi0e0 are located" ?hichever ha0 Auri0diction over the matter. &he court ma- thereu<on i00ue an order directing the
0heri.. or con0ta>le o. the count- to remove the tenant ?ithin 24 hour0 a.ter recei<t o. the order.J &he ?a- the0e 0ummar-
eviction <roceeding0 are >eing carried out in !eno 4u0tice Court <re0entl- 0hocE0 the con0cience and violate0 Nevada
la?. &here i0 not >a0i0 .or e..ectuating a locEout the ?a- 8CS3C0 De<ut- =achem did in thi0 ca0e. &he a>ove t?o
0ection0 containing the I?ithin 24 hour0 o. recei<tJ language are ina<<lica>le" a0 tho0e 0ituation0 do not invoEe the
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<re0ent circum0tance0" ?here the &enant did .ile an ,..idavit and did conte0t thi0 matter to a degree not o.ten 0een. &o
re@uire NevadaC0 tenant0 to get u< and get out I?ithin 24 hour0J o. Irecei<t o. the orderJ B?hat doe0 that even meanH &he
u0e o. term0 liEe IrenditionJ" IrenderedJ" Inotice o. entr-J" I<ronouncedJ" i0 a>0ent here" and thi0 Irecei<t o. the orderJ
language i0 0omething rarel- .ound el0e?here in Nevada la?'0ee attached D=# 0tatutor- citation0" and in em<lo-ment
la? litigation0 ?here one mu0t .ile a Com<laint ?ithin 9+ da-0 o. Irecei<tJ o. a !ight &o Sue 6etter" a 0ituation ?hich
.ollo?0 N!C/ %B>;" and N!C/ *Be; in im<uting recei<t o. 0uch a letter" ?hen actual recei<t i0 not 0ho?n" >- a<<l-ing a
Icon0tructive noticeJ 0tandard that relie0 u<on the da-0 .or mailing e)ten0ion o. time .or item0 0erved in the mailing"
etc.;. 1n ,>raham v. 8ood0 2ole 3ceanogra<hic 1n0titute" %%3 (.3d 114 B10t Cir. 2++9;" the record did not re.lect ?hen
the <lainti.. received hi0 right'to'0ue letter. &he letter ?a0 i00ued on Novem>er 24" 2++*. &he court calculated that the 9+'
da- <eriod commenced on Novem>er 3+" 2++*" >a0ed on three da-0 .or mailing a.ter e)cluding Saturda-0 and Sunda-0.
1n order to >ring a claim under either &itle #11 or the ,D," a <lainti.. mu0t e)hau0t admini0trative remedie0 and 0ue
?ithin 9+ da-0 o. recei<t o. a right to 0ue letter. See 42 5.S.C. M 2+++e'%B.;B1;. See Bald?in Count- 8elcome Center v.
Bro?n" 4** 5.S. 147" 14$ n.1" 1+4 S.Ct. 1723" $+ 6.Ed.2d 19* B19$4;Bgranting <lainti.. an additional three da-0 .or
mailing <ur0uant to !ule *;....J ...
Dear 8a0hoe Count- Sheri..C0 3..ice"
htt<:NNen.?iEi<edia.orgN?iEiNServiceOo.O<roce00
FSu>0tituted 0ervice
8hen an individual <art- to >e 0erved i0 unavaila>le .or <er0onal 0ervice" man- Auri0diction0 allo? .or 0u>0tituted 0ervice.
Su>0tituted 0ervice allo?0 the <roce00 0erver to leave 0ervice document0 ?ith another re0<on0i>le individual" called a
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<er0on o. 0uita>le age and di0cretion" 0uch a0 a coha>iting adult or a teenager. 5nder the (ederal !ule0" 0u>0tituted
0ervice ma- onl- >e made at the a>ode or d?elling o. the de.endant.P4Q Cali.ornia" Ne? 7orE"P%Q 1llinoi0" and man- other
5nited State0 Auri0diction0 re@uire that in addition to 0u>0tituted 0ervice" the document0 >e mailed to the reci<ient.P%Q
Su>0tituted 0ervice o.ten re@uire0 a 0erving <art- 0ho? that ordinar- 0ervice i0 im<ractica>le" that due diligence ha0 >een
made to attem<t to maEe <er0onal 0ervice >- deliver-" and that 0u>0tituted 0ervice ?ill reach the <art- and e..ect notice.
P%QF
1 am <rett- 0ure F<er0onall- 0ervedF mean0 -ou 0erved the <er0on in <er0on" not that a <er0on named =achem ?ent and
<o0ted a notice on a door" <er0onall- him0el.. See" 1 thinE -ou gu-0 are thinEing o. the F<er0onF in the ?ord <er0onall- a0
a<<l-ing to the 0erver" ?hen in all in0tance0 1 have ever 0een it u0ed in the la?" the F<er0onF <art o. F<er0onall-F a<<lie0
to the <er0on >eing 0erved. 2el< me out here" =ar-.
htt<0:NN0E-drive.live.comNredir.a0<)HcidR43+$4*3$.32.%.2$Sre0idR43+$4*3$(32(%(2$T1$97S<aridRroot
,l0o" doe0 the 8CS3 have a <o0ition on ?hat t-<e o. 0ervice i0 re@uired o. eviction order0 <rior to the 8CS3 or
?hoever doe0 it" >eing a>le to conduct a locEoutH
htt<:NN???.leg.0tate.nv.u0Ncourtrule0Nnrc<.html
N!C/ !56E *+. !E61E( (!3= 45D:=EN& 3! 3!DE!... Bc; De.ault 4udgment0: De.endant Not /er0onall- Served.
8hen a de.ault Audgment 0hall have >een taEen again0t an- <art- ?ho ?a0 not <er0onall- 0erved ?ith 0ummon0 and
com<laint" either in the State o. Nevada or in another Auri0diction" and ?ho ha0 not entered a general a<<earance in the
action" the court" a.ter notice to the adver0e <art-" u<on motion made ?ithin * month0 a.ter the date o. 0ervice o. ?ritten
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notice o. entr- o. 0uch Audgment" ma- vacate 0uch Audgment and allo? the <art- or the <art-L0 legal re<re0entative0 to
an0?er to the merit0 o. the original action. 8hen" ho?ever" a <art- ha0 >een <er0onall- 0erved ?ith 0ummon0 and
com<laint" either in the State o. Nevada or in another Auri0diction" the <art- mu0t maEe a<<lication to >e relieved .rom a
de.ault" a Audgment" an order" or other <roceeding taEen again0t the <art-" or .or <ermi00ion to .ile an an0?er" in
accordance ?ith the <rovi0ion0 o. 0u>divi0ion B>; o. thi0 rule.
3Ea-" 0o" reall-" -ou gu-0 do thi0 .or a living" right...-ou 0erve <eo<le thing0....and 0ign ,..idavit0 under <enalt- o.
<erAur- and 0tu.." and -ou are telling me -ou >elieve F<er0onall- 0ervedF can included 0ituation0 ?here the <er0on ?a0 not
thereH 3Ea-.....7ou do Eno? that" liEe" a Summon0 and Com<laint need to >e F<er0onall- 0ervedF in the 0en0e that" 0a-
=achem" ?ould need to 0ee that <er0on and 0erve it on them B1 donCt thinE the- have to taEe the <a<er" the- donCt need to
agree to acce<t 0ervice" >ut =achem doe0 need to 0ee that <er0on" in <er0on" <er0onall- ?hen he i0 0?earing under
<enalt- o. <erAur- that he F<er0onall- 0ervedF 0ome>od-. 50uall- F<er0onall- 0ervedF i0 onl- done in the ca0e o. the .ir0t
thing .iled Bunle00 there i0 an 1(/; in a ca0e" the Summon0 and Com<laint. &herea.ter" t-<icall-" <eo<le Au0t e..ect
F0u>0tituted 0erviceF >ecau0e it0 chea<er" le00 o. a ha00le" and F<er0onal 0erviceF i0 onl- re@uired .or 0erving the <leading0
that 0tart a ca0e" the Summon0 and Com<laint. 8o?....3Ea-" 0o thi0 i0 m- ?hole <oint" the0e 0tate 0<on0ored locEout0
under color o. 0tate la? 0hould not >e >eing done 0o .a0t" unle00 -ou gu-0 F<er0onall- 0erveF the tenant" 1 .eel the la? i0
@uite clear" -ou have to e..ect F0u>0tituted 0erviceF ?hich" under N!C/ *Ba; and N!C/ *Be; and N!C/ %B>;B2; Band
N!C/" not 4C!C/ i0 a<<lica>le to eviction matter0 according to N!S 11$,; the tenant cannot >e deemed to have
received or con0tructivel- received the 3rder until the 3 da-0 .or mailing ha0 <a00ed.
/er0onal 0ervice >- <roce00 0erver
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/er0onal 0ervice i0 0ervice o. <roce00 directl- to the Bor a; <art- named on the 0ummon0" com<laint or <etition. 1n mo0t
la?0uit0 in the 5nited State0" <er0onal 0ervice i0 re@uired to <rove 0ervice. =o0t 0tate0 allo? 0u>0tituted 0ervice in almo0t
all la?0uit0 unle00 -ou are 0erving a cor<oration" 66C" 66/" or other >u0ine00 entit-9 in tho0e ca0e0" <er0onal 0ervice mu0t
>e achieved >- 0erving Bin hand; the document0 to the F!egi0tered ,gentF o. a >u0ine00 entit-. Some 0tate0 B(lorida; do
not re@uire that the document0 actuall- >e handed to the individual. 1n Cali.ornia and mo0t other 0tate0" the document0
mu0t >e vi0i>le to the <er0on >eing 0erved" i.e." not in a 0ealed envelo<e. 1. the individual re.u0e0 to acce<t 0ervice" .lee0"
clo0e0 the door" etc." and the individual ha0 >een <o0itivel- identi.ied a0 the <er0on to >e 0erved" document0 ma- >e
Fdro<F 0erved" and it i0 con0idered a valid 0ervice. /er0onal 0ervice o. <roce00 ha0 >een the hallmarE .or initialing
litigation .or nearl- 1++ -ear0" <rimaril- >ecau0e it guarantee0 actual notice to a de.endant o. a legal action again0t him or
her. /er0onal 0ervice o. <roce00 remain0 the mo0t relia>le and e..icaciou0 ?a- to >oth en0ure com<liance ?ith
con0titutionall- im<o0ed due <roce00 re@uirement0 o. notice to a de.endant and the o<<ortunit- to >e heard. P2QU &he
National 6a? !evie?: &he Continuing !elevance o. /er0onal Service o. /roce00
,nd even i. 0omething indicate0 Coughlin FEne?F a>out the 3rder" much liEe in the ca0e o. CoughlinC0 that ?a0
di0mi00ed ?here the 8a0hoe Count- Sheri..C0 didnCt manage to get the F<er0onal 0erviceF o. the Summon0 and Com<laint
done in time" or F0u..icientl-F" o<<o0ing coun0el in that matter could tell -ou that Factual noticeF i0 not a 0u>0titute .or
com<liance ?ith the 0ervice re@uirement0.
8hich i0 nice >ecau0e .olE0 liEe !ichard :. 2ill" E0@. have le00 o. an o<<ortunit- to game the 0-0tem and 0?oo< in ?ith
locEout then a00ert a >unch o. hooe- a>out N!S 11$,.4*+ Frea0ona>le 0torage" moving" and inventor-ing e)<en0e0F
0u>Aecting the tenantC0 <er0onal <ro<ert- to a lien. !ichard :. 2ill in0i0ted on thro?ing a?a- the la0t thing m- >eloved
grandmother gave me >e.ore 0he died 2 -ear0 ago in the to?n dum<. 2e and hi0 contractor lied a>out 0o man- thing0"
including the .act that the- u0ed m- o?n damn <l-?ood to >oard u< the >acE <orch o. the <ro<ert-" then 0u>mitted a >ill
to the court in an e)hi>it .or G1"+*+ .or F0ecuringF the <ro<ert- B?hich doe0nCt reall- a<<l- to N!S 11$,.4*+C0
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Frea0ona>le 0torage moving and inventor-ing e)<en0e0F liEe it i0 re@uired to....urther" the charged me G9++ a month .or
0torage and 0ent me a >ill .or 0uch <rior to m- arre0t .or tre0<a00ing at the 121 !iver !ocE location"...?ell i. the- charged
me G9++ to have a home la? o..ice there" then ho? i0 it 0omeone could >e tre0<a00ing i. the- are >eing charged the .ull
rental value .or Fu0e and occu<anc- o. the <remi0e0FH (urther" even i. it ?a0 a 0torage 0ituation0" there are 0ection0 o.
N!S 11$, devoted to evicting 0omeone .rom a 0torage .acilit-" not arre0ting them .or tre0<a00" and certainl- not a
cu0todial arre0t ?here the !/D 3..icer Carter and Sargent 6o<eD admit the- never i00ued a ?arning to me or a0Eed me to
leave <rior to conducting a cu0todial arre0t B?hich re@uired G$++ o. >ail" greatT" and 3 da-0 in Aail" no le00;. &hi0 i0
e0<eciall- <oor .orm ?here 3..icer Carter admitted to me that he taEe0 >ri>e0 .rom !ichard 2ill. 2e-" i. 3..icer Carter
did not 0a- that to me" go ahead and 0ue me" m- man....1Cm ?aiting.....thatC0 ?hat 1 thought.
2e can 0a- he ?a0 AoEing all he ?ant0" >ut it ainCt no AoEing a00 0ituation to me ?hen -ou are arre0ting me and cau0ing a
google 0earch re0ult .or m- name to 0ho? an arre0t....thatC0 damaging the onl- thing 1 have o. monetar- value Bm-
<ro.e00ional re<utation and name;. 1t ainCt no 0tand u< hour ?hen -ou are <utting me in cu..0" >ro. ,nd 3..icer Carter and
Sargent 6o<eD re.u0ed to <ro<erl- @uer- 2ill a0 to ?hether he had 0ent me" <rior to the tre0<a00ing arre0t" a >ill .or the
F.ull rental valueF o. the <ro<ert-" a value that" at G9++" ?a0 the 0ame charge .or the .ull Fu0e and occu<anc-F o. the
<remi0e0. ,nd !ichard :. 21ll" E0@. ?a0 too >u0- chortling and .illing out the Criminal Com<laint to >other 0etting them
0traight" de0<ite m- cue0" 1 gue00.
No?" add to that mal.ea0ance the .act that 4udge S.erraDDa let Ca0e- BaEer" E0@. <re<are the 3rder" ?hich mean0
.aith.ull- <ut to ?riting ?hat the 4udge announced" not attem<t to 0teal G2"27% .or -our Cali.ornian Beverl- 2ill0 2igh
School graduate neuro0urgeon client >- 0li<<ing in 0omething the Audge never 0aid" ie" that the neuro0urgeon get0 to Eee<
the G2"27% that 4udge S.erraDDa order the tenant to <a- into the !eno 4u0tice Court a0 a Frent e0cro?F de<o0it re@uired to
<re0erve the right to litigate ha>ita>ilit- i00ue0. No?" nevermind the .act that 4udge S.erraDDa actuall- did not have the
Auri0diction to re@uire that Bthere i0 not 4C!6# 44 in !eno" thatC0 a #ega0 rule" and i. !eno ?ant0 a rule liEe that o. it0
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o?n 4C!C/ $3 re@uire0 the !4C to li0h it and get it a<<roved >- the Nevada Su<reme Court .ir0t....<eriod.;. 3Ea-" 0o"
to taEe it a 0te< even .urther" BaEerC0 order goe0 on to 0a- F>ut the G2"27% ?onCt >e relea0ed to the neuro0urgeon -et"
Fin0tead that 0um 0hall 0erve a0 0ecurit- .or CoughlinC0 co0t on a<<eal" <ur0uant to Nevada 4C!C/ 73...F. But ?ait" doe0nCt
that mean Coughlin then get0 a Sta- o. Eviction during the <endenc- o. the ,<<ealH 10ntC that ?a0 a 0ecurit- that large
mu0t >e .orH Becau0e the F,<<eal BondF i0 0et >- 0tatute at onl- a mere G2%+....0o holding on to 1+ time0 that much o.
CoughlinC0 ca0h mu0t have >een .or the FSu<er0edea0 BondF mentioned a -ielding one a Sta- o. Eviction in N!S 4+.3$+
and 4+.3$%.
1 Eno?" 1 Eno?" it0 con.u0ing >ecau0e actuall- tho0e 0ection0 .orce the landlord" hi0 attorne-0 and the !4C to choo0e
>et?een vie?ing Coughlin a0 a re0idential tenant ?ho0e rent i0 le00 than G1"+++" and ?hom there.ore i0 onl- re@uired to
<o0t a mea0l- 0u<er0edea0 >ond o. G2%+ Band remem>er" a 0u<er0edea0 >ond e@ual0 a 0ta- o. eviction e@ual0 not
tre0<a00ing; or the the other choice i0 to vie? Coughlin a0 a commercial tenant" ?hich ?ould allo? charging a higher
0u<er0edea0 >ond Be)ce<t .or that <e0E- <art a>out hi0 rent >eing under the G1"+++ re@uired >- the 0tatute to do 0o" hi0
rent >eing onl- G9++;" e)ce<t" darn it" old !ichard :. 2ill" E0@. and Ca0e- BaEer" E0@. elected to <ur0ue thi0 0ummar-
eviction <roceeding under a No Cau0e Eviction Notice" ?hich i0 not allo?ed again0t a commercial tenant Bie" -ou canCt
evict a commercial tenant u0ing the 0ummar- eviction <rocedure0 0et .orth in N!S 4+.2%3 unle00 -ou alllege non <a-ment
o. rent and 0erve a 3+ Da- Non /a-ment o. !ent Notice &o Vuit" ?hich the- didnCt >ecau0e the- Fare Au0t taEing the <ath
o. lea0t re0i0tance here" 7our 2onor Bin0ert their 0mug chucEling and o>no)iou0N<retentiou0 Fcan -ou >elieve thi0 gu-HF
laughter and head 0haEing...;.
N!S 4+.3$+ /rovi0ion0 governing a<<eal0. Either <art- ma-" ?ithin 1+ da-0" a<<eal .rom the Audgment rendered. But an
a<<eal >- the de.endant 0hall not 0ta- the e)ecution o. the Audgment" unle00" ?ithin the 1+ da-0" the de.endant 0hall
e)ecute and .ile ?ith the court or Au0tice the de.endantL0 undertaEing to the <lainti.." ?ith t?o or more 0uretie0" in an
amount to >e .i)ed >- the court or Au0tice" >ut ?hich 0hall not >e le00 than t?ice the amount o. the Audgment and co0t0" to
the e..ect that" i. the Audgment a<<ealed .rom >e a..irmed or the a<<eal >e di0mi00ed" the a<<ellant ?ill <a- the Audgment
and the co0t o. a<<eal" the value o. the u0e and occu<ation o. the <ro<ert-" and damage0 Au0tl- accruing to the <lainti..
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during the <endenc- o. the a<<eal. 5<on taEing the a<<eal and .iling the undertaEing" all .urther <roceeding0 in the ca0e
0hall >e 0ta-ed.
So" ?h- on earth i0 the Cit- ,ttorne-C0 3..ice 0till tr-ing to tr- Coughlin on the tre0<a00 charge .or ?hich he endured a
cu0todial arre0t and .or ?hich old !ichard 2ill i0 0till .iling =otionC0 to Sho? Cau0e on in the a<<eal o. the 0ummar-
eviction matter in C#11'+3*2$H 8h-" oh ?h-H Doe0 the !eno Cit- ,ttorne-C0 3..ice have 0ome 0ort o. ve0ted intere0t in
Eee<ing Coughlin do?n" >u0-" >e0otted" encum>ered" or other?i0eH 1t" ?h-" it couldnCt >e >ecau0e Coughlin ha0 a reall-
good ?rong.ul arre0t cau0e o. action again0t the !eno /olice De<artment" could itH htt<:NN???.-outu>e.comN?atchH
vR%/!7@431%>+
,nd" ?ell" -eah the 8a0hoe Count- Sheri..C0 3..ice didnCt @uite get tho0e Summon0 and Com<laint0 0erved in that one
ca0e Coughlin ?a0 0uing hi0 .ormer em<lo-er in" the one ?here Coughlin ?a0 granted an 3rder to /roceed 1n (orma
/au<eri0" ?hich re@uired the 8a0hoe Count- Sheri..C0 3..ice to 0erve the Summon0 and Com<laint0....But ?hat doe0 that
have to to ?ith the * da-0 Coughlin 0<ent in Aail on the arre0t 0ho?n in the -outu>e video a>oveH 1t0 not liEe the 8a0hoe
Count- Aailed videota<ed a 0cene ?here the- ?ere .orcing Coughlin to get naEed and <ut on a green dre00. 8hatC0 thatH 1t
i0H &he- did do thatH !eall-H No...8hatH &he- al0o .orced him to 0imulate oral and anal 0e) ?ith de<utie0" in the gui0e o.
0ome ridiculou0 F<rocedureF nece00ar- to in0ure De<ut- 0a.et-H 3h" ?o?. ,nd the- retaliated again0t him .or .ailing to
an0?er their religiou0 <re.erence interrogation @ue0tion0 >- <lacing him in an ic- cold cell .or hour0 at a time" re.u0ing
him medical care de0<ite hi0 <laintive crie0 .or hel<" ?hile ?earing a thin t'0hirtH 8o?. &he- didnCt Aam a ta0er needle in
hi0 0<ine .or e)tended <eriod0 o. time" though" did the-H 7our EiddingT 8hat0 ne)t" -our going tell me Sargent Sig.ree o.
the !eno /D ordered a cu0todial arre0t on Coughlin .or FAa-?alEingF ?hile Coughlin ?a0 <eace.ull- .ilming" .rom a
lic 0<ot" !ichard :. 2illC0 .raudulent contractor /hil 2o?ard de0tro-ing and taEing to the to?n dum< item0 o.
enormou0 0entimental value to Coughlin that he ?a0 <revented .rom retrieving .rom the <ro<ert- during the 0cant time he
?a0 allo?ed to Ba.ter he <aid G4$+ ?orth o. a lien .or ?hat he Ene? not" >ecau0e" de0<ite" olC Contractor /hilC0 .raudulent
G1"+*+ >ill .or F0ecuringF the >acE <orch B?ith 0cre?0 .acing the out0ide" ine)<lica>l-" and a ?indo? unit aNc le.t in the
?indo? .acing the 0ide?alE near the 6aEemill 6odge" 0ecured >- nothing >ut duct ta<e
1t i0 Eind o. a com>o neon 0ign that 0a-0 FBurglariDe thi0 /lace" Ever->od-TF;" CoughlinC0 .ormer home la? o..ice ?a0
>urglariDed on Decem>er 12" 2+11 ?hile !ichard :. 2ill ?a0 holding it0 content0 Bincluding" tacEil-" CoughlinC0 clientC0
.ile0" liEe the one0 .or the .oreclo0ure de.en0e action0" etc.;" a00erting hi0 FlienF. , lien .or F0torageF ?here the charge .or
0torage" G9++" ?a0 the 0ame a0 the charge .or F.ull u0e and occu<an-F ?a0. 2o?ever" that G9++ a month .or F0torageF al0o
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included another G1"+*+ charge .or F0ecuringF Band that >ill actuall- li0ted F.i)ing a leaE in the >a0ement...neither o.
?hich 0eem to have much to do ?ith the Frea0ona>le 0torage" moving" and inventor-ingF e)<en0e0 0uch a lien i0 <rovided
.or under N!S 11$,.4*+....;. 4eeD" -our <ro>a>l- going to tell me Sargent Sig.ree ordered another cu0todial arre0t on
Coughlin Au0t t?o da-0 a.ter the Aa-?alEing arre0t" .or the 0ame .act <attern that =a0ter Edmond0on granted CoughlinC0
a<<lication0 .or /rotection0 3rder0 again0t >a0ed u<on the >atter- and a00ault0 that hi0 .ormer hou0emate0 committed.
Becau0e" Sargent Sig.ree thinE0 it0 Fmi0u0e o. 911F .or Coughlin to call ?hen he return0 home at night and hi0 dog ha0
m-0teriou0l- di0a<<eared" and hi0 hou0emate0 maEe menacing commentar- a>out it. Surel-" Coughlin" a .ormer dome0tic
violence attorne- ?ould have nothing hel<.ul to add to Sargnet Sig.reeC0 e)<ert o<inion that Fanimal a>u0e i0 not
dome0tic violenceF Btell that to N!S 33.+1+" Sarge; and that it0" rather" Fa matter .or animal controlF and that Sargent
Sig.ree ?a0 Ftr-ing to hel<F Coughlin >- arre0ting him" again" and nece00itating the G1"%++ >ail a00ociated ?ith the gro00
mi0demeanor charge" F=i0u0e o. 911F >ecau0e" a0 Sargent Sig.ree told Coughlin F-ou Eee< <utting -our0el. in 0ituation0
?here -ou are victimiDedF 0o it ?a0 nece00ar- to arre0t Coughlin in that regard.
But he-" at lea0t N# Energ- ha0nCt re.u0ed to let Coughlin get an- electrical 0ervice .or the <a0t ?eeE 0ince tho0e
?ith the /rotection 3rder0 again0t them cancelled the 0ervice and N# Energ- 0hut it o.." ?ithout <roviding an- notice to
Coughlin" right. Nevermind. But...>ut 0urel- ?hen N# Energ- 0hut o. the <o?er to CoughlinC0 home la? o..ice on
3cto>er 4th" 2+11" Au0t hour0 <rior to the >ad .aith Fin0<ectionF ?ith videogra<her o. CoughlinC 0 home la? o..ice that
Ca0e- BaEer" E0@. thought 0o ver- nece00ar- one da- >e.ore CoughlinC0 &enant ,n0?er ?a0 due...0urel- N# Energ- did
not leave the >acE gate to CoughlinC0 home la? o..ice o<en and 0<eed o.." CoughlinC0 >eloved mountain >iEe 0uddenl-
mi00ing Bthe one the <arent0 o. hi0 girl.riend o. % -ear0 gave him;H 8ell" N# Energ- i0 <ro>a>l- not retaliating again0t
Coughlin .or com<laining a>out that >- re.u0ing him electric 0ervice .or the <a0t 0even da-0" -ou ?ould have to a00ume....
N!S 4+.3$% Sta- o. e)ecution u<on a<<eal9 dut- o. tenant ?ho retain0 <o00e00ion o. <remi0e0 to <a- rent during 0ta-.
5<on an a<<eal .rom an order entered <ur0uant to N!S 4+.2%3:
1.E)ce<t a0 other?i0e <rovided in thi0 0u>0ection" a 0ta- o. e)ecution ma- >e o>tained >- .iling ?ith the trial
court a >ond in the amount o. G2%+ to cover the e)<ected co0t0 on a<<eal. , 0uret- u<on the >ond 0u>mit0 to the
Auri0diction o. the a<<ellate court and irrevoca>l- a<<oint0 the clerE o. that court a0 the 0uret-L0 agent u<on ?hom <a<er0
a..ecting the 0uret-L0 lia>ilit- u<on the >ond ma- >e 0erved. 6ia>ilit- o. a 0uret- ma- >e en.orced" or the >ond ma- >e
relea0ed" on motion in the a<<ellate court ?ithout inde<endent action. , tenant o. commercial <ro<ert- ma- o>tain a 0ta-
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o. e)ecution onl- u<on the i00uance o. a 0ta- <ur0uant to !ule $ o. the Nevada !ule0 o. ,<<ellate /rocedure and the
<o0ting o. a 0u<er0edea0 >ond in the amount o. 1++ <ercent o. the un<aid rent claim o. the landlord.
2. , tenant ?ho retain0 <o00e00ion o. the <remi0e0 that are the 0u>Aect o. the a<<eal during the <endenc- o. the a<<eal
0hall <a- to the landlord rent in the amount <rovided in the underl-ing contract >et?een the tenant and the landlord a0 it
>ecome0 due. 1. the tenant .ail0 to <a- 0uch rent" the landlord ma- initiate ne? <roceeding0 .or a 0ummar- eviction >-
0erving the tenant ?ith a ne? notice <ur0uant to N!S 4+.2%3.
N!S 4+.39+ ,<<ellate court not to di0mi00 or @ua0h <roceeding0 .or ?ant o. .orm. 1n all ca0e0 o. a<<eal under N!S
4+.22+ to 4+.42+" inclu0ive" the a<<ellate court 0hall not di0mi00 or @ua0h the <roceeding0 .or ?ant o. .orm" <rovided the
<roceeding0 have >een conducted 0u>0tantiall- according to the <rovi0ion0 o. N!S 4+.22+ to 4+.42+" inclu0ive9 and
amendment0 to the com<laint" an0?er or 0ummon0" in matter0 o. .orm onl-" ma- >e allo?ed >- the court at an- time
>e.ore .inal Audgment u<on 0uch term0 a0 ma- >e Au0t9 and all matter0 o. e)cu0e" Au0ti.ication or avoidance o. the
allegation0 in the com<laint ma- >e given in evidence under the an0?er.
N!S 4+.4++ !ule0 o. <ractice. &he <rovi0ion0 o. N!S" Nevada !ule0 o. Civil /rocedure and Nevada !ule0 o. ,<<ellate
/rocedure relative to civil action0" a<<eal0 and ne? trial0" 0o .ar a0 the- are not incon0i0tent ?ith the <rovi0ion0 o. N!S
4+.22+ to 4+.42+" inclu0ive" a<<l- to the <roceeding0 mentioned in tho0e 0ection0.
But" >acE to the Sheri..C0 3..ice. ,nd" 1 am not reall- >u-ing the idea that -ou gu-0 donCt Eno? N!C/ 4 through * liEe
the >acE o. -our hand" >ut....hell" ma->e -ou donCt. But" clearl- the language in N!S 4+ a>out ho? the Sheri.. ma-
Fremove tenant .rom the <ro<ert- ?ithin 24 hour0 o. recei<t o. the 3rderF do not a<<l- ?here the &enant .iled a &enantC0
,n0?er and 0ho?ed u< to the 2earing and litigated the matter. E0<eciall- ?here" a0 here the lea0e had not terminated" >-
it0 term0" >ut ?a0 rather rene?ed. &hi0 i0 <articularl- true ?here N!S 11$, <revent0 0o terminating a holdover tenantC0
lea0e .or a retaliator- or di0criminator- <ur<o0e.
N!C/ 4: FBd; Summon0: /er0onal Service. &he 0ummon0 and com<laint 0hall >e 0erved together. &he <lainti..
0hall .urni0h the <er0on maEing 0ervice ?ith 0uch co<ie0 a0 are nece00ar-. Service 0hall >e made >- delivering a co<- o.
the 0umon0 attached to a co<- o. the com<laint a0 .ollo?0:...B*; Service 5<on 1ndividual0. 1n all other ca0e0 to the
de.endant <er0onall-" or >- leaving co<ie0 thereo. at the de.endantL0 d?elling hou0e or u0ual <lace o. a>ode ?ith 0ome
<er0on o. 0uita>le age and di0cretion then re0iding therein" or >- delivering a co<- o. the 0ummon0 and com<laint to an
agent authoriDed >- a<<ointment or >- la? to receive 0ervice o. <roce00. P,0 amended9 e..ective 4anuar- 1" 2++%.Q Be;
Same: 3ther Service. B1; Service >- /u>lication. Bi; :eneral. 1n addition to method0 o. <er0onal 0ervice" ?hen the <er0on
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on ?hom 0ervice i0 to >e made re0ide0 out o. the 0tate" or ha0 de<arted .rom the 0tate" or cannot" a.ter due diligence" >e
.ound ?ithin the 0tate" or >- concealment 0eeE0 to avoid the 0ervice o. 0ummon0" and the .act 0hall a<<ear" >- a..idavit" to
the 0ati0.action o. the court or Audge thereo." and it 0hall a<<ear" either >- a..idavit or >- a veri.ied com<laint on .ile" that
a cau0e o. action e)i0t0 again0t the de.endant in re0<ect to ?hom the 0ervice i0 to >e made" and that the de.endant i0 a
nece00ar- or <ro<er <art- to the action" 0uch court or Audge ma- grant an order that the 0ervice >e made >- the lication
o. 0ummon0. /rovided" ?hen 0aid a..idavit i0 >a0ed on the .act that the <art- on ?hom 0ervice i0 to >e made re0ide0 out o.
the 0tate" and the <re0ent addre00 o. the <art- i0 unEno?n" it 0hall >e a 0u..icient 0ho?ing o. 0uch .act i. the a..iant 0hall
0tate generall- in 0uch a..idavit that at a <reviou0 time 0uch <er0on re0ided out o. thi0 0tate in a certain <lace Bnaming the
<lace and 0tating the late0t date Eno?n to a..iant ?hen 0uch <art- 0o re0ided there;9 that 0uch <lace i0 the la0t <lace in
?hich 0uch <art- re0ided to the Eno?ledge o. a..iant9 that 0uch <art- no longer re0ide0 at 0uch <lace9 that a..iant doe0 not
Eno? the <re0ent <lace o. re0idence o. 0uch <art- or ?here 0uch <art- can >e .ound9 and that a..iant doe0 not Eno? and
ha0 never >een in.ormed and ha0 no rea0on to >elieve that 0uch <art- no? re0ide0 in thi0 0tate9 and" in 0uch ca0e" it 0hall
>e <re0umed that 0uch <art- 0till re0ide0 and remain0 out o. the 0tate" and 0uch a..idavit 0hall >e deemed to >e a 0u..icient
0ho?ing o. due diligence to .ind the de.endant. &hi0 rule 0hall a<<l- to all manner o. civil action0" including tho0e .or
divorceF
Su>Aect: !E: 8CS3 De<ut- =achemC0 F<er0onall- 0ervedF ,..idavit o. 11N1N2+11
Date: &ue" 7 (e> 2+12 11:4+:39 '+$++
(rom: 6StuchellW?a0hoecount-.u0
&o: DachcoughlinWhotmail.com
CC: mEandara0Wda.?a0hoecount-.u0
=r. Coughlin"
3ur record0 indicate that the eviction conducted on that da- ?a0 <er0onall- 0erved >- De<ut- =achen >- <o0ting a co<-
o. the 3rder to the re0idence. &he re0idence ?a0 unoccu<ied at the time.
6iD Stuchell" Su<ervi0or
8CS3 Civil Section
(rom: Zach Coughlin Pmailto:DachcoughlinWhotmail.comQ
Sent: =onda-" (e>ruar- +*" 2+12 2:%$ ,=
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00023
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&o: Stuchell" 6iD9 Xandara0" =ar-9 nvreno<dWco<logic.com9 Silva" !o)anna9 EadlicAWreno.gov9
.ourthe0tateWgmail.com9 Aame0andre>ole0Wm0n.com
Su>Aect: 8CS3 De<ut- =achemC0 F<er0onall- 0ervedF ,..idavit o. 11N1N2+11
Dear 1, Su<ervi0or Stuchell and DD, Xandara0"
1 realiDe -ou ?ill liEel- not read all o. thi0. &he main thing i0 1 am re0<ect.ull- re@ue0ting that -ou con.irm ?ith De<ut-
=achem that he did" in .act" F<er0onall- 0erveF the Summar- Eviction 3rder on me at 121 !iver !ocE St." !eno $9%+1 on
Novem>er 1" 2+11 at 4:3+ <m" in connection ?ith <er.orming the locEout. 1t i0 m- <o0ition that 1 ?a0 not F<er0onall-
0ervedF and 1 am tr-ing to .igure out ?hether De<ut- =achem i0 l-ing or ?hether the <hra0e F<er0onall- 0ervedF mean0
0omething other than ?hat 1 >elieve it mean0" etc." etc. 1 a<<reciate -our attention to thi0.
1 am ?riting to in@uire a>out and com<lain ?ith regard to an ,..idavit o. Service .iled >- or .or 8CS3 De<ut- =achem
?ith re0<ect to the 0ervice o. a 3rder :ranting Summar- Eviction again0t me Bin m- la? o..ice ?here non'<a-ment o.
rent ?a0 not alleged" no le00 in violation o. N!S 4+.2%3 and ?here a G2"27% rent e0cro? de<o0it ?a0 .oi0ted u<on me in
violation o. 4+.2%3B*;" e0<eciall- ?here a 0ta- o. eviction ?a0 not granted even ?hile the !4C held on to mo0t all m-
mone-...;.
=- i00ue ?ith the 8CS3 i0 that =achemC0 ,..idavit o. Service indicate0 that he F<er0onall- 0ervedF me" ?hich Eind o.
remind0 me o. all that ro>o'0igning and =E!S .raud 1 come acro00 in m- da- Ao> Band do -ou ?onder ho? man-
attorne-0 in the .oreclo0ure de.en0e game 1 am in con0tant contact ?ith ?ho are ?atching and ?itne00 the <otential !1C3
violation0 thi0 ?riting mention0H;" ?hich include0 >eing a .oreclo0ure de.en0e attorne-. So ?hich i0 itH Did =achem
F<er0onall- 0erveF me the Summar- Eviction 3rderH !ichard :. 2ill" E0@. liEe0 to argue that 1 ?a0 F0ervedF in
com<liance ?ith all time related rule0 >ecau0e it ?a0 done in the Fu0ual cu0tom and <ractice o. the 8CS3. 8hat" e)actl-"
i0 the Fu0ual cu0tom and <ractice o. the 8CS3H 1 hear a lot a>out thi0 F?ithin 24 hour0F 0tu... So" 1 go hunting .or 0ome
>lacE letter la? to 0u<<ort ?hat tho0e at the !4C and in the cluele00 communit- at large B?hich o.ten include0 Nevada
6egal Service0 and 8a0hoe 6egal Service0" the <eo<le -ou gu-0 had 0uch trou>le actuall- 0erving in the la?0uit0 1 .iled"
?hich ma- have actuall- hel<ed im<roved legal 0ervice0 in thi0 communit-" i. the- ?ere not di0mi00ed due to
in0u..icienc- o. 0ervice o. <roce00" even ?here the 1(/ re@uired the 8CS3 to 0erved the de.endant0....;. ,n-?a-" >acE to
the F?ithin 24 hour0F <hra0eolog-: F
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&hi0 ?hole >u0ine00 a>out I&he court ma- thereu<on i00ue an order directing the 0heri.. or con0ta>le o. the count- to
remove the tenant ?ithin 24 hour0 a.ter recei<t o. the order...J i0 ina<<lica>le to thi0 0ituation" ?here an 3rder :ranting
Summar- Eviction ?a0 0igned >- 3cto>er 27th" 2+11. &hat language i0 onl- .ound in 0ituation0 ina<<lica>le to the
current one. N!S 4+.2%3B3;B>;B2;" and N!S 4+.2%3B%;Ba; are the onl- 0ection0 o. N!S 4+ ?here thi0 I?ithin 24 hour0J
language occur0" and tho0e 0ituation0 onl- a<<l- ?here" in:
4+.2%3B3;B>;B2;: I 3. , notice 0erved <ur0uant to 0u>0ection 1 or 2 mu0t: ...B>; ,dvi0e the tenant: K. B2; &hat i. the court
determine0 that the tenant i0 guilt- o. an unla?.ul detainer" the court ma- i00ue a 0ummar- order .or removal o. the tenant
or an order <roviding .or the nonadmittance o. the tenant" directing the 0heri.. or con0ta>le o. the count- to remove the
tenant ?ithin 24 hour0 a.ter recei<t o. the orderJ
and"
4+.2%3B%;Ba;: I%. 5<on noncom<liance ?ith the notice: Ba; &he landlord or the landlordL0 agent ma- a<<l- >- a..idavit o.
com<laint .or eviction to the Au0tice court o. the to?n0hi< in ?hich the d?elling" a<artment" mo>ile home or commercial
<remi0e0 are located or to the di0trict court o. the count- in ?hich the d?elling" a<artment" mo>ile home or commercial
<remi0e0 are located" ?hichever ha0 Auri0diction over the matter. &he court ma- thereu<on i00ue an order directing the
0heri.. or con0ta>le o. the count- to remove the tenant ?ithin 24 hour0 a.ter recei<t o. the order.J &he ?a- the0e 0ummar-
eviction <roceeding0 are >eing carried out in !eno 4u0tice Court <re0entl- 0hocE0 the con0cience and violate0 Nevada
la?. &here i0 not >a0i0 .or e..ectuating a locEout the ?a- 8CS3C0 De<ut- =achem did in thi0 ca0e. &he a>ove t?o
0ection0 containing the I?ithin 24 hour0 o. recei<tJ language are ina<<lica>le" a0 tho0e 0ituation0 do not invoEe the
<re0ent circum0tance0" ?here the &enant did .ile an ,..idavit and did conte0t thi0 matter to a degree not o.ten 0een. &o
re@uire NevadaC0 tenant0 to get u< and get out I?ithin 24 hour0J o. Irecei<t o. the orderJ B?hat doe0 that even meanH &he
u0e o. term0 liEe IrenditionJ" IrenderedJ" Inotice o. entr-J" I<ronouncedJ" i0 a>0ent here" and thi0 Irecei<t o. the orderJ
language i0 0omething rarel- .ound el0e?here in Nevada la?'0ee attached D=# 0tatutor- citation0" and in em<lo-ment
la? litigation0 ?here one mu0t .ile a Com<laint ?ithin 9+ da-0 o. Irecei<tJ o. a !ight &o Sue 6etter" a 0ituation ?hich
.ollo?0 N!C/ %B>;" and N!C/ *Be; in im<uting recei<t o. 0uch a letter" ?hen actual recei<t i0 not 0ho?n" >- a<<l-ing a
Icon0tructive noticeJ 0tandard that relie0 u<on the da-0 .or mailing e)ten0ion o. time .or item0 0erved in the mailing"
etc.;. 1n ,>raham v. 8ood0 2ole 3ceanogra<hic 1n0titute" %%3 (.3d 114 B10t Cir. 2++9;" the record did not re.lect ?hen
the <lainti.. received hi0 right'to'0ue letter. &he letter ?a0 i00ued on Novem>er 24" 2++*. &he court calculated that the 9+'
da- <eriod commenced on Novem>er 3+" 2++*" >a0ed on three da-0 .or mailing a.ter e)cluding Saturda-0 and Sunda-0.
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1n order to >ring a claim under either &itle #11 or the ,D," a <lainti.. mu0t e)hau0t admini0trative remedie0 and 0ue
?ithin 9+ da-0 o. recei<t o. a right to 0ue letter. See 42 5.S.C. M 2+++e'%B.;B1;. See Bald?in Count- 8elcome Center v.
Bro?n" 4** 5.S. 147" 14$ n.1" 1+4 S.Ct. 1723" $+ 6.Ed.2d 19* B19$4;Bgranting <lainti.. an additional three da-0 .or
mailing <ur0uant to !ule *;.
(urther" de0<ite ?hat the inaccurate handout0 o. Nevada 6egal Service0 ma- 0a- a>out thi0 I24 hour0J and the
a<<lica>ilit- o. the 4C!C/ to ca0e0 liEe the0e" N!S 4+.4++ !ule0 o. <ractice" hold0 that :J&he <rovi0ion0 o. N!S" Nevada
!ule0 o. Civil /rocedure and Nevada !ule0 o. ,<<ellate /rocedure relative to civil action0" a<<eal0 and ne? trial0" 0o .ar
a0 the- are not incon0i0tent ?ith the <rovi0ion0 o. N!S 4+.22+ to 4+.42+" inclu0ive" a<<l- to the <roceeding0 mentioned
in tho0e 0ection0. ,0 0uch N!C/ *Ba;"Be; a<<lie0 to the 3rder o. Summar- Eviction that 8CS3 De<ut- =achem alleged"
under <enalt- o. <erAur-" that he F<er0onall- 0ervedF u<on me on Novem>er 1" 2+11. &hat i0 a lie >- =r. =achem" unle00
F<er0onall- 0ervedF i0 de.ined in a rather im<er0onal ?a- and or =achem and 1 have totall- di..erent under0tanding o. the
de.inition o. F<er0onall- 0ervedF" ?hich ma- >e the ca0e. 3r" <erha<0 the Sheri..C0 3..ice i0 >u0- and doe0nCt ?ant to ?ait
around to F<er0onall- 0erveF ever- tenant it ?i0he0 to evict. (ine" then Au0t u0e the Fmail it and allo? three da-0F rule in
N!C/ *Be;...the landlordC0 might not liEe it" >ut the- can u0e that .ru0tration a0 an incentive not to Aum< to litigating ever-
di0agreement a>out ha>ita>ilit- that a tenant >ring0 to them. 7ou ma- not realiDe ho? ridiculou0 0ome landlordC0 get. 1n
m- ca0e" 1 o..ered to .i) >a0ic thing0 that clearl- im<licated the ha>ita>ilit- rule0 in N!S 11$,.29+ and the Cali.ornian
neuro0urgeon" Beverl- 2ill 2igh School graduate landlord >alEed and com<lained then hired and attorne- .our da-0 into
a di0<ute.....at ?hich <oint the rule0 again0t contacting re<re0ented <artie0 <revented much in the ?a- o. real 0ettlement
di0cu00ion" <articularl- ?here o<<o0ing coun0el ha0 continuou0l- demon0trated a com<lete indi..erence to <ur0uing
0ettlement B?h- ?ould he at the rate0 he >ill0 hour0 atH;. 1 Au0t donCt thinE the Sheri..C0 3..ice need0 to 0ull- it0 image or
damage the citiDen tenant0 o. 8a0hoe Count- in the name o. <lea0ing <eo<le liEe Dr. =att =erli00 or !ichard :. 2ill"
E0@.
1 ,= !EV5ES&1N:" 1N 8!1&1N:" &2,& B3&2 3( 735! 3((1CES 1N#ES&1:,&E &21S ,ND
/!3#1DE , S83!N ,((1D,#1& (!3= =!. =,C2E= &2,& ,D=1&S &2,& 1 8,S N3& /E!S3N,667
/!ESEN& 82EN 2E SE!#ED &2E 3!DE! (3! S5==,!7 E#1C&13N 1N !4C !E#2+11'++17+$ 3N 11N1N12
,& 4:3+ /= B,CC3!D1N: &3 21S ,((1D,#1& 3( SE!#1CE;. 735 NE#E! XN38" 1 =1:2& 2,#E
1!!E(5&,B6E /!33( &2,& 1 8,S S3=E82E!E E6SE ,& &2,& &1=E" S3" BE C,!E(56. &here 0im<l- i0
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not an-thing 0<eci.ic in Nevada la? addre00ing ho? 0uch Summar- Eviction 3rder0 are to >e 0erved and carried out. &he
0ection0 dealing ?ith
N!S 4+.2%3 5nla?.ul detainer: Su<<lemental remed- o. 0ummar- eviction and e)clu0ion o. tenant .or de.ault in
<a-ment o. rent....
*. 5<on the .iling >- the tenant o. the a..idavit <ermitted in 0u>0ection 3" regardle00 o. the in.ormation contained in the
a..idavit" and the .iling >- the landlord o. the a..idavit <ermitted >- 0u>0ection %" the Au0tice court or the di0trict court
0hall hold a hearing" a.ter 0ervice o. notice o. the hearing u<on the <artie0" to determine the truth.ulne00 and 0u..icienc- o.
an- a..idavit or notice <rovided .or in thi0 0ection. 1. the court determine0 that there i0 no legal de.en0e a0 to the alleged
unla?.ul detainer and the tenant i0 guilt- o. an unla?.ul detainer" the court ma- i00ue a 0ummar- order .or removal o. the
tenant or an order <roviding .or the nonadmittance o. the tenant....
7. &he tenant ma-" u<on <a-ment o. the a<<ro<riate .ee0 relating to the .iling and 0ervice o. a motion" .ile a motion ?ith
the court" on a .orm <rovided >- the clerE o. the court" to di0<ute the amount o. the co0t0" i. an-" claimed >- the landlord
<ur0uant to N!S 11$,.4*+ or 11$C.23+ .or the inventor-" moving and 0torage o. <er0onal <ro<ert- le.t on the <remi0e0.
&he motion mu0t >e .iled ?ithin 2+ da-0 a.ter the 0ummar- order .or removal o. the tenant or the a>andonment o. the
<remi0e0 >- the tenant" or ?ithin 2+ da-0 a.ter:
Ba; &he tenant ha0 vacated or >een removed .rom the <remi0e09 and
B>; , co<- o. tho0e charge0 ha0 >een re@ue0ted >- or <rovided to the tenant"
Y ?hichever i0 later.
$. 5<on the .iling o. a motion <ur0uant to 0u>0ection 7" the court 0hall 0chedule a hearing on the motion. &he hearing
mu0t >e held ?ithin 1+ da-0 a.ter the .iling o. the motion. &he court 0hall a..i) the date o. the hearing to the motion and
order a co<- 0erved u<on the landlord >- the 0heri.." con0ta>le or other <roce00 0erver. ,t the hearing" the court ma-:
Ba; Determine the co0t0" i. an-" claimed >- the landlord <ur0uant to N!S 11$,.4*+ or 11$C.23+ and an- accumulating
dail- co0t09 and
B>; 3rder the relea0e o. the tenantL0 <ro<ert- u<on the <a-ment o. the charge0 determined to >e due or i. no charge0 are
determined to >e due....F
1 al0o ?ant to Eno? ?h- N!S 4+. 2%3B$; ?a0 not .ollo?ed ?ith re0<ect to m- Novem>er 17th" 2+11 .iling o. a
=otion to Conte0t /er0onal /ro<ert- 6ien. 8h- didnCt the 8CS3 0erve notice" a0 re@uired >- N!S 4+.2%3B$; u<on the
landlordC0 attorne- !ichard 2illH 8h- didnCt 1 get a hearing ?ithin the 1+ da-0 called called .or >- that 0ection Bto get
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>acE m- clientC0 .ile0 no le00;" >ut rather" 1 had to ?ait a .ull 33 da-0 to get a hearing" and 0ervice o. notice o. the hearing
?a0 not e..ectuated" a0 re@uired >- N!S 4+.23%B$;" >- the 8CS3. 8h-H
/lea0e <rovide an indication" in ?riting" o. the name0 and ca0e num>er0 .or the la0t 2+ incidence0 ?hen the
8CS3 ha0 0erved notice o. a hearing 0et <ur0uant to N!S 4+.2%3B$;. 8hatC0 thatH &he 8CS3 ha0 NE#E! 0erved 0uch
noticeH 7et the 8CS3 i0 there ?ith >ell0 on Bor =achem i0; to lie in ,..idavit0 o. Service to locE out the citiDen tenant0
o. 8a0hoe Count- im<ermi00il>- earl- vi0 a vi0 N!C/ %B>;B2; and N!C/ *Be;H 8h- i0 thatH 10 it a con0<irac-H Doe0
mone- talEH 8hen 1 ?a0 arre0ted .or tre0<a00ing on Novem>er 12th" 2+11 >- !/D 3..icer Chri0 Carter and Sargent
6o<eD" Carter admitted to me that F!ichard 2ill <a-0 him a lot o. mone- and there.ore he arre0t0 ?hom !ichard 2ill 0a-0
to and doe0 ?hat !ichard 2ill 0a-0 to do....F Both Carter and Sargent 6o<eD re.u0ed to inve0tigate" de0<ite <rom<ting"
?hether !ichard 2ill ha0 0ent the tenantNarre0tee a >ill or demand letter in >ill .or the .ull rental value o. the <ro<ert-"
G9++ <er month" under 0ome inter<retation o. the Frea0ona>le 0torage" moving" and inventor-ing e)<en0e0F collecta>le >-
a landlord under a <er0onal <ro<ert- line 0et .orth in N!S 11$,.4*+ Bone could al0o inter<ret 0uch a >ill a0 2illC0
?ithdra?ing or eradicating the 3rder o. Summar- Eviction it0el." ?hich ?a0 not F<er0onall- 0ervedF >- the 8a0hoe
Count- Sheri.. Bde0<ite ?hat their ,..idavit o. Service 0a-0...1 ?a0nCt even there at the time the- changed the locE0...and
0o the Summar- Eviction 3rder ?a0 not <ro<erl- 0erved under N!C/ *" and de0<ite the !eno 4u0tice Court
im<ermi00i>l- converting G23++ o. m- mone- under a Frent e0cro?F 3rder it0 re@uired 1 com<l- ?ith in order to litigate
ha>ita>ilit- i00ue0 in a 0ummar- eviction <roceeding under N!S 4+.2%3" de0<ite N!S 4+.2%3B*;C0 e)<re00 dicate again0t
0uch an 3rder Bunle00" <ur0uant to 4C!C/ $3" a Au0tice court get0 0uch a rule" liEe 4u0tice Court !ule o. 6a0 #ega0
B4C!6#; !ule 44" li0hed and a<<roved >- the Nevada Su<reme Court" ?hich the !4C ha0 not" rather" the !4C a<<lie0
all the0e in0idiou0 0ecret Fhou0e rule0F BliEe .orcing tenant0 to deliver them0elve0 to the .iling o..ice to 0u>mit to <er0onal
0ervice notice o. a 0ummar- eviction hearing ?ithin" liEe" 12 hour0 o. the &enant .iling a &enantC0 ,n0?er or ,..idavit in
re0<on0e to an eviction Notice" rather than the 0ervice re@uirement0 o. 0uch notice .ollo?ing N!C/ * Bda-0 .or mailing"
etc." etc." in other ?ord0" in the !4C ever-thing i0 0<ed u< im<eri00il>- to hel< landlordC0 out" and the N#. S. Ct ruling in
:laDier and 6i<<i0 clearl- contem<late <er0onal lia>ilit- again0t the Court and or 4udge0 them0elve0 .or 0o doing;....,
Vui &am action or 0omething a la =au0ertC0 in Solano Count-" 1 >elieve" in Cali.ornia" ?ould >e ver- intere0ting...Still
havenCt heard an-thing .rom the !eno /D a>out the variou0 com<laint0 1 have .iled ?ith them in ?riting related to the
?rong.ul arre0t0" e)ce00ive .orce and other mi0conduct committed again0t me" though the- did arre0t me the other da- .or
calling 911incident to 0ome dome0tic violence .or ?hich 1 ?a0 granted to E)tended /rotection 3rder0 again0t m- .ormer
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hou0emate0....old Sargent Sig.ree ordered that arre0t" a0 he did t?o da-0 <rior ?hen he ordered a cu0todial arre0t o. me .or
FAa-?alEingF.
(unn- thing" 1 never heard an-thing >acE .rom the !/D a>out com<laint0 liEe the .ollo?ing one:
I(rom:
Nv!eno/dWco<logic.com
Sent:
8ed 9N+7N11 1+:%1 /=
&o: DachcoughlinWhotmail.com
ZZZZD3 N3& !ES/3ND &3 &21S E'=,16ZZZZ
8eCre 0orr- the .ollo?ing <ro>lem ?a0 .ound during revie?
o. -our 0u>mitted re<ort &11++%9%*:
&21S 1S N3& &2E (3!5= (3! &21S &7/E 3( C3=/6,1N& 238E#E! &21S !E/3!& 8,S /!1N&ED ,ND
/,SSED 3N &3 &2E 3((1CE!CS S5/E!#1S3! ,ND 1& 8166 BE ,DD!ESSED.
&hanE -ou"
3..icer 83ZN1,X"
!eno /olice De<artmentJ
8hat i0 intere0ting there i0 that at lea0t 1 ?a0 <rovided the name o. an o..icer" a F8oDniaEF Bthough 1 have >een una>le to
con.irm the e)i0tence o.
0uch an !/D 3..icer... or ?hether F &21S 1S N3& &2E (3!5= (3! &21S &7/E 3( C3=/6,1N& 238E#E!
&21S !E/3!& 8,S /!1N&ED ,ND /,SSED 3N &3 &2E 3((1CE!CS S5/E!#1S3! ,ND 1& 8166 BE
,DD!ESSED.F
8hat i0 more 0trange i0 that 1 0u>mitted 0everal online <olice re<ort0 to the !eno /D Ba cou<le o. ?hich a00erted
com<laint0 again0t variou0 !eno /D o..icer0" or a0Eed ?h- !D/ 3..icer Carter" ?hom admitted taEing >ri>e0 .rom
!ichard :. 2ill" E0@. at the time o. m- cu0todial arre0t .or tre0<a00ing Bthe one ?here !ichard 2ill 0igned a Criminal
Com<laint .or tre0<a00" then 3..icer Carter and Sargent 6o<eD re.u0ed to .ollo? u< on m- im<loring them to a0E 2ill
?hether he ha0 recentl- 0ent me a >ill .or the F.ull rental valueF o. the <ro<ert-" the 0ame amount that had >een charged
.or the Fu0e and enAo-mentF o. the <remi0e0" G9++" in com<ari0ion to ?hat N!S 11$,.4*+ ma- deem Frea0ona>le
0torageF e)<en0e0 .or ?hich a lien i0 availa>le to a landlord" though N!S 11$,.%2+ ha0 outla?ed rent di0traint0 u<on
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tenantC0 <er0onal <ro<ert-....!egardle00" >et?een 4anuar- $ ' 12th" 2+12" and ?a0 arre0ted t?ice >- the !eno /D 0hortl-
a.ter 0u>mitting the0e ?ritten com<laint0 to the !eno /D.
,ctuall-" u<on >eing relea0ed .rom Aail on Novem>er 1%th" 2+11" incident to the cu0todial tre0<a00 arre0t" 1 ?ent
to !ichard 21llC0 o..ice to get m- ?allet and driverC0 licen0e. 2e re.u0ed to <rovide it to me until late Novem>er 22nd"
2+11. 2ill called the !eno /D on the 1%th Bor ma->e 1 did >ecau0e he ?a0 ?ithholding m- 0tate i00ued 1D" the one 1
?ould need to rent a room" drive m- car" and m- ?allet" ?hich i0 Eind o. u0e.ul in 0uch 0ituation0....;. ,n-?a-0" Sargent
&arter o. the !eno /D 0ho?ed u<" he ?ent in0ide 2illC0 o..ice ?ith 2ill .or @uite 0ome time and the re0ult ?a0 &arter
telling me to leave. 1 did" >ut ?hile driving do?n St. 6aurence to?ard0 S. #irginia B2illC0 o..ice i0 at *%2 (orre0t St.
$9%+3 and ?ould have re@uired turning do?n the ?rong ?a- o. a one ?a- 0treet" (orre0t" to go >acE to 2illC0 3..ice B0o
clearl- 1 ?a0 not headed to 2illC0 o..ice; Sargent &arter >egan tailing me" then he <ulled me over" then he gave me a
ticEet" in retaliation i. -ou a0E me .or re<orting !/D 3..icer Carter admitting that he taEe0 >ri>e0 .rom 2ill to Sargent
&arter minute0 earlier. 5h" ?ell" an-?a-0" another Sargent call0 me later that night" taEing the Fgood co<F role. But u<on
in.orming him o. ?hat !/D 3..icer Carter told me a>out 2ill <a-ing him mone- to arre0t <eo<le during the 11N12N11
tre0<a00ing arre0t" that Sargent immediatel- in.ormed me that" de0<ite thi0 >eing the .ir0t he heard o. that" he ?a0 0ure that
?a0 not ha<<ening....1 gue00 !/D 3..icer Carter i0 tr-ing to e)<lain a?a- hi0 comment0 a>out !ichard 2ill <a-ing him
mone- to arre0t <eo<le >- di0mi00ing them a0 0arca0m" a AoEe" 0aid in Ae0t" ?hatever....>ut 1 donCt 0ee ho? that 0ituation Ba
licen0e attorne- getting arre0ted .or a crime" a conviction .or ?hich ?ould re0ult in that attorne- >eing re@uired to re<ort
0aid conviction to the State Bar o. Nevada under SC! 111" etc." and <o00i>l- re0ulting in a 0u0<en0ion o. that attorne-C0
licen0e to <ractice la?" or ?or0e...; i0 all that Aocular o. a 0ituation. Com>ine that ?ith the too @uicE to di0mi00 m- re<ort0
o. >ri>er- >- !ichard 2ill to o..icer Carter to the !/D Sargent ?ho called me on 11N1%N11 regarding the retaliation >-
Sargent &arter that 1 com<lained o." and 1 donCt thinE it i0 all that unrea0ona>le .or an-one to taEe !/D 3..icer Carter at
hi0 ?ord regarding !ichard :. 2ill" E0@. <a-ing him mone- to arre0t ?hom 2ill 0a-0 to arre0t. ,dd to that Sargent
Sig.ree ordering m- arre0t .or Aa-?alEing B>- a trainee !/D 3..icer; on 4anuar- 12th" 2+11 Bcu0todial arre0t" >ail o. G1*+
em<tied m- >anE account out" or <rett- clo0e to it; ?hile 1 ?a0 <eace.ull- .ilming .rom a lic 0<ot !ichard :. 2ill"
E0@C0 contractor /hil 2o?ard" ?hom had 0u>mitted >ill0 in court0 record0 and .iling0 under the lien .or Frea0ona>le
0torage moving and inventor-ingF .ound in N!S 11$,.4*+" even ?here old /hil u0ed m- o?n <l-?ood at the <ro<ert- to
>oard u< the >acE <orch Bcuriou0l- leaving the 0cre?0 holding u< the <l-?ood e)<o0ed to e)terior o. the <ro<ert- ?here
an-one could ea0il- un0cre? them" and al0o leaving in a ?indo? unit ac 0ecured onl- >- ductta<e in a ?indo? .acing a
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00030
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0ide?alE >- the 6aEe=ill 6odge....?hich re0ulted in G$"+++ at lea0t o. m- <er0onal <ro<ert- >eing >urglariDed .rom m-
.ormer home la? o..ice on Decme>er 12th" 2+11 ?hile 2ill ?a0 a00erting a lien on all m- <er0onal <ro<ert- .ound therein
Band m- clientC0 .ile0" ?hich argua>l- are not even m- <ro<ert-" >ut rather" the clientC0 <ro<ert-;. 2ill ?ent on to <lace
?hat he >elieve0 to >e m- 0ocial 0ecurit- num>er in court record0" on <ur<o0e" de0<ite hi0 0igning an ,..irmation
<ur0uant to N!S 239B.+3+ that that ?a0 not the ca0e Battaching a t?o <age re<ort to the !/D a0 an E)hi>it;. &hen 2ill
and hi0 contractor /hil 2o?ard >oth committed <erAur- ?hen the 0igned Declaration0 atte0ting that 1 had clim>ed on the
contractor0 trucE or ever touched 2ill. 2ill lie0 con0tantl-" ?hether under <enalt- o. <erAur- or no?" 0o 1 donCt have time
to re>ut ever- little lie he maEe0 Bhe maEe0 me out to come0 acro00 a0 a 7o0emite Sam caricature o. a human >eing in hi0
.iling0 ?hen he de0cri>e0 me...;.
(urther" ?h- am 1 arre0ted .or tre0<a00ing and not tho0e .rom Nevada Court Service0 ?here the- ?ent >ehind
clo0ed gate the the >acE-ard o. m- home la? o..ice and >anged on ?indo? e)tremel- loudl- .or 4+ minute0 at a time 3
time0 a da-" one gu- ringing the door>ell" one gu- moving around all other 0ide0 o. the <ro<ert- >anging on the ?indo?0"
<eering in clo0ed >lind0" and a..ecting a <hon- Fcolor o. la?F tone" re0em>lance" and ver>al communication0"
mi0leadingl- announcing that the- ?ere FCourt Service0" come out no?TF" ?earing their <retend Sheri.. out.it0" >ig
e@ui<ment 0addled >elt0 Bincluding .irearm0" 1 >elieve" and radio0;" etc. "etc.
htt<:NN???.-outu>e.comN?atchHvRAV132@237D7
,dd to that that Nevada Court Service0 4e.. Chandler drive0 >- in hi0 =on0ter &rucE >aring hi0 <er0onaliDed FNCSF
licen0e <late ?hile 1 am in the !/D 0@uad car" handcu..ed" out0ide m- .ormer la? o..ice at 121 !iver !ocE" at the time o.
the 1N12N12 Aa-?alEing arre0t and the a<<earance0 are trou>ling. No?" add to that that 6e? &aitel" E0@. ?a0 m- court
a<<ointed lic de.ender in the !eno =unici<al Court in the tre0<a00 ca0e" and that 4udge :ardner had re.u0ed to
<rovide me the name0 o. <ro0<ective a<<ointed de.en0e coun0el B1 ?anted to run a con.lict0 checE; at m- arraignment
B?here =ar0hal =entDel >arEed at me in a threatening tone" u0ing menacing language;" ?hereu<on &aitel ?a0 a<<ointed
a0 m- de.en0e attorne- and .iled a notice o. a<<earance" and received m- con.idential .ile" <c 0heet" arre0t re<ort0" 00n"
etc....onl- it0 turn0 out that &aitel 0hare0 and o..ice and a rece<tioni0t ?ith Nevada Court Service0 and the- li0t him and
hi0 <icture on their ?e>0ite a0 Fa00ociated ?ithF their /roce00 Server cor<oration" de0<ite the <rohi>ition la?-er0 .ace
again0t .ee 0haring ?ith non'la?-er0. &hen" &aitel 0omeho? manage0 to get out o. de.ending m- ca0e ?ithout .iling a
=otion to 8ithdra? a0 Coun0el" de0<ite that >eing re@uired >- the !eno =unici<al Court !ule 3BB;:
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!=C! !ule 3BB;: ,uthoriDation to !e<re0ent BB;: ,n attorne- de0iring to ?ithdra? .rom a ca0e 0hall .ile a
motion ?ith the court and 0erve the Cit- ,ttorne- ?ith the 0ame. &he court ma- rule on the motion or 0et a hearing.
But" <erha<0 mo0t trou>ling o. all i0 the im<lication that the !eno Cit- ,ttorne-C0 3..ice" ?hich de.end0 action0
again0t the Cit- o. !eno /olice De<artment and it0 3..icer0" ha0 a ve0ted intere0t in di0crediting me in advance o. the
?rong.ul arre0t la?0uit that the !eno Cit- ,ttorne-C0 o..ice Ene? ?a0 imminent at the time o. all o. the a>ove incident0"
relating to the .ollo?ing ,ugu0t 2+th" 2+11 ?rong.ul arre0t >- !/D 3..icerC0 Duralde and !o0a.
htt<:NN???.-outu>e.comN?atchHvR%/!7@431%>+ So" thatC0 ?hat attem<ting to coerce a 0u0<ectC0 con0ent to an
im<ermi00i>le 0earch 0ound0 liEeH ,dd to that that the tre0<a00ing ca0e i0 >e.ore 4udge :ardner" ?hom mo0t recentl- ?a0
em<lo-ed ?ith the !eno Cit- ,ttorne-C0 3..ice.
,nd" -ou Eno? ?hat i0 .unn-H 3..icer Del #ecchio cu..ed me and <laced me in hi0 0@uad car la0t 0ummer a.ter
he terri.ied me and another gentleman ?ho had >ic-cle0. 2e veered acro00 the road and 0creeched hi0 0@uad car to a halt"
Aum<ed out" and did 0ome other 0tu.." then demanded m- name and 1D...and the la?-er in me didnCt liEe that that much"
and he didnCt liEe me not ?anting to give it to him. &hi0 occurred right in .ront o. m- home la? o..ice in the 0ummer o.
2+11. 2e cu..ed me and told me 1 ?a0 going to Aail .or 0omething a>out a light on the .ront o. m- >ic-cle Bthe one N#
Energ- liEel- 0tole ?hen the 0hut o.. m- <o?er" unnoticed" on 3cto>er 4" 2+11; de0<ite m- >iEe actuall- having 0uch a
light....>ut then Del #ecchioC0 <artner did him a 0olid and talEed 0ome 0en0e into him" and 1 hum>led it u< .or Del
#ecchio and ?e >oth let it go" and 1 didnCt go to Aail....5ntil Del #ecchio ?a0 <re0ent 0u<ervi0ing 0ome 3..icerC0 training
at the 0cene o. m- cu0todial B9 hour; Aa-?alEing arre0t; on 1N12N12. But Del #ecchio" 1 gue00 either didnCt ?ant to or
?a0nCt a>le to talE 0ome 0en0e into Sargent Sig.ree.....and then Sargent Sig.ree Bthe 0<elling i0 liEel- o..; had me arre0ted
and charged ?ith a gro00 mi0demeanor" F=i0u0e o. 911F Au0t t?o da-0 later" on 4anuar- 14th" 2+11 ?hen 1 called 911 to
re<ort that m- roommate0 ?ere laughing menacingl- ?hen 1 a0Eed them ?h- m- dog ?a0 mi00ing B1 had al0o >een
cha0ed u< to m- room numerou0 time0 0ince moving in ?ith the0e <eo<le" 0omething 1 had to do >ecau0e 0o much o. m-
mone- had >een taEen u< ?ith >ail or lo0t earning0 due to all the0e ?rong.ul arre0t0 and a>u0e o. <roce00e0 mentioned
a>ove...al0o the0e hou0emate0 had cha0ed me ?ith a ten inch >utcher Eni.e" t?o o. m- tire0 ?ere 0la0hed" 1 ?a0 locEed out
all night on Ne? 7ear0 Even ?hen the0e changed the locE0 at around midnight" had m- .urniture thro?n in the 0treet"
<ro<ert- 0tolen" co..ee thro?n on me" de0tro-ing m- 0mart <hone in the <roce00" etc." etc...,nd de0<ite the hou0emate
having an out0tanding arre0t ?arrant" and animal a>u0e >eing li0ted among0t the element0 o. dome0tic violence" Sargent
Sig.ree told me he ?a0 arre0ting me >ecau0e 1 FEee< <utting -our0el. in the0e 0ituation0F" liEe" ?here 1 am a victim" and
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that he ?a0 Ftr-ing to hel< -ouF" he 0aid ?ith a 0mirE and a laugh to hi0 .ello? !/D 3..icer0" ?hom then <roceeded to
u0e e)ce00ive .orce again0t me. 1 gue00 he ?a0 hel<ing me >- 0addling me ?ith a gro00 mi0demeanor ?ith a G1"%++ >ail"
e0<eciall- ?here it0 >een arranged .or Court Service0" or <re'&rial Service0 to .orever den- me an 3!" de0<ite m-
meeting the .actor0 .or 0uch 0et .orth in 0tatute B3+ -ear re0ident" entire immediate .amil- live0 here" licen0ed to <ractice
la? in Nevada" etc." etc;...1 gue00 it 0hould not >e too much o. a 0ur<ri0e to me that !eno Cit- ,ttorne- /am !o>ert0
.ailed to addre00 the <erAur- o. all three o. her ?itne00e0 or that her .ello? !eno Cit- ,ttorne- Chri0to<her 2aDlett'
Steven0 lied to me a>out ?hether or not the !eno Cit- ,ttorne-C0 3..ice even had an- documentation related to m- arre0t
or ?hether it ?ould in the month >e.ore m- arraignment" de0<ite that .act that 0u>0e@uent <roduction0 o. di0cover- tend
to indicate that the !eno Cit- ,ttorne-C0 3..ice did have tho0e material0 at the time. 1 could >e ?rong a>out 0ome o.
thi0...But that ?ould re@uire and a?.ul lot o. coincidence0.
(urther" the la? in our State doe0 not 0eem e)ce<tionall- clear ?ith regard to the 0ervice and
<roce00 re@uirement0 and timeline0" and manner o. calculating time ?ith re0<ect to the Frecei<tF o.
6ocEout 3rder0. &he ,..idavit o. Service >- =achen 0tate0 that he F<er0onall- 0erved the de0cri>ed
document0 u<onF m-" Zach Coughlin...2o?ever" 1 can atte0t >- ,..idavit that 1 ?a0 not F<er0onall-
0ervedF to the e)tent that F<er0onall- 0ervedF mean0 or im<lie0 that 1 ?a0 there" that =achen 0a? me
or identi.ied me" or an- o. the other indicator0 o. 0omething" 0uch a0 a Com<laint" >eing F<er0onall-
0ervedF 0uch a0 1 under0tand the <hra0e to me. N!C/ %B>;B2;B,;Bi'iii;. (urther" a0 BaEer and 2ill
have 0o o.ten <ointed out" 1 cannot" according to them" receive an- attorne-C0 .ee a?ard .or a<<earing
a0 <ro 0e attorne-" a0 0uch" N!C/ %B>;B2;B,;Bi'iii;" 0hould a<<l- to me onl- a0 a <art-" and not a0 a
<art-C0 attorne-" and" there.ore" according to N!C/ %" Service: FB2; Service under thi0 rule i0 made
>-: B,; Delivering a co<- to the attorne- or the <art- >-: Bi; handing it to the attorne- or to the <art-9
Bii; leaving it at the attorne-L0 or <art-L0 o..ice ?ith a clerE or other <er0on in charge" or i. there i0 no
one in charge" leaving it in a con0<icuou0 <lace in the o..ice9 or Biii; i. the o..ice i0 clo0ed or the
<er0on to >e 0erved ha0 no o..ice" leaving it at the per"on/" '$ell!ng hou"e or u"ul plce o# (o'e
$!th "ome per"on o# "u!t(le ge n' '!"cret!on re"!'!ng there...F So" either it ?a0 m- o..ice" in
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?hich ca0e a No Cau0e Eviction Notice maEe0 im<ermi00i>le a Summar- Eviction /roceeding under
N!S 4+.2%3" and there.ore" the 3rder o. Summar- Eviction i0 void .or lacE o. Auri0diction" or" the
,..idavit o. Service ?a0 on m- home" and ?a0 not FhandedF to me" or F<er0onall- 0ervedF Bde0<ite
the ,..idavit atte0ting to having F<er0onall- 0ervedF me;" nor ?a0 the 3rder o. Summar- Eviction
0erved in accordance ?ith N!C/ %B>;B2;B,;Biii;" ?hich re@uire0: Fi. the o..ice i0 clo0ed or the <er0on
to >e 0erved ha0 no o..ice" leaving it at the per"on/" '$ell!ng hou"e or u"ul plce o# (o'e $!th
"ome per"on o# "u!t(le ge n' '!"cret!on re"!'!ng there..F
(urther" 1 >elieve <o0ting an 3rder on oneC0 re0idence door" <articularl- in the conte)t o. 0erving a No
Cau0e Notice o. Eviction or 5nla?.ul Detainer" i0 onl- valid i. the document >eing 0erved i0 al0o
<laced in the mail and 3 non Audicial da-0 are accorded .or 0ervice to >e com<lete. See N!C/ *Be;. 1
do not >elieve the- can <rove that at all" not even clo0e. N!C/ a<<lie0 to Summar- Eviction
,ction0" according to the .ollo?ing:
FN!S 4+.3$+ /rovi0ion0 governing a<<eal0. Either <art- ma-" ?ithin 1+ da-0" a<<eal .rom the
Audgment rendered. But an a<<eal >- the de.endant 0hall not 0ta- the e)ecution o. the Audgment"
unle00" ?ithin the 1+ da-0" the de.endant 0hall e)ecute and .ile ?ith the court or Au0tice the
de.endantL0 undertaEing to the <lainti.." ?ith t?o or more 0uretie0" in an amount to >e .i)ed >- the
court or Au0tice" >ut ?hich 0hall not >e le00 than t?ice the amount o. the Audgment and co0t0" to the
e..ect that" i. the Audgment a<<ealed .rom >e a..irmed or the a<<eal >e di0mi00ed" the a<<ellant ?ill
<a- the Audgment and the co0t o. a<<eal" the value o. the u0e and occu<ation o. the <ro<ert-" and
damage0 Au0tl- accruing to the <lainti.. during the <endenc- o. the a<<eal. 5<on taEing the a<<eal
and .iling the undertaEing" all .urther <roceeding0 in the ca0e 0hall >e 0ta-ed.J
,ctuall-" a lot o. <eo<le 0eemed con.u0ed regarding the I24 hour0J locEout thing. &he onl- a<<earance in either N!S
11$, or N!S 4+" in the <rovi0ion0 a<<lica>le to Summar- Eviction /roceeding0 o. an-thing related to I24 hour0J i0 in
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N!S 4+.2%3B%;" ?hich onl- 0<eaE0 to a 0ituation ?here the &enant doe0 not .ile a &enantC0 ,n0?er or &enantC0 ,..idavit"
?hich i0 clearl- ina<<lica>le here" a0 the &enant did .ile 0uch a 3<<o0ition to the No Cau0e Eviction Notice: I%. 5<on
noncom<liance ?ith the notice:
Ba; &he landlord or the landlordL0 agent ma- a<<l- >- a..idavit o. com<laint .or eviction to the Au0tice court o. the
to?n0hi< in ?hich the d?elling" a<artment" mo>ile home or commercial <remi0e0 are located or to the di0trict court o. the
count- in ?hich the d?elling" a<artment" mo>ile home or commercial <remi0e0 are located" ?hichever ha0 Auri0diction
over the matter. The court m. thereupon !""ue n or'er '!rect!ng the "her!## or con"t(le o# the count. to remo&e
the tennt $!th!n 01 hour" #ter rece!pt o# the or'er. &he a..idavit mu0t 0tate or contain...J
So" a>0ent 0ome 0tatutor- <rovi0ion allo?ing the 3rder o. Summar- Eviction to re0ult in a locEout >- the 8a0hoe
Count- Sheri..C0 3..ice <rior to the 3 da-0 .or mailing ?here <er0onal 0ervice o. the 3rder o. Summar- Eviction ?a0 not
e..ectuated" de0<ite ?hat 8CS3 em<lo-ee ma- have incorrectl- Bor .al0el-; a00erted in the 8CS3C0 4ohn =achemC0
,..idavit o. Service .rom" .ile 0tam<ed Novem>er 7" 2+11 Be0<eciall- ?here it i0 time0tam<ed 4:3+ <m" Novem>er 1"
2+11" e0<eciall- ?here the 3rder o. Summar- Eviction e)<licitl- read0 that no 0uch locEout 0hall occur <rior to %:++ <m
on Novem>er 1" 2+11;. See" N!C/ %B>;B2;B,;Bi'iii;" N!C/ *Be;.
Intere"t!ngl.% R!chr' )!ll 2no$" h!" c"e !" to"t un'er NRCP 34(54054A54!-!!!5% NRCP
64e5% !n ''!t!on to NRCP ++. Tht !" $h. !n R!chr' )!ll7" No&em(er 0+% 0,++ Mot!on #or
Or'er To Sho$ Cu"e% on pge 0% )!ll" re"ort" to l!terll. gr"p!ng t "tr$"% !mg!n!ng tht
$ht the 8"hoe Count. Sher!##7" O##!ce cu"tomr!l. 'oe" !" "omeho$ utomt!cll. co'!#!e'
!nto mn'tor. prece'ent (lc2 letter l$. To $!t% R!chr' )!ll $rote !n h!" Mot!on For Or'er
To Sho$ Cu"e tht- 9FACTS S)O8ING CONTEMPT OF COURT 6. E:)I;IT + $"
"er&e' on Coughl!n on No&em(er < 0,++ (. the 8"hoe Count. Sher!##" Deprtment% (.
po"t!ng "me on the #ront 'oor o# the propert. !n the mnner cu"tomr. #or e&!ct!on" !n
8"hoe Count.. The loc2" to the prem!"e" $ere chnge' t tht t!me% there(. e=ect!ng n'
'!"po""e""!ng Coughl!n o# po""e""!on o# the Propert..> Further% there!n R!chr' )!ll 'm!t"
tht the loc2out occurre' t 1-?, pm% " !n'!cte' !n $r!t!ng !n the 8CSO7" Mchem7"
A##!'&!t o# Ser&!ce% contr to the mn'te o# @u'ge S#errAA7" Or'er o# Summr. E&!ct!on
reBu!r!ng n. loc2out to occur after 3-,, pm% No&em(er +% 0,++.
NRS 1,.?*3 St. o# eCecut!on upon ppelD 'ut. o# tennt $ho ret!n" po""e""!on o#
prem!"e" to p. rent 'ur!ng "t.. Upon n ppel #rom n or'er entere' pur"unt to N!S
4+.2%3 -
+. ECcept " other$!"e pro&!'e' !n th!" "u("ect!on% "t. o# eCecut!on m. (e o(t!ne' (.
#!l!ng $!th the tr!l court (on' !n the mount o# E03, to co&er the eCpecte' co"t" on ppel. In
n ct!on concern!ng le"e o# commerc!l propert. or n. other propert. #or $h!ch the
monthl. rent eCcee'" E+%,,,% the court m.% upon !t" o$n mot!on or tht o# prt.% n' upon
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"ho$!ng o# goo' cu"e% or'er n ''!t!onl (on' to (e po"te' to co&er the eCpecte' co"t" on
ppel. A "uret. upon the (on' "u(m!t" to the =ur!"'!ct!on o# the ppellte court n'
!rre&oc(l. ppo!nt" the cler2 o# tht court " the "uret./" gent upon $hom pper" ##ect!ng
the "uret./" l!(!l!t. upon the (on' m. (e "er&e'. L!(!l!t. o# "uret. m. (e en#orce'% or the
(on' m. (e rele"e'% on mot!on !n the ppellte court $!thout !n'epen'ent ct!on.
2. , tenant ?ho retain0 <o00e00ion o. the <remi0e0 that are the 0u>Aect o. the a<<eal during the
<endenc- o. the a<<eal 0hall <a- to the landlord rent in the amount <rovided in the underl-ing
contract >et?een the tenant and the landlord a0 it >ecome0 due. 1. the tenant .ail0 to <a- 0uch rent" the
landlord ma- initiate ne? <roceeding0 .or a 0ummar- eviction >- 0erving the tenant ?ith a ne?
notice <ur0uant to N!S 4+.2%3.
N!S 4+.39+ ,<<ellate court not to di0mi00 or @ua0h <roceeding0 .or ?ant o. .orm. 1n all ca0e0
o. a<<eal under N!S 4+.22+ to 4+.42+" inclu0ive" the a<<ellate court 0hall not di0mi00 or @ua0h the
<roceeding0 .or ?ant o. .orm" <rovided the <roceeding0 have >een conducted 0u>0tantiall- according
to the <rovi0ion0 o. N!S 4+.22+ to 4+.42+" inclu0ive9 and amendment0 to the com<laint" an0?er or
0ummon0" in matter0 o. .orm onl-" ma- >e allo?ed >- the court at an- time >e.ore .inal Audgment
u<on 0uch term0 a0 ma- >e Au0t9 and all matter0 o. e)cu0e" Au0ti.ication or avoidance o. the allegation0
in the com<laint ma- >e given in evidence under the an0?er.
NRS 1,.1,, Rule" o# prct!ce. The pro&!"!on" o# NRS% Ne&' Rule" o# C!&!l Proce'ure
n' Ne&' Rule" o# Appellte Proce'ure relt!&e to c!&!l ct!on"% ppel" n' ne$ tr!l"% "o #r
" the. re not !ncon"!"tent $!th the pro&!"!on" o# N!S 4+.22+ to 4+.42+ % !nclu"!&e% ppl. to the
procee'!ng" ment!one' !n tho"e "ect!on".>
So" con0idering that N!S 4+.4++ re@uire0 that N!C/ a<<l- to Summar- Eviction /roceeding0 under
N!S 4+.2%3" then 0ervice" <roce00" and time calculation0 o. 0uch mu0t com<ort ?ith the dictate0 o.
N!C/ %'*: F !56E %. SE!#1CE ,ND (161N: 3( /6E,D1N:S ,ND 3&2E! /,/E!S
45 Ser&!ce- 8hen ReBu!re'. E)ce<t a0 other?i0e <rovided in the0e rule0" ever- order re@uired
>- it0 term0 to >e 0erved" ever- <leading 0u>0e@uent to the original com<laint unle00 the court
other?i0e order0 >ecau0e o. numerou0 de.endant0" ever- <a<er relating to di0cover- re@uired to >e
0erved u<on a <art- unle00 the court other?i0e order0" ever- ?ritten motion other than one ?hich ma-
>e heard e) <arte" and ever- ?ritten notice" a<<earance" demand" o..er o. Audgment" de0ignation o.
record on a<<eal" and 0imilar <a<er 0hall >e 0erved u<on each o. the <artie0. No 0ervice need >e made
on <artie0 in de.ault .or .ailure to a<<ear e)ce<t that <leading0 a00erting ne? or additional claim0 .or
relie. again0t them 0hall >e 0erved u<on them in the manner <rovided .or 0ervice o. 0ummon0 in !ule
4.
4(5 Sme- )o$ M'e.
B1; 8henever under the0e rule0 0ervice i0 re@uired or <ermitted to >e made u<on a <art-
re<re0ented >- an attorne-" the 0ervice 0hall >e made u<on the attorne- unle00 the court order0 that
0ervice >e made u<on the <art-.
B2; Service under thi0 rule i0 made >-:
B,; Delivering a co<- to the attorne- or the <art- >-:
Bi; handing it to the attorne- or to the <art-9
Bii; leaving it at the attorne-L0 or <art-L0 o..ice ?ith a clerE or other <er0on in
charge" or i. there i0 no one in charge" leaving it in a con0<icuou0 <lace in the o..ice9 or
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Biii; i. the o..ice i0 clo0ed or the <er0on to >e 0erved ha0 no o..ice" leaving it at the
<er0onL0 d?elling hou0e or u0ual <lace o. a>ode ?ith 0ome <er0on o. 0uita>le age and di0cretion
re0iding there.
4;5 M!l!ng cop. to the ttorne. or the prt. t h!" or her l"t 2no$n ''re"".
Ser&!ce (. m!l !" complete on m!l!ngD pro&!'e'% ho$e&er% mot!on% n"$er or other
'ocument con"t!tut!ng the !n!t!l ppernce o# prt. mu"t l"o% !# "er&e' (. m!l% (e #!le'
$!th!n the t!me llo$e' #or "er&!ceD n' pro&!'e' #urther% tht #ter "uch !n!t!l ppernce%
"er&!ce (. m!l (e m'e onl. (. m!l!ng #rom po!nt $!th!n the Stte o# Ne&'.
BC; 1. the attorne- or the <art- ha0 no Eno?n addre00" leaving a co<- ?ith the clerE o. the
court.
4D5 Del!&er!ng cop. (. electron!c men" !# the ttorne. or the prt. "er&e' h"
con"ente' to "er&!ce (. electron!c men". Ser&!ce (. electron!c men" !" complete on
trn"m!""!on pro&!'e'% ho$e&er% mot!on% n"$er or other 'ocument con"t!tut!ng the !n!t!l
ppernce o# prt. mu"t l"o% !# "er&e' (. electron!c men"% (e #!le' $!th!n the t!me llo$e'
#or "er&!ce. The "er&e' ttorne./" or prt./" con"ent to "er&!ce (. electron!c men" "hll (e
eCpre""l. "tte' n' #!le' !n $r!t!ng $!th the cler2 o# the court n' "er&e' on the other prt!e"
to the ct!on. The $r!tten con"ent "hll !'ent!#.-
4!5 the per"on" upon $hom "er&!ce mu"t (e m'eD
4!!5 the ppropr!te ''re"" or loct!on #or "uch "er&!ce% "uch " the
electron!c-m!l ''re"" or #c"!m!le num(erD
4!!!5 the #ormt to (e u"e' #or ttchment"D n'
4!&5 n. other l!m!t" on the "cope or 'urt!on o# the con"ent.
An ttorne./" or prt./" con"ent "hll rem!n e##ect!&e unt!l eCpre""l. re&o2e' or unt!l the
repre"entt!on o# prt. chnge" through entr.% $!th'r$l% or "u("t!tut!on o# coun"el. ,n
attorne- or <art- ?ho ha0 con0ented to 0ervice >- electronic mean0 0hall" ?ithin 1+ da-0 a.ter an-
change o. electronic'mail addre00 or .ac0imile num>er" 0erve and .ile notice o. the ne? electronic'
mail addre00 or .ac0imile num>er.
4?5 Ser&!ce (. electron!c men" un'er Rule 34(54054D5 !" not e##ect!&e !# the prt.
m2!ng "er&!ce lern" tht the ttempte' "er&!ce '!' not rech the per"on to (e "er&e'.
B4; /roo. o. 0ervice ma- >e made >- certi.icate o. an attorne- or o. the attorne-L0 em<lo-ee"
or >- ?ritten admi00ion" or >- a..idavit" or other <roo. 0ati0.actor- to the court. (ailure to maEe <roo.
o. 0ervice 0hall not a..ect the validit- o. 0ervice...
RULE 6. 9TIME
45 Computt!on. 1n com<uting an- <eriod o. time <re0cri>ed or allo?ed >- the0e rule0" >- the
local rule0 o. an- di0trict court" >- order o. court" or >- an- a<<lica>le 0tatute" the da- o. the act"
event" or de.ault .rom ?hich the de0ignated <eriod o. time >egin0 to run 0hall not >e included. &he
la0t da- o. the <eriod 0o com<uted 0hall >e included" unle00 it i0 a Saturda-" a Sunda-" or a
nonAudicial da-" in ?hich event the <eriod run0 until the end o. the ne)t da- ?hich i0 not a Saturda-"
a Sunda-" or a nonAudicial da-" or" ?hen the act to >e done i0 the .iling o. a <a<er in court" a da- on
?hich ?eather or other condition0 have made the o..ice o. the clerE o. the di0trict court inacce00i>le"
in ?hich event the <eriod run0 until the end o. the ne)t da- ?hich i0 not one o. the a.orementioned
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da-0. 8hen the <eriod o. time <re0cri>ed or allo?ed i0 le00 than 11 da-0" intermediate Saturda-0"
Sunda-0" and nonAudicial da-0 0hall >e e)cluded in the com<utation e)ce<t .or tho0e <roceeding0
.iled under &itle0 12 or 13 o. the Nevada !evi0ed Statute0...
4e5 A''!t!onl T!me A#ter Ser&!ce (. M!l or Electron!c Men". 8hene&er prt. h" the
r!ght or !" reBu!re' to 'o "ome ct or t2e "ome procee'!ng" $!th!n pre"cr!(e' per!o' #ter
the "er&!ce o# not!ce or other pper% other thn proce""% upon the prt. n' the not!ce or
pper !" "er&e' upon the prt. (. m!l or (. electron!c men"% ? '." "hll (e ''e' to the
pre"cr!(e' per!o'.
Su>divi0ion Ba; i0 revi0ed to e)tend the e)clu0ion o. intermediate Saturda-0" Sunda-0" and
nonAudicial da-0 to the com<utation o. time <eriod0 le00 than 11 da-0 con0i0tent ?ith the 19$%
amendment0 to the .ederal rule. ,dditionall-" the [[inacce00i>ilit- o. the courtLL <rovi0ion .ound in
0u>divi0ion Ba; o. the .ederal rule i0 added to !ule *Ba;. Su>divi0ion Ba; i0 .urther amended" >- adding
language re.erring to [[<roceeding0 .iled under &itle0 12 or 13 o. the Nevada !evi0ed Statute0"LL to
avoid an- change0 to current <rocedure0 in <ro>ate" guardian0hi< and tru0t <roceeding0....
Su>divi0ion Be; i0 amended to <rovide an additional 3 da-0 to act in re0<on0e to a <a<er that i0
0erved >- electronic mean0 under ne? <aragra<h B2;BD; added to !ule %B>;.F
N!S 4+.2%3 5nla?.ul detainer: Su<<lemental remed- o. 0ummar- eviction and e)clu0ion o. tenant
.or de.ault in <a-ment o. rent.
1. E)ce<t a0 other?i0e <rovided in 0u>0ection 1+" in addition to the remed- <rovided in N!S 4+.2%12 and
4+.29+ to 4+.42+" inclu0ive" ?hen the tennt o# n. '$ell!ng% prtment% mo(!le home% recret!onl
&eh!cle or commerc!l prem!"e" $!th per!o'!c rent re"er&e' (. the month or n. "horter per!o'
!" !n 'e#ult !n p.ment o# the rent" the landlord or the landlordL0 agent" unle00 other?i0e agreed in
?riting" ma- 0erve or have 0erved a notice in ?riting" re@uiring in the alternative the <a-ment o. the
rent or the 0urrender o. the <remi0e0...
4. 1. the tenant .ile0 0uch an a..idavit at or >e.ore the time 0tated in the notice" the landlord or
the landlordL0 agent" a.ter recei<t o. a .ile'0tam<ed co<- o. the a..idavit ?hich ?a0 .iled" 0hall not
<rovide .or the nonadmittance o. the tenant to the <remi0e0 >- locEing or other?i0e.
%. 5<on noncom<liance ?ith the notice:
Ba; &he landlord or the landlordL0 agent ma- a<<l- >- a..idavit o. com<laint .or eviction to the
Au0tice court o. the to?n0hi< in ?hich the d?elling" a<artment" mo>ile home or commercial <remi0e0
are located or to the di0trict court o. the count- in ?hich the d?elling" a<artment" mo>ile home or
commercial <remi0e0 are located" ?hichever ha0 Auri0diction over the matter. &he court ma-
thereu<on i00ue an order directing the 0heri.. or con0ta>le o. the count- to remove the tenant ?ithin
24 hour0 a.ter recei<t o. the order..
*. 5<on the .iling >- the tenant o. the a..idavit <ermitted in 0u>0ection 3" regardle00 o. the
in.ormation contained in the a..idavit" and the .iling >- the landlord o. the a..idavit <ermitted >-
0u>0ection %" the Au0tice court or the di0trict court 0hall hold a hearing" a.ter 0ervice o. notice o. the
hearing u<on the <artie0" to determine the truth.ulne00 and 0u..icienc- o. an- a..idavit or notice
<rovided .or in thi0 0ection. I# the court 'eterm!ne" tht there !" no legl 'e#en"e " to the llege'
unl$#ul 'et!ner n' the tennt !" gu!lt. o# n unl$#ul 'et!ner% the court m. !""ue
"ummr. or'er #or remo&l o# the tennt or n or'er pro&!'!ng #or the non'm!ttnce o# the
tennt. I# the court 'eterm!ne" tht there !" legl 'e#en"e " to the llege' unl$#ul 'et!ner%
the court "hll re#u"e to grnt e!ther prt. n. rel!e#% n'% eCcept " other$!"e pro&!'e' !n th!"
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"u("ect!on% "hll reBu!re tht n. #urther procee'!ng" (e con'ucte' pur"unt to N!S 4+.29+ to
4+.42+ % !nclu"!&e. The !""unce o# "ummr. or'er #or remo&l o# the tennt 'oe" not preclu'e
n ct!on (. the tennt #or n. 'mge" or other rel!e# to $h!ch the tennt m. (e ent!tle'....
7. &he tenant ma-" u<on <a-ment o. the a<<ro<riate .ee0 relating to the .iling and 0ervice o. a
motion" .ile a motion ?ith the court" on a .orm <rovided >- the clerE o. the court" to di0<ute the
amount o. the co0t0" i. an-" claimed >- the landlord <ur0uant to N!S 11$.2+7 or 11$,.4*+ .or the
inventor-" moving and 0torage o. <er0onal <ro<ert- le.t on the <remi0e0. &he motion mu0t >e .iled
?ithin 2+ da-0 a.ter the 0ummar- order .or removal o. the tenant or the a>andonment o. the <remi0e0
>- the tenant" or ?ithin 2+ da-0 a.ter:
Ba; &he tenant ha0 vacated or >een removed .rom the <remi0e09 and
B>; , co<- o. tho0e charge0 ha0 >een re@ue0ted >- or <rovided to the tenant"
Y ?hichever i0 later.
$. 5pon the #!l!ng o# mot!on pur"unt to "u("ect!on F% the court "hll "che'ule her!ng
on the mot!on. The her!ng mu"t (e hel' $!th!n +, '." #ter the #!l!ng o# the mot!on. The court
"hll ##!C the 'te o# the her!ng to the mot!on n' or'er cop. "er&e' upon the ln'lor' (.
the "her!##% con"t(le or other proce"" "er&er. At the her!ng% the court m.:
Ba; Determine the co0t0" i. an-" claimed >- the landlord <ur0uant to N!S 11$.2+7 or 11$,.4*+ and
an- accumulating dail- co0t09 and
B>; 3rder the relea0e o. the tenantL0 <ro<ert- u<on the <a-ment o. the charge0 determined to >e
due or i. no charge0 are determined to >e due.J
6andlord =erli00 .iled onl- a No Cau0e Notice o. Eviction in !E#2+11'++17+$ on Commercial
&enant Zach Coughlin" E0@.C0 la? o..ice. ,0 0uch" a Summar- Eviction /roceeding i0 im<ermi00i>le
given the re@uirement o. N!S 4+.2%3 that the Notice alleged non'<a-ment o. rent to allo? the
landlord to <roceed under the Summar- Eviction /roceeding 0ection" N!S 4+.2%3. (urther" 4udge
S.erraDDa ?a0 <recluded .rom ruling on an-thing other than <o00e00ion o. the <remi0e0 <ur0uant to
N!S 4+.2%3B*;" ,nvui" and :laDier. (urther" the tenanc- did not terminate under the 6ea0e
,greement" it ?0 rene?ed.
N!S 4+.2%4 5nla?.ul detainer: Su<<lemental remed- o. 0ummar- eviction and e)clu0ion o.
tenant .rom certain t-<e0 o. <ro<ert-. E)ce<t a0 other?i0e <rovided >- 0<eci.ic 0tatute" in addition to
the remed- <rovided in N!S 4+.2%1 and in N!S 4+.29+ to 4+.42+" inclu0ive" ?hen the tenant o. a
d?elling unit ?hich i0 0u>Aect to the <rovi0ion0 o. cha<ter 11$, o. N!S" <art o. a lo?'rent hou0ing
<rogram o<erated >- a lic hou0ing authorit-" a mo>ile home or a recreational vehicle i0 guilt- o.
an unla?.ul detainer" the landlord i0 entitled to the 0ummar- <rocedure0 <rovided in N!S 4+.2%3
e)ce<t that:
1. 8ritten notice to 0urrender the <remi0e0 mu0t:...4e5 A "ttement tht the cl!m #or rel!e# $"
uthor!Ae' (. l$.
,0 0uch" the too earl- locEout >ring0 into <la- the .ollo?ing:
IN!S 11$,.39+ 5nla?.ul removal or e)clu0ion o. tenant or ?ill.ul interru<tion o. e00ential
0ervice09 <rocedure .or e)<edited relie..
1. 1. the landlord unl$#ull. remo&e" the tennt #rom the prem!"e" or eCclu'e" the tennt (.
(loc2!ng or ttempt!ng to (loc2 the tennt/" entr. upon the prem!"e" or $!ll#ull. !nterrupt" or
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cu"e" or perm!t" the !nterrupt!on o# n. e""ent!l "er&!ce reBu!re' (. the rentl greement or
th!" chpter% the tennt m. reco&er !mme'!te po""e""!on pur"unt to "u("ect!on 1% procee'
un'er NRS ++*A.?*, or term!nte the rentl greement n'% !n ''!t!on to n. other reme'.%
reco&er the tennt/" ctul 'mge"% rece!&e n mount not greter thn E+%,,, to (e #!Ce' (.
the court% or (oth.
2. 1n determining the amount" i. an-" to >e a?arded under 0u>0ection 1" the court 0hall con0ider:
Ba; 8hether the landlord acted in good .aith9
B>; &he cour0e o. conduct >et?een the landlord and the tenant9 and
Bc; &he degree o. harm to the tenant cau0ed >- the landlordL0 conduct.
3. 1. the rental agreement i0 terminated <ur0uant to 0u>0ection 1" the landlord 0hall return all
<re<aid rent and 0ecurit- recovera>le under thi0 cha<ter.
4. E)ce<t a0 other?i0e <rovided in 0u>0ection %" the tenant ma- recover immediate <o00e00ion o.
the <remi0e0 .rom the landlord >- .iling a veri.ied com<laint .or e)<edited relie. .or the unla?.ul
removal or e)clu0ion o. the tenant .rom the <remi0e0 or the ?ill.ul interru<tion o. e00ential 0ervice0.
%. , veri.ied com<laint .or e)<edited relie.:
Ba; =u0t >e .iled ?ith the court ?ithin % Audicial da-0 a.ter the date o. the unla?.ul act >- the
landlord" and the veri.ied com<laint mu0t >e di0mi00ed i. it i0 not timel- .iled. 1. the veri.ied
com<laint .or e)<edited relie. i0 di0mi00ed <ur0uant to thi0 <aragra<h" the tenant retain0 the right to
<ur0ue all other availa>le remedie0 again0t the landlord.
B>; =a- not >e .iled ?ith the court i. an action .or 0ummar- eviction or unla?.ul detainer i0
alread- <ending >et?een the landlord and tenant" >ut the tenant ma- 0eeE 0imilar relie. >e.ore the
Audge <re0iding over the <ending action.
*. &he court 0hall conduct a hearing on the veri.ied com<laint .or e)<edited relie. ?ithin 3
Audicial da-0 a.ter the .iling o. the veri.ied com<laint .or e)<edited relie.. Be.ore or at the 0cheduled
hearing" the tenant mu0t <rovide <roo. that the landlord ha0 >een <ro<erl- 0erved ?ith a co<- o. the
veri.ied com<laint .or e)<edited relie.. 5<on the hearing" i. it i0 determined that the landlord ha0
violated an- o. the <rovi0ion0 o. 0u>0ection 1" the court ma-:
Ba; 3rder the landlord to re0tore to the tenant the <remi0e0 or e00ential 0ervice0" or >oth9
B>; ,?ard damage0 <ur0uant to 0u>0ection 19 and
Bc; EnAoin the landlord .rom violating the <rovi0ion0 o. 0u>0ection 1 and" i. the circum0tance0 0o
?arrant" hold the landlord in contem<t o. court.
7. &he <a-ment o. all co0t0 and o..icial .ee0 mu0t >e de.erred .or an- tenant ?ho .ile0 a veri.ied
com<laint .or e)<edited relie.. ,.ter an- hearing and not later than .inal di0<o0ition o. the .iling or
order" the court 0hall a00e00 the co0t0 and .ee0 again0t the <art- that doe0 not <revail" e)ce<t that the
court ma- reduce them or ?aive them" a0 Au0tice ma- re@uire.J
IN!S 11$,.+9+ IE)cludeJ de.ined. IE)cludeJ mean0 to evict or to <rohi>it entr- >- locEing door0 or >- other?i0e
>locEing or attem<ting to >locE entr-" or to maEe a d?elling unit uninha>ita>le >- interru<ting or cau0ing the interru<tion
o. electric" ga0" ?ater or other e00ential 0ervice0.J
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,66 /,/E!S ,ND /6E,D1N:S ,ND C3!!ES/3NDENCS /!E#135S67 S5B=1&&ED &3 &2E !EN3
45S&1CE C35!& ,ND 3! 1&S E=/637EES 1S 2E!EB7 1NC3!/3!,&ED B7 !E(E!ENCE 1N&3 &21S
(161N:.
N!S 11$,.19+: I Notice: De.inition9 0ervice.
1. , <er0on ha0 notice o. a .act i.:
Ba; &he <er0on ha0 actual Eno?ledge o. it9
B>; &he <er0on ha0 received a notice or noti.ication o. it9 or
Bc; (rom all the .act0 and circum0tance0 the <er0on rea0ona>l- 0hould Eno? that it e)i0t0.
0. 8r!tten not!ce" to the tennt pre"cr!(e' (. th!" chpter "hll (e "er&e' !n the mnner pro&!'e' (. NRS
1,.0*,.
3. 8ritten notice0 to the landlord <re0cri>ed >- thi0 cha<ter ma- >e delivered or mailed to the <lace o. >u0ine00 o. the
landlord de0ignated in the rental agreement or to an- <lace held out >- the landlord a0 the <lace .or the recei<t o. rental
<a-ment0 .rom the tenant and are e..ective .rom the date o. deliver- or mailing.J
INRS 1,.0*, Service o. notice0 to @uit9 <roo. re@uired >e.ore i00uance o. order to remove.
1. E)ce<t a0 other?i0e <rovided in N!S 4+.2%3" the notice0 re@uired >- N!S 4+.2%1 to 4+.2*+" inclu0ive" ma- >e
0erved:
Ba; B- delivering a co<- to the tenant <er0onall-" in the <re0ence o. a ?itne009
B>; 1. the tenant i0 a>0ent .rom the tenantL0 <lace o. re0idence or .rom the tenantL0 u0ual <lace o. >u0ine00" >- leaving
a co<- ?ith a <er0on o. 0uita>le age and di0cretion at either <lace and mailing a co<- to the tenant at the tenantL0 <lace o.
re0idence or <lace o. >u0ine009 or
Bc; 1. the <lace o. re0idence or >u0ine00 cannot >e a0certained" or a <er0on o. 0uita>le age or di0cretion cannot >e
.ound there" >- <o0ting a co<- in a con0<icuou0 <lace on the lea0ed <ro<ert-" delivering a co<- to a <er0on there re0iding"
i. the <er0on can >e .ound" and mailing a co<- to the tenant at the <lace ?here the lea0ed <ro<ert- i0 0ituated.J
1 did not receive an- o. the email0 allegedl- 0ent to m- .rom !ichard 2illC0 email addre00" rhillWrichardhilla?.com
>et?een ,ugu0t 1$th" 2+11 to Novem>er 17th" 2+11" and certainl- none .rom rhillWrichardhilla?.com during the <eriod
>et?een the illegal locEout at 4:3+ <m Novem>er 1" 2+11 and the tre0<a00 arre0t o. Novem>er 13th" 2+11 ?hich allegedl-
0<oEe to m- >eing <rovided acce00 to the <ro<ert- .or the <ur<o0e o. m- removing m- >elonging0" de0<ite m- numerou0
call0 and ?ritten re@ue0t0" ?hich outlined the e)igencie0 inherent to m- >eing <recluded acce00 to m- client .ile0 incident
to an unla?.ul and im<ro<erl- notice and too earl- occurring locEout >- the 8CS3. 1 and m- >u0ine00 have >een
damaged greatl- >- the0e act0. (urther" 1 had re<eatedl- 0ent >oth BaEer and 2ill notice" in ?riting" that 1 did not con0ent
to 0ervice or notice o. an-thing via electronic mean0. (urther N!S 11$,.19+ doe0 not 0<eaE to Inotice o.J a legal
.inding" >ut rather to Inotice o. a .actJ. ,0 0uch" 1 ?a0 not a<<ro<riatel- 0erved notice o. the 3rder o. Summar- Eviction"
and an illegal locEout occurred" a0 0uch no criminal tre0<a00 charge can 0tand.
IN!S 11$,.2*+ Di0clo0ure o. name0 and addre00e0 o. manager0 and o?ner09 emergenc- tele<hone num>er9 0ervice o.
<roce00.
1. &he landlord" or an- <er0on authoriDed to enter into a rental agreement on hi0 or her >ehal." 0hall di0clo0e to the
tenant in ?riting at or >e.ore the commencement o. the tenanc-:
Ba; &he name and addre00 o.:
B1; &he <er0on0 authoriDed to manage the <remi0e09
B2; , <er0on ?ithin thi0 State authoriDed to act .or and on >ehal. o. the landlord .or the <ur<o0e o. 0ervice o.
<roce00 and receiving notice0 and demand09 and
B3; &he <rinci<al or cor<orate o?ner.
B>; , tele<hone num>er at ?hich a re0<on0i>le <er0on ?ho re0ide0 in the count- or ?ithin *+ mile0 o. ?here the
<remi0e0 are located ma- >e called in ca0e o. emergenc-.
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2. &he in.ormation re@uired to >e .urni0hed >- thi0 0ection mu0t >e Ee<t current" and thi0 0ection i0 en.orcea>le
again0t an- 0ucce00or landlord or manager o. the <remi0e0.
3. , <art- ?ho enter0 into a rental agreement on >ehal. o. the landlord and .ail0 to com<l- ?ith thi0 0ection i0 an
agent o. the landlord .or <ur<o0e0 o.:
Ba; Service o. <roce00 and receiving notice0 and demand09 and
B>; /er.orming the o>ligation0 o. the landlord under la? and under the rental agreement.
4. 1n an- action again0t a landlord ?hich involve0 hi0 or her rental <ro<ert-" 0ervice o. <roce00 u<on the manager o.
the <ro<ert- or a <er0on de0cri>ed in <aragra<h Ba; o. 0u>0ection 1 0hall >e deemed to >e 0ervice u<on the landlord. &he
o>ligation0 o. the landlord devolve u<on the <er0on0 authoriDed to enter into a rental agreement on hi0 or her >ehal..
%. &hi0 0ection doe0 not limit or remove the lia>ilit- o. an undi0clo0ed landlord.J
N!S 4+.31+ 100ue o. .act to >e tried >- Aur- i. <ro<er demand made. 8henever an i00ue o. .act i0 <re0ented >- the
<leading0" it 0hall >e tried >- a Aur-" i. <ro<er demand i0 made <ur0uant to the Nevada !ule0 o. Civil /rocedure or the
4u0tice Court !ule0 o. Civil /rocedure
,ctuall-" a lot o. <eo<le 0eemed con.u0ed regarding the I24 hour0J locEout thing. &he onl- a<<earance in either N!S
11$, or N!S 4+" in the <rovi0ion0 a<<lica>le to Summar- Eviction /roceeding0 o. an-thing related to I24 hour0J i0 in
N!S 4+.2%3B%;" ?hich onl- 0<eaE0 to a 0ituation ?here the &enant doe0 not .ile a &enantC0 ,n0?er or &enantC0 ,..idavit"
?hich i0 clearl- ina<<lica>le here" a0 the &enant did .ile 0uch a 3<<o0ition to the No Cau0e Eviction Notice: I%. 5<on
noncom<liance ?ith the notice:
Ba; &he landlord or the landlordL0 agent ma- a<<l- >- a..idavit o. com<laint .or eviction to the Au0tice court o. the
to?n0hi< in ?hich the d?elling" a<artment" mo>ile home or commercial <remi0e0 are located or to the di0trict court o. the
count- in ?hich the d?elling" a<artment" mo>ile home or commercial <remi0e0 are located" ?hichever ha0 Auri0diction
over the matter. The court m. thereupon !""ue n or'er '!rect!ng the "her!## or con"t(le o# the count. to remo&e
the tennt $!th!n 01 hour" #ter rece!pt o# the or'er. &he a..idavit mu0t 0tate or contain...J
So% ("ent "ome "ttutor. pro&!"!on llo$!ng the Or'er o# Summr. E&!ct!on to re"ult !n
loc2out (. the 8"hoe Count. Sher!##7" O##!ce pr!or to the ? '." #or m!l!ng $here per"onl
"er&!ce o# the Or'er o# Summr. E&!ct!on $" not e##ectute'% 'e"p!te $ht 8CSO emplo.ee
m. h&e !ncorrectl. 4or #l"el.5 ""erte' !n the 8CSO7" @ohn Mchem7" A##!'&!t o# Ser&!ce
#rom% #!le "tmpe' No&em(er F% 0,++. Attche' " ECh!(!t +. E)hi>it 1: $" not e##ectute'%
'e"p!te $ht 8CSO emplo.ee m. h&e !ncorrectl. 4or #l"el.5 ""erte' !n the 8CSO7" @ohn
Mchem7" A##!'&!t o# Ser&!ce #rom% #!le "tmpe' No&em(er F% 0,++ long $!th $r!tten
'm!""!on #rom 8CSO C!&!l Ser&!ce D!&!"!on Super&!"or L!A Stuchell tht Mchem onl. po"te'
the Or'er o# Summr. E&!ct!on on the 'oor o# the #ormer home l$ o##!ce% rther thn
<per"onll. "er&e'< !t n' R!chr' )!ll E"B7" o$n Proo# o# Ser&!ce o# Not!ce o# Entr. o# the
Or'er #or Summr. E&!ct!on "ho$!ng m!le' on 'te o# No&em(er +% 0,++ 4n' the R@C
ne&er m!le' cop. o# tht OR'er ccor'!ng the to Recor' on Appel !n CG++-,?60*5- three
4?5 pge".
AFFIRMATION PURSUANT TO NRS 0?H;.,?,
&he under0igned doe0 here>- a..irm that the <receding document doe0 not contain the 0ocial
0ecurit- num>er o. an- <er0on.
Dated at !eno" Nevada" thi0 3rd da- o. =arch" 2+12"
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6,8 3((1CES 3( Zachar- BarEer Coughlin
Co'coun0el .or the De.endant
B-:OOOOOOOOOOOOOOOOOOOOOO
Zach Coughlin" E0@.
Nevada Bar No: 9473
' 34 '
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PROOF OF SERGICE
/ur0uant to N!C/ %B>;" 1 certi.- that 1 0erved a co<- o. the .oregoing document u<on the
.ollo?ing <art- >- .a)ing" emailing" dro<<ing o.. at their o..ice" and <lacing a true and correct co<-
o. the .oregoing document in the u0 mail addre00ed to:
4ill DraEe" E0@.
!eno Cit- ,ttorne-C0 3..ice ' Criminal Divi0on
/.3. Bo) 19++
!eno " N# $9%+%
/hone Num>er: 77%'334'2+%+ (a) num>er: 77%'334'242+
DraEe4Wreno.gov
,ttorne- .or Cit- o. !eno
Xeith 6lo-d 6oomi0" E0@.
94*$ Dou>le ! Blvd. Suite ,
!eno" N# $9%21
/hone Num>er: 77%'$%3'7222 (a) num>er: 77%'$%3'+$*+
Eeithloomi0WearthlinE.net
!=C (iling 3..ice (a) =achine: (a): B77%; 334'3$24
Date thi0 =arch 3" 2+12:
NSN Zach Coughlin
Zach Coughlin" De.endant
Co'Coun0el .or De.endant
' 3% '
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INDE: TO E:)I;ITS
1. E)hi>it 1: $" not e##ectute'% 'e"p!te $ht 8CSO emplo.ee m. h&e !ncorrectl. 4or
#l"el.5 ""erte' !n the 8CSO7" @ohn Mchem7" A##!'&!t o# Ser&!ce #rom% #!le "tmpe'
No&em(er F% 0,++ long $!th $r!tten 'm!""!on #rom 8CSO C!&!l Ser&!ce D!&!"!on Super&!"or
L!A Stuchell tht Mchem onl. po"te' the Or'er o# Summr. E&!ct!on on the 'oor o# the
#ormer home l$ o##!ce% rther thn <per"onll. "er&e'< !t n' R!chr' )!ll E"B7" o$n Proo# o#
Ser&!ce o# Not!ce o# Entr. o# the Or'er #or Summr. E&!ct!on "ho$!ng m!le' on 'te o#
No&em(er +% 0,++ 4n' the R@C ne&er m!le' cop. o# tht OR'er ccor'!ng the to Recor' on
Appel !n CG++-,?60*5- three 4?5 pge".
' 3* '
00045
--.--------------
. _ . ..
EXHIBIT 1
EXHIBIT 1
0004
00046
" *
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---,-.. -.--.--.-,-.------.---~.--
FIl: uchcouQhltn
'f
1
3-0HZ !0:1J4 p. ]8 ot tn
Z Pursuant to NRCP s(b), hereby certif that IaUan employee of RICH G .
I
4 HlL CHA8TE8ED, and that on the day of O V11 \ UcQ5!cU in the
4 appropriate place forpickupand handdeliver by Reno-Carson Mesenger Seric, Btrue
0 and correc copy of the foregoing Node_ of Entr or Order and tre and OO6copy
of UeFinding oCFuct, Conclusion. of Lw, and Order for Summar Eviction,
fle-stipe October Z,2DII,addrcsscd to;
8
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1 1
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ZwCoudllln, Eg.
I21KvetRock Street
Reno, Nevada 89501
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To: 15'91c9c 69bl4S9888f5 lOddJ6e JlS12 IO: 6JI p. 40 of 40
+
Fl l
Pl'^
INTOE RENO JUSTICE COURT OF TiE STATE NEVADA
IN AND FOR TiE COUNTY OF WASHOE
hHV , ,
MIIM.H . 1
8Y
ClvU fil.Numb 1 1013.
PLAINIFF
1
1
CASE No. REV201101101
V.
I
7=M&Clm 1
1
DEEDAT 1
pU@Vl@@ERVICE
STATKOPN&VAOA
I
COUOBWAHOz
4%B M6O. B6nt:I)tW mad ]: 38t8W Iaac1zM of!h4Unl=5U!M
l/of @ma PM wmwl1h1n =ao". I lBat n 1BCOI of Wmhm Stlte of N pnally
th Wm0MNwA
m!; Z8Cm@n
rfon:
t=
1 21 RivC Rod StT RCo. NY 89.01
1 1/11011 Time 4:JOPM
Te dC I) m rVICTION ORDER: Ft0IlGS OP PACT. CONCLUSIONS OF L ANO
MWKM'OR 3UMMARV IVleTION: ORDrR RQUJRING f1PECTIOI CERfAJ. PROPERTY
Rid 0 Hili EIq
FdA 2$1
4mSt
1_. NV 89505
StJaCRIIED AND .WOR tGme befo melllil
N1A8YPUBLIC in In (or .lid 5,.1. ofNvad
mmmwq
MICHAEL UALEV, SIIER''F
91 1 F.YRR BOULEVARD
I{ENO, NY 891Z-IOOO (775) 328-33 10
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J
W
Zach Coughlin, Eq.
817 N. Virginia st. #2
Reno, NV 8950 I
Tele: 775-338-81 1 8
Fax: 949-667-7402
. *~~ * ~ ~^*+- -~ * *^~^ ' *
Attorey for Defendant Coughlin
TN THE MUNICIPAL COURT OF THE CITY OF RENO
STATE OF NEVADA TN AND FOR
COUNTY OF WASHOE
I
CI1 OF RNO;
Plaintiff.
I
ase NO 1 I CR2217621
I v.
ii;
.NC
11 ZACHARY BARKER COUGHLIN

OR
Defendant.
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M
NOT
ICE MOION R CONTINUANCE
It is imporant to state again here that the Bailiffwsa thrll tening and retaliatory
when the undersigned appeared before Judge Gardner on October 10, 20 I I, including
making intimidating statements U the undersigned seemingly in a retaliatory fashion
and designed to prevent the undersigned from seeking court appointed representation.
T
The Bailifs name might have been "Monle" or something similar, however, the
?
records of that interaction are being held under an impermissible rent distraint by an
opposing attorey. Obviously, such actions, when combined with the luck ofa PO at
M the arraignment, an arraignment video being shown by the court which contains
threatening statements and overly ominous tones when advising litigants against
appearing pro se, the City of Reno/Reno Municpal Court's alleged practice of only
hiring "fnner prosecutors" to be cur appointed counsel. in conjunction with the
failure to allow the defendant access to the PC sheet and discovery for over I month,
much less 48 hours from the arrest, combine to make a fair trial impossible in this
NOTICE OF FORC CE
Page I
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00049
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matter,
Please note that the !ndersigned here" files this Noti%e of Appearan%e as
%o!nsel of re%ord in this matter,
Reno M!ni%ipal Co!rt r!les
.Co!rt R!les and Pro%ed!res R!le &= Appli%a"ilit of R!les A, These r!les ma
"e referred to as the Reno M!ni%ipal Co!rt r!les and ma "e a""re+iated as
R,M,C,R, These r!les are intended to s!per%ede the r!les prom!lgated and made
effe%ti+e on #an!ar &( &;4' " the Reno M!ni%ipal Co!rt, B, Fhene+er it appears
that a parti%!lar sit!ation does not fall within the p!r+iew of a r!le( or that a literal
appli%ation of a r!le wo!ld %a!se a hardship or in2!sti%e in a %ase( the %o!rt ma
ma*e s!%h order as the interests of 2!sti%e re6!ire, R!le )= OrganiGation of the Co!rt
A, The M!ni%ipal Co!rt %onsists of a n!m"er of departments designated " Cit
Co!n%il resol!tion( ea%h presided o+er " a 2!dge d!l ele%ted or appointed to that
position, #!dges pro tem ma sit in ea%h department from time to time as a!thoriGed
" law, A 2!dge pro tem d!l appointed and a!thoriGed " the presiding 2!dge of a
parti%!lar department to sit in that department shall ha+e the same 2!risdi%tion as the
presiding 2!dge( e@%ept that the 2!dge pro tem has 2!risdi%tion onl o+er matters to "e
heard on his or her assigned do%*et, #!dges pro tem are not permitted to a%t on an
motion filed in an %ase( e@%ept those re6!iring resol!tion "efore a %ase %an pro%eed
on the do%*et to whi%h the pro tem 2!dge is assigned, B, All %ases set for trial or other
post>arraignment pro%eeding( e@%ept a senten%ing set " the arraigning 2!dge( shall "e
randoml or se6!entiall assigned to one of the departments, Insofar as is pra%ti%al(
all %ases pertaining to a defendant shall "e assigned to the same 2!dge, In the e+ent a
2!dge m!st re%!se himself or herself( the matter shall "e sent to the administrati+e
2!dge for reassignment to another department, C, The ele%ted or appointed 2!dges of
ea%h department ma a%t for one another " m!t!al agreement as %ir%!mstan%es
di%tate, 0, Ea%h ear( the ele%ted or appointed 2!dges shall sele%t one of their n!m"er
NOTICE OF APPEARANCE; MOTION FOR CONTINUANCE
Page )
00050
to a%t as administrati+e 2!dge for the !p%oming fis%al ear, The administrati+e 2!dge
shall handle all %o!rt administrati+e matters and shall "e a!thoriGed to spea* p!"li%l
for the %o!rt on matters of %o!rt poli%, R!le ?= A!thoriGation to Represent A,
Attornes representing defendants shall promptl ser+e written noti%e of their
appearan%e with the Cit Attorne and file the same with the Co!rt, B, An attorne
desiring to withdraw from a %ase shall file a motion with the %o!rt and ser+e the Cit
Attorne with the same, The %o!rt ma r!le on the motion or set a hearing, R!le 3=
Motions A, E@%ept for good %a!se shown( all motions shall "e a%%ompanied "
affida+it( and( when appropriate( " points and a!thorities, All motions m!st "e
ser+ed on the opposing part and m!st "e file stamped along with a%%ompaning
proof of ser+i%e, B, The opposing part ma file and ser+e answering points and
a!thorities on the mo+ing part within &' das after ser+i%e of a motion, C, The
mo+ing part ma file and ser+e repl points and a!thorities within < das thereafter,
0, Upon the e@piration of an time period set for response " this r!le( either part
ma file and ser+e a written re6!est for s!"mittal of the motion( or the %o!rt ma
%onsider the motion s!"mitted, E, An opposition to a motion m!st state the reasonHsI
for o"2e%tion, F, Motions shall "e de%ided witho!t oral arg!ment !nless oral
arg!ment is ordered " the %o!rt, R!le <= Motions " Fa%simile A, All r!les and
pro%ed!res that appl to motions filed in person at the %o!rt shall also appl to
motions filed " fa%simile( e@%ept as otherwise spe%ified in this r!le, B, All persons
are eligi"le to !se motion>">fa%simile pro%ed!res, C, All motions filed " fa%simile
m!st "e a%%ompanied " a %o+er sheet whi%h m!st in%l!de the personJs name(
address( fa@ n!m"er and telephone n!m"er, 0, All fa%simile motions filed " an
attorne m!st in%l!de the attorne-s name( the firmJs name( address( fa@ n!m"er and
telephone n!m"er, In addition( the attorneJs state "ar n!m"er m!st "e %onspi%!o!sl
displaed on the %o+er sheet, E, All motions filed " fa%simile m!st "e a%%ompanied
" proof of ser+i%e, 9er+i%e ma "e a%%omplished " fa%simile when the re%ei+ing
Page ?
00051
part is a go+ernmental agen%( an attorne( or with the %onsent of the re%ei+ing
part, If ser+i%e of the motion is a%%omplished " fa%simile the ?>da allowan%e for
mailing shall not "e %omp!ted into the time for response, F, A defense attorne filing
a motion in the first instan%e m!st also file a proper a!thoriGation to represent, $,
An motion re%ei+ed " the %o!rt after 3=?' p,m, or on a non>%o!rt da shall "e filed
on the following %o!rt da, R!le A= Contin!an%es No %ontin!an%e shall "e granted(
in%l!ding a stip!lated %ontin!an%e( e@%ept for good %a!se, A motion or stip!lation for
%ontin!an%e m!st state the reason therefore and whether or not an %ontin!an%e has
pre+io!sl "een so!ght or granted, R!le 7= Corporations E@%ept with the permission
of the %o!rt( a %orporation or other "!siness entit shall not appear in propria persona,
R!le 4= Co!rtroom Cond!%t and Attire Pro%eedings in %o!rt sho!ld "e %ond!%ted
with dignit and de%or!m, All persons appearing in the %o!rt m!st "e appropriatel
attired, All attornes m!st wear appropriate "!siness attire, R!le ;= Appeals to
0istri%t Co!rt E@%ept as otherwise pro+ided in NR9 &77,'&< a defendant in a
%riminal a%tion tried "efore a M!ni%ipal Co!rt #!dge ma appeal from the final
2!dgment therein to the 9e%ond #!di%ial 0istri%t Co!rt( at an time within &' das
from the date that 2!dgment is rendered, Effe%ti+e #an!ar &( )'''/
MOTION FOR 9ANCTION9 AN0 ATTORNEB-9 FEE9 POINT9 AN0
AUTCORITIE9 Co!ghlin10efendant( 5a%h Co!ghlin( Es6,( here" files MOTION
FOR 9ANCTION9 AN0 ATTORNEB-9 FEE9 "ased on the papers on file in this
a%tion( all %orresponden%e "etween Ro"erts( Co!ghlin( Reno Cit Attorne Ro"erts(
Clin( and others( and the points and a!thorities herein %ontained, Co!rt>appointed
attorne as s!"2e%t to lia"ilit !nder 3) U,9,C,A, K &;4?, ?A A,E,R, Fed, <;3
HOriginall p!"lished in &;74I, P!"li% defenders are not imm!ne from lia"ilit !nder
3) U,9,C,A, K &;4? for alleged %on> spira%( with state offi%ials( !nder %olor of state
law( to depri+e %lients of federal rights, Tower +, $lo+er( 3A7 U,9, ;&3( &'3 9, Ct,
Page 3
00052
)4)'( 4& E, Ed, )d 7<4 H&;43I, P!"li% defender ma "e held lia"le !nder K &;4? if he
or she engaged in a %onspira% with offi%ials a%ting !nder the %olor of state law to
depri+e a person of a right se%!red " the Con> stit!tion, 3) U,9,C,A, K &;4?, Farren
+, Fis%hl( ?? F, 9!pp, )d &7& HE,0,N,B, &;;;I, Co!nt p!"li% defender a%ted !nder
L%olor of state lawL in failing to re6!est indigen% hearing on "ehalf of motorist
%on+i%ted and fined for misdemeanor re%*less dri+ing( prior to motorist-s
in%ar%eration for fail!re to pa his fine( for p!rpose of K &;4? a%tion against %o!nt
p!"li% defender-s offi%e( alleging that it had a poli% or %!stom of failing to see* s!%h
indi> gen% hearings; the a%t of not re6!esting indigen% hearing was administrati+e(
as it was d!e to the offi%e-s alleged sstemi% ina%tion, 3) U,9,C,A, K &;4?, Powers +,
Camilton Co!nt P!"li% 0efender Com-n( <'& F,?d <;) HAth Cir, )''7I, Appointed
defense attorne was not imm!ne from a%tion !nder 3) U,9,C,A, K &;4? and K &;4<(
either in his own right or deri+ati+el from alleged %o>%onspirators- a"sol!te
imm!nit( for %onspira% with 2!dge and prose%!tor to impanel all>white 2!r for
defendants %riminal tri> al and ma "e regarded as ha+ing a%ted !nder %olor of state
law in +iew of %onspira% alleged with p!"li% offi%als, Fhite + Bloom H&;4'( CA4
MoI A)& F)d )7A, Attorne-s lia"ilit for malpra%ti%e in %onne%tion with defense of
%riminal %ase( <? A,E,R,?d 7?&, Negligen%e( inattention( or professional
in%ompeten%e in handling %lient-s affairs as gro!nd or dis%iplinar a%tion( ;A
A,E,R,)d 4)?, #oe Ro"erts has indi%ated to his %lient( Co!ghlin( that his s!periors at
the FCP0 ha+e made him feel !n%omforta"le doing m!%h in the wa of defending
Co!ghlin( and that doing so with m!%h Geal wo!ld ad+ersel affe%t his opport!nities
for ad+an%ement at the FCP0 and perhaps e+en his 2o" se%!rit, Ineffe%ti+e
Assistan%e of Co!nsel( < Am, #!r, Proof of Fa%ts )d )A7 9trategies for Enfor%ing the
Right to Effe%ti+e Representation( 3A Am, #!r, Trials <7& A+oiding Eegal
Malpra%ti%e Claims in Eitigation( 3A Am, #!r, Trials ?)< Prisoners- Rights litigation(
)) Am, #!r, Trials & A%tions Against Attornes for Professional Negligen%e( &3 Am,
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#!r, Trials )A< Ca!se of A%tion for Malpra%ti%e Against 0efense Attorne for
Ineffe%ti+e Representation 0!ring Pretrial Phase of Criminal Case( 3) Ca!ses of
A%tion )d 7'7, Bines( Remeding Ineffe%ti+e Representation in Criminal Cases=
0epart!res from Ca"eas Corp!s, <; 8a E Re+ ;)7 Mallen( The Co!rt>Appointed
Eawer and Eegal Malpra%ti%eMEia"ilit or Imm!nit, &3 Am Crim E Re+ <; Note(
Remeding Ineffe%ti+e Representation " P!"li% 0efendersMAn Administrati+e Al>
ternati+e to Traditional Ci+il A%tions, A' Minn E Re+ &)? Note( The Right of the
Indigent Client to 9!e Cis Co!rt>Appointed Attorne for Malpra%> ti%e, ?? Ea E Re+
73', In ea%h of the following %ases( a p!"li% defender was held not to "e imm!ne
from lia"ilit for professional malpra%ti%e, In 9pring + Constantino H&;7<I &A4 Conn
<A?( ?A) A)d 47&( an a%tion " a state %riminal defendant against a p!"li% defender
for malpra%ti%e( the %o!rt held that an attorne o%%!ping the position of p!"li%
defender and assigned to represent an indigent defendant did not en2o imm!nit
from lia"ilit for professional malpra%ti%e, 9tating that a p!"li% defender is li*e an
other attorne whose d!ties as an offi%er of the %o!rt and to an indi+id!al %lient and
whose prin%ipled and fearless %ond!%t of the defense are not deterred " the prospe%t
of lia"ilit( the %o!rt re2e%ted the %ontention of the p!"li% defender that the do%trine
of 2!di%ial imm!nit sho!ld "e e@tended to p!"li% defenders on the gro!nd that the
imm!nit r!le is designed to promote prin%ipled and fearless de%isionma*ing "
remo+ing the fear that !nsatisfied litigants might "ring harassing a%tions, The %o!rt
also re2e%ted the %ontention that the %ommon>law do%trine of so+ereign imm!nit
whi%h e@tends to p!"li% offi%ials applied to a malpra%ti%e a%> tion "ro!ght against a
p!"li% defender( saing that a p!"li% defender( in representing an indi> gent( is not a
p!"li% offi%ial( sin%e e+en tho!gh the state m!st ins!re that indigents are repres>
ented " %ompetent %o!nsel( it %o!ld not "e arg!ed that the a%t!al %ond!%t of the
defense of an indi+id!al is a go+ernmental a%t, The %o!rt also re2e%ted the third
s!ggested gro!nd of im> m!nit= the stat!tor imm!nit of p!"li% offi%ers and state
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emploees, The %o!rt said that while it was tr!e that a p!"li% defender %o!ld "e told
when he is to wor* and within what area( those elements of %ontrol were indi%ia of
the master>ser+ant relationship and in%idents of a p!"li% defender-s emploment
whi%h are not within the s%ope of the attorne>%lient relation> ship, 9tating that the
independen%e of the p!"li% defender was a *e %onstit!tional !nderpin> ning of the
p!"li% defender sstem( the %o!rt said that other than the so!r%e of the p!"li% de>
fender-s %ompensation( the relationship of p!"li% defender and %lient is the same as
that of pri+atel emploed %o!nsel and %lient, A p!"li% defender was held not to "e
imm!ne from lia"ilit for malpra%ti%e( in Reese + 0anforth H&;7;I 34A Pa 37;( 3'A
A)d 7?<( A AER3th 7<4( In holding that the p!"li% defender was not a p!"li% offi%ial
entitled to imm!nit( the %o!rt said that the o+erriding d!t of Geal> o!s
representation of a %lient-s interest atta%hes to the role of the p!"li% defender and th!s
the performan%e of that d!t " the defender was similar to the performan%e of
pri+atel retained %o!nsel, 9tating that the relationship "etween the %o!nt and the
p!"li% defender was similar to that "etween an independent %ontra%tor and the part
%ontra%ting his ser+i%es( the %o!rt said that while the a+aila"ilit of %o!rt>appointed
%o!nsel to represent indigents is ind!"ita"l the p!"li% "!siness( on%e the
appointment of a p!"li% defender in a gi+en %ase is made( his state or p!"li% f!n%tion
%eases and thereafter he f!n%tions p!rel as a pri+ate attorne %on%erned with
ser+i%ing his %lient( and his professional relationship with his %lient ta*es on all the
o"liga> tions and prote%tions attendant !pon a pri+ate attorne>%lient relationship
e@%ept that the p!"> li% pas the attorne-s fee, The %o!rt also re2e%ted the %ontentions
that not granting imm!nit to the p!"li% defender wo!ld hinder the re%o!pment of
a"le lawers to represent indigents( and wo!ld inhi"it the defender-s professional
dis%retion in de%lining to press the fri+olo!s( to assign priorities "etween indigent
litigants( and to ma*e strategi% de%isions with regard to a parti%!lar litigant as to how
his interest ma "est "e ad+an%ed, In the following %ase( a p!"li% defender was held
Page 7
00055
not lia"le for the malpra%ti%e of one of his dep!ties, A p!"li% defender was held not
to "e lia"le solel " +irt!e of his offi%e( for the malpra%> ti%e of one of his dep!ties(
in 9an%heG + M!rph H&;73( 0C Ne+I ?4< F 9!pp &?A), 9tating that the professional
relationship "etween %o!rt>appointed %o!nsel and indigent %riminal de> fendants
!nder p!"li% defender sstems is no different than that "etween a %lient and pri+atel
retained %o!nsel( the %o!rt went on to sa that the relationship of the p!"li% defender
and his dep!ties among themsel+es was not a partnership relationship( sin%e the
e%onomi% 2!stifi%a> tion for holding one partner lia"le for the mis%ond!%t of another
partner was gro!nded on the fa%t that fees for ser+i%es are shared( whereas ea%h of the
p!"li% defender attornes was %om> pensated independentl " salar for his own
ser+i%es, 9tating that a dep!t p!"li% defender is an independent offi%er( the %o!rt
noted that there was s!"stantial a!thorit in s!pport of the r!le that in the a"sen%e of
stat!te imposing lia"ilit or of negligen%e on his part in appointing or s!per+ising his
assistants( a p!"li% offi%er is not lia"le for the defa!lt and misfeasan%e of assistants
appointed " him, Related Annotations are lo%ated !nder the Resear%h Referen%es
heading of this Annotation, CUMUEATI8E 9UPPEEMENT Cases= Plaintiff-s
malpra%ti%e a%tion against p!"li% defender was not pre%l!ded " 6!asi>2!di%ial
imm!nit, Fil%o@ +, Br!mmer( 7?; 9o, )d &)4) HFla, 0ist, Ct, App, ?d 0ist, &;;;I,
P!"li% defender attornes were not entitled to so+ereign imm!nit from legal
malpra%ti%e %laims "ro!ght " former %lient %on+i%ted in %riminal %ase and later
e@onerated; attornes- d!t to %lient arose independentl of their state emploment,
#ohnson +, Calloran( ?&) Ill, App, ?d A;<( )3< Ill, 0e%, 3'4( 7)4 N,E,)d 3;' H&st
0ist, )'''I( appeal allowed( &4; Ill, )d A44 H)'''I, The %o!rt in 0Gi!"a* + Mott
H&;;?( MinnI <'? NF)d 77& held that a p!"li% defender is imm!ne from lia"ilit for
malpra%ti%e= In %ontrast( the %o!rt in 8eneri + Pappano H&;;?( Pa 9!perI A)) A)d
;77 noted that a p!"> li% defender is not imm!ne from lia"ilit for malpra%ti%e,
Attorne-s lia"ilit for malpra%ti%e in %onne%tion with defense of %riminal %ase( <?
Page 4
00056
A,E,R,?d 7?&; The independen%e of the p!"li% defender is of !tmost importan%e to its
d!ties to indigent defendants, Crist +, Florida Ass-n of Criminal 0efense Eawers(
In%,( ;74 9o, )d &?3 HFla, )''4I, Trial %o!rt-s %omments on per%ei+ed defi%ien%ies of
p!"li%
defender sstem( made in its order dening defendant-s re6!est for ?<Nda
pretrial %ontin!an%e of %apital m!rder trial( did not %reate a %onfli%t of interest
"etween defendant and p!"li% defender whi%h re6!ired p!"li% defender to withdraw
from the representation, 9!p, Ct, R!les( R!le ?,&?'( R!les of Prof, Con> d!%t( R!le
&,&AHaI, F!rnish +, Com,( ;< 9,F,?d ?3 HD, )'')I( as modified( H0e%, &'( )'')I, At
the hearing on the Competen% E+al!ation( #!dge 9ferraGGa %o!ld "e heard( d!ring a
re%ess( ma*ing an e@%ited !tteran%e wherein he %ommented that the "ill for the
ridi%!lo!s( "aseless( and %learl moti+ated " a retaliator intent re6!est for a
Competen% E+al!ation made " P0 Clin wo!ld not "e a%%epted " the Reno
#!sti%e Co!rt( and that it wo!ld "e ret!rned to the P!"li% 0efender-s Offi%e and the
%o!ld pa the "ill for the Competen% E+al!ation if the wanted to waster mone so
"ad, Mr, Ro"erts( Please pro+ide( in writing an in+entor of e+erthing o! "elie+e
o! ha+e pro+ided me, F!rther( o!r flip disregard and non response in relation to m
FOIA re6!ests and other re6!ests( made in writing( as*ing o! to file a Motion to
0ismiss( and other motions is tr!l tro!"ling and refle%ts e@%eedingl poorl on o!r
le+el of professional responsi"ilit, In fa%t( I ha+e %ommen%ed an in6!ir into
whether o! ha+e E8ER filed a Motion to 0ismiss on "ehalf of ANB %lient and(
similarl( whether o!( in o!r long ten!re at the FCP0 ha+e e+er as*ed for
san%tions of an sort against the Reno Cit Attorne, In %o!rt( at a hearing feat!ring
Reno Cit Attorne Ro"erts( o! wal*ed o+er to Reno Cit Attorne Ro"erts-s file(
witho!t a hint of %onsternation from Reno Cit Attorne Ro"erts( and rifled thro!gh
his file loo*ing for something( et o! den me a%%ess to m file, That sort of
fraterniGation with the Reno Cit Attorne-s Offi%e Ho! still ha+e not answered
Page ;
00057
whether Reno Cit Attorne Ro"erts was in o!r retin!e at the free trade %offee pla%e
that da I saw o! on the streetI is inappropriate an refle%ts poorl on the legal
profession and the FCP0-s Offi%e( parti%!larl in the %onte@t of o!r mriad ref!sals
to file e+en a single do%!ment in m defense( o! %ohorts for%ing me into a
"!rdensome and ins!lting Competen% E+al!ation( o!r non response to m FOIA
re6!est( the patentl retaliator falsehoods Mr, Clin attri"!tes to #essi%a( o!r
re%eptionist( Mr, Bosler-s hiring " Reno Cit Attorne $ammi%*( and all the other
&?th %himes of the %lo%* one hears in the tape from this %ase, #!st a few t!rns on the
EO( and this %ase %o!ld "e a smphon of transparen%, Co!ghlin f!rther mo+es for
san%tions against 0ep!t Cit Attorne Ro"erts p!rs!ant to NR9 7,'4<( for the
attornes- fees Co!ghlin has needlessl in%!rred d!e to Ro"erts-s %owardl( lethargi%(
largesse and re%*less !ses of this %o!rt-s pro%esses,
ANALYSIS
If a Reno Cit Attorne has in his or her possession e@%!lpator +ideo and a!dio
e+iden%e( in addition to a!dio and +ideo e+iden%e whi%h shows material witnesses
not onl %ompletel %ontradi%ting themsel+es( "!t also see*ing to diss!ade other
material witnesses from testifing( it wo!ld "e tro!"ling to see that Reno Cit
Attorne or someone filling in for him as some preliminar hearing to %ontin!e to
appear in %o!rt and stand "ehind the Criminal Complaint( all while %olle%ting a
pa%he%* that is more and more p!t into rather star* relief in %omparison to that
whi%h similarl e@perien%ed and ed!%ated in+id!als garner in the pri+ate se%tor,
F!rther( if other material witnesses %an "e seen in a!dio and +ideo e+iden%e
assa!lting and "attering an in+estigator as*ing 6!estions related to e@%!lpating the
a%%!sed in a matter( it wo!ld "e all the more tro!"ling to see a prose%!tor %ontin!e to
appear in %o!rt ad+o%ating orall and filing do%!ments in s!pport of the allegations
of the %riminal %omplaint, It is important to %larif statements made in %o!rt toda
with respe%t to whether NRCP R!le && san%tions ma "e le+ied against a prose%!tor,
Page &'
00058
9!%h a proposition was met with general do!"t toda, Cowe+er( Ne+ada law is 6!ite
%lear in this regard, Clearl( the %an, Contrar to an indi%ation in %o!rt toda( the
Reno Cit Attorne does not pla with some sort of spe%ial safet net the rest of the
attornes in the state fail to ha+e= Office of Washoe County Dist Atty ! Secon"
#u"icia$ Dist Cou%t e& %e$ County of Washoe, ''( Ne! ()*, + P," +() -).../
The Reno City Atto%ney a0so$ute$y is su01ect to NRCP '', an" so is any 2ith the
Washoe County Pu0$ic Defen"e%3s Office o% the cou%t a44ointe" 5fou% fo%6e%
4%osecuto%s7 the Reno City Atto%ney an" Reno Munici4a$ Cou%t ca$$ cou%t
a44ointe" "efense atto%neys 8In a case 0%ou9ht 0y the "ist%ict atto%ney to
enfo%ce a Washin9ton chi$" su44o%t o%"e% in Ne!a"a, the "ist%ict cou%t i64ose"
NRCP '' sanctions a9ainst the "ist%ict atto%ney fo% fai$in9 to "iscontinue
enfo%ce6ent of the su44o%t o%"e% afte% the "ist%ict cou%t3s 4%e!ious %u$in9 that
Washin9ton ha" continuin9 e&c$usi!e 1u%is"iction to a"1u"icate the a%%ea%a9e
a6ount 0istri%t attorne-s offi%e( as a non>part in !nderling pro%eedings to
enfor%e o!t>of>state %hild s!pport order( did not ha+e right to appeal distri%t %o!rt-s
order imposing R!le && san%tions against the offi%e( and th!s writ of mandam!s was
an a+aila"le remed, Offi%e of Fashoe Co!nt 0ist, Att, +, 9e%ond #!di%ial 0ist,
Co!rt e@ rel, Co!nt of Fashoe( )'''( < P,?d <A)( &&A Ne+, A);, 0istri%t 2!dge
a"!sed his dis%retion in imposing P)(<'' san%tions against %it manager and %it
attorne for their alleged fail!re to parti%ipate in good faith in settlement %onferen%e
and( therefore( petition for writ of mandam!s to pre+ent distri%t %o!rt from enfor%ing
san%tions wo!ld "e granted; san%tions le+ied did not fit p!rported +iolations at iss!e,
Cit of 9par*s +, 9e%ond #!di%ial 0ist, Co!rt In and For Co!nt of Fashoe( &;;A(
;)' P,)d &'&3( &&) Ne+, ;<), In the United 9tates 9!preme Co!rt %ase of B!%*le +,
FitGsimmons( <'; U,9, )<;( &&? 9,Ct, )A'A( &)< E,Ed,)d )'; H&;;?I( the petitioner
alleged the prose%!tors and poli%e %onspired to lin* the "oot print at the m!rder s%ene
with his print " witness .shopping,/ .At the time of this witness shopping the
Page &&
00059
assistant prose%!tors were wor*ing hand in hand with the sheriff-s dete%ti+es,,,,/ Id, at
)7)( &&? 9,Ct, )A'A, The Co!rt held the prose%!tors were not entitled to a"sol!te
imm!nit( stating= A prose%!tor-s administrati+e d!ties and those in+estigator
f!n%tions that do not relate to an ad+o%ate-s preparation for the initiation of a
prose%!tion or for 2!di%ial pro%eedings are not entitled to a"sol!te imm!nit, Id, at
)7?( &&? 9,Ct, )A'A, 9ee $entile +, Co!nt of 9!ffol*( ;)A F,)d &3) H)d Cir, &;;&I
Hholding that a %o!nt distri%t attorne-s long pra%ti%e of ignoring e+iden%e of poli%e
mis%ond!%t and san%tioning and %o+ering !p wrongdoing %o!ld ma*e the %o!nt
lia"leI; Cla!de C, +, Co!nt of Oneida( A)A N,B,9,)d ;?? HApp, 0i+, &;;<I Hholding
that distri%t attorne-s %ommand that plaintiff "e !nlawf!ll arrested %o!ld s!pport
a%tion against %o!nt for false imprisonmentI, Ne+ada R!les of Professional
Cond!%t( R!le ?,4, 9pe%ial Responsi"ilities of a Prose%!tor, L The prose%!tor in a
%riminal %ase shall= HaI Refrain from prose%!ting a %harge that the prose%!tor *nows
is not s!pported " pro"a"le %a!se; H"I Ma*e reasona"le efforts to ass!re that the
a%%!sed has "een ad+ised of the right to( and the pro%ed!re for o"taining( %o!nsel and
has "een gi+en reasona"le opport!nit to o"tain %o!nsel; H%I Not see* to o"tain from
an !nrepresented a%%!sed a wai+er of important pretrial rights( s!%h as the right to a
preliminar hearing; HdI Ma*e timel dis%los!re to the defense of all e+iden%e or
information *nown to the prose%!tor that tends to negate the g!ilt of the a%%!sed or
mitigates the offense( and( in %onne%tion with senten%ing( dis%lose to the defense and
to the tri"!nal all !npri+ileged mitigating information *nown to the prose%!tor(
e@%ept when the prose%!tor is relie+ed of this responsi"ilit " a prote%ti+e order of
the tri"!nal; HeI Not s!"poena a lawer in a grand 2!r or other %riminal pro%eeding
to present e+iden%e a"o!t a past or present %lient !nless the prose%!tor reasona"l
"elie+es= H&I The information so!ght is not prote%ted from dis%los!re " an
appli%a"le pri+ilege; H)I The e+iden%e so!ght is essential to the s!%%essf!l
%ompletion of an ongoing in+estigation or prose%!tion; and H?I There is no other
Page &)
00060
feasi"le alternati+e to o"tain the information; HfI E@%ept for statements that are
ne%essar to inform the p!"li% of the nat!re and e@tent of the prose%!torJs a%tion and
that ser+e a legitimate law enfor%ement p!rpose( refrain from ma*ing e@tra2!di%ial
%omments that ha+e a s!"stantial li*elihood of heightening p!"li% %ondemnation of
the a%%!sed and e@er%ise reasona"le %are to pre+ent in+estigators( law enfor%ement
personnel( emploees or other persons assisting or asso%iated with the prose%!tor in a
%riminal %ase from ma*ing an e@tra2!di%ial statement that the prose%!tor wo!ld "e
prohi"ited from ma*ing !nder R!le ?,A or this R!le,L Under Brad +, Marland( ?7?
U,9, 4?( 47 H&;A?I( .the s!ppression " the prose%!tion of e+iden%e fa+ora"le to an
a%%!sed ,,, +iolates d!e pro%ess where the e+iden%e is material either to g!ilt or to
p!nishment,,,,/United 9tates +, 9hagan( AA& F,9!pp,)d &)4;( &?)< H9,0, Fla, )'';I
H2!dge reser+ed the right .to impose an f!rther san%tions and1or dis%iplinar
meas!res as ma "e ne%essar against Qthe federal prose%!torsR after re+iewing the
res!lts of the #!sti%e 0epartmentJs in+estigation,/I; United 9tates +, #ones( No, CR
'7>&')4;> MEF( )'&' FE <A<374 H0,Mass, )'&'I H%o!rt determined that
imposition of san%tions against AU9A or go+ernment for fail!re to ade6!atel train
AU9A "ased on fail!re to dis%lose plainl material e@%!lpator e+iden%e were
neither ne%essar nor appropriate where( sin%e +iolation dis%los!re( AU9A( U9
AttorneJs Offi%e and 0O# offi%ials too* a%tions s!%h as parti%ipating in dis%o+er
training programs( whi%h o"+iated need for san%tionsI, As for the P!"li% 0efender=
Ro B, Flemming( If Bo! Pa the Piper( 0o Bo! Call the T!neS P!"li% 0efenders in
Ameri%a-s Criminal Co!rts( &3 EAF T 9OC, INOUIRB ?;? H&;4;I-, Fhat P!"li%
0efenderS The !ndersigned was denied one in %ontra+ention of the 9i@th
Amendment( and it doesn-t matter if the state doesn-t intent to see* 2ail time( one is
re6!ired where 2ail time is a possi"ilit, 9!%h a de%ision wo!ld %onstit!te an
Lo"2e%ti+eL of the representation, 9ee MO0EE RUEE9 OF PROFE99IONAE
CON0UCT R!le &,)HaI; ABA 9tandards for Criminal #!sti%e( 9tandard 3><,)
Page &?
00061
LControl and 0ire%tion of the CaseL H&;;)I Hspe%ifing that the de%isions to "e made
" the a%%!sed after f!ll %ons!ltation with %o!nsel in%l!de what pleas to enter(
whether to a%%ept a plea agreement( whether to wai+e 2!r trial( whether to testif(
and whether to appealI, The lawers who %hara%teristi%all gra+itate toward indigent
defense wo!ld not( it seems( easil ad2!st to a pra%ti%e that in+ol+ed adhering to a set
of o+erriding instit!tional o"2e%ti+es, Neither their training nor their imp!lses wo!ld
tpi%all prepare p!"li% defenders to "end to the offi%e-s larger goals, In fa%t( the anti>
a!thoritarian nat!re of the wor* appealed to me as a staff lawer, I e@pe%ted to
represent m %lients witho!t either inter+ention or interferen%e from m s!per+isors,
M %lients- o"2e%ti+es were not onl important( "!t the onl ones that mattered, I
remain sensiti+e that " imposing instit!tional %ontrols that to some e@tent %!r" the
re"ellio!s spirit of defenders( the defender offi%e might r!n the ris* of %hanging "oth
the nat!re of defenders- pra%ti%e and the tpe of lawers who %hoose to 2oin the
offi%e, Clearl( if a %riminal defendant has a legitimate and arti%!la"le "asis for
wanting a Motion to 0ismiss filed( it sho!ld "e filed( e+en " a P!"li% 0efender
whose "oss was %hosen( in part( " the 0istri%t Attorne, This is parti%!larl tr!e
where e@%!lpator a!dio and +ideo e+iden%e e@ists( and e+en more so where
e@tortion or other poli%e mis%ond!%t is e+ident( s!%h as %oer%i+e attempts to garner
%onsent to sear%h( threats to "ad mo!th one to a professional li%ens!re "od(
e@%essi+e for%e( se@!al "atter( o+er%harging in a retaliator manner in light of an
assertion of Fo!rth or Fifth Amendment rights( false imprisonment( et%,,,, B now(
the a%tions of Mi%hael Nifong( the former 0istri%t Attorne of 0!rham Co!nt( North
Carolina( that led to his dis"arment are well *nown, 9ee generall Ro"ert P,
Mosteller( The 0!*e Ea%rosse Case( Inno%en%e( and False Identifi%ations= A
F!ndamental Fail!re to .0o #!sti%e/( 7A Fordham E, Re+, &??7 H)''7I, 9ome arg!e
that the sit!ation in+ol+ing Nifong is an isolated %ase, Bet prose%!torial o+errea%hing
has "een an iss!e well "efore this headline>gra""ing %ase %ame along, A re%ent report
Page &3
00062
iss!ed " the California Commission on the Fair Administration of #!sti%e referred to
a st!d that re+iewed )(&?' California appellate %ases in whi%h a %laim of
prose%!torial mis%ond!%t was raised, Cal, CommJn on the Fair Admin, of #!sti%e(
Report and Re%ommendations on Professional Responsi"ilit and A%%o!nta"ilit of
Prose%!tors and 0efense Eawers H)''7I( a+aila"le at
http=11www,%%fa2,org1do%!ments1reports1prose%!torial1offi%ial1offi%ial report on
reporting mis%ond!%t,pdf, Of those )(&?' %ases( 33? res!lted in findings that
prose%!torial mis%ond!%t a%t!all o%%!rred, In <? of the 33? %ases( a re+ersal of
%on+i%tion was the res!ltMthe rest %on%l!ding that the mis%ond!%t was harmless
error, Perhaps the most dist!r"ing statisti% is that a follow>!p st!d loo*ing at half of
the %ases res!lting in a re+ersed %on+i%tion %on%l!ded that the prose%!tor was not
referred to the California 9tate Bar for dis%ipline( whi%h is re6!ired !nder California
law, If there is a positi+e aspe%t to the 0!*e Ea%rosse saga( it is that NifongJs a%tions
and !ltimate dis"arment ha+e ser+ed to highlight the important iss!e of prose%!torial
mis%ond!%t and the need for effe%ti+e remedies, Prose%!torial Mis%ond!%t and
Frongf!l Con+i%tions= 9haping Remedies for a Bro*en 9stem( )''A Fis, E, Re+,
?;;( 3'? H)''AI, Moreo+er( ass!ming that the defendant is fa%t!all %!lpa"le( a
%on+i%tion se%!red thro!gh the improper a%tions of a prose%!tor %o!ld "e
!n%onstit!tional and( th!s( s!"2e%t to re+ersal, The res!lt is that the inno%ent are
%on+i%ted and the g!ilt go free( whi%h %an onl e@a%er"ate the p!"li%Js loss of tr!st
in the integrit of the %riminal 2!sti%e sstem, PRO9ECUTORIAE $UI0EEINE9 In
performing their d!ties to see* 2!sti%e( prose%!tors are "o!nd " %onstit!tional
standards( %ase law go+erning trial %ond!%t( and +ario!s ethi%s r!les and standards
pertaining to the prose%!torial f!n%tion, R!le ?,4 of the ABA Model R!les of
Professional Cond!%t H.Model R!les/I spe%ifi%all %o+ers the a%tions and
responsi"ilities of prose%!tors, All state 2!risdi%tions ha+e an ethi%s r!le imposing
spe%ial responsi"ilities on prose%!tors( most "ased on Model R!le ?,4, Prose%!tors
Page &<
00063
are also g!ided " standards fo!nd in the ABA 9tandards for Criminal #!sti%e
Prose%!tion F!n%tion and 0efense F!n%tion H?d ed, &;;?I H.ABA 9tandards/I and
the National 0istri%t Attornes Asso%iation Prose%!tion 9tandards H)d ed, &;;&I
H.N0AA 9tandards/I, In assessing the %ond!%t of prose%!tors( %o!rts ha+e oftentimes
loo*ed to the ABA 9tandards for g!idan%e, 9ee( e,g,( Miller +, North Carolina( <4?
F,)d 7'&( 7'A n,A H3th Cir, &;74I, For ears( the U,9, 0epartment of #!sti%e H.0O#/I
too* the position that Assistant United 9tates Attornes H.AU9As/I were e@empt
from state ethi%s r!les, The M%0ade Amendment in &;;; laid to rest this arg!ment,
The amendment( atta%hed as a rider to an appropriations "ill( pro+ides= An attorne
for the $o+ernment shall "e s!"2e%t to 9tate laws and r!les( and lo%al Federal %o!rt
r!les( go+erning attornes in ea%h 9tate where s!%h attorne engages in that
attorneJs d!ties( to the same e@tent and in the same manner as other attornes in that
9tate, )4 U,9,C, K <?'BHaI, The Professional Responsi"ilit Ad+isor Offi%e within
the 0O# pro+ides ad+i%e to AU9As regarding ethi%al iss!es and %hoi%e>of>law
matters, EUAMPEE9 OF PRO9ECUTORIAE MI9CON0UCT .Ei*e the Cdra slain
" Cer%!les( prose%!torial mis%ond!%t has man heads,/ United 9tates +, Filliams(
<'3 U,9, ?A( A' H&;;)I H9te+ens( #,( dissentingI; see also #o( s!pra( at 3') Hlisting
n!mero!s forms of prose%!torial mis%ond!%tI, This arti%le fo%!ses on fi+e %ategories=
H&I s!ppression of e+iden%e( H)I mis!se of the media( H?I mis%ond!%t in+ol+ing
witnesses( H3I in+estigati+e mis%ond!%t( and H<I trial mis%ond!%t, An spe%ifi% a%t of
prose%!torial mis%ond!%t ma fall into more than one %ategor, For e@ample(
*nowingl presenting per2!red testimon wo!ld "e mis%ond!%t in+ol+ing a witness(
as well as a +iolation of the d!t to dis%lose e@%!lpator e+iden%e, Nifong %ommitted
in+estigati+e mis%ond!%t in de+ising the photo arra that led to the arrest of the three
la%rosse plaers, The a%%!ser in the %ase( Crstal Mang!m( had "een shown two
photo arrasM one on Mar%h &A( )''A and another on Mar%h )&( )''AMthat did not
%ontain an .fillers,/ E+er single pi%t!re( ?A in total( that Mang!m loo*ed at was a
Page &A
00064
la%rosse plaer, Mang!m was !na"le to identif an of her alleged atta%*ers, Then(
on Mar%h ?&( )''A( Nifong s!ggested to the poli%e that Mang!m "e shown
photographs of all 3A white mem"ers of the team at the same time, 9ee Mosteller(
s!pra( at &?;4, 0!ring this pro%ed!re( whi%h o%%!rred on April 3( )''A( Mang!m( at
the dire%tion of Nifong( was told that the poli%e had reason to "elie+e that all of the
men she was loo*ing at were at the part where she was allegedl raped, Again( the
arra %ontained no .fillers,/ In essen%e( Mang!m was told that she %o!ld not ma*e a
wrong %hoi%e, It was at this time that Mang!m identified the plaers who were later
%harged, The dire%t %onse6!en%e of this in+estigati+e mis%ond!%t was the indi%tment
of three inno%ent people, Trial Mis%ond!%t Prose%!torial mis%ond!%t d!ring the
%o!rse of trial %o+ers a "road spe%tr!m, For e@ample( a prose%!tor ma improperl=
introd!%e e+iden%e( assassinate the %hara%ter of a defendant( refer to the fa%t that a
defendant did not tal* to the poli%e or ta*e the stand in his or her defense( ma*e
inflammator statements d!ring %losing arg!ment( or attempt to "olster the %redi"ilit
of a prose%!tion witness, 9ee generall( Eawless( s!pra( KK ;N&'; $ershman(
Mis%ond!%t( s!pra( KK &'N&&, ABA 9tandard ?><,4 and N0AA 9tandard 4<,& go+ern
the s%ope of %losing arg!ments, The N0AA 9tandard simpl states= .Closing
arg!ments sho!ld "e %hara%teriGed " fairness( a%%!ra%( rationalit( and a relian%e
!pon the e+iden%e or reasona"le inferen%es drawn therefrom,/ N0AA 9tandard 4<,&,
The ABA 9tandard goes f!rther and spe%ifi%all states that a prose%!tor sho!ld not
e@press his or her personal "elief as to the +era%it of an e+iden%e or g!ilt of the
defendant, The ABA 9tandard also pro+ides that a prose%!tor sho!ld not appeal to
the pre2!di%es of the 2!r, 9ee ABA 9tandard ?> <,4H"IN H%I, Case law is filled with
inn!mera"le instan%es of improper trial %ond!%tMmost of whi%h is deemed harmless,
One prose%!tor who repeatedl went o+er the line a%%ording to appellate %o!rts is
Ro"ert C, Ma%( the former 0istri%t Attorne of O*lahoma Co!nt( O*lahoma, 9ee
Den Armstrong( .Cow"o Bo"/ Ropes FinsMB!t at Considera"le Cost( Chi, Tri",(
Page &7
00065
#an, &'( &;;;( at &?, Called a .tr!e patriot/ " former Attorne $eneral Filliam Barr
and honored as .Ameri%aJs prose%!tor/ " the O*lahoma 9enate !pon his retirement
in )''&( Ma% left "ehind a string of %ases %ommenting !nfa+ora"l on his trial
%ond!%t, Pa@ton +, Fard( &;; F,?d &&;7 H&'th Cir, &;;;I; Fashington +, 9tate( ;4;
P,)d ;A' HO*la, Crim, App, &;;;I; O%hoa +, 9tate( ;A? P,)d <4? HO*la, Crim, App,
&;;4I; Torres +, 9tate( ;A) P,)d ? HO*la, Crim, App, &;;4I; Ee +, 9tate( ;37 P,)d <?<
HO*la, Crim, App, &;;7I; 0!%*ett +, 9tate( ;&; P,)d 7 HO*la, Crim, App, &;;<I;
Ro"inson +, 9tate( ;'' P,)d ?4; HO*la, Crim, App, &;;<I; Caw*ins +, 9tate( 4;&
P,)d <4A HO*la, Crim, App, &;;<I; Coo*er +, 9tate( 447 P,)d &?<& HO*la, Crim,
App, &;;3I; Cowell +, 9tate( 44) P,)d &'4A HO*la, Crim, App, &;;3I;
M%Cart +, 9tate( 7A< P,)d &)&< HO*la, Crim, App, &;4<I; Cantrell +, 9tate( A;7
P,)d ;A4 HO*la, Crim, App, &;4<I HPar*s( #,( dissentingI, The re"!*es seem not to
ha+e had an effe%t on his %ond!%t, Ne+ada R!les of Professional Cond!%t R!le &,),
9%ope of Representation and Allo%ation of A!thorit Between Client and Eawer, HaI
9!"2e%t to paragraphs H%I and HdI( a lawer shall a"ide " a %lientJs de%ision
%on%erning the o"2e%ti+es of representation and( as re6!ired " R!le &,3( shall %ons!lt
with the %lient as to the means " whi%h the are to "e p!rs!ed, A lawer ma ta*e
s!%h a%tion on "ehalf of the %lient as is impliedl a!thoriGed to %arr o!t the
representation, A lawer shall a"ide " a %lientJs de%ision whether to settle a matter,
In a %riminal %ase( the lawer shall a"ide " the %lientJs de%ision( after %ons!ltation
with the lawer( as to a plea to "e entered( whether to wai+e 2!r trial and whether the
%lient will testif, H"I A lawerJs representation of a %lient( in%l!ding representation
" appointment( does not %onstit!te an endorsement of the %lientJs politi%al(
e%onomi%( so%ial or moral +iews or a%ti+ities, H%I A lawer ma limit the s%ope of the
representation if the limitation is reasona"le !nder the %ir%!mstan%es and the %lient
gi+es informed %onsent, HdI A lawer shall not %o!nsel a %lient to engage( or assist a
%lient( in %ond!%t that the lawer *nows is %riminal or fra!d!lent( "!t a lawer ma
Page &4
00066
dis%!ss the legal %onse6!en%es of an proposed %o!rse of %ond!%t with a %lient and
ma %o!nsel or assist a %lient to ma*e a good faith effort to determine the +alidit(
s%ope( meaning or appli%ation of the law, QAdded; effe%ti+e Ma &( )''A,R Model
R!le ComparisonM)''A R!le &,) Hformerl 9!preme Co!rt R!le &<)I is the same as
ABA Model R!le &,), R!le &,?, 0iligen%e, A lawer shall a%t with reasona"le
diligen%e and promptness in representing a %lient, QAdded; effe%ti+e Ma &( )''A,R
Model R!le ComparisonM)''A R!le &,? Hformerl 9!preme Co!rt R!le &<?I is the
same as ABA Model R!le &,?, In+estigati+e Mis%ond!%t Press!re to sol+e a %rime
might lead a prose%!tor to get intimatel in+ol+ed in the pre>trial in+estigation of a
matter, 9ee ABA 9tandard ?>?,& H.QTRhe prose%!tor has an affirmati+e responsi"ilit
to in+estigate s!spe%ted illegal a%ti+it when it is not ade6!atel dealt with " other
agen%ies,/I, REME0IE9 To date( prose%!torial mis%ond!%tMe+en the most
egregio!sMhas largel gone !n%he%*ed, 9ee $ershman( Mis%ond!%t( s!pra( at +i
H.Relati+el few 2!di%ial or %onstit!tional san%tions e@ist to penaliGe or deter
mis%ond!%t; the a+aila"le san%tions are sparingl !sed and e+en when !sed ha+e not
pro+ed effe%ti+e,/I, In #an!ar &;;;( the Chi%ago Tri"!ne p!"lished a fi+e>part series
titled= Trial T Error= Cow Prose%!tors 9a%rifi%e #!sti%e to Fin, AnalGing tho!sands
of %ases( the newspaper fo!nd that sin%e &;A? at least ?4& defendants had their
%on+i%tions re+ersed either "e%a!se prose%!tors s!ppressed e@%!lpator e+iden%e or
s!"orned per2!r, Alarmingl( of those ?4& %ases( .not one of those prose%!tors was
%on+i%ted of a %rime, Not one was "arred from pra%ti%ing law, Instead( man saw
their %areers ad+an%e( "e%oming 2!dges or distri%t attornes, One "e%ame a
%ongressman,/ Den Armstrong T Ma!ri%e Possle( The 8erdi%t= 0ishonor( Chi,
Tri",( #an, &'( &;;;( at &, Criminal Prose%!tions The %riminal prose%!tion of a
prose%!tor is e@tremel rare, A%%ording to the Chi%ago Tri"!ne series( .QfRew
prose%!tors nationall ha+e "een indi%ted( and the were a%6!itted or( at worst(
%on+i%ted of a misdemeanor and fined,/ Den Armstrong T Ma!ri%e Possle( Brea*
Page &;
00067
R!les( Be Promoted( Chi, Tri",( #an, &3( &;;;( at & Qhereinafter Armstrong T Possle(
Brea* R!lesR, This statisti% seems not to ha+e %hanged in the last nine ears,
9!"se6!ent to the Tri"!ne series( two separate %ases were "ro!ght against
prose%!tors for a%ts %ommitted in their offi%ial %apa%it; neither res!lted in
%on+i%tions, The first o%%!rred in mid>&;;;M a %ase in whi%h three former Illinois
state prose%!tors were %harged with %onspiring to frame a man " the name of
Rolando Cr!G for m!rder, Cr!G spent nearl &' ears on 0eath Row "efore it "e%ame
%lear that the prose%!tion had s!ppressed e+iden%e that another person had
%ommitted the %rime and that prose%!tors had %onspired with poli%e offi%ers to
introd!%e a .dream statement/ of Cr!GJs into e+iden%e at his original trial and two re>
trials, A 2!dge dismissed %harges against two of the prose%!tors for ins!ffi%ient
e+iden%e, HOne later "e%ame an Illinois 2!dgeMthe other( an AU9A,I A 2!r
a%6!itted the third after a )4>da trial, 9ee Andrew Bl!th( Prose%!tor and 3 9heriff Js
0ep!ties Are A%6!itted of Frongf!ll A%%!sing a Man of M!rder( N,B, Times( #!ne
<( &;;;( at A;, R!le &,3, Comm!ni%ation, HaI A lawer shall= H&I Promptl inform the
%lient of an de%ision or %ir%!mstan%e with respe%t to whi%h the %lientJs informed
%onsent is re6!ired " these R!les; H)I Reasona"l %ons!lt with the %lient a"o!t the
means " whi%h the %lientJs o"2e%ti+es are to "e a%%omplished; H?I Deep the %lient
reasona"l informed a"o!t the stat!s of the matter; H3I Promptl %ompl with
reasona"le re6!ests for information; and H<I Cons!lt with the %lient a"o!t an
rele+ant limitation on the lawerJs %ond!%t when the lawer *nows that the %lient
e@pe%ts assistan%e not permitted " the R!les of Professional Cond!%t or other law,
H"I A lawer shall e@plain a matter to the e@tent reasona"l ne%essar to permit the
%lient to ma*e informed de%isions regarding the representation, ,,,Added; effe%ti+e
Ma &( )''A; as amended; effe%ti+e No+em"er )&( )''4,R Model R!le ComparisonM
)''7 R!le &,3 Hformerl 9!preme Co!rt R!le &<3I is the same as ABA Model R!le
&,3( e@%ept that the )''7 amendments in%l!de lang!age in paragraph H%I that was
Page )'
00068
pre+io!sl part of repealed R!le 7,)AHaI thro!gh HdI and HfI Hformerl 9!preme Co!rt
R!le &;A,<I whi%h is Ne+adaspe%ifi% lang!age and has no %o!nterpart in the Model
R!les, 0is%iplinar A%tions Ea%h state "ar has a me%hanism in pla%e for the
dis%ipline of mis%ond!%t " attornes li%ensed in that state, 9eparatel( federal %o!rts
ma dis%ipline attornes who appear "efore them( whi%h ma res!lt in the s!spension
or dis"arment of attornes from that parti%!lar %o!rt, 9ee( e,g,( In re Dramer( )4)
F,?d 7)& H;th Cir, )'')I, F!rther( the 0O#Js Offi%e of Professional Responsi"ilit
H.OPR/I has responsi"ilit for in+estigating allegations of mis%ond!%t %ommitted "
AU9As, It appears that these pro%ed!res are rarel effe%ti+e in dealing with
prose%!torial mis%ond!%t, The dis%iplinar a%tion against Nifong is !n!s!al in that
not onl did it res!lt in dis"arment( "!t "e%a!se it was initiated while %harges against
the 0!*e st!dents were still pending, Re%entl( the Center for P!"li% Integrit
%ond!%ted a st!d that fo!nd onl 33 instan%es of dis%iplinar a%tions against
prose%!tors sin%e &;7', Of those 33= S in 7( the %o!rt dismissed the %omplaint or did
not impose p!nishment; S in ?( the %o!rt remanded the %ase for f!rther pro%eedings; S
in )3( the %o!rt assessed the %osts of the pro%eedings against the prose%!tor; S in )'(
the %o!rt imposed a p!"li% or pri+ate reprimand or %ens!re; S in &( the prose%!tor was
pla%ed on pro"ation; S in &)( the prose%!torJs li%ense was s!spended; S in )( the
prose%!tor was dis"arred, Neil $ordon( Mis%ond!%t and P!nishment= 9tate
0is%iplinar A!thorities In+estigate Prose%!tors A%%!sed of Mis%ond!%t H)''7I(
http=11www,p!"li%integrit,org1pm1defa!lt,asp@Sa%tVside"ars"Taid V?;; see
generall 9te+e Fein"erg et al,( Ctr, for P!", Integrit( Carmf!l Error= In+estigating
Ameri%aJs Eo%al Prose%!tors H)''?I, A follow>!p to the T!lia %ase dis%!ssed a"o+e
re+ealed that the prose%!tor( whose s!"ornation of per2!r and Brad +iolations led
to the wrongf!l %on+i%tions of s%ores of people( re%ei+ed two ears of pro"ation, 9ee
0is%iplinar A%tions( A4 Te@, B,#, 7<?( 7<4 H)''<I, The OPR has the a!thorit to
determine whether an AU9A %ommitted .professional mis%ond!%t in the e@er%ise of
Page )&
00069
his or her a!thorit to in+estigate( litigate or pro+ide legal ad+i%e,/ U,9, 0epJt of
#!sti%e Offi%e of ProfJl Responsi"ilit( Analti%al Framewor* Hre+, )''<I( a+aila"le
at http=11www,!sdo2,go+1opr1framewor*,pdf, Professional mis%ond!%t is defined as
the intentional or re%*less disregard .of an o"ligation or standard imposed " law(
appli%a"le r!le of professional %ond!%t( or 0epartment reg!lation or poli%,/ Id, If the
OPR determines that an AU9A %ommitted professional mis%ond!%t( it re%ommends a
%ertain san%tion to the attorneJs s!per+isor, A+aila"le san%tions range from a written
reprimand to remo+al, The OPR ma also refer the matter to the "ar dis%iplinar
a!thorit in the 2!risdi%tion in whi%h the attorne is li%ensed, 9ee U,9, 0epJt of
#!sti%e Offi%e of ProfJl Responsi"ilit( Poli%ies T Pro%ed!res( a+aila"le at
http=11www,!sdo2,go+1opr1 polandpro%,htm, In )''&( a $eneral A%%o!nting Offi%e
report %on%l!ded that the OPR was ineffe%ti+e in dealing with prose%!torial
mis%ond!%t, 9ee News Ad+isor( U,9, Co!se of Representati+es( Committee on the
#!di%iar( $AO Report Finds 9ignifi%ant Pro"lems with #!sti%e 0epartmentJs Offi%e
of Professional Responsi"ilit HFe", )'( )''&I( a+aila"le at
http=11www,2!di%iar,ho!se,go+1lega%1news'))',htm, A re%ent highl>p!"li%iGed
%ase ill!strates the pro"lem, Chief #!dge Mar* Folf of the U,9, 0istri%t Co!rt(
0istri%t of Massa%h!setts fo!nd .e@traordinar mis%ond!%t " the 0epartment of
#!sti%e in its in+estigation and prose%!tion of mem"ers of the Patriar%a Famil of Ea
Cosa Nostra,/ Ferrara +, United 9tates( ?43 F, 9!pp, )d ?43( ?47 H0, Mass, )''<I( aff
Jd( 3<A F,?d )74 H&st Cir, )''AI, Chief #!dge Folf fo!nd that AU9A .#effre
A!erhahn( +iolated QhisR %learl esta"lished %onstit!tional d!t to dis%lose , , , "efore
trial( important e@%!lpator information that dire%tl negated Q8in%ent FerraraJs and
Pas6!ale BaroneJsR g!ilt on/ m!rder %harges, Id, The s!ppression of the e+iden%e
was intentional a%%ording to Chief #!dge Folf, 9ee id, at ?;?N ;4, The First Cir%!it
agreed( stating= .QTRhe go+ernmentJs a%tions in this %ase , , , paint a grim pi%t!re of
"latant mis%ond!%t, The re%ord +irt!all %ompels the %on%l!sion that this fe%*less
Page ))
00070
%o!rse of %ond!%t , , , %onstit!ted a deli"erate and serio!s "rea%h of its promise to
pro+ide e@%!lpator e+iden%e,/ Ferrara +, United 9tates( 3<A F,?d )74( );? H&st Cir,
)''AI Hfootnote omittedI, The OPR in+estigated A!erhahn and %on%l!ded that he had
a%ted in re%*less disregard of his d!t to dis%lose e@%!lpator e+iden%e,
I ha+e "een e+i%ted and perhaps s!"2e%t to an illegal lo%*o!t and !nlawf!l rent
distraint " an attorne representing m Be+erl Cills Cigh 9%hool grad!ate
California Ne!ros!rgeon landlord( who has spent appro@ P?'(''' in attornes fees
p!rs!ing a s!mmar e+i%tion( and whose attorne is withholding m state iss!ed
indentifi%ation( wallet( and all materials ne%essar to m law pra%ti%e all in an
!nlawf!l rent distraint prohi"ited " NR9 3',3A' and 3',<)', I am p!rs!ing a
%ontin!an%e of the !p%oming hearing1trial( I %annot e+en a%%ess when that hearing is,
I ha+e informed opposing %o!nsel Ro"erts of some of the iss!es whi%h will re6!ire
e@tensi+e dis%o+er( a 2!r trial( and more time to afford mself a legitimate
opport!nit to defend this %ase, I ha+e not "een ser+ed an Order responding to m
re6!est for appointment of %o!nsel( as I "elie+e it is re6!ired e+en if the 9tate does
not LintendL to see* 2ail time( where an in%ar%eration is a possi"ilit( the 9i@th
Amendment g!arantees it, Please note that m temporar address for now is= 5a%h
Co!ghlin( Es6, %1o 9il+er 0ollar Motel 4&7 N, 8irginia 9t,( Unit : ) Reno( N8 4;<'&
The opposing %o!nsel in the s!mmar e+i%tion matter is withholding m phone as
well and ref!sing to allow me to a%%ess an mail that ma remain at the propert
from those times when the U9P9 was pro%essing m offi%ial Change of Address,
Email is the "est wa to get in %onta%t with me d!ring this transition period, For
instan%e( I am !nware whether m Motion for Appointment of Co!nsel was granted
or not, I %alled #!dge Coward-s assistant and re6!ested that she email me the do%*et
in this %ase and an pleadings or orders filed( in%l!ding an order that ma ha+e
stemmed form an of m pre+io!s motions( as I am not s!re how those were r!led
on, I "elie+e m internet "ased fa@ ser+i%e will allow me to re%ei+e those materials at
Page )?
00071
m n!m"er ;3; AA7 73')( tho!gh I wo!ld prefer email( "!t I *now man
go+ernmental entities prefer to fa@ s!%h items, I am re6!esting a 2!r trial( a
s!"stantial %ontin!an%e( and the appointment of %o!nsel, I o"2e%t to the RMC-s
pra%ti%e of ref!sing to tell litigants who the 3 Lho!seL appointed defenders are !pon
6!estioning, F!rther( it has "e%ome %lear that some of these Lformer prose%!torsL
who are now the gang of fo!r Lho!seL defenders( do not e+en anno!n%e to a%%!sed
arraignees that the are( in fa%t( the defender or an attorne or that the ma "e
representing the arraignees, I am here" filing a motion in limine regarding an
materials or information gleaned from the !nlawf!l sear%h " the R9IC Offi%er( who
%learl anno!n%ed that the wo!ld "ase their pro"a"le %a!se to arrest and %ond!%t a
sear%h in%ident to arrest !pon an fail!re to %onsent to a sear%h " the a%%!sed,
F!rther( the alleged %ond!%t did not o%%!r in the Offi%er-s presen%e( and I "elie+e
there e@ists a!thorit pre+enting a minor misdemeanor arrest and transport !nder
those %ir%!mstan%es, Additionall( more time is needed to %ond!%t dis%o+er in this
matter( espe%iall in light of allegations that Falmart had pre+io!sl threatened
indi+id!als( in%l!ding( perhaps( the a%%!sed( with retaliator a%tion( in%l!ding illi%it
a"!se of pro%ess( for the p!rported attempts " someone to ha+e the Falmart Ret!rn
Poli% enfor%ed( and to hold a%%o!nta"le all Falmart emploees and managers( some
of whom ha+e o+er a de%ade e@perien%e in their positions( who %!rio!sl LforgetL
the Ret!rn Poli% Falmart holds o!t to the p!"li% when it is %on+enient to do so(
the same Ret!rn Poli% that Falmart !sed to dri+e o!t of "!siness so man
%ompetitors, F!rther( this %ase is li*el to get e@tremel %ompli%ated gi+en the
apparent %onfli%t of interest stemming from the fa%t that the Falmart in 6!estion is
on land owned " the R9IC( whi%h ma own or emplo the R9IC poli%e( and whi%h
is rented or owned in part " Falmart, I *now Opposing Co!nsel Ro"erts ma
appre%iate a %ontin!an%e as well and the opport!nit it wo!ld afford her to f!lfill her
NRCP && d!t and other prose%!torial d!ties to %ond!%t a reasona"l diligent in6!ir
Page )3
00072
into these matters,,,,,/I did o"tain a %op of the Ldis%o+erL a"o!t the se%ond da it
was made a+aila"le to me from o!r offi%e in person, At that time( no +ideo e+iden%e
was made a+aila"le to me, Is there now some +ideo or a!dio re%ording to whi%h I
ma "e pro+ided a%%essS Fo!ld o! mind 2!st emailing me the names of the
intended witnesses, 0o o! "elie+e o! do not ha+e a d!t to ma*e a reasona"l
diligent in6!ir of either Falmart or R9IC do assess the +alidit of the matters
mentioned in m last email( ie the retaliator moti+e +is a +is Falmart and or the
impermissi"le sear%h1 3) U9C 9e% &;4? poli%e mis%ond!%t of the R9IC offi%ersS
F!ll +iewWWBa%* to messagesRE= motion for %ontin!an%eS &&1&A1&& Pamela
Ro"ertsTo 5a%h Co!ghlin From= Pamela Ro"erts Hro"ertspXreno,go+I 9ent= Fed
&&1&A1&& <=&) PM To= 5a%h Co!ghlin HGa%h%o!ghlinXhotmail,%omI Mr, Co!ghlin(
o! sho!ld ha+e alread re%ei+ed a noti%e regarding the a+aila"ilit of dis%o+er and
re6!est for re%ipro%al dis%o+er, Bo! 2!st need to %all ahead at ??3>)'<' and arrange
to pi%* it !p, Bo! are entitled to %opies of all the reports and witness statements and
+ideo we ma ha+e on this %ase, 9in%e I am not %alling an additional witnesses that
are not alread mentioned in the reports1statements( I am not o"ligated to send o! an
additional list of witnesses, I am also not o"ligated to do an f!rther in+estigation or
inter+iews, Pam Ro"erts, >>>>>Original Message>>>>> From= 5a%h Co!ghlin
YGa%h%o!ghlinXhotmail,%omZ To= Yro"ertspXreno,go+Z 0ate= Fed( &A No+ )'&&
&<=?<=34 >'4'' 9!"2e%t= RE= motion for %ontin!an%e Ms, Ro"erts( Than*s for o!r
repl, Please as%ertain from Falmart whether an Falmart emploees had( pre+io!s
to this in%ident( made an threats respe%ting mali%io!sl ha+ing the a%%!sed "anned
from Falmart-s in%ident to a disagreement o+er Falmart staff and managers %!rio!s
pra%ti%e of LforgettingL their ret!rn poli%( despite some indi+id!als ha+ing wor*ed
there o+er &' ears,,,,F!rther( I "elie+e it rele+ant and part of o!r d!t to pro+ide
e@%!lpator information to as%ertain whether the R9IC poli%e offi%er made
statements wherein he attempted to %oer%e a %onsent to an impermissi"le sear%h and
Page )<
00073
f!rther "!ttressed his pro"a"le %a!se finding to %ond!%t a sear%h in%ident to arrest(
e@pressl( in words( to the a%%!sed( !pon the a%%!sed-s fail!re to %onsent to s!%h a
sear%h, Please pro+ide a list of an witnesses o! intend to %all at trial( in%l!ding a
s!mmation of the matters the will testif to( in addition to prod!%ing a %op or
ma*ing a+aila"le for reprod!%tion an do%!mentation( a!dio( +ideo( or other
materials intended to "e !sed in an wa at trial, Than* Bo!(
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> 0ate= Mon( &3
No+ )'&& &'=?A=3< >'4'' From= ro"ertspXreno,go+ To= Ga%h%o!ghlinXhotmail,%om
9!"2e%t= Re= motion for %ontin!an%e Mr, Co!ghlin( we were %losed on Frida and I
ha+e 2!st read o!r email, If o! ha+e not re%ei+ed %onfirmation from the Co!rt that
o!r trial date has "een %ontin!ed( o! will need to appear this afternoon at &='' pm
in Co!rtroom B of the Reno M!ni%ipal Co!rt, Fe %an dis%!ss o!r %ase f!rther at
that time and if we are !na"le to resol+e the %ase( o! %an as* the Co!rt again for a
%ontin!an%e and I won-t o"2e%t, Cowe+er( it is the Co!rt-s de%ision to grant o!r
motion to %ontin!e, It is also the Co!rt-s de%ision whether to appoint o! a legal
defender, I do not plan to as* for 2ail time( so the Co!rt is not re6!ired to appoint o!
an attorne, In addition( o! ha+e no right to a 2!r trial in a misdemeanor %ase, I
hope o!r ho!sing sit!ation impro+es, 9ee o! this afternoon, Pam Ro"erts( 0ep!t
Cit Attorne, >>>>>Original Message>>>>> From= 5a%h Co!ghlin
YGa%h%o!ghlinXhotmail,%omZ To= Yro"ertspXreno,go+Z 0ate= Fri( && No+ )'&&
'&=3'=<? >'4'' 9!"2e%t= motion for %ontin!an%e 0ear Co!nselor Ro"erts( I "elie+e
o! are the prose%!tor for the %ase against me( 9tate +, Co!ghlin( whi%h I "elie+e is
still set for trial on No+em"er &3th( I thin* at &pm, I am not totall s!re that there is a
d!t to ser+e o! on s!%h a thing( "!t I filed a Motion for Contin!an%e and a Motion
for Appointment of Co!nsel sometime within a"o!t the last &' das( I wo!ld sa, I
"elie+e I attempted to %op o! on it( "!t ha+e re%entl "een e+i%ted and its "een a
+er diffi%!lt time in terms of %oordinating paperwor*( et%,( et%, I apologiGe for an
Page )A
00074
in%on+enien%e this ma ha+e %a!se o!, I am !ns!re of whether the No+em"er &3th
trial is still set to ta*e pla%e, I "elie+e fairness di%tates that it "e %ontin!ed to a later
date, I ha+e re6!est %o!nsel "!t ha+e et to re%ei+e an( or wait( I was denied a
re6!est to re%ei+e %o!nsel "e%a!se #!dge Coward said there is not a Ath amendment
right to %o!nsel where( e+en tho!gh 2ail time is te%hni%all a possi"ilit( the state
does not anti%ipate see*ing 2ail time,,,or something li*e that( howe+er( I fo!nd some
%ases that sa I sho!ld still get %o!nsel appointed( espe%iall where I show I am
indigent( and I "elie+e I 6!alif as indigent rather easil, Can and wo!ld o! agree to
a %ontin!an%eS I "elie+e I tried to %onta%t a"o!t this prior to filing m Re6!est for a
Contin!an%e, I maintain m inno%en%e in this %ase and feel an sort of %on+i%tion(
espe%iall one in+ol+ing an sort of theft "ased %harge( wo!ld wor* a terri"le
in2!sti%e and greatl damage m rep!tation and emploment prospe%ts, I want a 2!r
trial( too, 9in%erel(/
The san%tion was a pri+ate written reprimand, Not satisfied( Chief #!dge Folf
initiated his own dis%iplinar a%tion against A!erhahn and wrote then> Attorne
$eneral Al"erto $onGales a letter on #!ne );( )''7 %riti%iGing the OPR, Asso%iate
0ep!t Attorne $eneral 0a+id Margolis replied " letter to Chief #!dge Folf(
asserting that .the dis%ipline imposed " the 0epartment was %onsistent with(
%orrelated to( and proportional with the findings that res!lted from OPRJs
in+estigation,/ Eetter from 0a+id Margolis to The Conora"le Mar* E, Folf HO%t, )(
)''7I, 9till not satisfied( Chief #!dge Folf wrote Attorne $eneral Mi%hael
M!*ase, In this letter( Chief #!dge Folf noted that he assisted in the esta"lishment
of OPR( "!t now has .serio!s 6!estions a"o!t whether 2!dges sho!ld %ontin!e to rel
!pon the 0epartment to in+estigate and san%tion mis%ond!%t " federal prose%!tors,/
Eetter from The Conora"le Mar* E, Folf to The Conora"le Mi%hael B, M!*ase
H#an, )( )''4I, The letters ma "e fo!nd in the %o!rt files of Barone +, United 9tates(
No, ;4>&&&'3 H0, Mass, &;;4I and Ferrara +, United 9tates( No, ''>&&A;? H0, Mass,
Page )7
00075
)'''I, 9ellers +, Fo!rth #!di%ial 0ist, Ct,( &&; Ne+, )<A( 7& P ,?d 3;< H)''?I( "!t(
see= NOTE= Awarding Attorne-s Fees to Pro 9e Eitigants Under R!le &&( #!ne(
&;;7( ;< Mi%h, E, Re+, )?'4( #erem 0, 9pe%tor, 9ellers spea*s to awards of
attorne-s fees to pre+ailing parties in %i+il a%tions, It does not p!rport to spea* to
attorne-s fees awards stemming from R!le && +iolation( a sit!ation where the
granting of attorne-s fees to an attorne pro se litigant is far more a%%epted
thro!gho!t Ameri%an 2!rispr!den%e, To wit= .states that ha+e %onsidered whether an
attorne proper person litigant ma "e awarded attorne fees are di+ided( with a
slight ma2orit permitting s!%h fees, 0e%isions appro+ing fee awards to attorne
proper person litigants generall do so on the "asis that an attorne is paid for
rendering legal ser+i%es( and if he renders s!%h ser+i%es on his own "ehalf( it res!lts
in as m!%h pe%!niar loss to him as if he paid another attorne to render the same
ser+i%es, 9o( if a losing part m!st pa attorne fees anwa( it sho!ld ma*e no
differen%e whether the fees are to "e paid to an attorne representing himself or
another attorne emploed " him, In short( La lawer-s time and ad+i%e are his sto%*
in trade,L,,,Fe interpret NR9 A;,'?' to re6!ire that all proper person litigants(
whether attorne or non>attorne( "e o"ligated to pa attorne fees as a prere6!isite
for an award of pre+ailing part attorne fees, This interpretation gi+es effe%t to the
Eegislat!re-s %lear intent that the pre+ailing part in 2!sti%e-s %o!rt "e reim"!rsed "
the losing part for o!t>ofpo%*et %osts in%!rred to prose%!te the s!it, To interpret the
stat!te otherwise wo!ld re6!ire !s to redefine what is meant " an attorne fee(
whi%h is %ommonl !nderstood to "e the s!m paid or %harged for legal ser+i%es,
Be%a!se Matthews represented himself and did not pa or in%!r an o"ligation to pa
attorne fees( the 2!sti%e-s %o!rt e@%eeded its 2!risdi%tion " awarding s!%h fees, Fe
therefore grant( in part( the petition for a writ of %ertiorari,/ 9ellers +, Fo!rth #!di%ial
0ist, Ct,( &&; Ne+, )<A( 7& P ,?d 3;< H)''?I, NR9 A;,'?' .Pre+ailing part allowed
attorne-s fee to "e ta@ed as %osts in 2!sti%e %o!rt, The pre+ailing part in an %i+il
Page )4
00076
a%tion at law in the 2!sti%e %o!rts of this 9tate shall re%ei+e( in addition to the %osts of
%o!rt as now allowed " law( a reasona"le attorne fee, The attorne fee shall "e
fi@ed " the 2!sti%e and ta@ed as %osts against the losing part,/
AFFIRMATION P!rs!ant to NR9 )?;B,'?' The !ndersigned does here" affirm
that the pre%eding do%!ment does not %ontain the so%ial se%!rit n!m"er of an
person,
0ATE0 this No+em"er );
th
( )'&&
[1s1 5a%h Co!ghlin
5a%h Co!ghlin
Attorne for 0efendant Co!ghlin
Page );
00077
PROOF OF SER:ICE
I( 5a%h Co!ghlin( de%lare= On No+em"er );( )'&&( I( Mr, 5a%h Co!ghlin ser+ed
the foregoing MOTION FOR 9ANCTION9 AN0 ATTORNEB-9 FEE9; emailing a
tr!e %op thereof to=
Pam Ro"ert( Es6,
Reno Cit Att Offi%e
ro"ertspXreno,go+
AFFIRMATION P!rs!ant to NR9 )?;B,'?'
The !ndersigned does here" affirm that the pre%eding do%!ment does not
%ontain the so%ial se%!rit n!m"er of an person,
0ATE0 this No+em"er );
th
( )'&&
[1s1 5a%h Co!ghlin
5a%h Co!ghlin
Attorne for 0efendant Co!ghlin
Page ?'
00078
INDE; TO ATTAC<MENTS
EUCIBIT &= TFO EAF RE8IEF ARTICEE9 ON PRO9ECUTORIAE
MI9CON0UCT= .Crossing the Eine= Responding to Prose%!torial Mis%ond!%t/ H&?
PA$E9/( AN0 .PRO9ECUTORIAE MI9CON0UCT/ H?? PA$E9I
Page ?&
00079
EUCIBIT &
Page ?)
00080
ABA Section of Litigation Annual Conference, April 16 18, 2008:
Crossing the Line: Responding to Prosecutorial Misconduct
1
Crossing the Line:
Responding to Prosecutorial Misconduct
INTRODUCTION
Among lawyers, a prosecutor is in a unique position. Normally a lawyer is free toindeed, expected
tozealously advocate on behalf of his or her client. Prosecutors, however, are not simply advocates
for the government. They are also ministers of justice whose aim is not to win a case, but that justice
shall be done. Berger v. United States, 295 U.S. 78, 88 (1935). As such, [i]t is as much his duty to
refrain from improper methods calculated to produce a wrongful conviction as it is to use every
legitimate means to bring about a just one. Id.; see generally Bennett L. Gershman, The Prosecutors
Duty to Truth, 14 Geo. J. Legal Ethics 309 (2001).
By now, the actions of Michael Nifong, the former District Attorney of Durham County, North
Carolina, that led to his disbarment are well known. See generally Robert P. Mosteller, The Duke
Lacrosse Case, Innocence, and False Identifications: A Fundamental Failure to Do Justice, 76
Fordham L. Rev. 1337 (2007). Some argue that the situation involving Nifong is an isolated case. Yet
prosecutorial overreaching has been an issue well before this headline-grabbing case came along.
A recent report issued by the California Commission on the Fair Administration of Justice referred to a
study that reviewed 2,130 California appellate cases in which a claim of prosecutorial misconduct was
raised. Cal. Commn on the Fair Admin. of Justice, Report and Recommendations on Professional
Responsibility and Accountability of Prosecutors and Defense Lawyers (2007), available at
http://www.ccfaj.org/documents/reports/prosecutorial/official/official report on reporting
misconduct.pdf. Of those 2,130 cases, 443 resulted in findings that prosecutorial misconduct actually
occurred. In 53 of the 443 cases, a reversal of conviction was the resultthe rest concluding that the
misconduct was harmless error. Perhaps the most disturbing statistic is that a follow-up study looking
at half of the cases resulting in a reversed conviction concluded that the prosecutor was not referred to
the California State Bar for discipline, which is required under California law. If there is a positive
aspect to the Duke Lacrosse saga, it is that Nifongs actions and ultimate disbarment have served to
highlight the important issue of prosecutorial misconduct and the need for effective remedies.
Few would claim that any prosecutor intentionally sets out to seek the conviction of an innocent
person. Rather, it is argued that prosecutorial misconduct stems from a win at all cost mentality
underlying the desire to further a career, or a firm belief in the defendants guilt notwithstanding
admissible evidence. See Joseph F. Lawless, Prosecutorial Misconduct 1:06, at 1-15 (3d ed. 2003).
Regardless of the causes, the effects of prosecutorial misconduct are distressing. Two different studies
of persons exonerated by DNA evidence have shown that prosecutorial misconduct played a role in
convicting an innocent person nearly half of the time. See Peter A. Joy, The Relationship Between
00081
2
Prosecutorial Misconduct and Wrongful Convictions: Shaping Remedies for a Broken System, 2006
Wis. L. Rev. 399, 403 (2006). Moreover, assuming that the defendant is factually culpable, a
conviction secured through the improper actions of a prosecutor could be unconstitutional and, thus,
subject to reversal. The result is that the innocent are convicted and the guilty go free, which can only
exacerbate the publics loss of trust in the integrity of the criminal justice system.
PROSECUTORIAL GUIDELINES
In performing their duties to seek justice, prosecutors are bound by constitutional standards, case law
governing trial conduct, and various ethics rules and standards pertaining to the prosecutorial function.
Rule 3.8 of the ABA Model Rules of Professional Conduct (Model Rules) specifically covers the
actions and responsibilities of prosecutors. All state jurisdictions have an ethics rule imposing special
responsibilities on prosecutors, most based on Model Rule 3.8. Prosecutors are also guided by
standards found in the ABA Standards for Criminal Justice Prosecution Function and Defense
Function (3d ed. 1993) (ABA Standards) and the National District Attorneys Association
Prosecution Standards (2d ed. 1991) (NDAA Standards). In assessing the conduct of prosecutors,
courts have oftentimes looked to the ABA Standards for guidance. See, e.g., Miller v. North Carolina,
583 F.2d 701, 706 n.6 (4th Cir. 1978).
For years, the U.S. Department of Justice (DOJ) took the position that Assistant United States
Attorneys (AUSAs) were exempt from state ethics rules. The McDade Amendment in 1999 laid to
rest this argument. The amendment, attached as a rider to an appropriations bill, provides:
An attorney for the Government shall be subject to State laws and rules, and local
Federal court rules, governing attorneys in each State where such attorney engages
in that attorneys duties, to the same extent and in the same manner as other
attorneys in that State.
28 U.S.C. 530B(a). The Professional Responsibility Advisory Office within the DOJ provides
advice to AUSAs regarding ethical issues and choice-of-law matters.
EXAMPLES OF PROSECUTORIAL MISCONDUCT
Like the Hydra slain by Hercules, prosecutorial misconduct has many heads. United States v.
Williams, 504 U.S. 36, 60 (1992) (Stevens, J., dissenting); see also Joy, supra, at 402 (listing
numerous forms of prosecutorial misconduct). This article focuses on five categories: (1) suppression
of evidence, (2) misuse of the media, (3) misconduct involving witnesses, (4) investigative
misconduct, and (5) trial misconduct. Any specific act of prosecutorial misconduct may fall into more
than one category. For example, knowingly presenting perjured testimony would be misconduct
involving a witness, as well as a violation of the duty to disclose exculpatory evidence.
Suppression of Evidence
[V]iolations of Brady are the most recurring and pervasive of all constitutional
procedural violations, with disastrous consequences: innocent people are wrongfully
00082
3
convicted; the reputation of U.S. prosecutors suffer; and the absence of meaningful
legal and ethical enforcement and accountability has a corrosive effect on the
publics perception of a justice system that often appears to be arbitrary, unjust, and
simply unreliable.
Bennett L. Gershman, Litigating Brady v. Maryland: Games Prosecutors Play, 57 Case W. Res. L.
Rev. 13, 15 (2007) [hereinafter Gershman, Litigating].
The key holding of Brady v. Maryland is that the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. 373 U.S. 83, 87
(1963). Arguably, because a Brady violation may occur even when the prosecutor acts in good faith,
the term prosecutorial misconduct in the suppression of evidence context should be used only when
the prosecutor intentionally withholds exculpatory material.
In United States v. Agurs, the Supreme Court explained that a prosecutor has a constitutional duty of
disclosure when he or she is in possession of evidence that would deny a defendant a fair trial if that
evidence were not disclosed. See 427 U.S. 97, 108 (1976). The Court has stressed that because a
prosecutor is in a different position to determine the materiality of a piece of evidence than is an
appellate court, the prudent prosecutor will resolve doubtful questions in favor of disclosure. Id.
The Supreme Court has clarified that the constitutional requirement that a prosecutor disclose
evidence that is favorable and material exists regardless of whether the defendant makes a request for
a specific piece of evidence, a general request for favorable evidence, or no request at all. United
States v. Bagley, 473 U.S. 667, 682 (1985). When considering the issue retrospectively, appellate
courts conclude that the duty existed when there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome. Id. Moreover, a
prosecutor has a duty to learn of any favorable evidence known to the others acting on the
governments behalf in the case, including the police. Kyles v. Whitley, 514 U.S. 419, 437 (1995).
Finally, there is no constitutional significance between impeachment evidence and evidence that is
directly exculpatory. The key to a Brady violation is the materiality of the withheld evidence. See
Bagley, 473 U.S. at 67678.
Ethical rules require more than the constitutional minimum of Brady. Although the NDAA Standards
seem to require only slightly more than the constitutional minimum, see NDAA Standard 25.4 (The
prosecutor should disclose the existence or nature of exculpatory evidence pertinent to the defense.),
the Model Rules and ABA Standards go further. Model Rule 3.8(d) provides that a prosecutor must:
make timely disclosure to the defense of all evidence or information known to the
prosecutor that tends to negate the guilt of the accused or mitigates the offense, and,
in connection with sentencing, disclose to the defense and to the tribunal all
unprivileged mitigating information known to the prosecutor, except when the
prosecutor is relieved of this responsibility by a protective order of the tribunal.
00083
4
Likewise ABA Standard 3-3.11(a) provides:
A prosecutor should not intentionally fail to make timely disclosure to the defense, at
the earliest feasible opportunity, of the existence of all evidence or information which
tends to negate the guilt of the accused or mitigate the offense charged or which
would tend to reduce the punishment of the accused.
The commentary to ABA Standard 3-3.11 notes that this provision is virtually identical to that
imposed by ABA model ethical codes, [and] goes beyond the corollary duty imposed upon prosecutors
by constitutional law. (Footnote omitted.) See also Kyles, 514 U.S. at 437 (noting that Brady
requires less of the prosecution than the ABA Standards for Criminal Justice, which call generally for
prosecutorial disclosures of any evidence tending to exculpate or mitigate). Finally, ABA Standard 3-
3.11(c) warns that [a] prosecutor should not intentionally avoid pursuit of evidence because he or she
believes it will damage the prosecutions case or aid the accused.
Nifong suppressed exculpatory evidence when he did not tell the defense team that DNA from
numerous males, none of it from any of the lacrosse players, was found in items obtained from the
complainant during her medical examination. This evidence was inconsistent with the complainants
allegations that she was raped by several of the team members. It also contradicted her claims that she
had not had sex with anyone in over a week prior to the alleged incident. See generally Stuart Taylor,
Jr. & KC Johnson, Until Proven Innocent (2007).
One of the most egregious cases of a prosecutor failing to disclose impeachment evidence occurred in
the small town of Tulia, Texas. In 1999, 38 people (36 of them black) were arrested on drug charges
and later convicted. The only evidence used to secure their convictions was the uncorroborated
testimony of one undercover officer with severe credibility problems. At a hearing several years later,
a judge determined that the prosecutor had failed to turn over evidence impeaching the officers
credibility, and stood silent when he knew the officer was committing perjury. All of the defendants
were either pardoned or had their convictions overturned. See Laura Parker, Court Cases Raise
Conduct Concerns, USA Today, June 26, 2003, at 3A. A more thorough discussion of how
prosecutors may evade their responsibility to disclose exculpatory evidence may be found in
Gershman, Litigating, supra.
Misuse of the Media
Ethical rules prohibit all lawyers involved in litigation or investigations from making statements to the
media that would prejudice the matter. Model Rule 3.6(a) provides:
A lawyer who is participating or has participated in the investigation or litigation of
a matter shall not make an extrajudicial statement that the lawyer knows or
reasonably should know will be disseminated by means of public communication and
will have a substantial likelihood of materially prejudicing an adjudicative
proceeding in the matter.
Model Rule 3.8(f), which applies specifically to prosecutors and is meant to protect a defendants
Sixth Amendment right to a fair trial, is worded similarly to Model Rule 3.6(a). It also imposes a duty
00084
5
on a prosecutor to take reasonable steps to prevent the entire prosecutorial team from making
prejudicial statements:
[E]xcept for statements that are necessary to inform the public of the nature and
extent of the prosecutors action and that serve a legitimate law enforcement
purpose, [a prosecutor shall] refrain from making extrajudicial comments that have
a substantial likelihood of heightening public condemnation of the accused and
exercise reasonable care to prevent investigators, law enforcement personnel,
employees or other persons assisting or associated with the prosecutor in a criminal
case from making an extrajudicial statement that the prosecutor would be prohibited
from making under Rule 3.6 or this Rule.
Standard 3-1.4 of the ABA Standards is basically an amalgam of Model Rules 3.6(a) and 3.8(f). The
full text of Standard 3-1.4 follows:
(a) A prosecutor should not make or authorize the making of an extrajudicial
statement that a reasonable person would expect to be disseminated by means of
public communication if the prosecutor knows or reasonably should know that it will
have a substantial likelihood of prejudicing a criminal proceeding.
(b) A prosecutor should exercise reasonable care to prevent investigators, law
enforcement personnel, employees, or other persons assisting or associated with the
prosecutor from making an extrajudicial statement that the prosecutor would be
prohibited from making under this Standard.
The DOJ has promulgated regulations governing the release of information in criminal cases. 28
C.F.R. 50.2(a)(b). The regulations provide that very general information about the defendant,
charging instrument, investigating agency, and circumstances of arrest may be released. 50.2(b)(3).
Importantly, [d]isclosures should include only incontrovertible, factual matters, and should not
include subjective observations. 50.2(b)(3)(iv). The regulations clearly prohibit dissemination of
any information concerning a defendants prior criminal record, 50.2(b)(4), and also list numerous
types of information or opinions that a prosecutor should refrain from making available.
50.2(b)(6). The United States Attorney Manual (USAM) contains guidelines to implement the
regulations, but cautions that they do not create any rights enforceable in law or otherwise in any
party. USAM 1-7.001.
Improper extra-judicial statements include: releasing grand jury material, commenting on the bad
character of a defendant, referring to the crime as heinous or reprehensible, disclosing a defendants
confession, disclosing a defendants criminal record, discussing trial strategy, opining on the
defendants guilt, claiming that the governments case is strong, and commenting on the defendants
lack of cooperation. See Bennett L. Gershman, Prosecutorial Misconduct 6:3:10 (2d ed. 2007)
[hereinafter Gershman, Misconduct]. But see 28 C.F.R. 50.2(b)(6) (providing that a prosecutor
should refrain from giving an opinion as to the defendants guilt and referring to the defendants
character or confession).
00085
6
The Disciplinary Hearing Commission of the North Carolina State Bar determined that Nifong had
violated Rule 3.6(a) and 3.8(f) of North Carolinas Revised Rules of Professional Conduct on at least
30 different occasions. A small sampling of the statements include:
[O]ne would wonder why one needs an attorney if one was not charged and had not done anything
wrong.
The contempt that was shown for the victim, based on her race was totally abhorrent. It adds
another layer of reprehensibleness to a crime that is already reprehensible.
I would not be surprised if condoms were used. Probably an exotic dancer would not be your first
choice for unprotected sex.
Im not going to let Durhams view in the minds of the world to be a bunch of lacrosse players
from Duke raping a black girl in Durham.
What happened here was one of the worst things thats happened since I have become district
attorney.
They dont want to admit the enormity of what they have done.

Natl Org. of Bar Counsel, Case of the Month (June 2007), http://www.nobc.org/cases/0607.asp.
Nifongs numerous statements inflamed the public, the pool from which the jury would have been
drawn had the case gone to trial.
Misconduct Involving Witnesses
It should go without saying that a prosecutor acts unethically when he or she suborns perjury. Such
conduct undermines the integrity of our adversarial system and, at a minimum, violates Model Rule
3.3(a)(3), which prohibits any lawyer from knowingly offering false evidence. Similar to the Model
Rule, ABA Standard 3-5.6(a) succinctly states: A prosecutor should not knowingly offer false
evidence, whether by documents, tangible evidence, or the testimony of witnesses, or fail to seek
withdrawal thereof upon discovery of its falsity.
Beyond the ethics of presenting perjured testimony, the knowing use of such testimony involve[s] a
corruption of the truth-seeking function of the trial process. Agurs, 427 U.S. at 104. [A] conviction
obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if
there is any reasonable likelihood that the false testimony could have affected the judgment of the
jury. Id. at 103 (emphases added) (footnote omitted). This rule equally applies when a prosecutor,
although not soliciting false evidence, allows it to go uncorrected when it appears, even when the
uncorrected testimony goes to the credibility of the witness. Napue v. Illinois, 360 U.S. 264, 269
(1959).
In addition to the Tulia case discussed above, another well-known case of a prosecutor using perjured
testimony in order to obtain a conviction occurred in the Detroit Sleeper Cell terrorism trial.
Although the case was riddled with various forms of prosecutorial misconduct, perjury played a key
role.
Central to the prosecutions case in United States v. Koubriti, No. 01-80778 (E.D. Mich.), was a sketch
recovered from the defendants apartment containing the words Queen Alia and Hashemite
Kingdom of Jordan written in Arabic. Indictment, United States v. Convertino, No.06-cr-20173, at 3
00086
7
(E.D. Mich. Mar. 29, 2006). The government presented testimony through a Department of State
Special Agent that he had traveled to the Queen Alia Military Hospital in Jordan and concluded that
the sketch was almost an exact representation of the facility. Among the agents assertions was that a
very large dead tree corresponded with a marking on the sketch and provided certainty that the
drawing depicted the hospital. See Bennett L. Gershman, How Juries Get It WrongAnatomy of the
Detroit Terror Case, 44 Washburn L.J. 327, 33233 (2005). Both on direct and on cross, the agent
claimed that he had not taken any photographs of the facility because of security restrictions.
According to the DOJ, however, the truth was that the agent had taken numerous aerial photographs of
the facility at the request of the prosecutor, Richard Convertino. Although it appears Convertino never
received these specific photographs taken, he did obtain photographs of the Queen Alia Military
Hospital taken by the agents replacement. Not only did Convertino elicit perjury from the agent
during his direct testimony (and allow it to stand during cross-examination), Convertino never
disclosed to the defense the photographs he eventually did receive. Indictment, United States v.
Convertino, No.06-cr-20173, at 34. In an unprecedented case, the DOJs Public Integrity Section
charged and tried Smith and Convertino with obstruction of justice, perjury, and conspiracy. Id. Both
were acquitted.
Witness coaching can also be a form of prosecutorial misconduct. See generally Bennett L.
Gershman, Witness Coaching by Prosecutors, 23 Cardozo L. Rev. 829 (2002). Although witness
coaching has received scant attention from courts, a recent case may cause jurists to more closely
scrutinize this issue. A Virginia lawyer, Leslie Smith, represented William Jones, the co-defendant of
Daryl Atkins. Based on Joness testimony, Atkins received the sentence of death for the murder of
Eric Nesbitt. Atkinss case went all the way to the Supreme Court, where the Court ruled that the U.S.
Constitution bars the execution of those with mental retardation. See Atkins v. Virginia, 536 U.S. 304
(2002). As of early 2008, however, Virginia was still trying to put Atkins to death, arguing that Atkins
was not mentally retarded.
Recently, Smith came forward and revealed that in 1997 prosecutors had coached his client, William
Jones, into providing testimony that more closely aligned with their theory that Atkins, and not Jones,
was the triggerman. Soon after the coaching had occurred, Smith went to the Virginia State Bars
ethics counsel, but was told that he could not disclose information about the coaching since it would
be detrimental to his client. Approximately ten years later, Smith finally came forward after getting
the green light from the Virginia State Bar because Joness case is now final. Because of Smiths
account, a court in January 2008 commuted Atkinss death sentence to life imprisonment. See Adam
Liptak, Lawyer Reveals Secret, Toppling Death Sentence, N.Y. Times, Jan. 19, 2008, at A1.
Investigative Misconduct
Pressure to solve a crime might lead a prosecutor to get intimately involved in the pre-trial
investigation of a matter. See ABA Standard 3-3.1 ([T]he prosecutor has an affirmative responsibility
to investigate suspected illegal activity when it is not adequately dealt with by other agencies.).
Although the line between investigating a crime and prosecuting a crime can be fuzzy, suffice it to say
that a prosecutor acts in an investigative capacity when gathering facts such as staging an undercover
operation or engaging in wiretapping. See generally Gershman, Misconduct, supra, 1.
00087
8
Nifong committed investigative misconduct in devising the photo array that led to the arrest of the
three lacrosse players. The accuser in the case, Crystal Mangum, had been shown two photo arrays
one on March 16, 2006 and another on March 21, 2006that did not contain any fillers. Every
single picture, 36 in total, that Mangum looked at was a lacrosse player. Mangum was unable to
identify any of her alleged attackers. Then, on March 31, 2006, Nifong suggested to the police that
Mangum be shown photographs of all 46 white members of the team at the same time. See Mosteller,
supra, at 1398. During this procedure, which occurred on April 4, 2006, Mangum, at the direction of
Nifong, was told that the police had reason to believe that all of the men she was looking at were at
the party where she was allegedly raped. Again, the array contained no fillers. In essence, Mangum
was told that she could not make a wrong choice. It was at this time that Mangum identified the
players who were later charged. The direct consequence of this investigative misconduct was the
indictment of three innocent people.
Trial Misconduct
Prosecutorial misconduct during the course of trial covers a broad spectrum. For example, a
prosecutor may improperly: introduce evidence, assassinate the character of a defendant, refer to the
fact that a defendant did not talk to the police or take the stand in his or her defense, make
inflammatory statements during closing argument, or attempt to bolster the credibility of a prosecution
witness. See generally, Lawless, supra, 910; Gershman, Misconduct, supra, 1011.
ABA Standard 3-5.8 and NDAA Standard 85.1 govern the scope of closing arguments. The NDAA
Standard simply states: Closing arguments should be characterized by fairness, accuracy, rationality,
and a reliance upon the evidence or reasonable inferences drawn therefrom. NDAA Standard 85.1.
The ABA Standard goes further and specifically states that a prosecutor should not express his or her
personal belief as to the veracity of any evidence or guilt of the defendant. The ABA Standard also
provides that a prosecutor should not appeal to the prejudices of the jury. See ABA Standard 3-5.8(b)
(c).
Case law is filled with innumerable instances of improper trial conductmost of which is deemed
harmless. One prosecutor who repeatedly went over the line according to appellate courts is Robert
H. Macy, the former District Attorney of Oklahoma County, Oklahoma. See Ken Armstrong,
Cowboy Bob Ropes WinsBut at Considerable Cost, Chi. Trib., Jan. 10, 1999, at 13. Called a true
patriot by former Attorney General William Barr and honored as Americas prosecutor by the
Oklahoma Senate upon his retirement in 2001, Macy left behind a string of cases commenting
unfavorably on his trial conduct. Paxton v. Ward, 199 F.3d 1197 (10th Cir. 1999); Washington v. State,
989 P.2d 960 (Okla. Crim. App. 1999); Ochoa v. State, 963 P.2d 583 (Okla. Crim. App. 1998); Torres
v. State, 962 P.2d 3 (Okla. Crim. App. 1998); Le v. State, 947 P.2d 535 (Okla. Crim. App. 1997);
Duckett v. State, 919 P.2d 7 (Okla. Crim. App. 1995); Robinson v. State, 900 P.2d 389 (Okla. Crim.
App. 1995); Hawkins v. State, 891 P.2d 586 (Okla. Crim. App. 1995); Hooker v. State, 887 P.2d 1351
(Okla. Crim. App. 1994); Howell v. State, 882 P.2d 1086 (Okla. Crim. App. 1994); McCarty v. State,
765 P.2d 1215 (Okla. Crim. App. 1985); Cantrell v. State, 697 P.2d 968 (Okla. Crim. App. 1985)
(Parks, J., dissenting). The rebukes seem not to have had any effect on his conduct.
The introduction of misleading (or patently false) forensic evidence has been publicized recently. As
Professor Gershman discusses in a law review article, [t]he records of contemporary criminal trials
00088
9
are replete with instances of so-called junk science finding its way into courtrooms, and championed
by prosecutors to win convictions. Bennett L. Gershman, Misuse of Scientific Evidence by
Prosecutors, 28 Okla. City U. L. Rev. 17, 30 (2003). Examples include tendering evidence of sloppy
or outright faulty lab work of otherwise reliable forensic tests, or the presentation of scientific
evidence of dubious quality such as bite-mark and hair analysis. See id. One example of faulty
forensic evidence is the FBIs use of compative-bullet lead analysis. The procedure supposedly
allowed the FBI to match fired bullets found at a crime scene with unfired bullets in the possession of
a suspect. The FBI used the procedure for decades, but stopped doing so in 2005 after finally
acknowledging that the technique is unreliable and misleading. It is estimated that comparative bullet-
lead analysis played a role in convicting over 2,500 people. See John Solomon, FBIs Forensic Test
Full of Holes, Wash. Post, Nov. 18, 2007, at A1.
REMEDIES
To date, prosecutorial misconducteven the most egregioushas largely gone unchecked. See
Gershman, Misconduct, supra, at vi (Relatively few judicial or constitutional sanctions exist to
penalize or deter misconduct; the available sanctions are sparingly used and even when used have not
proved effective.). In January 1999, the Chicago Tribune published a five-part series titled: Trial &
Error: How Prosecutors Sacrifice Justice to Win. Analyzing thousands of cases, the newspaper found
that since 1963 at least 381 defendants had their convictions reversed either because prosecutors
suppressed exculpatory evidence or suborned perjury. Alarmingly, of those 381 cases, not one of
those prosecutors was convicted of a crime. Not one was barred from practicing law. Instead, many
saw their careers advance, becoming judges or district attorneys. One became a congressman. Ken
Armstrong & Maurice Possley, The Verdict: Dishonor, Chi. Trib., Jan. 10, 1999, at 1.
Criminal Prosecutions
The criminal prosecution of a prosecutor is extremely rare. According to the Chicago Tribune series,
[f]ew prosecutors nationally have been indicted, and they were acquitted or, at worst, convicted of a
misdemeanor and fined. Ken Armstrong & Maurice Possley, Break Rules, Be Promoted, Chi. Trib.,
Jan. 14, 1999, at 1 [hereinafter Armstrong & Possley, Break Rules]. This statistic seems not to have
changed in the last nine years. Subsequent to the Tribune series, two separate cases were brought
against prosecutors for acts committed in their official capacity; neither resulted in convictions.
The first occurred in mid-1999a case in which three former Illinois state prosecutors were charged
with conspiring to frame a man by the name of Rolando Cruz for murder. Cruz spent nearly 10 years
on Death Row before it became clear that the prosecution had suppressed evidence that another person
had committed the crime and that prosecutors had conspired with police officers to introduce a dream
statement of Cruzs into evidence at his original trial and two re-trials. A judge dismissed charges
against two of the prosecutors for insufficient evidence. (One later became an Illinois judgethe
other, an AUSA.) A jury acquitted the third after a 28-day trial. See Andrew Bluth, Prosecutor and 4
Sheriff s Deputies Are Acquitted of Wrongfully Accusing a Man of Murder, N.Y. Times, June 5, 1999,
at A9.
00089
10
The second such prosecution of a prosecutor is the Convertino case discussed above. Convertino led
the U.S. governments case in convicting two men on terrorism-related charges in 2003. Then-
Attorney General John Ashcroft asserted that the convictions sent a clear message that the DOJ
would work diligently to detect, disrupt and dismantle the activities of terrorist cells in the United
States and abroad. Danny Hakim, U.S. Asks for Dismissal of Terrorism Convictions, N.Y. Times,
Sept. 1, 2004, at A17. A little over a year later, however, the federal government asked the court to
throw out the convictions due, in part, to prosecutorial misconduct committed by the lead prosecutor,
Richard Convertino.
The DOJs Public Integrity Section eventually charged Richard Convertino with perjury, obstruction
of justice, and conspiracy in what may be the only time that the DOJ has ever charged an AUSA for
acts committed in his or her official capacity. Convertino was acquitted by a jury in October 2007 and
is now seeking reimbursement for attorney fees, alleging that the governments prosecution of him
was vexatious, frivolous or in bad faith. Ironically, Convertino is in essence asserting that the
prosecution against him was itself an act of prosecutorial misconduct.
Disciplinary Actions
Each state bar has a mechanism in place for the discipline of misconduct by attorneys licensed in that
state. Separately, federal courts may discipline attorneys who appear before them, which may result in
the suspension or disbarment of attorneys from that particular court. See, e.g., In re Kramer, 282 F.3d
721 (9th Cir. 2002). Further, the DOJs Office of Professional Responsibility (OPR) has
responsibility for investigating allegations of misconduct committed by AUSAs. It appears that these
procedures are rarely effective in dealing with prosecutorial misconduct.
The disciplinary action against Nifong is unusual in that not only did it result in disbarment, but
because it was initiated while charges against the Duke students were still pending. Recently, the
Center for Public Integrity conducted a study that found only 44 instances of disciplinary actions
against prosecutors since 1970. Of those 44:
in 7, the court dismissed the complaint or did not impose punishment;
in 3, the court remanded the case for further proceedings;
in 24, the court assessed the costs of the proceedings against the prosecutor;
in 20, the court imposed a public or private reprimand or censure;
in 1, the prosecutor was placed on probation;
in 12, the prosecutors license was suspended;
in 2, the prosecutor was disbarred.

Neil Gordon, Misconduct and Punishment: State Disciplinary Authorities Investigate Prosecutors
Accused of Misconduct (2007), http://www.publicintegrity.org/pm/default.aspx?act=sidebarsb&aid
=39; see generally Steve Weinberg et al., Ctr. for Pub. Integrity, Harmful Error: Investigating
Americas Local Prosecutors (2003). A follow-up to the Tulia case discussed above revealed that the
prosecutor, whose subornation of perjury and Brady violations led to the wrongful convictions of
scores of people, received two years of probation. See Disciplinary Actions, 68 Tex. B.J. 753, 758
(2005).
00090
11
The OPR has the authority to determine whether an AUSA committed professional misconduct in the
exercise of his or her authority to investigate, litigate or provide legal advice. U.S. Dept of Justice
Office of Profl Responsibility, Analytical Framework (rev. 2005), available at
http://www.usdoj.gov/opr/framework.pdf. Professional misconduct is defined as the intentional or
reckless disregard of an obligation or standard imposed by law, applicable rule of professional
conduct, or Department regulation or policy. Id. If the OPR determines that an AUSA committed
professional misconduct, it recommends a certain sanction to the attorneys supervisor. Available
sanctions range from a written reprimand to removal. The OPR may also refer the matter to the bar
disciplinary authority in the jurisdiction in which the attorney is licensed. See U.S. Dept of Justice
Office of Profl Responsibility, Policies & Procedures, available at http://www.usdoj.gov/opr/
polandproc.htm.
In 2001, a General Accounting Office report concluded that the OPR was ineffective in dealing with
prosecutorial misconduct. See News Advisory, U.S. House of Representatives, Committee on the
Judiciary, GAO Report Finds Significant Problems with Justice Departments Office of Professional
Responsibility (Feb. 20, 2001), available at http://www.judiciary.house.gov/legacy/news0220.htm. A
recent highly-publicized case illustrates the problem.
Chief Judge Mark Wolf of the U.S. District Court, District of Massachusetts found extraordinary
misconduct by the Department of Justice in its investigation and prosecution of members of the
Patriarca Family of La Cosa Nostra. Ferrara v. United States, 384 F. Supp. 2d 384, 387 (D. Mass.
2005), aff d, 456 F.3d 278 (1st Cir. 2006). Chief Judge Wolf found that AUSA Jeffrey Auerhahn,
violated [his] clearly established constitutional duty to disclose . . . before trial, important exculpatory
information that directly negated [Vincent Ferraras and Pasquale Barones] guilt on murder charges.
Id. The suppression of the evidence was intentional according to Chief Judge Wolf. See id. at 393
98. The First Circuit agreed, stating: [T]he governments actions in this case . . . paint a grim picture
of blatant misconduct. The record virtually compels the conclusion that this feckless course of
conduct . . . constituted a deliberate and serious breach of its promise to provide exculpatory
evidence. Ferrara v. United States, 456 F.3d 278, 293 (1st Cir. 2006) (footnote omitted).
The OPR investigated Auerhahn and concluded that he had acted in reckless disregard of his duty to
disclose exculpatory evidence. The sanction was a private written reprimand. Not satisfied, Chief
Judge Wolf initiated his own disciplinary action against Auerhahn and wrote then-Attorney General
Alberto Gonzales a letter on June 29, 2007 criticizing the OPR. Associate Deputy Attorney General
David Margolis replied by letter to Chief Judge Wolf, asserting that the discipline imposed by the
Department was consistent with, correlated to, and proportional with the findings that resulted from
OPRs investigation. Letter from David Margolis to The Honorable Mark L. Wolf (Oct. 2, 2007).
Still not satisfied, Chief Judge Wolf wrote Attorney General Michael Mukasey. In this letter, Chief
Judge Wolf noted that he assisted in the establishment of OPR, but now has serious questions about
whether judges should continue to rely upon the Department to investigate and sanction misconduct
by federal prosecutors. Letter from The Honorable Mark L. Wolf to The Honorable Michael B.
Mukasey (Jan. 2, 2008). The letters may be found in the court files of Barone v. United States, No.
98-11104 (D. Mass. 1998) and Ferrara v. United States, No. 00-11693 (D. Mass. 2000).
00091
12
Contempt
A court could exercise its contempt powers to curb prosecutorial misconduct that occurs in the
courtroom. However, [a]lthough contempt is frequently used to punish defense counsel for
misconduct, it is rarely used to punish prosecutors. Gershman, Misconduct, supra, 14:9 (footnote
omitted). Even when a trial court imposes contempt on a prosecutor, appellate courts rarely sustain
the charge. See id.; Lawless, supra, 13.35.
Appellate Court Action
If prosecutorial misconduct violates a defendants constitutional rights to a fair trial, the defendants
conviction might be overturned on appeal. Reversals of convictions, however, are limited by the
harmless-error doctrine, which generally precludes relief when the court finds that the defendant was
not fundamentally prejudiced by the prosecutorial misconduct. See Rose v. Clark, 478 U.S. 570
(1986). The Center for Public Integrity looked at 11,452 appellate cases since 1970 where
prosecutorial misconduct was an issue raised by the defendant. The study revealed that in 2,012 cases
the prosecutors misconduct was so serious that a dismissal of the charges, a reversal of conviction, or
a reduction in the imposed sentence was warranted. In thousands of others, prosecutorial misconduct
was found to have occurred, but was deemed to be harmless. Steve Weinberg, Breaking the Rules:
Who Suffers When a Prosecutor Is Cited for Misconduct? (2007), http://www.publicintegrity.org/
pm/default.aspx?act =main; see generally Weinberg et al., supra.
One should ask whether a reversal of a conviction adequately sanctions a prosecutor for misconduct
since the focus is on the defendant, rather than the prosecutor. Moreover, many have questioned
whether prosecutorial misconduct is adequately deterred when the harmless-error doctrine is
consistently applied. For example, one commentator has asserted that application of the rule is
tantamount to saying that if one is obviously guilty as charged, he has no fundamental right to be
tried fairly. Note, Prosecutor Indiscretion: A Result of Political Influence, 34 Ind. L.J. 477, 486
(1959); see also Rose, 478 U.S. at 58889 (Stevens, J., concurring) (An automatic application of
harmless-error review in case after case, and for error after error, can only encourage prosecutors to
subordinate the interest in respecting the Constitution to the ever-present and always powerful interest
in obtaining a conviction in a particular case.).
Another way appellate courts can address prosecutorial misconduct is by public rebuke. In Bank of
Nova Scotia v. United States, the Supreme Court stated that defendants should not be given a
windfall when they are not prejudiced by prosecutorial misconduct. 487 U.S. 250, 263 (1988). One
way to deal with prosecutorial misconduct when the defendants rights are not violated, according to
the Court, is for an appellate court to chastise the prosecutor in a published opinion. Id. The
effectiveness of this remedy has been questioned as well. An article in the Chicago Tribune series
noted that even when the prosecutors actions are criticized in appellate opinions, the courts usually do
not call out the prosecutors by name. According to the article, [t]he granting of anonymity isnt
mandated anywhere, but instead stems from tradition and professional courtesy. Armstrong &
Possley, Break Rules, supra. Moreover, even when prosecutors are named in appellate opinions, there
is little evidence that it adversely impacts that persons career or future conduct. See id.; supra Part
III.E (discussing the chastising of Robert H. Macy).
00092
13
Civil Liability
When being sued under federal civil rights laws, prosecutors often assert they are immune from
liability. The law is nuanced in this area, but prosecutors can be found liable. For example, a man by
the name of John Thompson spent 14 years on Death Row after an assistant district attorney destroyed
exculpatory evidence. A jury in the Eastern District of Louisiana awarded Thompson $14 million after
finding that the district attorney was deliberately indifferent to the need to train, monitor, and
supervise his prosecutors to comply with the constitutional requirements concerning production of
evidence favorable to an accused. Thompson v. Connick, No. 03-2045, 2007 WL 1200826, at *1
(E.D. La. April 23, 2007). The availability for redress under state tort law (e.g., malicious
prosecution) varies from jurisdiction to jurisdiction.
One avenue of relief for those wrongly prosecuted by the federal government is a Hyde Amendment
claim. See Department of Commerce, Justice, and State, the Judiciary and Related Appropriations Act
of 1998, Pub. L. No. 105-119, 617, 111 Stat. 2440 (codified at 18 U.S.C. 3006A Note). This law
provides for the recovery of attorney fees for prosecutions by the U.S. government that were
vexatious, frivolous, or in bad faith. To recover attorney fees, the defendant must be a prevailing
party. To determine whether a defendant is a prevailing party, courts look to the totality of the
circumstances. See, e.g., United States v. Campbell, 134 F. Supp. 2d 1104, 1107 (C.D. Cal. 2001),
aff d, 291 F.3d 1169 (9th Cir. 2002). Generally, a defendant prevails when he or she was completely
exonerated through voluntary dismissal of all charges without sanction, dismissal by way of a motion
of judgment for acquittal or dispositive motion, or through acquittal. Id. at 1108. Moreover, a
defendant is a prevailing party when the government dismisses the case with prejudice, and may or
may not be considered as such when the case is dismissed without prejudice. See United States v.
Gardner, 23 F. Supp. 2d 1283, 1292 (N.D. Okla. 1998).
CONCLUSION
The Nifong / Duke Lacrosse saga brought to the publics awareness the sad and disturbing nature of
prosecutorial overreaching. While Nifongs actions may have been particularly egregious, it is clear
that the problem of prosecutorial misconduct is nothing newit has simply taken place outside of
public view for the most part. It is also clear that, to date, there has not been an effective remedy to
this systemic problem. Hopefully something good can come out of the tragedy of the Duke case
public awareness of the need to hold prosecutors accountable for misconduct, and a newfound
willingness of the courts, bar associations, and the DOJ to impose harsher sanctions on wayward
prosecutors.
00093
Prosecutorial Misconduct 1
PROSECUTORIAL MISCONDUCT
J on Sands Steven Kalar Geoffrey Hansen
Federal Public Defender AFPD Chief Assistant Public Defender
Phoenix, Arizona San Francisco, California San Francisco, California
Chris Miles Peter Davids J onathan Katchen
R&W Attorney, FPD Associate Assistant Attorney General
San Francisco, California J ones Day State of Alaska, Dept. of Law
The United States Attorney is the representative not of an ordinary party to a controversy,
but of a sovereignty whose obligation to govern impartially is as compelling as its
obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not
that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very
definite sense the servant of the law, the twofold aim of which is that guilt shall not
escape or innocence suffer. He may prosecute with earnestness and vigor indeed, he
should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones.
It is as much his duty to refrain from improper methods calculated to produce a wrongful
conviction as it is to use every legitimate means to bring about a just one.
Berger v. United States, 295 U.S. 78, 88 (1935)
. . . it is the responsibility of the United States Attorney and his senior staff to create a
culture where win-at-any-cost prosecution is not permitted. Indeed, such a culture must
be mandated from the highest levels of the United States Department of J ustice and the
United States Attorney General. It is equally important that the courts of the United
States must let it be known that, when substantial abuses occur, sanctions will be imposed
to make the risk of non-compliance too costly.
United States v. Shaygan, 661 F.Supp.2d 1289, 1292 (S.D.Fla. 2009)
The Court finds [the governments] explanation wholly incredible.
United States v. Stevens, 593 F.Supp.2d 177, 181 (D.D.Ct. 2009)
00094
Table of Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
I. Policing the Prosecutors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
A. Ethical Immunity Before 1998. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
B. The Citizens Protection Act of 1998, 28 U.S.C. 530B . . . . . . . . . . . . . . 5
C. The Hyde Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
D. Criminal Contempt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
E. Case Remedies - Mistrial, Dismissal, J ury Instruction . . . . . . . . . . . . . . . 9
II. Winning-At-All-Costs: Prosecutorial Misconduct During Various Phases of a Criminal
Prosecution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
A. Pre-Indictment Investigation and The Grand J ury . . . . . . . . . . . . . . . . . . 10
1. Subpoenas to Defense Counsel . . . . . . . . . . . . . . . . . . . . 10
2. Pre-indictment Contact with Represented Witnesses . . . 11
3. Exculpatory Evidence Before the Grand J ury . . . . . . . . . 12
4. Miscellaneous Prosecutorial Misconduct Within the Grand
J ury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
B. Brady, Due Process, and State Ethical Rules on Discovery . . . . . . . . . . 14
C. Prosecutorial Misconduct During Trial . . . . . . . . . . . . . . . . . . . . . . . . . . 19
1. Misconduct During J ury Selection . . . . . . . . . . . . . . . . . 19
2. Improper Conduct During Opening Statements . . . . . . . 19
3. Ethical Problems with Government Witnesses and Trial
Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
4. Improper Closing Arguments . . . . . . . . . . . . . . . . . . . . . 21
D. Broken Promises: Breached Pleas at Sentencing. . . . . . . . . . . . . . . . . . . 26
III. Normalizing J ustice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
A. The Proposed Expansion of Rule 16 and DOJ s Opposition . . . . . . . . . . 27
B. For the Defense Commentators Opinions and Recommendations . . . 29
Parting Thoughts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Appendices
00095
Introduction
Most experienced practitioners would agree that the vast majority of federal prosecutors
behave in an ethical manner, and would further agree that federal prosecutorial misconduct has
been the exception, rather than the rule. As will be described in greater detail below, federal
prosecutorial misconduct is now a local inquiry as well as a constitutional inquiry after 1998,
state ethical rules now also bind federal prosecutors. Therefore, while this outline may be a
useful starting point, counsel should be encouraged to turn to state bar rules of professional
responsibility and, if questions arise, consult an ethics hotline.
I. Policing the Prosecutors
A. Ethical Immunity Before 1998
Before the late1990's, the system of ethical rules and restraints that constrained any other
attorney including defense counsel did not apply to federal prosecutors. As will be discussed
in greater depth below, Congressman McDades 1998 Citizens Protection Act (CPA or
530B) revolutionized the application of state rules to federal prosecutors in ways that have
still not been fully explored. Even before J oseph McDade successfully slipped the CPA into
law, however, national discontent about the special treatment of federal prosecutors had been
brewing.
Before 1998, federal prosecutors could be sanctioned for ethical misconduct by the
federal court in which they practiced, or by the Department of J ustice. Many commentators
including federal judges were (and remain) dubious of the governments ability to self-regulate
its attorneys. See, e.g., Lynn R. Singband, THE HYDE AMENDMENT AND PROSECUTORIAL
INVESTIGATION: THE PROMISE OF PROTECTION FOR CRIMINAL DEFENDANTS, 28
FORDHAM URB. L.J . 1967, 1978 (Aug. 2001) (discussing the creation and limitations of the
DOJ Office of Personal Responsibility (OPR.)). In 1993, Ninth Circuit J udge Kozinski, for
example, openly questioned the failure of the United States Attorney to supervise the ethical
behavior of its AUSAs:
How can it be that a serious claim of prosecutorial misconduct
remains unresolved even unaddressed until oral argument in
the Court of Appeals? Surely when such a claim is raised, we can
expect that someone in the United States Attorneys office will
take an independent, objective look at the issue. The claim here
turned entirely on verifiable facts: A dispassionate comparison
between the transcript of the AUSA's statement to the jury and
Nourian's plea agreement would have disclosed that the defense
was right and the government was wrong. Yet the United States
Attorney allowed the filing of a brief in our court that did not own
up to the problem, a brief that itself skated perilously close to
misrepresentation.
United States v. Kojayan, 8 F.3d 1315, 1320 (9th Cir. 1993).
00096
Despite the shortcomings of self-regulation, it was the common view that a federal
prosecutor was not subject to state or local ethical rules or restraints. This view was based on the
position that the Supremacy Clause of the United States Constitution preempted state regulation
of federal prosecutors, practical arguments about conflicts of local state rules arising in a
national federal practice, and a healthy dose of self-interest from the Department of J ustice.
Two issues helped to sharpen the debate over the propriety of an exemption for federal
prosecutors from state ethical rules. See Fred C. Zacharias, Bruce A. Green, The Uniqueness of
Federal Prosecutors, 88 GEO. L.J . 207, 213 (2000). The first of these issues related to attorney
contact of represented parties. Though such contact was widely prohibited by state local rules,
in 1989 Attorney General Thornburgh distributed an infamous memorandum that purported to
exempt federal prosecutors. This memorandum was controversial both within and outside of the
legal community. See Dick Thornburgh, Ethics and the Attorney General: The Attorney General
Responds, 74 J udicature 290 (April/May 1991) (Given the normally high quality of the articles
in J udicature, I had hoped to see a discussion of the Department of J ustices policy on contacting
representing persons that was free of the near-hysteria that has punctuated articles written by
some members of the defense bar.)
The second debate focused on a prosecutors ability to subpoena witnesses. Zacharias &
Green, supra at 212; see also Stern v. United States District Court, 214 F.3d 4, 7 (1st Cir. 2000)
(The 1980s witnessed a dramatic increase in the number of subpoenas served on defense
attorneys by federal prosecutors. The reasons for this trend are difficult to pinpoint, but some
commentators have linked it with heightened efforts to fight organized crime and drug-
trafficking, new forfeiture laws, and an unprecedented expansion of the Department of J ustice
(DOJ ).)
In the wake of the controversy of the Thornburgh memorandum, in 1994 Attorney
General J anet Reno issued formal regulations which continued the exemption for federal
prosecutors from state ethical violations, but promised voluntary compliance with most
professional rules (the Reno Rule.) Zacharias & Green, supra at 212; see also
Communications With Represented Persons, 59 FR 39910-01 (Aug. 4, 1994) (containing text of
the Reno Rule regarding contact with represented persons).
Also fueling the fire of this ethical debate were a number of developments that sharpened
the adversarial process and directly impacted the criminal defense bar, including federal grand
jury subpoenas to defense attorneys, forfeiture of funds paid by defendants to retained counsel,
and non-discretionary sentencing provisions in the Federal Sentencing Guidelines. See Rory K.
Little, Who Should Regulate the Ethics of Federal Prosecutors?, 65 FORDHAM L. REV. 355, Oct.
1996; see also Note, Federal Prosecutors, State Ethics Regulations, and the McDade
Amendment, 113 HARV. L. REV. 2080, 2083 (2000) (discussing three Model Rules of Ethics that
prompted national debate on state ethical limitations on federal prosecutors).
Outside of the national limelight of this ethical debate, however, a federal criminal
prosecution was brewing a prosecution which led to a further attempt to formally regulate
federal prosecutors.
00097
1
http://www.nytimes.com/1992/05/06/us/top-republican-on-a-house-panel
-is-charged-with-accepting-bribes.html?pagewanted=1 (last visited 4/7/10)
2
Id.
3
The Citizens Protection Act is referred to as the CPA or, more frequently, 530B.
B. The Citizens Protection Act of 1998, 28 U.S.C. 530B
In 1992, Pennsylvania Congressional Representative J oseph McDade was indicted with
five federal counts relating to bribery. While Congressman McDade admitted that errors had
been made, he denied the allegations.
1
He kept his seat in office and four years later was
acquitted by a jury of all of the charges. Zacharias & Green, supra at 212.
McDade complained that federal prosecutors had turned his life into a living nightmare
and had harassed and hounded him.
2
In his role as a criminal defendant, he filed a number of
motions alleging prosecutorial misconduct all of which were denied. See, e.g., United States v.
McDade, No. 92-249, 1992 WL 187036, at *2 (E.D. Pa. J uly 30, 1992) (discussing motion to
dismiss arising from prosecutors alleged conflict of interest).
Stinging from his recent personal experiences with federal prosecutors, McDade
introduced in the House of Representatives a version of the Citizen Protection Act which would
have imposed state and local ethical rules on federal prosecutors (as well as a number of other,
wide-ranging changes). That bill was killed in committee, and a re-introduced bill the following
year also never made it out of committee. Zacharias & Green, supra, at 214-15. Finally, in 1998
the CPA was introduced as a rider to an appropriations bill, and was passed without ever clearing
committee much to the chagrin of (DOJ advocate) Senator Hatch. Id. at 215. The bills unique
road to passage was a source of later criticism from DOJ allies and sparked later efforts at repeal;
efforts that were unsuccessful. See, e.g., NAAUSA Initiatives, Federal Prosecutor Ethics Act,
http://www.naausa/org./ initiatives/ethics.htm (visited Feb. 18, 2003) (discussing congressional
testimony of national AUSA representative against CPA and describing alternative bills
proposed).
The Citizens Protection Act has been codified at 28 U.S.C. 530B.
3

530B. Ethical standards for attorneys for the Government
(a) An attorney for the Government shall be subject to State laws and rules, and local
Federal court rules, governing attorneys in each State where such attorney engages in that
attorney's duties, to the same extent and in the same manner as other attorneys in that State.
(b) The Attorney General shall make and amend rules of the Department of J ustice to
assure compliance with this section.
(c) As used in this section, the term attorney for the Government includes any attorney
00098
described in section 77.2(a) of part 77 of title 28 of the Code of Federal Regulations and
also includes any independent counsel, or employee of such a counsel, appointed under
chapter 40.
28 U.S.C. 530B (West 2003). Section 530B has been worked into the Code of Federal
Regulations (CFR) and integrated into the United States Attorneys Manual. See, e.g., 28 CFR
77.3 (applying 28 U.S.C. 530B to all attorneys for the government involved in, among other
actions, all criminal investigations and proceedings); U.S.A.M. 9-13.200 (2005) (Department
attorneys are governed in criminal and civil law enforcement investigations and proceedings by
the relevant rule of professional conduct that deals with communications with represented
persons.).
As will be discussed in greater depth infra, remedies for violation of the CPA may be
sparse. In one of the few published cases on the new statute and regulations, the Eleventh
Circuit rejected the idea that a violation of a state ethical rule would support suppression of
evidence in federal court. See United States v. Lowery, 166 F.3d 1119, 1124-25 (11th Cir. 1999)
(Assuming for present purposes that the rule is violated when a prosecutor promises a witness
some consideration regarding charges or sentencing in return for testimony, a state rule of
professional conduct cannot provide an adequate basis for a federal court to suppress evidence
that is otherwise admissible.) Similarly, in United States v. Syling, the court held that any state
ethical standards would not override the law governing presentation of [exculpatory] evidence
at grand jury proceedings. 553 F.Supp.2d 1187, 1192 (D.Haw. 2008). Indeed, the CFR itself
provides that 530B should not be construed in any way to alter federal substantive,
procedural, or evidentiary law or to interfere with the Attorney General's authority to send
Department attorneys into any court in the United States. 28 CFR 77.1.
The First Circuit has flatly refused to view the CPA as an inroad for state (or local)
regulation of federal prosecutors in federal court. See Stern, 214 F.3d at 19. In Stern, the First
Circuit rejected a local rule from the District of Massachusetts that required judicial
authorization for grand jury subpoenas of defense attorneys. Id. Despite the clear language of
the CPA, the Court in Stern concluded that Congress did not mean to empower state (or federal
district courts, for that matter) to regulate government attorneys in a manner inconsistent with
federal law. Id.
Nonetheless, other federal courts have conceded that 530B does extend state ethical
rules to federal prosecutors. See J ennifer Blair, The Regulation of Federal Prosecutorial
Misconduct by State Bar Associations, 28 U.S.C. 530B and the Reality of Inaction, 49 UCLA
L. REV. 625, 637 (Dec. 2001) (collecting federal authority acknowledging the extension of state
ethical rules to federal prosecutors after 28 U.S.C. 530B). One of the most thoughtful of these
decisions is United States v. Colorado Supreme Court, 189 F.3d 1281 (10th Cir. 1999). In that
case, the Tenth Circuit held that in light of 530B a Colorado state ethical rule prohibiting
federal prosecutors [from] subpoenaing attorneys to divulge information on past and present
clients in connection with a criminal proceeding other than a grand jury, was not inconsistent
with federal law in violation of the Supremacy Clause of the United States Constitution. Id. at
1288-89.
00099
4
See Boston AUSA Faces J udicial Panel Over Alleged Misconduct,
http://www.mainjustice.com/2010/01/22/boston-ausa-faces-judicial-panel-regarding-alleged-mis
conduct/ (last visited 4/9/10).
5
Id.
The ultimate impact of 530B on federal prosecutors remains an open question one
commentator has discovered that during a year-and-a-half long period only one federal
prosecutor was disciplined out of the 1767 lawyers punished by ten state bar organizations.
Blair, supra, at 641 (If punishment for prosecutors was previously lax, one federal prosecutor
disciplined out of the 1767 lawyers punished by ten state bar associations from April 1999 until
December 2000 does virtually nothing to increase the regulation of unethical behavior by federal
prosecutors.)
Courts appear reluctant to file a complaint with a state bar organization. Currently, at
least one federal prosecutor is in state disciplinary proceedings after allegedly withholding
exculpatory evidence in a case.
4
The district court judge on that case filed the letter of complaint
with state bar counsel after learning that DOJ had only issued a written reprimand to the
prosecutor.
5
Another district court judge has reserved the right to impose any further sanctions
and/or disciplinary measures as may be necessary against [the federal prosecutors] after
reviewing the results of the J ustice Departments investigation. United States v. Shaygan, 661
F.Supp.2d 1289, 1325 (S.D. Fla 2009).
C. The Hyde Amendment
Another champion of ethical restraints on federal prosecutors has been Congressman
Hyde. In 1997, his infamous Hyde Amendment exposed the federal government to civil
liability for criminal lawsuits that are vexatious, frivolous, or in bad faith:
Attorney Fees and Litigation Expenses to Defense
Pub.L. 105-119, Title VI, 617, Nov. 26, 1997, 111 Stat. 2519, provided that: "During
fiscal year 1998 and in any fiscal year thereafter, the court, in any criminal case (other
than a case in which the defendant is represented by assigned counsel paid for by the
public) pending on or after the date of the enactment of this Act [Nov. 26, 1997], may
award to a prevailing party, other than the United States, a reasonable attorney's fee and
other litigation expenses, where the court finds that the position of the United States was
vexatious, frivolous, or in bad faith, unless the court finds that special circumstances
make such an award unjust. Such awards shall be granted pursuant to the procedures and
limitations (but not the burden of proof) provided for an award under section 2412 of title
28, United States Code. To determine whether or not to award fees and costs under this
section, the court, for good cause shown, may receive evidence ex parte and in camera
(which shall include the submission of classified evidence or evidence that reveals or
might reveal the identity of an informant or undercover agent or matters occurring before
a grand jury) and evidence or testimony so received shall be kept under seal. Fees and
00100
6
Larry Breuer, head of DOJ s Criminal Division, speaking at the ABAs white collar
crime conference, called on the defense bar to refrain from terming discovery violations as
endemic stating that nothing could be further from the truth. He criticized those who think it
is acceptable to use motions for sanctions, or threats of OPR referrals, as a way to gain some sort
of strategic litigation advantage. http://www.mainjustice.com/2010/02/25/
breuer-tells-white-collar-bar-to-ease-up-on-prosecutors/ (last visted 4/12/10).
7
This Champion article is an excellent starting point for any Hyde Amendment
litigation, and includes a useful check-list for defense counsel to review before initiating a Hyde
Amendment petition.
other expenses awarded under this provision to a party shall be paid by the agency over
which the party prevails from any funds made available to the agency by appropriation.
No new appropriations shall be made as a result of this provision.
18 U.S.C. 3006A, stat. history (West 2003).
Like 530B, the Hyde Amendment had its origins in the eight-year prosecution of
Congressman McDade. See Singband, supra at 1981-82; see also United States v. Gilbert, 198
F.3d 1293, 198-99 (11th Cir. 1999) (tracing legislative history of the Hyde Amendment). The
Hyde Amendment has had some recent success in federal courts. See id. at 1986-88 (collecting
Hyde Amendment cases). See also United States v. Aisenberg, No. 899-CR-324-T23 MAP, 2003
WL 403071, *39 (M.D. Fla. J an. 31, 2003) (Pursuant to the Hyde Amendment, the Aisenbergs
are entitled to a reasonable attorney's fee in the amount of $2,680,602.22 and other litigation
expenses in the amount of $195,670.32.); United States v. Shaygan, 661 F.Supp.2d 1289, 1324
(S.D.Fla 2009) (attorneys fees and costs in the amount of $601,795.88 awarded to the
defendant); United States v. Claro, 579 F.3d 452, 456 (5th Cir. 2009) (noting the district court
awarded and government paid $391,292.29 in attorneys fees pursuant to Hyde Amendment);
United States v. Adkinson, 247 F.3d 1289 (11th Cir. 2001) (determining that defendants were
entitled to attorneys fees where government included bank fraud in conspiracy indictment with
knowledge that it was precluded by controlling precedent). See also Brown v. United States, SA-
03-CV-0792-WRF (W.D.Tex. 2007)(wherein parties reached settlement agreement and
government agreed to pay plaintiff $1,340,000 to settle plaintiffs complaint filed under the
Federal Tort Claims Act based on nature of governments criminal investigation and prosecution
of plaintiffs).
The Hyde Amendment certainly heightened the sensitivity of the DOJ to charges of
vexatious prosecution. See Elkan Abramowitz, Peter Scher, The Hyde Amendment: Congress
Creates a Toehold for Curbing Wrongful Prosecution, THE CHAMPION (Mar. 1998) (discussing
aggressive DOJ stance against Hyde Amendment before its adoption). The courts recent awards
suggest that the federal defense bar should continue to push for such recourse against the
government for wrongful prosecutions.
6
See also Dick DeGuerin, Neal Davis, If They Holler,
Make Em Pay . . . The Hyde Amendment, THE CHAMPION (Sept./Oct. 1999).
7
00101
8
http://www.mainjustice.com/2009/10/21/welch-to-step-down-as-public-integrity-chief/
(last visited 4/9/10).
9
On appeal, the Ninth Circuit held that the mistrial was supported by a valid
determination of manifest necessity and thus, a retrial of the defendant would not violate the
Double J eopardy Clause. Chapman, 524 F.3d 1073, 1083-84 (9th Cir. 2008)
D. Criminal Contempt
The five DOJ employees who prosecuted Senator Ted Stevens in United States v. Stevens
are currently the subject of criminal contempt proceedings instigated by U.S. District Court
J udge Emmet Sullivan based in part on allegations of Brady and Giglio violations.
8
J udge
Sullivan appointed a special counsel to examine the conduct of the prosecutors after the J ustice
Department moved to dismiss the case with prejudice. The DOJ s Office of Professional
Responsibility is conducting a simultaneous investigation. Both reports are due to be completed
in the near future.

E. Case Remedies - Mistrial, Dismissal, Jury Instruction
Unethical behavior or improper methods by the prosecutor may result in a mistrial or a
reversal of a conviction where the methods so infect the trial with unfairness as to make the
resulting conviction a denial of due process. Darden v. Wainwright, 477 U.S. 168, 181 (1986).
In United States v. Ted Stevens, the government itself motioned to set aside the verdict and
dismiss the case with prejudice based on admitted Brady violations. The judge voided the
conviction. In United States v. Chapman, the district court determined that the prosecutor
violated both Brady and Giglio and the district court declared a mistrial. 524 F.3d 1073, 1083-
84 (9th Cir. 2008).
9
Following a hearing on the matter, the district court judge dismissed the
indictment with prejudice. Id. In United States v. W.R. Grace, CR 05-07-M-DWM (D.Mt
2009), based on the governments Brady and Giglio violations, the court explained to the jury
why the government would not be permitted to do any redirect examination of one of the
governments main witnesses and why they should view any proof offered by [that main
witness] with skepticism. See Appendix A W.R. Grace Jury Instruction. The court instructed
the jury, in part, that, the Department of J ustice and the United States Attorneys Office have
violated their constitutional obligation to the defendants and they have violated orders of the
court. Id.
At the appellate level, review of prosecutorial misconduct . . . consists of a two part test:
first, was the prosecutors conduct actually improper; second, did the misconduct, taken in the
context of the trial as a whole, violate the defendants due process rights. Andrew M.
Hetherington, Prosecutorial Misconduct, 90 GEO. L.J . 1679 (May 2002). In evaluating the
seriousness of the misconduct, courts will find harmless error if the misconduct was not severe,
effective curative measures were taken by the trial court, or if the weight of evidence made
conviction certain absent the improper conduct. Id. at 1689 (footnotes omitted). Some courts
will additionally consider whether the misconduct was deliberately or accidentally made [and]
the extent to which the defense was able to counter the improper conduct with rebuttal, or both,
00102
10
Because this state rule is based on rules from ABA Standards of Criminal J ustice
Relating to the Prosecution Function, the conflict between this state ethical rule and federal
action is likely to arise more frequently. A non-exhaustive list of states that have adopted Model
Rule 3.8, Special Responsibilities of a Prosecutor, (or a substantially-similar rule), includes
Arizona, Colorado, Arkansas, Connecticut, Delaware, Indiana, Kansas, Maryland, Michigan,
New J ersey, Massachusetts, Rhode Island, South Carolina, and West Virginia. California is
currently proposing such an adoption. See, e.g., http://calbar.ca.gov/calbar/pdfs/public-comment
/2009/Revision-Rules-Professional-Conduct-11-Rules_11-13-09.pdf (comparing and contrasting
other states adoption and Californias proposed changes) (last visited 4/9/10); Arizona v.
Talmadge, 999 P.2d 192, 197 (Az. S. Ct. 2000) (discussing E.R. 3.8, Arizona Rules of
Professional Conduct); Colorado v. Mucklow, 35 P.3d 527, 534 (Co. S.Ct. 2000) (discussing
Colo. RPC 3.8(d)); Arkansas R. Prof. Conduct 3.8 (West 2002); Connecticut Rule Prof. Conduct
3.8 (West 2002); Del. R. Prof. Conduct 3.8 (West 2002); Indiana R. Prof. Conduct 3.8 (West
2003); Kansas v. Dimaplas, 978 P.2d 891, 894 (Ka. S.Ct. 1999); Md. R. Prof. Conduct 3.8 (West
to their evaluation of the seriousness of misconduct. Id.
The one, universal lesson from all authority regarding remedies for prosecutorial
misconduct is the need to object to preserve the error. Timidity in the face of prosecutorial
misconduct will injure the client on later appellate review, where the (nearly insurmountable)
plain error standard will be applied.
II. Winning-At-All-Costs: Prosecutorial Misconduct During Various Phases of a
Criminal Prosecution
With the McDade and Hyde laws in hand and remedies in mind, we turn to examples of
prosecutorial misconduct as they arise during various stages of a criminal prosecution and
investigation.
A. Pre-Indictment Investigation and The Grand Jury
1. Subpoenas to Defense Counsel
Grand jury misconduct was one of the ethical issues that sparked the McDade revolution,
and yet five years after 530B was enacted, it still remains an unsettled issue. One of the most
controversial aspects of grand jury practice has been the issuance of a grand jury subpoena to
defense counsel, to secure information about a counsels client. The American Bar Association
has promulgated model ethical rules that limit this type of grand jury subpoena. See Appendix B,
ABA Model Rule of Professional Conduct 3.8(e). Because the ABA Model Rules have been
adopted in many states, after 530B the issue is ripe for conflict in federal court. State ethical
rules in Colorado provide a good example of the problem.
Grand jury subpoenas to defense counsel on the subject of their representation are
prohibited by Colorado state ethical rules. See Appendix C, Colorado State Rule of Professional
Conduct 3.8, Special Responsibilities of a Prosecutor.
10
The federal governments policy of
00103
2002); Michigan R. Prof. Conduct 3.8 (West 2003); New Jersey v. Torres, 744 A.2d 699, 708
(N.J . S. Ct. 2000) (discussing R.P.C. 3.8); In re: Grand Jury Investig., 15 Mass. L. Rptr. 354
(Super. Ct. Mass. 2002) (mem.) (discussing Mass. R. Prof. Conduct 3.8(f)); RI Rule Prof.
Conduct 3.8 (West 2002); South Carolina v. Quattlebaum, 338 S.E.2d 105, 109 (S.C. S. Ct.
2000) (discussing South Carolina R. Prof. Conduct 3.8); West Va. R. Prof. Conduct 3.8 (West
2002).
forcing defense counsel to testify regarding their clients thus became an issue for the Tenth
Circuit. See United States v. Colorado Supreme Court, 189 F.3d 1281, 1284 & n.3 (10th Cir.
1999).
The Tenth Circuit noted that before 530B (McDades Citizen Protection Act) was
adopted there had been a circuit split on the issue of federal grand jury subpoenas to defense
counsel, over state ethical prohibitions. See United States v. Colorado Supreme Court, 189 F.3d
1281, 1284 & n.3 (10th Cir. 1999) (discussing contrary authority permitting, and striking, local
rules limiting federal government grand jury subpoenas of defense counsel). In Colorado
Supreme Court, the Tenth Circuit managed to avoid the grand jury issue because that particular
aspect of the Colorado state rule was not appealed. Id. at 1284.
The short, and unsatisfying, answer is that there is now no definitive authority on whether
530B extends state ethical prohibitions on grand jury subpoenas to defense counsel. See
Brenner & Shaw, Federal Grand Jury: A Guide To Law And Practice, FED. GRAND J URY 13.5
(discussing conflicting authority on issue and Department of J ustice Guidelines).
If faced with such a subpoena, the first step should be to turn to state ethical rules to see
whether they prohibit such action (likely to be found in Rule 3.8, adopted from the ABA Model
Rule). Defense counsel will then need to argue that this state ethical rule has been extended to
the federal prosecutor by virtue of 28 U.S.C. 530B, and that this statute trumps any Supremacy
Clause issues.
2. Pre-indictment Contact with Represented Witnesses
Does a federal prosecutor violate state ethical rules when he or she speaks to a
represented witness before indictment? That was the question before the Ninth Circuit in one of
the lead cases on the subject, United States v. Talao, 222 F.3d 1133 (9th Cir. 2000). In Talao, a
federal prosecutor spoke to an employee of a corporation that was represented by counsel
before indictment, and while that corporate counsel was banging on the door of the interview
room. Id. at 1136. The district court held that the prosecutor had violated California ethical rule
2-100, prohibiting contact with represented persons. Id. at 1136. The Ninth Circuit reversed, but
not before articulating several important rules regarding federal prosecutors, ethics, and contact
with represented persons.
As an initial matter, it was by no means clear that pre-indictment contact with
represented persons was prohibited. The Court turned to the Second Circuits decision in United
States v. Hammand, 858 F.2d 834 (2d Cir. 1988), and concluded that there was no bright-line
00104
11
The case had already undergone a civil investigation, a qui tam action, an corporate
counsel had already initiated settlement discussions with the government. Talao, 222 F.3d at
1139.
categorical rule on the issue. Id. at 1139. The Ninth Circuit concluded that in the pre-indictment
procedural context of the Talao case, there were fully defined adversarial roles
11
that triggered
the ethical prohibition. Id.
The Court also was not troubled by the controversy over DOJ s previous position and the
Thornburgh memorandum, which permitted contact with represented witnesses. Id. at 1139-40.
The Ninth Circuit flatly concluded that 28 U.S.C. 530B made state ethical rules applicable to
federal attorneys, which dissipated any previous dispute. Id. at 1140.
The Court in Talao ultimately let the prosecutor off of the ethical hook, however, because
it concluded that in the unique circumstances of a disgruntled employee seeking to distance
herself from corporate counsel an employee who was alleging subornation of perjury by the
lead defendant Rule 2-100 did not preclude contact. Id. at 1140.
The Talao case is notable because it un-hesitantly extends state ethical rules to federal
prosecutors, extends the prohibition of represented-witness contact to the pre-indictment context,
and it suggests that under a less-unique factual setting the disciplinary referral would have stood.
3. Exculpatory Evidence Before the Grand Jury
Consider the following hypothetical: The defendant is charged with being a felon in
possession of a gun, in violation of 18 U.S.C . 922(g)(1). During his arrest, his girlfriend
protests that it was her gun, and that the defendant was unaware that the weapon was in the
house. Need the AUSA present the girlfriends exculpatory statement to the grand jury before
indictment?
The federal rule before 530B has been that a federal prosecutor need not present
exculpatory evidence to the grand jury. See United States v. Williams, 504 U.S. 36, 52 (1992)
(Imposing upon the prosecutor a legal obligation to present exculpatory evidence in his
possession would be incompatible with this [grand jury] system.) Yet, despite the Williams rule,
the United States Attorneys Manual states that when an AUSA is personally aware of
substantial evidence that directly negates the guilt of a subject of the investigation, the
prosecutor must present or otherwise disclose such evidence to the grand jury before seeking an
indictment against such a person. U.S.A.M. 9-11.233 (2008). The Manual also states that an
indictment should not be dismissed for a violation of this policy, but appellate courts may refer
prosecutors to the DOJ Office of Professional Responsibility for review if they violate the
policy. Id.
Since enactment of 530B, a district court has held that any state ethical standards
requiring the presentation of exculpatory evidence would not override the law governing
00105
12
Interestingly, the government did not make an appearance in the appeal.
13
One leading case authorizing a dismissal of an indictment for prosecutorial misconduct
is Bank of Nova Scotia v. United States, 487 U.S. 250, 256 (1988) (discussing harmless error
standard for dismissal of an indictment, and contrasting dismissal for errors deemed
fundamental).
presentation of [exculpatory] evidence at grand jury proceedings. United States v. Syling, 553
F.Supp.2d 1187, 1192 (D.Haw. 2008). The district courts opinion did not address any
prosecutorial obligations created by the United States Attorneys Manual.
4. Miscellaneous Prosecutorial Misconduct Within the Grand Jury
If it is true that an experienced prosecutor can get a grand jury to indict a ham sandwich,
then why would an AUSA cut corners to get an indictment? While unethical behavior before a
grand jury seems particularly unnecessary, it nonetheless occurs. A good summary of prohibited
acts can be found in United States v. Samango, 607 F.2d 877 (9th Cir. 1979).
In Samango, an indictment was dismissed by a federal district judge in Hawaii. Id. at
878.
12
Samango was a witness called before the grand jury relating to a cocaine importation case
from Tahiti. Id. The AUSA informed the grand jury of his dissatisfaction with Samangos
performance under a non-pros agreement, chided the witness when he asked to see counsel,
insinuated that the witness was lying and threatened to charge him as a defendant. Id. at 879.
The AUSA later sought a sanitized indictment by dumping 1,000 pages of transcript on the
grand jury, and telling them that he had a deadline for their consideration eight days later. Id.
The Ninth Circuit conceded that an attack against an indictment based on incompetent or
inadequate evidence was not possible. Id. at 880-81 & n.6. The Court observed, however, that
dismissal of an indictment can be appropriate to protect the integrity of the judicial process . . .
particularly the functions of the grand jury, from unfair or improper prosecutorial conduct. Id.
at 877 (internal citations and quotations omitted).
13
This was such a case; Although deliberate
introduction of perjured testimony is perhaps the most flagrant example of misconduct, other
prosecutorial behavior, even if unintentional, can also cause improper influence and usurpation
of the grand jurys role. Id. at 882.
Other prosecutorial misconduct may be grounds to dismiss the indictment. An AUSA
may not ask questions of a grand jury witness solely to discredit the witness. United States v.
DiGrazia, 213 F. Supp. 232, 234 (N.D. Ill. 1963).
While this may seem self-evident, the government may not rely on perjured testimony to
secure an indictment before the grand jury. United States v. Useni, 516 F.3d 634, 656 (7th Cir.
2008); United States v. Basurto, 497 F.2d 781, 785-86 (9th Cir. 1974) (We hold that the Due
Process Clause of the Fifth Amendment is violated when a defendant has to stand trial on an
indictment which the government knows is based partially on perjured testimony, when the
perjured testimony is material, and when jeopardy has not attached. Whenever the prosecutor
00106
14
Note that there is no per se ban on hearsay evidence before the grand jury. Although
there is no prohibition on the use of hearsay evidence before a grand jury, our decision in United
States v. Estepa, 471 F.2d 1132 (2d Cir. 1972), indicates that extensive reliance on hearsay
testimony is disfavored. More particularly, the government prosecutor, in presenting hearsay
evidence to the grand jury, must not deceive the jurors as to the quality of the testimony they
hear. Hogan, 712 F.2d at 761.
learns of any perjury committed before the grand jury, he is under a duty to immediately inform
the court and opposing counsel and, if the perjury may be material, also the grand jury in
order that appropriate action may be taken.).
Often it is the cumulative impact of grand jury misconduct that will cost the government
an indictment. In United States v. Hogan, 712 F.2d 757 (2d Cir. 1983), the Court upheld
dismissal of an indictment when the AUSA portrayed the defendant as a hoodlum in front of
the grand jury, relied too heavily on hearsay evidence,
14
and presented false DEA testimony. Id.
at 761 (In summary, the incidents related are flagrant and unconscionable. Taking advantage of
his special position of trust, the AUSA impaired the grand jurys integrity as an independent
body.).
Another critical rule is the donut ban: an AUSA shouldnt bond with grand jurors by
bringing them donuts at the beginning of their deliberations. United States v. Breslin, 916 F.
Supp. 438, 442 (E.D. Pa. 1996). It is also improper to rush the grand jurys deliberations by
suggesting that the assigned time was short, to make improper characterizations of the evidence,
to suggest that live witness testimony was unavailable, or to warn that the statute of limitations
was about to run on the charges. Id. at 442.
While the DiGrazia case is a useful laundry list of prosecutorial misconduct before the
grand jury, the opinion is depressingly candid about a defendants chances to prevail on such a
claim. It is rare that defendants have sufficient information from Jencks material to find a basis
for a motion to dismiss. It is unusual that the trial judge would be required to review sufficient
material presented to the grand jury to develop a concern for the cumulative unfairness of the
grand jury proceedings. Id. at 446.
B. Brady, Due Process, and State Ethical Rules on Discovery
Even before state ethical obligations were extended to federal prosecutors, some federal
courts did not hesitate to impose sanctions for prosecutorial misconduct relating to Brady
violations. One inspiring example is found in United States v. Ramming, 915 F. Supp. 854 (S.D.
Texas 1996). In that case, the district court carefully chronicled the various Brady and Giglio
violations of the federal government in a banking prosecution. Id. at 868. The court concluded,
the governments contentions of equal access, neutral evidence, that the defendants were aware
of the information possessed by the Grand J ury, that the testimony was merely impeachment,
and that they acted in good faith, is incredible. Only a person blinded by ambition or ignorance
of the law and ethics would have proceeded down this dangerous path. Id. (emphasis added).
The defendants motion to dismiss because of prosecutorial misconduct was granted. Id.
00107
15
See Gibeaut, J ohn, The Roach Motel, ABA J OURNAL, J uly 2009 (J udges seldom
discipline lawyers who practice before them for professional misconductthough other actions,
such as Rule 11 sanctions, sometimes attempt to curb the same behavior and may go
unrecognized as punishment dealt to individuals), http://www.abajournal.com/magazine/
article/the_roach_motel (last visited 4/13/10); United States v. Shaygan, 661 F.Supp.2d 1289,
1325 (S.D. Fla. 2009) (judge reserved the right to impose any further sanctions and/or
disciplinary measures as may be necessary against [the federal prosecutors] after reviewing the
results of the J ustice Departments investigation.); United States v. Jones, No. CR 07-10289-
MLW, 2010 WL 565478 (D.Mass. 2010) (court determined that imposition of sanctions against
AUSA or government for failure to adequately train AUSA based on failure to disclose plainly
material exculpatory evidence were neither necessary nor appropriate where, since violation
disclosure, AUSA, US Attorneys Office and DOJ officials took actions such as participating in
discovery training programs, which obviated need for sanctions).
16
It appears that state courts are also reluctant to report prosecutorial misconduct to state
bar authorities. In California for instance, it is rare that prosecutorial misconduct is referred to
the California State Bar although required under California law. See Crossing the Line:
Responding to Prosecutorial Misconduct, at http://www.abanet.org/litigation/prog_materials
/2008_sectionannual/016.pdf (last visited 4/9/10).
To date, few federal courts have equated discovery violations with ethical misconduct
requiring bar referral. As stated supra, filing a complaint with the state bar authorities seems to
be considered a last resort by most federal courts
15
even though such a sanction has been
approved of and, in the appropriate case, encouraged by the circuit courts. See United States v.
Wilson, 149 F.3d 1298, 1304 (11th Cir. 1998) ([W]e want to make clear that improper remarks
and conduct in the future, especially if persistent, ought to result in direct sanctions against an
offending prosecutor individually.(emphasis in original)); United States v. Modica, 663 F.2d
1173, 1185 (2d Cir. 1981) (We suspect that the message of a single 30-day suspension from
practice would be far clearer that the disapproving remarks in a score of appellate opinions.).
16

Federal constitutional requirements for disclosure of exculpatory and witness-
impeachment evidence are well-established. The United States Attorneys Manual disclosure
policy exceeds constitutional obligations although the government notes that the expanded
disclosure policy, however, does not create a general right of discovery in criminal cases. Nor
does it provide defendants with any additional rights or remedies. USAM 9-5.001 (2010).
Those state ethical rules modeled after the ABAs Model Rule of Professional Conduct 3.8
impose a still higher duty of discovery than that required by constitutional due process or the
United States Attorneys Manual. Query whether 530B imposes a higher discovery obligation
on federal prosecutors, by virtue of state ethical rules, and whether that is enforceable?
The American Bar Association has promulgated a model ethical rule relating to the
production of discovery by the prosecutor:
Model Rule of Professional Conduct 3.8
00108
The prosecutor in a criminal case shall:
. . . .
(d) make timely disclosure to the defense of all evidence or information known to
the prosecutor that tends to negate the guilt of the accused or mitigates the
offense, and, in connection with sentencing, disclose to the defense and to the
tribunal all unprivileged mitigating information known to the prosecutor, except
when the prosecutor is relieved of this responsibility by a protective order of the
tribunal;
Appendix B, Model Rule of Professional Conduct 3.8(d).
This model rule is patterned after ABA Standard 3-3.11, Prosecution/Defense Function:
Disclosure of Evidence by the Prosecutor
(a) A prosecutor should not intentionally fail to make timely disclosure to the defense, at
the earliest feasible opportunity, of the existence of all evidence or information which
tends to negate the guilt of the accused or mitigate the offense charged or which would
tend to reduce the punishment of the accused.
ABA Standard 3-3.11 (emphases added).
The ABA has recently issued an 8-page formal opinion regarding the prosecutorial
ethical duty to disclose evidence and information favorable to the defense which clearly exceeds
constitutional discovery obligations. See Appendix D, Formal Opinion 09-454 (July 8, 2009).
Key excerpts follow:
Rule 3.8(d) is more demanding that the constitutional case law, in that it requires
the disclosure of evidence or information favorable to the defense without regard
to the anticipated impact of the evidence or information on a trials outcome. The
rule thereby requires prosecutors to steer clear of the constitutional line, erring on
the side of caution.
Id. at 4.
Further, this ethical duty of disclosure is not limited to admissible evidence,
such as physical and documentary evidence, and transcripts of favorable
testimony; it also requires disclosure of favorable information. Though possibly
inadmissible itself, favorable information may lead a defendants lawyer to
admissible testimony or other evidence or assist him in other ways, such as in
plea negotiations. In determining whether evidence and information will tend to
negate the guilt of the accused, the prosecutor must consider not only defenses to
the charges that the defendant or defense counsel has expressed an intention to
raise but also any other legally cognizable defenses. Nothing in the rule suggests a
00109
17
Federal courts have long held that the government has a duty under Brady v.
Maryland, 373 U.S. 83 (1963), and its progeny to disclose favorable material evidence to the
defense in time for the material to be of value to the defendant. See, e.g., United States v.
Gordon, 844 F.2d 1397, 1403 (9th Cir. 1988). This duty to disclose includes impeachment
evidence (sometimes known as Giglio material) as well as actual innocence evidence. See,
e.g., United States v. Bagley, 473 U.S. 667, 676 (1985). The prosecutor has a duty to obtain this
information from state as well as federal agents who have worked on the case. See Kyles v.
Whitley, 514 U.S. 419, 437-38 (1995).
The Supreme Court has held that impeachment (Giglio) material need not be disclosed to
the defense before a plea of guilt. United States v. Ruiz, 536 U.S. 622, 629 (2002). The Court
reasoned that a defendant can constitutionally misjudge other components of his or her case
de minimis exception to the prosecutors disclosure duty where, for example, the
prosecutor believes that the information has only a minimal tendency to negate
the defendants guilt, or that the favorable evidence is highly unreliable.
Id. at 5.
The Supreme Court has observed that federal due process requirements provide for less-
complete discovery than the ABA standards. See Kyles v. Whitley, 514 U.S. 419, 437 (1995).
Yet, the Court has also noted that, nonetheless, a prosecutor may have an obligation under
applicable ethical or statutory rules to greater disclosure. Cone v. Bell, __ U.S. __, 129 S.Ct.
1769, 1783 n.15 (2009) (As we have often observed, the prudent will err on the side of
transparency, resolving doubtful questions in favor of disclosure.).
There are two primary differences between federal due process requirements and the
ABA model ethical rules. The first relates to scope of disclosure. As noted in Kyles, the ABA
model rule requires disclosure of any evidence tending to exculpate or mitigate. Id. (emphasis
added). Federal due process, by contrast, is primarily a standard forged out of appellate review;
it prohibits the suppression by the prosecution of evidence favorable to the accused upon
request, [which] violates due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or the bad faith of the prosecution. Brady v.
Maryland, 373 U.S. 83, 87 (1963).
The second distinction relates to the timing of disclosure. When the model rule is read in
conjunction with the ABA standard, the prosecutor is required to disclose discovery at the
earliest feasible opportunity. By contrast, Brady law and timing focuses on prejudice to the
defense viewed in the hindsight of an appeal if there was no prejudice to the defense by failing
to disclose Brady material before trial, no violation lies. See, e.g., United States v. Knight, 867
F.2d 1285, 1289 (11th Cir. 1989) (Appellants received the information during the trial and have
failed to demonstrate that the disclosure came so late that it could not be effectively used; and
thus they cannot show prejudice.) Of even greater concern, federal due process does not require
any disclosure of impeachment information before a defendant pleads guilty so this Giglio
information may never come to the attention of the defense.
17

00110
before a plea; the quality of the States case, the likely penalties, a change in law regarding
punishment, the admissibility of a confession, and potential defenses. There accordingly was no
constitutional problem with a plea if the defendant misjudged the grounds for impeachment of
potential witnesses as a possible future trial. Id. at 2455.
18
States adopting a substantial equivalent of ABA Model Rule 3.8(d) include Colorado,
Idaho, Maryland, and Pennsylvania. See, e.g., People v. Mucklow, 35 P.3d 527 (Co. S. Ct.
Office Discipline 2000) (discussing Colo. RPC 3.8d, based on ABA Model Rule 3.8); Id. R.
Prof. Conduct 3.8(d) (incorporating subsection (d) of ABA model rule relating to discovery); Md
Rule of Prof. Conduct 3.8 (same); Pa Rule. Prof. Conduct 3.8 (same). Other states have adopted
less-specific ethical rules regarding a prosecutors disclosure obligations. California is in the
process of adopting a rule based in large part on ABA Model Rule 3.8(d). See, e.g.,
http://calbar.ca.gov/calbar/pdfs/
public-comment/2009/Revision-Rules-Professional-Conduct-11-Rules_11-13-09.pdf (comparing
and contrasting other states adoption and Californias proposed changes) (last visited 4/9/10).
The tension between the federal due process discovery standards and the ABA model rule
is more than just an academic debate; many states have adopted the ABA model rule or an
analogous provision relating to discovery.
18
Consider another Colorado case as an illustration of
the tension between state ethical rules and federal discovery requirements.
In People v. Mucklow, 35 P.3d 527 (Co. S. Ct. Office Discipline 2000), a district attorney
twice failed to disclose exculpatory statements to the defense before preliminary hearings. Id. at
530-31. The Discipline Office of the Supreme Court emphasized that Colorado had adopted a
version of ABA model rule 3.8, and that this rule meant The prosecutor is required to provide
exculpatory information and materials to the defense as soon as it is practicable or feasible to do
so. Id. at 535. The opinion emphasizes the difference between due process discovery
requirements and (the more rigorous) ethical discovery obligations created by the state ethical
rule. Id. at 535. The D.A. who ignored that distinction did so at her peril; she was publically
censured. Id. at 540.
For the federal practitioner in Colorado or any state that has adopted a version of ABA
model rule 3.8 theMucklow case is intriguing. If Congressman McDades 530B extends
state ethical rules to federal prosecutors, then the Colorado ethical rule requiring early discovery
should apply to an AUSA as well.
C. Prosecutorial Misconduct During Trial
1. Misconduct During Jury Selection
Prosecutorial misconduct cases make for remarkable reading. One such case is Williams
v. Netherland, 181 F.Supp.2d 604 (E.D. Va. 2002). In Williams, petitioner sought relief from a
00111
capital conviction when i) a juror was the ex-wife of a government witness; ii) the prosecutor
was this jurors former divorce attorney (and who therefore obviously knew about the
relationship, and iii) neither the juror nor the prosecutor bothered to reveal these relationships
during voir dire. Id. at 609-12. The court found that the prosecutor acted improperly and
granted the writ. Id.
Less favorable is the Ninth Circuits affirmance in United States v. Steele, 298 F.3d 906
(9th Cir. 2002). In Steele, the AUSA questioned a prospective juror on voir dire who had been
employed as a public defender. Id. at 911-12. She asked, In the course of trying [felony
robbery cases], did you ever make a decision that your client was guilty and youve got to do
whatever you have got to do because thats your job? Id. at 912. The juror answered,
truthfully, I guess so, yeah. You know, it gets the facts might show one way or the other, and
you have to pursue the case if the client wants to or not, its their decision. Id.
Defense counsel sitting next to a client heading into a federal bank robbery trial
understandably objected to a question about defending guilty defendants at trial. Id. The Ninth
Circuit, however, refused to find misconduct. The prosecutors questions in the present case
may not have been the best way to elicit signs of bias, but the circumstances do not support the
conclusion that there was prosecutorial misconduct. Id.
2. Improper Conduct During Opening Statements
In her opening statement, an AUSA states that the armed robbery case before the jury has
rocked the sense of security of an entire Maine community, a community that had been
relatively free from random acts of violence. United States v. Mooney, 315 F.3d 54, 58-59 (1st
Cir. 2002). She continues on to comment that the defendant chose not to speak to the police, and
encouraged the jury to compare that silence with the testimony of his cooperating- co-
defendants. Id. Prosecutorial misconduct?
The government conceded as much in Mooney, choosing not to defend the prosecutors
opening remarks. Id. at 59. Instead, while finding misconduct the First Circuit focused
primarily on the remedy (which it ultimately denied).
In Mooney, the First Circuit acknowledged its dismay that any prosecutor in this circuit
could apprise a jury in an opening statement that a defendant had chosen not to talk to the police.
It is difficult to imagine a more fundamental error. Id. at 61 & n.1. Nonetheless, in light of the
strength of the evidence and immediate curative instructions, the First Circuit upheld the
conviction. Id.
One particularly interesting aspect of the Mooney decision is the Courts analysis of the
timing of the misconduct. The Court observed The context of the prosecutors comments also
weighs against a finding that they likely affected the outcome of the trial. The comments
occurred during opening arguments, not during summation where the last words the jury hears
have significant potential to cause prejudice. Id. at 60. Prosecutorial misconduct during
opening statements thus may be more difficult to remedy on appeal than improper statements
during closing arguments.
00112
3. Ethical Problems with Government Witnesses and Trial Evidence
Government witnesses and evidence at trial present a grab-bag of ethical problems. One
straightforward prohibition precludes eliciting a witness opinion of another witness testimony.
United States v. Geston, 299 F.3d 1130 (9th Cir. 2002), nicely summarizes the due process
concerns behind this rule. Id. at 1136 (collecting cases). In Geston, the Ninth concluded that the
prosecutors improper questioning seriously affected the fairness, integrity, or public reputation
of judicial proceedings, or [] failing to reverse [the] conviction would result in a miscarriage of
justice. Id. (internal quotation and citation omitted). In a case where witness credibility was
paramount, it was plain error for the court to allow the prosecutor to persist in asking witnesses
to make improper comments upon the testimony of other witnesses. Id. at 1137.
Not surprisingly, it is also improper for a prosecutor to intentionally elicit testimony
precluded by a courts in limine ruling. See Thomas v. Hubbard, 273 F.3d 1164, 1175-76 (9th
Cir. 2001), as amend. J an. 22, 2002 (granting petition for writ of habeas from murder conviction
when, among other things, the prosecutor intentionally ignored a court ruling prohibiting
testimony about a defendants previous use of a gun).
It is also unsurprising that it is prosecutorial misconduct for the government to sponsor
perjured testimony, to permit its witnesses to commit perjury, or to fail to reveal a witness lies
to the defense. What is surprising is the vehemence of courts when confronted with this conduct.
Commonwealth v. Bowie, 243 F.3d 1109 (9th Cir. 2001), as amend. Mar. 23, 2001 is a
remarkable example of a courts intolerance for such conduct. In Bowie, the defendant was
implicated in a particularly brutal murder in the Northern Mariana Islands. Id. at 1111. Much of
the governments case involved cooperating co-defendants, one of whom was caught early in the
case, in a jail cell, while trying to discard an incriminating letter handwritten on yellow paper.
Id. at 1112-13. That letter by an unknown author suggested that the author i) was actually
guilty of the murder, ii) was conspiring to frame the defendant, iii) had lied during cooperation
before, and iv) had lied to his lawyer about the murder. Id. The letter may have come from
another cooperating witness.
Despite this dramatic evidence, the prosecutor did not investigate the letter, did not
submit it for handwriting analysis, and never asked any of the cooperating witnesses about it. Id.
at 1114.
The Ninth Circuit (in an opinion written by former federal prosecutor Trott), was to put
it mildly livid in light of the studied decision by the prosecution not to rock the boat, but
instead to press forward with testimony that was possibly false on the apparent premise that all
these accomplices were actually responsible for [the victims] murder. Id. at 1118. The Court
explained that the prosecutors duty was not to merely disclose the letter to the defense, but to
actively investigate the many (potentially exculpatory) ramifications of the evidence. Id. at
1117-18. A prosecutors responsibility and duty to correct what he knows to be false and elicit
the truth . . . requires a prosecutor to act when put on notice of the real possibility of false
testimony. This duty is not discharged by attempting to finesse the problem by pressing ahead
without a diligent and a good faith attempt to resolve it. A prosecutor cannot avoid this
00113
19
Other useful cases on perjured testimony include United States v. Valentine, 820 F.2d
565 (2d Cir. 1987) (reversing conviction when AUSA mischaracterized grand jury testimony
during trial), and United States v. LaPage, 231 F.3d 488 (9th Cir. 2000) (reversing conviction
when AUSA tolerated perjury from central government witness).
obligation by refusing to search for the truth and remaining willfully ignorant of the facts. Id. at
1118.
The Court did not particularly care what the defendant actually did with this letter during
trial. [The defendant] has certain constitutional rights that he could waive or forfeit, but he
could not waive the freestanding ethical and constitutional obligation of the prosecutor as a
representative of the government to protect the integrity of the court and the criminal justice
system . . . . Id. at 1122.
Bowie is a useful place to start when researching prosecutorial misconduct regarding
perjury.
19
First, the tone of the case is welcome righteous indignation in contrast to so many
cases that seem blandly resigned to prosecutorial misconduct. The case also includes a useful
collection of authority regarding prosecutorial misconduct in the presentation in evidence.
Finally, Bowie employs a thoughtful dual analysis using both due process and prosecutorial
misconduct authority in arriving at its ultimate reversal. See id. at 1115-17.
4. Improper Closing Arguments
One of the lead cases on prosecutorial misconduct during closing arguments is the source
for the wonderful quote used at the beginning of this outline - Berger v. United States, 295 U.S.
78 (1935). In Berger, the prosecuting attorney misstated evidence during cross examination, an
argument that was undignified and intemperate, containing improper insinuations and assertions
calculated to mislead the jury. Id. at 86. The Court found pronounced and persistent
misconduct, a case against the defendant that was not strong, and accordingly reversed and
remanded for a new trial. Id. at 89.
What is interesting about the Berger opinion is the lack of analysis as to the Courts
power to reverse in light of prosecutorial misconduct. The Court presumably acted under its
supervisory power a power that it handily distinguished fifty-one years later when presented
with a capital habeas alleging improper closing statements. See Darden v. Wainwright, 477 U.S.
168 (1986). In Darden, the defendant had been convicted of an admittedly horrific murder and
sexual assault. Id. at 172-74. In the closing argument, the prosecutor asserted that the only way
to be sure that the defendant would not return to the public was the death penalty. Id. at 181 &
n.9. The prosecutor argued that the defendant shouldnt be out of his cell unless he has a leash
on him and a prison guard at the other end of that leash. Id. at 181 & n.12. The prosecutor
wished that the homicide victim had had a shotgun in his hand when he walked in the back door
and blown [the defendants] face off. I wish that I could see him sitting here with no face, blown
00114
20
The district court has observed, Anyone attempting a text-book illustration of a
violation of the Code of Professional Responsibility . . . could not possibly improve upon
[prosecutor Whites final statement]. Id. at 189 & n.2 (Blackmun, J ., Brennan, J ., Marshall, J .,
Stevens, J ., dissenting).
away by a shotgun. Id.
20

The Court found that the comments did not deprive the defendant of a fair trial, setting a
test that still haunts federal review: The prosecutors argument did not manipulate or misstate
the evidence, nor did it implicate other specific rights of the accused such as the right to counsel
or the right to remain silent. Id. at 181-82.
A persuasive dissent in Berger quotes a remarkably candid passage on the futility of
condemnations without remedies:
This court has several times used vigorous language in denouncing government counsel
for such conduct as that of the [prosecutor] here. But, each time, it has said that,
nevertheless, it would not reverse. Such an attitude of helpless piety is, I think,
undesirable. It means actual condonation of counsel's alleged offense, coupled with
verbal disapprobation. If we continue to do nothing practical to prevent such conduct, we
should cease to disapprove it. For otherwise it will be as if we declared in effect,
'Government attorneys, without fear of reversal, may say just about what they please in
addressing juries, for our rules on the subject are pretend-rules. If prosecutors win
verdicts as a result of "disapproved" remarks, we will not deprive them of their victories;
we will merely go through the form of expressing displeasure. The deprecatory words we
use in our opinions on such occasions are purely ceremonial.' Government counsel,
employing such tactics, are the kind who, eager to win victories, will gladly pay the small
price of a ritualistic verbal spanking. The practice of this court recalling the bitter tear
shed by the Walrus as he ate the oysters breeds a deplorably cynical attitude towards
the judiciary. I believe this Court must do more than wring its hands when a State uses
improper legal standards to select juries in capital cases and permits prosecutors to
pervert the adversary process. I therefore dissent.
Id. at 206 (Blackmun, J ., Brennan, J ., Marshall, J ., Stevens, J ., dissenting) (internal quotations
and citations omitted).
Recently, the Ninth Circuit signaled an end to the wringing of the hands. In United
States v. Reyes, 577 F.3d 1069, 1076-79 (9th Cir. 2009), the court reversed and remanded for a
new trial based on the prosecutors remarks in closing argument. The Ninth Circuit found that
the government had asserted material facts to the jury that it knew were false or had strong
reason to doubt, based on contradictory evidence that was not presented to the jury. Id. The
Ninth Circuit sternly warned the DOJ that, [w]e do not lightly tolerate such conduct, and that
were was no reason to tolerate such misconduct here. Id. at 1078.
Generally, however, courts routinely condemn prosecutors conduct, but refuse to grant
00115
any relief to the defense. In 1970, for example, the First Circuit resignedly repeated warnings it
had made many times before:
We will recapitulate, we hope for the last time, in the light of the number of occasions it
has been necessary to do so, the basic ground rules. Essentially, the prosecutor is to
argue the case. He may discuss the evidence, the warrantable inferences, the witnesses,
and their credibility. He may talk about the duties of the jury, the importance of the case,
and anything else that is relevant. He is not to interject his personal beliefs. The
prosecutor is neither a witness, a mentor, nor a thirteenth juror . . . . He must not appeal
to the passion or prejudice of the jury directly, or by the introduction of irrelevant matter,
indirectly.
United States v. Cotter, 425 F.2d 450, 452 (1st Cir. 1970). In Cotter, this meant that it was
improper for a prosecutor to argue that a defendants who failed to pay his taxes was
jeopardizing future moon landings the first landing was taking place during the trial. Id.
Absent a timely objection, however, the Court declined to reverse. Id.
Forced to deal with repeated allegations of prosecutorial misconduct during closing
arguments, federal appellate courts gradually developed stringent hurdles to overcome before a
defendant would be entitled to any relief. The Second Circuit, for example, developed a three-
part test to determine whether a prosecutors statements during closing amounted to misconduct:
The district court correctly identified the three-pronged analysis employed by this Court
to determine whether the statements or actions of a prosecutor amount to misconduct.
That analysis focuses on: the severity of the misconduct, the curative measures taken, and
the certainty of conviction absent the misconduct.
United States v. Burns, 104 F.3d 529, 537 (2d Cir. 1997). In Burns, a prosecutor clapped
(sarcastically) after defense counsel finished their closing in tears. Id. & n.3. The government
conceded on appeal that this was inappropriate, but the court refused to reverse the denial of a
new trial motion. Id.
At times, a courts tolerance of misconduct during closing argument is breathtaking. For
example, in a habeas case arising from a murder conviction, the Ninth Circuit was confronted
with a prosecutor who had actually taken the witness stand during closing argument, testified
in the voice of the murdered, gay, victim, and who during this soliloquy characterized the victim
as a peaceful, gentle man who did nothing to deserve his dismal fate. Drayden v. White, 232
F.3d 704, 712-13 (9th Cir. 2000). While the Ninth Circuit agreed that the prosecutor had
committed misconduct, it refused to hold that this misconduct had violated petitioners due
process rights. Id.
Faced with what J ustice Blackmun characterized as an attitude of helpless piety from
most federal courts reviewing allegations of prosecutorial misconduct, 530B may provide some
support. There are no shortage of state and local ethical rules directed towards prosecutorial
misconduct in closing arguments. An ABA Model Rule of Professional Conduct, for example,
prohibits an attorney from stating a personal opinion as to the credibility of a witness:
00116
21
A non-exhaustive list of states that have adopted Model Rule 3-4 includes
Connecticut, Kansas, Louisiana, Maryland, Montana, New Hampshire, North Carolina, Utah,
West Virginia. See, e.g., State v. Floyd, 523 A.2d 1323 (Conn. App. 1987) (applying Rule of
Professional Conduct 3.4 to alleged ethical violation); State v. Pabst, 996 P.2d 321, 326 (Kan.
S.Ct. 2000)(same); Merritt v. Karcioglu, 668 So.2d 469, 475-76 (La. App. 4th Cir. 1996) (same);
Attorney Grievance Com'n v. Alison, 709 A.2d 1212, 1215 (Md. Ct. App. 1998) (same); State v.
Stewart, 833 P.2d 1085, 1089-90 (Mont. S. Ct. 1992) (same); State v. Jones, 558 S.E.2d 97, 127-
28 (N.C. S. Ct. 2002); State v. Bujnowski, 532 A.2d 1385, 1387 (N.H. S. Ct. 1987) (same); State
v. Dibello, 780 P.2d 1221 (Utah S. Ct. 1989) (same); State v. Stephens, 525 S.E.2d 301, 424 (W.
Va. S. Ct. 1999)
22
The Court in Carter articulated the Sixth Circuits two-part test to determine whether
prosecutorial misconduct has taken place:
The Sixth Circuit has adopted a two-step approach for determining when
prosecutorial misconduct warrants a new trial. See United States v. Carroll, 26 F.3d
1380, 1385-87 (6th Cir.1994). Under this approach, a court must first consider whether
the prosecutor's conduct and remarks were improper. Id. at 1387; see also Boyle v.
Million, 201 F.3d 711, 717 (6th Cir.2000). If the remarks were improper, the court must
RULE 3.4 FAIRNESS TO OPPOSING PARTY AND COUNSEL
A lawyer shall not:
. . . .
(e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or
that will not be supported by admissible evidence, assert personal knowledge of facts in
issue except when testifying as a witness, or state a personal opinion as to the justness of
a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or
innocence of an accused; or
Appendix E, ABA Model Rule of Professional Conduct 3.4 (2002) (emphasis added).
In states that have adopted this model rule
21
or that have analogous limitations on
closing arguments such behavior during a federal closing should earn the prosecutor a referral
to the state bar disciplinary committee in this post- 530B world. Even if the misconduct is not
sufficiently prejudicial to entitle a defendant to relief, the specter of a public censure by the state
bar should help to put some teeth into the judicial hand wringing that J ustice Blackmun
warned against in Berger.
Notably, even when courts do not directly censure AUSAs based on local ethical rules,
the moral weight of these rules is gradually making its way into federal case law. For example,
the Sixth Circuit reversed and remanded for a new trial a federal bank robbery case where the
prosecutor misstated central eyewitness testimony during closing. See United States v. Carter,
236 F.3d 777, 793 (6th Cir. 2001). In its analysis of the threshold question
22
of whether the
00117
then consider and weigh four factors in determining whether the impropriety was flagrant
and thus warrants reversal. These four factors are as follows: (1) whether the conduct and
remarks of the prosecutor tended to mislead the jury or prejudice the defendant; (2)
whether the conduct or remarks were isolated or extensive; (3) whether the remarks were
deliberately or accidentally made; and (4) whether the evidence against the defendant
was strong. Carroll, 26 F.3d at 1385; see also Boyle, 201 F.3d at 717; United States v.
Collins, 78 F.3d 1021, 1039 (6th Cir.), cert. denied, 519 U.S. 872, 117 S.Ct. 189, 136
L.Ed.2d 127 (1996).
When reviewing challenges to a prosecutor's remarks at trial, we examine the
prosecutor's comments within the context of the trial to determine whether such
comments amounted to prejudicial error. United States v. Young, 470 U.S. 1, 11-12, 105
S.Ct. 1038, 84 L.Ed.2d 1 (1985); Collins, 78 F.3d at 1040. In so doing, we consider
whether, and to what extent, the prosecutor's improper remarks were invited by defense
counsel's argument. Young, 470 U.S. at 12, 105 S.Ct. 1038; Collins, 78 F.3d at 1040.
Carter, 236 F.3d at 783.
AUSAs closing was improper, the Sixth Circuit quoted with favor the ABA Standard stating
that the prosecutor should not intentionally misstate the evidence or mislead the jury as to the
inferences it may draw. Id. at 785 (quoting ABA Standards for Criminal J ustice Prosecution
Function and Defense Function 3-5.8(a) (3d ed. 1993)).
Our personal experience in this field also reveals that the specter of ethical sanction is a
powerful weapon in combating unethical behavior. A prime example is United States v.
Blueford, 312 F.3d 962 (9th Cir. 2002), as amend. & further amend., Nov. 22, 2002. Northern
District Assistant Federal Public Defender J oyce Leavitt ably litigated this felon in possession
case. The defense who had provided notice of an alibi defense was presented with a huge
stack of the clients taped conversations from the jail; and was first presented with these tapes in
the midst of trial. Id. at 966. The AUSA suggested that he was going to use these tapes as
impeachment material relating to the testimony of defense alibi witnesses implying that the
tapes revealed a defendant who was suborning perjury. Id. at 965. During the trial the AUSA
elicited in his cross of defense alibi witnesses that they had spoken much more frequently to the
defendant just before the trial. Id. at 966. In his closing, the AUSA asked the jury to infer that
the defendant and the alibi witness fabricated the alibi defense just before trial. Id. at 967.
In reality, however, when the thirty hours of tapes were reviewed by the defense (after
trial), they revealed the defendant telling an alibi witness, [A]ll you got to do is tell the truth.
Id. The district court judge was surprised to learn the tapes did not, in fact, reveal a defendant
who was coaching alibi witnesses. Id.
The Ninth Circuit reversed; It is decidedly improper for the government to propound
inferences that it knows to be false, or has very strong reason to doubt, particularly when it
refuses to acknowledge the error afterwards to either the trial court or this court and instead
offers far-fetched explanations of its actions. Id. at 968.
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What is not clear from the opinion is the enormous publicity and controversy that this
case generated in the Northern District of California. The government and the AUSA himself
devoted enormous resources to seeking rehearing and (later, successful amendment) of the
opinion alleging prosecutorial misconduct. Notably, the opinion does not clearly specify the
AUSA involved in trial. Id. Nonetheless, the Blueford case and this AUSAs involvement are
well-known by every federal practitioner and district judge in the Northern District. In short, the
combination of a remedy for the defendant (reversal and new trial), and even an oblique moral
sanction may have some impact.
D. Broken Promises: Breached Pleas at Sentencing
Is a broken plea agreement at sentencing best analyzed using contract law, or when
framed as prosecutorial misconduct? More importantly, does it matter to the client as long as a
remedy is secured?
The lead case on breached plea agreements is Santobello v. New York, 404 U.S. 257
(1971). In that opinion, the Supreme Court reversed and remanded after (the second) prosecutor
in the case refused to make a sentencing recommendation agreed upon before the plea. Id. at
260. Despite the fact that the judge disclaimed any reliance on the D.A.s recommendation, the
Court found that when a plea rests in any significant degree on a promise or agreement of the
prosecutor, so that it can be said to be part of the inducement or consideration, such promise
must be fulfilled. Id. at 262. While the Court did not engage in much analysis of the ethics of a
breached plea, it made no mention of any principles of contract law. J ustice Douglas
concurrence, however, emphasized that outright vacation is often appropriate after a breached
plea promise, in light of an outraged sense of fairness. Id. at 266 (Douglas, J ., concurring)
(internal quotations and citation omitted).
While deferring to Santobello, federal appellate courts have routinely avoided the ethical
issues by analyzing plea agreement breach under contract law. In United States v. Grimm, 170
F.3d 760 (7th Cir. 1999), for example, the Seventh Circuit employed contract principles when an
AUSA failed to recommend acceptance of responsibility and did not dispute a gun possession, in
violation of the plea agreement. Id. at 764-66. Without engaging in any ethical finger-pointing,
the Court vacated the sentence and remanded for resentencing. Id. at 765.
Ethical overtones in plea-breach cases are becoming more common, however. For
example, in Gunn v. Ignacio, 263 F.3d 965 (9th Cir. 2001), the Ninth Circuit granted a petition
for a writ of habeas corpus when a district attorney breached a plea agreement regarding
concurrent time. Id. at 969. Because the Court granted relief, it did not get to the second issue
raised by the Petitioner a claim of ineffective assistance of counsel for failing to object to the
prosecutorial misconduct arising from this breach! Id. at 968. Although Gunn did not consider
the issue, Petitioners claim is sobering: defense counsel too timid to raise prosecutorial
misconduct challenges may regret their decision when faced with a later I.A.C. claim.
If sufficiently dramatic, a prosecutors breach of a plea agreement may even prompt a
Court to enforce promises that were actually unfulfillable! Such was the case in Palermo v.
Warden, Green Haven State Prison, 545 F.2d 286 (2d Cir. 1976). In Palermo, the Petitioner had
00119
been promised that state district attorneys would aggressively lobby the parole board for a
reduced sentence, in return for him leading them to $4 million worth of stolen jewelry. Id. at
289-90. The jewels were recovered, sympathetic letters were written by the DAs to the parole
commission but at the same time, prosecutors sandbagged the defendant by calling a parole
investigator and analogizing the defendant to another parolee who had received a lenient
sentence and then committed a violent crime. Id. at 291. The states case was not helped by
contractions in the prosecutors testimony, inconsistencies too numerous to mention that
undermined their credibility. Id. at 294.
While contesting the habeas petition, the state argued that the prosecutors never had the
authority to offer a bargain from another jurisdiction the state parole commission. The Court
was unimpressed. The Second Circuit proclaimed fundamental fairness and public confidence
in government officials require that prosecutors be held to meticulous standards of both promise
and performance. Id. at 296. The Court accordingly held, where a defendant pleads guilty
because he reasonably relies on promises by the prosecutors which are in fact unfulfillable, he
has a right to have those promises fulfilled. Id. The district courts unconditional release order
was affirmed. Id.
To answer the question posed at the outset of this section regarding contract law versus
ethical analysis, the scope of remedy may depend on whether a prosecutors action in breaching
a plea agreement was egregious or intentional. United States v. Brye, 146 F.3d 1207, 1213.
(10th Cir. 1998). In Brye, the Tenth Circuit analyzed a breach where the AUSA promised to
defer on a motion for a downward departure, then undermined (albeit subtly) the defendants
motion at sentencing. Id. at 1212. While the Court found the breach, it observed that it would
only permit the defendant to withdraw his plea when the breach was egregious or intentional.
Id. at 1213. Because the governments breach was based on a misunderstanding of the plea
agreement, the case was only remanded for resentencing. Id. The lesson from Brye is clear
when faced with a breach, defense counsel should argue contract law but should also emphasize
the ethical violation, to secure better remedies for their client.
III. Normalizing Justice
A. The Proposed Expansion of Rule 16 and DOJs Opposition
On April 28, 2009, J udge Emmet Sullivan, following the conclusion of United States v.
Stevens case, wrote the J udicial Conference Advisory Committee and urged its members to
consider an amendment to Rule 16 of the Federal Rules of Criminal Procedure. See Appendix F
(Sullivan, J. Letter, April 28, 2009). J udge Sullivan wrote, A federal rule of criminal procedure
requiring all exculpatory evidence to be produced to the defense would eliminate the need to rely
on a prudent prosecutor deciding to err on the side of transparency, . . . and would go a long
way towards furthering the search for the truth in criminal trialsand ensuring that justice shall
be done. Id. He noted that it has now been nearly three years since the United States
Attorneys Manual was modified to establish[] guidelines for the exercise of judgment and
discretion by attorneys for the government in determining what information to disclose to a
criminal defendant pursuant to the governments discovery obligations as set out in Brady v.
Maryland and Giglio v. United States and its obligation to seek justice in every case. Id. J udge
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23
At an April, 2010 panel session at the D.C. J udicial and Bar Conference, the director
of the Criminal Divisions Policy and Legislation, J onathan Wroblewski, stated that DOJ
officials who have reviewed available data conclude there is no widespread misconduct when it
comes to prosecutors turning over favorable material to defense lawyers . . . .
http://www.mainjustice.com/2010/04/13/doj-defends-against-critics-of-prosecutors-discovery-pr
oduction/ (last visited 4/14/10)
Sullivan also reiterated the serious Brady violations in the Stevens case.
Rule 16 currently requires that the government produce, upon a defendants request,
those documents and objects and the results of examinations and tests that are material to
preparing the defense. Spivack, Roth and Golden, Troubling the Heavens, 34 CHAMPION 24 at
2. In contrast to the governments obligations under Brady, the governments Rule 16 obligation
to produce items material to preparing the defense extends only to items material to the
defendants response to the govenrments case in chief. Id.
In October 2009, Assistant Attorney General for the Criminal Division Lanny Breuer,
addressed the committee and described steps that the Department had taken in the aftermath of
the Stevens trial, including forming a working group to study discovery in criminal proceedings
and to suggest improvements. He said that while the Department took its obligations seriously,
an Office of Professional Responsibility report of alleged Brady violations over the past nine
years did not reveal evidence of a widespread problem. See October 13, 2009, Draft Minutes,
Advisory Committee on Criminal Rules, http://www.uscourts.gov/rules/Agenda%20Books
/Criminal/CR2010-04.pdf (last visited 4/9/10).
23

He indicated that the DOJ would not object to amending Rule 16 to codify Brady
disclosure requirements but would object to any proposed amendment beyond Brady obligations.
Id. Presumably, the DOJ opposition to an expansion of Rule 16, even if only to the extent to
which the United States Atorneys Manual now provides, is based on a concern that such an
expansion would provide defendants with an enforceable right to the governments disclosure
of any and all exculpatory material, not just the information that the government deems to be
material. See Spivack, Roth and Golden, Troubling the Heavens, 34 CHAMPION 24 at 10.
According to the draft minutes of the October 2009 meeting, [a] participant suggested
that the training of federal prosecutors should include presentations by members of the defense
bar who could offer their perspective on discovery issues. Id. There was some discussion of an
open-file policy that has been adopted by some U.S. Attorney Offices. One member thought
that the policy had been successfully used in the Northern District of California. However,
J udge Tallman noted that as an appellate judge, he sees Brady issues arising in many cases from
California, including that district. Id.
In a later March 2010 meeting, materials distributed to the members included the Ogden
Memoranda outlining the DOJ s efforts to improve discovery practices by federal prosecutors, a
letter from J udge Mark Wolf also advocating for an amendment to Rule 16 (see Appendix G,
Wolf, J. Letter, June 23, 2009), a proposed draft survey of all federal judges designed by the
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24
http://www.nacdl.org/public.nsf/01c1e7698280d20385256d0b00789923
/e11dccac91ec12b9852576fc0073bc75?OpenDocument, (footnotes omitted) (last visited
4/12/10).
25
http://blog.simplejustice.us/2009/07/09/brady-violations-not-just-a-rules-issue.aspx
(last visited 4/12/10).
Federal J udicial Center regarding discovery practices and judicial experience with Brady and
Giglio violations, and the ABAs Formal Ethics Opinion 09-454.
Further discussion of the proposed amendment of Rule 16 will be held at the next
meeting of the Advisory Committee on Criminal Rules in April, 2010.
B. For the Defense Commentators Opinions and Recommendations
From Pivack, Stephen R., Troubling the Heavens: Production of Evidence Favorable to
Defendants by the United States, THE CHAMPION, J anuary/February 2010:
24
One major remedy for these problems is an amendment to FRCrP 16, in line with
that proposed by the Advisory Committee, that provides defendants an
enforceable right to the governments disclosure of any and all exculpatory
material, not just the information that the government deems to be material.
Such an amendment was endorsed by J udge Sullivan himself in the aftermath of
the Stevens case, and would represent an important step towards safeguarding the
rights of criminal defendants. It would codify the governments obligation to
provide exculpatory and impeaching information regardless of its perceived
materiality and would grant defendants a right that is enforceable in court and is
not currently recognized by most courts absent a showing of materiality. In
addition, it would help to ensure that federal prosecutors do not make decisions
with respect to what information to provide to defendants based on an inherently
subjective assessment of whether its use at trial would impact the outcome of the
prosecution. Perhaps most importantly, amending FRCrP 16 would insulate
defendants against future changes in J ustice Department policy that might de-
emphasize as a goal the full production of all exculpatory and impeaching
information to criminal defendants. For all of those reasons, amending FRCrP 16
is an important and necessary step.
. . . .
Along with the adoption of specific new procedures and the retraining of
prosecutors relative to existing requirements, the Department of J ustice also
should make clear that the failure of prosecutors to comply with the Departments
internal guidelines will result in real and significant consequences.
From the blog of Scott H. Greenfield, Criminal Defense Attorney
25
:
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The solutions to the Brady problem fall into two categories. Trust the DOJ or
create a new rule that requires courts to trust the DOJ . While the new Rule 16
proposal has certain virtue, foremost of which is that it resolves the long-standing
problem of when the government must disclose Brady, which it now holds to the
very last second if it's to be disclosed at all, rendering the defense incapable of
investigating or making good use of the information. But it still doesn't address
the core issue: The determination of what is Brady is left to the discretion of the
prosecution, and the duty to disclose it at all remains the decision of the prosecutor.
The proposed solutions are thus dependent on the answer to this question: Do
you trust the prosecutor?
If we cant trust the prosecutor, each and every prosecutor in every district
throughout the country, to disclose Brady, to err on the side of disclosure, to
disclose timely, then neither new rules nor procedures that continue to rely on the
discretion of prosecutors will solve the problem. Clearly, former prosecutors and
even judges who've been burned still seem to put their faith in the integrity of the
government. Somehow, I don't find this satisfying, but then nobody engaged in
this discussion seems to think that the defense side of the courtroom should have
any say in the matter.
From Irwin H. Schwartz, Beyond Brady: Using Model Rule 3.8(d) in Federal Court for
Discovery of Exculpatory Information, THE CHAMPION, March, 2010:
In the aftermath of the scandals of 2009, Attorney General Holder and Assistant
Attorney General Breuer spoke about the Department's failures. Breuer said, The
Department of J ustice is committed to the very highest ethical standards. Yet,
when the Department issued its 2010 guidance on discovery, it made no mention
of prosecutors duty under Rule 3.8(d). It listed Rules 16 and 26.2, the J encks
Act, and Brady as sources generally establish[ing] its discovery obligations.
How can the Department achieve the very highest ethical standards when it does
not acknowledge that Rule 3.8(d) establishes a duty of disclosure and a broader
duty than the sources it listed? Worse, the guidance is inconsistent with Rule
3.8(d) on the critical matter of disclosure timing. The ABA Opinion requires
disclosure of exculpatory information as soon as reasonably practicable. The
Departments guidance permits prosecutors to delay production of exculpatory
information.
Although acknowledging that Brady practices vary from office to office and even
within offices, the guidance does not assure uniform practices within the
Department. One way in which uniformity could be accomplished is by moving
Brady discovery to Rule 16. J udge Emmet Sullivan, who tried the Ted Stevens
case, asked the Supreme Court Advisory Committee on Criminal Rules to
consider this idea. The Department opposed the suggestion, as it did in 2006.
Recent cases show its efforts were not sufficient. Today, the Department clings to
a narrow view of its disclosure obligations and continues to oppose rules reform.
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NACDL led the way to passage of 28 U.S.C. 530B and passage of the Hyde
Amendment. Recent events show that defense attorneys need to roll up their
sleeves again -- in court and Congress. If the Department of J ustice is unwilling
or unable to mandate compliance with Rule 3.8(d), and if it is unwilling or unable
to assure compliance with the rule, then courts or Congress must step in to
mandate compliance. Now.
From Professor Ellen Podgors White Collar Crime Prof Blog:
In the wake of recent events that demonstrate discovery violations, DOJ has
issued three new policies. It is wonderful to see that DOJ is beefing up its
discovery practices and taking a hard look at what should happen in the future. It
also sounds like a better management system is being considered. But that said,
looking at the actual guidance memo, here are a few preliminary comments -
After telling prosecutors that they need to familiarize themselves with Brady,
Giglio and other discovery rules and statutes, the paragraph ends with a statement
that this new memo provides prospective guidance only and is not intended to
have the force of law or to create or confer any rights, privileges, or benefits.
Yes, this is the standard language one finds throughout the DOJ manual. But wait
a minute -- although DOJ guidelines can be guidelines, these mandates are
constitutional, statutory, and rules - they often do have the force of law. This fact
should be emphasized to prosecutors.
The memo states - Prosecutors should never describe the discovery being
provided as open file. The memo explains the fears of missing something. It
seems odd that the DOJ doesnt want prosecutors to accept credit when they do
the right thing and provide all discovery. Saying not to call it open, for fear of
missing something, implies that this is not a policy that recognizes the value of an
open file system that can work well and provide efficiency. And taking this one
step further -- if it is not acknowledged as an open discovery practice, and
something is missed - will it sound any better to the accused who failed to receive
their discovery material?
The memo gives no real guidance as to when a prosecutor has to turn over Jencks
material, and leaves it to the individual offices to create their individual rules. It is
ironic that DOJ wants sentencing consistency, but doesnt want discovery
consistency. Should a defendant in Wyoming have different rights to witness
statements than the defendant in New York?
It is good to see memorialization of witness statements is important. But only
turning over material variances in a witness's statements? Shouldnt all
variances be turned over?
It is interesting how the memo provides an extensive review process of discovery
material - will this hold up getting the materials to defense counsel? Also will
defense counsel be given an equal amount of time to review these materials and
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time to conduct additional investigation that may be warranted as a result of the
materials provided?
And yes, it is important to protect witnesses and national seurity - but should
OOJ be the one deciding when they think they can withhold evidence? Shouldn't
that be for neutral parties like the judiciary?
It is good to scc LLJ trying to do a better job than past administrations, but what
really needs to be done is setting forth clearer rules and statutes by independent
parties, as opposed to a working group made up of'senior prosecutors from
throughout the Department and from United States' Attorey Ofces, law
enforement repreentatives, and infonnation technolog professionals,' so that
our system does 'do justice' as desired by AG Holder.26
Parting Thoughts
It is the easiest thing in the world for pople trained in the adversarial ethic to
think a prosecutor'sjob is simply to win . . . . It is not.
United States V Blueford, 312 F.3d 962, 968 (9th Cir. 2002) as amend. &further amend., Nov.
22, 2002 (internal quottions and citations omitted).
Law enforcement offiCers have the obligation to convict the guilty and to make
sure they do not convict the innoent. They must be dedicated to making the
criminal trial a procedure for the ascertainment of the true fcts surrounding the
commission of the crime. To this extent, our so-called adversary system is not
adversary at all; nor should it be.
Unied States V. h, 388 U.S. 21 8, 256 (1 967) (White, J., concurring and dissenting) (footnote
omitted).
The greatest dangers to liberty lurk in insidious encroachment by men of zeal,
well-meaning but without understanding.
Olmstead v. United States, 277 U.S. 438, 479 (Brandeis, J.,dissenting).
[TJhe Constitution prescribes a floor below which protections may not fall, rather
than a ceiling beyond which they may not rise. The Model Code of Professional
Responsibility, on the other hand, encompasses the attorey's duty to 'maintain
the highest standards of ethical conduct.' Preamble, Model Code of Professional
New DOJ Discover Policies Fall Short, http://lawprofessors.typepad.com/
whitecollarcrime _blog/20 I O/Ol/ncw-doj-discovery-policies.html (last visited 4/14/10).
Yto$ccu!Ot8 J$cDduC\ 32
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Responsibility (1981). The Code is designed to safeguard the integrity of the
profession and preserve public confdence in our system of justice.
UniledSlales V. Hammad, 858 F.2d 834, 839 (2d Cir. 1988).
t08u1Ut:MIxccnduct 33
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Plaintiff,
VS.
' HARY BARKER COUGHLIN,
Defendant.
ORDER
I
On November 30, 201 1, Defendant Coughlin was found guilty of the offense of Petit
Lcny, a violation of L 8, 1 0.040. Thereafler. he has filed numerous pleadings. including a
Notice of Appeal, Motion to Vacate and/r Set Aside, Motion for Reconsideration and other assorted
reqilesls for waiver of court costs.

On the 211 and 22'1 day of November, 201 1, the Defendant forwDrded two email
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817 N. Virginia Sl #
Reno, NV 89501
tel: 775 229-6737
fa: 949 667 7402
ZachCoughlin@hotmail.com
Nevada Ba No: 9473
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Zach Coughlin, Esq.
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Zach Coughlin, Esq.
NV Bar No: 9473
817 N. Virginia St. #
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%h" <i0"o ,a+ !oD"rts -ro<i0"0 in h"r .isco<"rB cl"arlB shoAs :al&5arts (rontino -"rha-s
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to th" accusation or arr"st oth"r than th" int"rrogation roo+ <i0"o, Ahich Aas still /il+ing th"
")chang" o/ th" c0 D"tA""n (rontino an0 th" !S3C 8//ic"rs. (urth"r, !S3C 8//ic"r CraA/or0 can
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it in on his ra0io, 0"s-it" CraA/or0, t"sti/Bing, un0"r oath, at trial, that Coughlin Aas arr"st"0, in larg"
-art, D"caus" h" 0i0 not -ro0uc" a -hBsical 0ri<"rCs lic"ns" an0 th" in/or+ation Ahich Aoul0 D"
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in his "ntir" li/"?. (urth"r, in 0ir"ct contra0iction to th" sAorn t"sti+onB o/ Doth (rontino an0
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11 0aBs to ")clu0" Satur0aBs, Sun0aBs an0 nonGu0icial 0aBs. J :h"r", as h"r", th" ti+" to /il" a
tolling +otion is 1$ 0aBs, A" conclu0" that th" I-"rio0 o/ ti+" -r"scriD"0K in N!C, 'Fa? 0o"s not
inclu0" th" 3&0aB alloAanc" /or s"r<ic" DB +ail un0"r N!C, 'F"?. J %h"r"/or", th" /iling -"rio0 /or a
tolling +otion is co+-ut"0 /irst un0"r N!C, 'Fa?, an0 th"n 3 a00itional 0aBs ar" a00"0 un0"r N!C,
'F"? Ah"n s"r<ic" Aas +a0" DB +ail or "l"ctronic +"ans. J 6sing this co+-utation +"tho0, A"
conclu0" that a--"llantCs tolling +otions A"r" ti+"lB /il"0 in th" 0istrict court. J 2ccor0inglB, A"
0"nB r"s-on0"ntCs +otion to 0is+iss this a--"al. J (urth"r, although this issu" Aas not a00r"ss"0 DB
Notic" o/ ."nial o/ S"r<ic"; 8--osition CitB o/ !"noCs Notic" o/ ."nial o/ S"r<ic"; !"qu"st /or Clari/ication !"gar0ing ."a0lin"
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th" -arti"s, A" conclu0" that th" tolling +otions also toll"0 th" ti+" to a--"al /ro+ th" -ost&Gu0g+"nt
or0"r aAar0ing attorn"B /""s an0 costs.
(2C%S
%h" /inal Gu0g+"nt a/t"r a GurB <"r0ict in /a<or o/ r"s-on0"nt Aas /il"0 on 2-ril 18, $$#. J
!"s-on0"nt s"r<"0 a--"llant Aith notic" o/ "ntrB o/ th" 0istrict courtCs /inal Gu0g+"nt <ia /acsi+il"
an0 +ail on 2-ril 1, $$#. J (i/t""n 0aBs lat"r, on 5aB ', $$#, a--"llant +o<"0 th" 0istrict court
/or Gu0g+"nt as a +att"r o/ laA un0"r N!C, #$FD? or /or a n"A trial -ursuant to N!C, #9. J
!"s-on0"nt o--os"0 a--"llantCs +otions in th" 0istrict court, arguing, in -art, that th"B A"r" not
ti+"lB /il"0.
B"/or" r"sol<ing th" +otions, on @un" 9, $$#, th" 0istrict court "nt"r"0 a -ost&Gu0g+"nt or0"r
aAar0ing attorn"B /""s an0 costs in /a<or o/ r"s-on0"nt. J Notic" o/ "ntrB o/ th" or0"r Aas s"r<"0 on
a--"llant on @un" 1$, $$#. J 8n @un" 7, $$#, th" 0istrict court "nt"r"0 its or0"r 0"nBing
a--"llantCs +otion /or Gu0g+"nt as a +att"r o/ laA or /or a n"A trial. J %h" 0istrict court 0"t"r+in"0
that a--"llantCs +otions ha0 D""n ti+"lB /il"0 Dut conclu0"0 that a--"llant Aas not "ntitl"0 to anB
r"li"/. J 8n @ulB 9, $$#, Aithin 3$ 0aBs a/t"r s"r<ic" o/ notic" o/ "ntrB o/ th" @un" 7 or0"r
r"sol<ing th" +otions, a--"llant /il"0 a notic" o/ a--"al /ro+ that or0"r, th" /inal Gu0g+"nt, an0 th"
-ost&Gu0g+"nt or0"r aAar0ing attorn"B /""s an0 costs.
!"s-on0"nt has /il"0 a +otion to 0is+iss th" a--"al, all"ging that a--"llantCs +otions /or Gu0g+"nt as
a +att"r o/ laA an0 /or a n"A trial A"r" not ti+"lB an0 th"r"/or" 0i0 not toll th" ti+" to a--"al.
2--"llant o--os"s th" +otion.
DISCUSSION
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L%his court lacEs Guris0iction to consi0"r an a--"al that is /il"0 D"Bon0 th" ti+" alloA"0 un0"r
N!2, 4Fa?.
1
J2 ti+"lB /il"0 +otion /or Gu0g+"nt as a +att"r o/ laA un0"r N!C, #$FD? or /or a n"A
trial un0"r N!C, #9 tolls th" ti+" /or /iling an a--"al until no lat"r than 3$ 0aBs a/t"r a -artB s"r<"s
Aritt"n notic" that th" or0"r r"sol<ing such +otions has D""n "nt"r"0.
J2 tolling +otion un0"r

N!C, #$FD? or N!C, #9 is ti+"lB i/ it is /il"0 Aithin 1$ 0aBs a/t"r a -artB s"r<"s Aritt"n notic" that a
Gu0g+"nt has D""n "nt"r"0.
3
J%hr"" a00itional 0aBs ar" a00"0 to this /iling 0"a0lin" Ah"n s"r<ic"
Aas +a0" DB +ail or "l"ctronic +"ans.
4
3n th" +otion to 0is+iss, r"s-on0"nt argu"s that our -rior cas" laA r"quir"s that th" 3&0aB alloAanc"
/or +ailing D" a00"0 0ir"ctlB to th" 1$&0aB -"rio0 to /il" tolling +otions D"/or" co+-uting th" /iling
0"a0lin" un0"r N!C, 'Fa?. J E+-loBing this rational" suDG"cts th"s" tolling +otions to a 13&0aB ti+"
-"rio0. J 6n0"r N!C, 'Fa?, int"r+"0iat" Satur0aBs, Sun0aBs an0 nonGu0icial 0aBs Aoul0 D" inclu0"0
in th" co+-utation o/ th" 13&0aB -"rio0. J 2--lBing this a--roach to this cas" r"sults in th" thirt""nth
0aB /ro+ s"r<ic" o/ notic" o/ "ntrB /alling on 5aB 4, $$#. J 3n this sc"nario, D"caus" a--"llantCs
+otions A"r" not /il"0 until 5aB ', $$#, th"B Aoul0 D" unti+"lB an0 Aoul0 not "//"cti<"lB toll th"
ti+" to a--"al.
2--"llant "ncourag"s us to a0o-t th" o--osit" a--roach to that sugg"st"0 DB r"s-on0"nt. J 3nst"a0 o/
/irst a00ing th" 3 0aBs /or s"r<ic" DB +ail to r"ach a 13&0aB ti+" -"rio0, a--"llant cont"n0s that
soun0 Gu0icial -olicB /a<ors a00ing th" 3&0aB alloAanc" onlB a/t"r co+-uting th" 1$&0aB /iling -"rio0
an0 ")clu0ing int"r+"0iat" nonGu0icial 0aBs un0"r N!C, 'Fa?. J 2--"llant argu"s that this +"tho0 o/
co+-uting th" ti+" -"rio0 is consist"nt Aith /"0"ral court int"r-r"tation o/ th" analogous /"0"ral rul",
(!C, ', an0 /urth"rs th" int"nt o/ N!C, 'F"? DB alloAing /or +or" ti+" Ah"n s"r<ic" is +a0" DB
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+ail. J 6sing this +"tho0 in this cas", a--"llant argu"s that its +otions /or Gu0g+"nt as a +att"r o/
laA an0 /or a n"A trial A"r" ti+"lB /il"0 an0 "//"cti<"lB toll"0 th" ti+" to a--"al.
!ul" 'Lo/ th" N"<a0a !ul"s o/ Ci<il ,roc"0ur" go<"rns ti+":
Fa?JCo+-utation. 3n co+-uting anB -"rio0 o/ ti+" -r"scriD"0 or alloA"0 DB th"s" rul"s, DB th" local
rul"s o/ anB 0istrict court, DB or0"r o/ court, or DB anB a--licaDl" statut", th" 0aB o/ th" act, "<"nt, or
0"/ault /ro+ Ahich th" 0"signat"0 -"rio0 o/ ti+" D"gins to run shall not D" inclu0"0. J %h" last 0aB
o/ th" -"rio0 so co+-ut"0 shall D" inclu0"0, unl"ss it is a Satur0aB, a Sun0aB, or a nonGu0icial 0aB, in
Ahich "<"nt th" -"rio0 runs until th" "n0 o/ th" n")t 0aB Ahich is not a Satur0aB, a Sun0aB, or a
nonGu0icial 0aB, or, Ah"n th" act to D" 0on" is th" /iling o/ a -a-"r in court, a 0aB on Ahich A"ath"r
or oth"r con0itions ha<" +a0" th" o//ic" o/ th" cl"rE o/ th" 0istrict court inacc"ssiDl", in Ahich "<"nt
th" -"rio0 runs until th" "n0 o/ th" n")t 0aB Ahich is not on" o/ th" a/or"+"ntion"0 0aBs. J :h"n th"
-"rio0 o/ ti+" -r"scriD"0 or alloA"0 is l"ss than 11 0aBs, int"r+"0iat" Satur0aBs, Sun0aBs, an0
nonGu0icial 0aBs shall D" ")clu0"0 in th" co+-utation ")c"-t /or thos" -roc""0ings /il"0 un0"r %itl"s
1 or 13 o/ th" N"<a0a !"<is"0 Statut"s.
F"?J200itional %i+" 2/t"r S"r<ic" DB 5ail or El"ctronic +"ans. J :h"n"<"r a -artB has th" right or
is r"quir"0 to 0o so+" act or taE" so+" -roc""0ings Aithin a -r"scriD"0 -"rio0 a/t"r th" s"r<ic" o/ a
notic" or oth"r -a-"r, oth"r than -roc"ss, u-on th" -artB an0 th" notic" or -a-"r is s"r<"0 u-on th"
-artB DB +ail or DB "l"ctronic +"ans, 3 0aBs shall D" a00"0 to th" -r"scriD"0 -"rio0.
FE+-has"s a00"0.? J %his court has -r"<iouslB consi0"r"0 in tAo cas"s th" issu" o/ co+-uting ti+"
-"rio0s un0"r N!C, ' Ah"n s"r<ic" Aas +a0" DB +ail. J 3n !oss <. >iaco+o, this court conclu0"0
that in calculating th" ti+" to /il" a tolling +otion, th" 3&0aB alloAanc" /or s"r<ic" DB +ail is a00"0
# Notic" o/ ."nial o/ S"r<ic"; 8--osition CitB o/ !"noCs Notic" o/ ."nial o/ S"r<ic"; !"qu"st /or Clari/ication !"gar0ing ."a0lin"
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0ir"ctlB to th" 1$&0aB -"rio0&r"sulting in a 13&0aB /iling -"rio0.
#
J5or" r"c"ntlB, in Custo+ CaDin"t
(actorB o/ N"A 9orE <. .istrict Court, a $$3 cas" in<ol<ing th" 3$&0aB ti+" -"rio0 to /il" a r"qu"st
/or trial 0" no<o a/t"r arDitration, A" a//ir+"0 th" co+-utation +"tho0 "+-loB"0 in !oss an0 h"l0
that th" 3&0aB alloAanc" /or s"r<ic" DB +ail Ishoul0 D" a00"0 to th" ti+" allott"0 DB statut" or rul"
/irstK an0 th"n th" ti+" -"rio0 shoul0 D" co+-ut"0 un0"r N!C, 'Fa?.
'
J:" r"ason"0 that th"
alt"rnati<" +"tho0 o/ co+-uting ti+" un0"r !ul" 'Fa? o/ a00ing th" 3 0aBs /or s"r<ic" DB +ail a/t"r
co+-uting th" /iling 0"a0lin" IAoul0 -ot"ntiallB r"sult in an a00itional /i<" to s"<"n 0aBs to /il"
+otionsK Ahich Aas Ico+-licat"0 an0 aDsur0.K
7
J3nst"a0, A" D"li"<"0 at th" ti+" that using th"
+"tho0 o/ /irst a00ing th" 3 0aBs /or s"r<ic" DB +ail to th" ti+" allott"0 DB statut" or rul" an0 th"n
co+-uting th" ti+" -"rio0, Aas a si+-l"r an0 s-""0i"r co+-utation sch"+".
8
4oA"<"r, in $$4, a/t"r our 0"cisions in !oss an0 Custo+ CaDin"t, A" a+"n0"0 N!C, ' to D"
consist"nt Aith th" 198# a+"n0+"nts to th" /"0"ral rul".
9
J%hat a+"n0+"nt +a0" th" ")clusion o/
int"r+"0iat" Satur0aBs, Sun0aBs, an0 nonGu0icial 0aBs a--licaDl" in co+-uting ti+" -"rio0s o/ l"ss
than 11 0aBs.
1$
JB"/or" th" $$4 a+"n0+"nt, N!C, 'Fa? onlB ")clu0"0 int"r+"0iat" nonGu0icial
0aBs in co+-uting -"rio0s o/ l"ss than 7 0aBs. J S"<"ral /"0"ral courts ha<" consi0"r"0 th" int"nt
D"hin0 (!C, 'F"?Cs 3&0aB +ailing alloAanc" in int"r-r"ting th" 198# a+"n0+"nt to th" co+-utation
-ro<ision o/ (!C, 'Fa?.
11
J3n co+-uting ti+" -"rio0s in thos" cas"s, th" /"0"ral 0"cisions ha<"
/ocus"0 on th" I-"rio0 o/ ti+" -r"scriD"0K an0 0"t"r+in"0 that it 0o"s not inclu0" th" 3 a00itional
0aBs /or +ailing un0"r !ul" 'F"?. J %hos" /"0"ral courts ha<" th"r"/or" /oun0 that th" l"ss&than&11&
0aB -ro<ision o/ !ul" 'Fa? is a--licaDl" to 1$&0aB -"rio0s "<"n Ah"n s"r<ic" is +a0" DB +ail.
3n th" /irst s"+inal cas" a/t"r th" 198# a+"n0+"nt to (!C, ', a /"0"ral 0istrict court in NaltB <.
NaltB %r"" (ar+ r"cogniN"0 that th" a+"n0+"nt IAas int"n0"0 to ")t"n0 th" r"s-ons" ti+" alloA"0
' Notic" o/ ."nial o/ S"r<ic"; 8--osition CitB o/ !"noCs Notic" o/ ."nial o/ S"r<ic"; !"qu"st /or Clari/ication !"gar0ing ."a0lin"
00134
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un0"r <arious rul"s -r"scriDing t"n 0aB li+its.K
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J%h" NaltB court oDs"r<"0, hoA"<"r, that a00ing
a00itional ti+" /or +ailing un0"r !ul" 'F"? to cr"at" a 13&0aB ti+" -"rio0 ulti+at"lB r"sult"0 in th"
sa+" a+ount o/ ti+" that Aas alloA"0 D"/or" th" 198# a+"n0+"nt D"caus" at that ti+", nonGu0icial
0aBs A"r" not ")clu0"0 /ro+ th" co+-utation o/ 1$&0aB -"rio0s.
13
J%h" court 0"t"r+in"0 that
IOsPuch a r"sult cannot D" consist"nt Aith th" oD<ious int"ntions o/ th" a0<isorB co++itt""K an0
0"clar"0 that IOtPh" +ailing rul" shoul0 -ro<i0" thr"" ")tra 0aBs, in a00ition to Ahat"<"r -"rio0 th"
-artB Aoul0 oth"rAis" ha<", to r"/l"ct th" -r"su+"0 la-s" in notic" D"caus" o/ s"r<ic" DB +ail.K
14
%h" NaltB court thus h"l0 that th" 3&0aB alloAanc" /or +ailing shoul0 D" a00"0 onlB a/t"r co+-uting
th" ti+" -"rio0 un0"r !ul" 'Fa?.
1#
7iE"Ais", in 7"rro <. QuaE"r 8ats Co.,
1'
th" S"<"nth Circuit Court o/ 2--"als a00r"ss"0 this sa+"
issu" in th" cont")t o/ an oDG"ction to a +agistrat" Gu0g"Cs r"-ort an0 conclu0"0 that Ith" -"rio0 o/
ti+"K in !ul" 'Fa? Aas not th" su+ o/ all alloAaDl" -"rio0s. J %h" court not"0 that !ul" 'F"? is
I0"sign"0 to gi<" a litigant a--ro)i+at"lB th" sa+" "//"cti<" ti+" to r"s-on0 Ah"th"r -a-"rs ar"
s"r<"0 DB han0 or DB +ail.K
17
2n0 th" court r"ason"0 that IOtPh" onlB AaB to carrB out !ul" 'F"?Cs
/unction o/ a00ing ti+" to co+-"nsat" /or 0"laBs in +ail 0"li<"rB is to "+-loB !ul" 'Fa? /irst.K
18
3n %ushn"r <. 6nit"0 Stat"s .istrict Court /or C"ntral .istrict o/ Cali/ornia, th" Ninth Circuit Court
o/ 2--"als conclu0"0 that th" 1$&0aB -"rio0 -r"scriD"0 /or /iling a GurB 0"+an0 0i0 not D"co+" a 13&
0aB -"rio0 /or -ur-os"s o/ !ul" 'Fa? as a r"sult o/ th" s"r<ic"&DB&+ail -ro<ision o/ !ul" 'F"?.
19
J%h"
court stat"0 that !ul" 'F"? shoul0 not D" Iconstru"0 to r"n0"r -r"scriD"0 -"rio0s o/ l"ss than "l"<"n
0aBs in"ligiDl" /or D"n"/icial tr"at+"nt un0"r !ul" 'Fa?K an0 conclu0"0 that it IAoul0 D" ano+alous
to int"r-r"t th" rul"s so that a litigant s"r<"0 DB +ail Aoul0 ha<" l"ss ti+" /or action than a litigant
s"r<"0 -"rsonallB.K
$
J3nst"a0, th" court h"l0 that IOtPh" -"rio0 is calculat"0 /irst DB a--lBing th"
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l"ss&than&"l"<"n&0aB -ro<ision o/ !ul" 'Fa?, th"r"DB ")clu0ing anB int"r<"ning A""E"n0s an0 l"gal
holi0aBs. J 2/t"r this co+-utation, thr"" a00itional 0aBs ar" a00"0 /or +ail s"r<ic" un0"r !ul" 'F"?.K
2s A" not"0 in Custo+ CaDin"t, /"0"ral 0"cisions ar" not Din0ing on this court.
J4oA"<"r, IOAP"
ha<" -r"<iouslB r"cogniN"0 that /"0"ral 0"cisions in<ol<ing th" ("0"ral !ul"s o/ Ci<il ,roc"0ur"
-ro<i0" -"rsuasi<" authoritB Ah"n this court ")a+in"s its rul"s.K
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8n th" -articular issu" o/
co+-uting ti+" un0"r N!C, ', th" /"0"ral 0"cisions 0iscuss"0 aDo<" in r"gar0 to th" /"0"ral rul" ar"
logicallB co+-"lling.
8ur 0"cisions in Custo+ CaDin"t an0 !oss r"/l"ct th" courtCs 0"sir" to +aintain a si+-l", "//ici"nt
an0 uni/or+ sBst"+ /or co+-uting ti+" -"rio0s un0"r N!C, '.
4
4oA"<"r, n"ith"r o/ thos" cas"s
consi0"r"0 th" i+-act that th"ir co+-utation sch"+" Aoul0 ha<" on /iling -"rio0s suDG"ct to th"
-ro<ision in N!C, 'Fa? /or th" ")clusion o/ int"r+"0iat" nonGu0icial 0aBs. J 3n light o/ our r"c"nt
a+"n0+"nt to N!C, 'Fa?, Ahich +a0" th" nonGu0icial&0aB ")clusion a--licaDl" to long"r ti+"
-"rio0s, A" can no long"r r"concil" th" utilitB o/ !oss an0 Custo+ CaDin"t Aith th" sti/ling "//"ct
that th"B ha<" on th" int"nt D"hin0 !ul" 'F"?. J!ul" 'F"? is int"n0"0 to -ro<i0" litigants Aith
a00itional ti+" Ah"n s"r<ic" is +a0" DB +ail. J %h" co+-utation +"tho0 A" "+-loB"0 in Custo+
CaDin"t an0 !oss AorEs contrarB to that int"nt. J 6sing th" +"tho0 "+-loB"0 in thos" cas"s a/t"r th"
a+"n0+"nt to !ul" 'Fa?, Ah"n a 1$&0aB ti+" -"rio0 is in<ol<"0, th" -artB -"rsonallB s"r<"0 Aoul0
alAaBs ha<" +or" ti+" to act than a -artB s"r<"0 DB +ail.
(or ")a+-l", N!C, #9FD? -ro<i0"s that IOaP +otion /or a n"A trial shall D" /il"0 no lat"r than 1$ 0aBs
a/t"r s"r<ic" o/ Aritt"n notic" o/ th" "ntrB o/ th" Gu0g+"nt.K J 3/ a -artB is -"rsonallB s"r<"0 Aith
notic" o/ "ntrB, that -artB has 14 cal"n0ar 0aBs to /il" a +otion D"caus" un0"r N!C, 'Fa?, th"
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int"r+"0iat" nonGu0icial 0aBs Aoul0 D" ")clu0"0 /ro+ th" co+-utation. J But un0"r th" !oss an0
Custo+ CaDin"t co+-utation sch"+", i/ that -artB ha0 D""n s"r<"0 DB +ail, that -artB Aoul0 onlB
ha<" 13 cal"n0ar 0aBs to /il" th" sa+" +otion D"caus" th" int"r+"0iat" nonGu0icial 0aBs Aoul0 D"
inclu0"0 in th" co+-utation. J 2n0 a/t"r taEing into account th" actual ti+" /or 0"li<"rB o/ +ail, a
-artB s"r<"0 DB +ail Aoul0 c"rtainlB ha<" "<"n l"ss than 13 cal"n0ar 0aBs to act. J %his r"sult 0"/"ats
th" -ur-os" o/ !ul" 'F"? an0 "ss"ntiallB +aE"s th" a+"n0+"nt to !ul" 'Fa? a nullitB DB con<"rting
1$&0aB ti+" -"rio0s into 13&0aB -"rio0s that 0o not garn"r th" D"n"/it o/ th" a+"n0+"nt. J 2s th"
S"<"nth Circuit oDs"r<"0 in 7"rro, IOiPnt"ractions Aithin a co+-l") s"t o/ rul"s so+"ti+"s can ha<"
un")-"ct"0 an0 unA"lco+" "//"cts, Dut A" shoul0 not cr"at" th"+ Ah"n th" t")t r"a0ilB can D"ar
anoth"r +"aning.K
#
J:" shoul0 not 0o so h"r" in int"r-r"ting N!C, '.
L:" th"r"/or" r"<"rs" our 0"cisions in Custo+ CaDin"t an0 !oss to th" ")t"nt that th"B r"quir" that
/iling -"rio0s D" co+-ut"0 DB a00ing th" 3 0aBs /or s"r<ic" DB +ail un0"r N!C, 'F"? to th"
-r"scriD"0 -"rio0 D"/or" a--lBing N!C, 'Fa?. J Consist"nt Aith th" co+-"lling /"0"ral cas"s
0iscuss"0 aDo<", A" hol0 that th" 1$&0aB ti+" -"rio0 /or /iling +otions /or Gu0g+"nt as a +att"r o/
laA an0 /or a n"A trial shoul0 D" calculat"0 /irst un0"r N!C, 'Fa?, ")clu0ing int"r+"0iat" Satur0aBs,
Sun0aBs an0 nonGu0icial 0aBs. J 3/ s"r<ic" Aas +a0" DB +ail or "l"ctronic +"ans, 3 0aBs shoul0
th"r"a/t"r D" a00"0 -ursuant to N!C, 'F"?.
3n this cas", notic" o/ th" Gu0g+"ntCs "ntrB Aas s"r<"0 DB +ail on %hurs0aB, 2-ril 1, $$#. J
Co+-uting th" 1$&0aB ti+" -"rio0 /ro+ this 0at" an0 ")clu0ing int"r+"0iat" nonGu0icial 0aBs un0"r
N!C, 'Fa?, ")t"n0"0 th" 0"a0lin" /or tolling +otions to %hurs0aB, 5aB #, $$#. J 200ing 3 0aBs at
that -oint /or s"r<ic" DB +ail +a0" 5on0aB, 5aB 9, $$#, th" /inal 0"a0lin" to /il" +otions /or
Gu0g+"nt as a +att"r o/ laA or /or a n"A trial. J 2--"llantCs +otions A"r" /il"0 D"/or" that 0at", an0
th"r"/or" th"B A"r" ti+"lB /il"0 an0 "//"cti<"lB toll"0 th" ti+" to a--"al. J %h"r"a/t"r, a--"llant
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ti+"lB /il"0 a notic" o/ a--"al Aithin 3$ 0aBs a/t"r s"r<ic" o/ Aritt"n notic" o/ "ntrB o/ th" or0"r
r"sol<ing th" tolling +otions.
'
L(inallB, although th" +otion to 0is+iss an0 o--osition 0i0 not a00r"ss Ah"th"r a--"llantCs tolling
+otions toll"0 th" ti+" to a--"al /ro+ th" -ost&Gu0g+"nt or0"r aAar0ing attorn"B /""s, D"caus" o/ th"
a+Diguous natur" o/ this ar"a o/ laA an0 th" -ot"ntial -it/all that it +aB -r"s"nt to -ractition"rs, A"
"l"ct to a00r"ss it sua s-ont".
7
J%h" -r"cis" issu" is Ah"th"r a tolling +otion 0ir"ct"0 at th" /inal
Gu0g+"nt also tolls th" ti+" to a--"al /ro+ a s-"cial or0"r a/t"r /inal Gu0g+"nt. J %his is an issu" o/
/irst i+-r"ssion in N"<a0a.
2n or0"r aAar0ing attorn"B /""s an0 costs is suDstanti<"lB a--"alaDl" as a s-"cial or0"r a/t"r /inal
Gu0g+"nt.
8
JS-"cial or0"rs a/t"r /inal Gu0g+"nt ar" a--"alaDl" D"caus" th"B a//"ct th" rights o/ a
-artB groAing out o/ th" /inal Gu0g+"nt.
9
J7iE" an a--"al /ro+ a /inal Gu0g+"nt, an a--"al /ro+ an
or0"r aAar0ing attorn"B /""s an0 costs +ust D" /il"0 no +or" than 3$ 0aBs /ro+ th" 0at" that notic"
o/ th" or0"rCs "ntrB is s"r<"0.
3$
4"r", notic" o/ "ntrB o/ th" or0"r aAar0ing attorn"B /""s an0 costs Aas s"r<"0 on a--"llant on @un"
1$, $$#. 4oA"<"r, a--"llant 0i0 not /il" its notic" o/ a--"al until @ulB 9, $$#&A"ll D"Bon0 th"
3$&0aB ti+" li+it alloA"0 un0"r N!2, 4Fa?F1?. J 2ccor0inglB, this court onlB has Guris0iction to
consi0"r issu"s r"lating to th" attorn"B /""s an0 costs or0"r i/ th" ti+" to a--"al /ro+ that or0"r Aas
toll"0 DB a--"llantCs +otions /or Gu0g+"nt as a +att"r o/ laA an0 /or a n"A trial.
N!2, 4Fa?F4? -ro<i0"s that Ah"n a tolling +otion is /il"0, Ith" ti+" to /il" a notic" o/ a--"al runs /or
all -arti"s /ro+ "ntrB o/ an or0"r 0is-osing o/ th" last such r"+aining +otion.K J %his courtCs
0"cisions ha<" "<aluat"0 tolling +otions in th" cont")t o/ a--"als /ro+ /inal Gu0g+"nts.
31
J4oA"<"r,
1$ Notic" o/ ."nial o/ S"r<ic"; 8--osition CitB o/ !"noCs Notic" o/ ."nial o/ S"r<ic"; !"qu"st /or Clari/ication !"gar0ing
."a0lin" /or (iling 5otion (or N"A %rial, 8th"r %olling 5otions, "tc
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D"caus" N!2, 4Fa?F4? 0o"s not s-"ci/B /ro+ Ahich or0"rs th" ti+" to a--"al +aB D" toll"0, its
a--licaDilitB to -ost&Gu0g+"nt or0"rs aAar0ing attorn"B /""s an0 costs is uncl"ar.
3n this cas", th" or0"r aAar0ing attorn"B /""s to r"s-on0"nt Aas -r"0icat"0 on th" /inal Gu0g+"nt in
r"s-on0"ntCs /a<or. J %h"r" is thus a clos" conn"ction D"tA""n th" /inal Gu0g+"nt an0 th" s-"cial
or0"r a/t"r /inal Gu0g+"nt in that a chang" to th" /inal Gu0g+"nt Aoul0 liE"lB r"sult in a chang" to th"
s-"cial or0"r a/t"r /inal Gu0g+"nt. J BB 0"/inition, anB s-"cial or0"r a/t"r /inal Gu0g+"nt +ust D"
clos"lB r"lat"0 to th" Gu0g+"nt. J %his clos" conn"ction l"a0s us to conclu0" that th" tolling +otions
"nu+"rat"0 in N!2, 4Fa?F4? a--lB to Doth tB-"s o/ or0"rs. J 2nB oth"r int"r-r"tation o/ N!2, 4Fa?
F4? Aoul0 r"sult in th" a--"al o/ a -ost&Gu0g+"nt or0"r -roc""0ing in this court Ahil" th" un0"rlBing
Gu0g+"nt Aas still suDG"ct to chang" 0uring th" -"n0"ncB o/ tolling +otions in th" 0istrict court.
Such an "//"ct Aoul0 not onlB i+-"0" Gu0icial "cono+B an0 r"sult in -i"c"+"al litigation,
3
Dut it
Aoul0 also liE"lB D" count"rintuiti<" to +anB l"gal -ractition"rs an0 cr"at" signi/icant con/usion o<"r
th" ti+" /or /iling a--"als /ro+ s-"cial or0"rs a/t"r /inal Gu0g+"nt. J 2s A" ha<" -r"<iouslB
")-lain"0, IOtPh" /iling o/ a si+-l" notic" o/ a--"al Aas int"n0"0 to taE" th" -lac" o/ +or"
co+-licat"0 -roc"0ur"s to oDtain r"<i"A, an0 th" notic" shoul0 not D" us"0 as a t"chnical tra- /or th"
unAarB 0ra/ts+an.K
33
8ur int"r-r"tation o/ N!2, 4Fa?F4? tolling +otions shoul0 r"/l"ct our int"nt
to -r"s"r<" a si+-l" an0 "//ici"nt -roc"0ur" /or /iling a notic" o/ a--"al.
L:" th"r"/or" hol0 that a ti+"lB /il"0 tolling +otion un0"r N!2, 4Fa?F4? tolls th" ti+" to a--"al
/ro+ Doth /inal Gu0g+"nt an0 s-"cial or0"rs "nt"r"0 a/t"r /inal Gu0g+"nt. J 2ccor0inglB, this court
has Guris0iction to consi0"r th" +"rits o/ anB issu"s rais"0 in this a--"al r"lating to th" aAar0 o/
attorn"B /""s an0 costs in th" 0istrict courtCs @un" 9, $$#, or0"r.
C8NC76S38N
11 Notic" o/ ."nial o/ S"r<ic"; 8--osition CitB o/ !"noCs Notic" o/ ."nial o/ S"r<ic"; !"qu"st /or Clari/ication !"gar0ing
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:" r"<"rs" our 0"cisions in Custo+ CaDin"t an0 !oss to th" ")t"nt that th"B r"quir" that /iling
-"rio0s D" co+-ut"0 DB a00ing 3 0aBs /or s"r<ic" DB +ail un0"r N!C, 'F"? to th" -r"scriD"0 ti+"
-"rio0 D"/or" a--lBing N!C, 'Fa?. J (urth"r, A" hol0 that th" I-"rio0 o/ ti+" -r"scriD"0K 0o"s not
inclu0" th" 3&0aB alloAanc" /or s"r<ic" DB +ail un0"r N!C, 'F"? an0 that ti+" -"rio0s shoul0 D"
calculat"0 /irst un0"r N!C, 'Fa? D"/or" a00ing ti+" un0"r N!C, 'F"?. J 6sing this +"tho0 o/
co+-utation, A" conclu0" that a--"llantCs +otions /or Gu0g+"nt as a +att"r o/ laA an0 /or n"A trial
A"r" ti+"lB /il"0 an0 thus "//"cti<"lB toll"0 th" ti+" to a--"al. J 2s a r"sult, a--"llantCs notic" o/
a--"al Aas ti+"lB /il"0. J 2ccor0inglB, A" 0"nB r"s-on0"ntCs +otion to 0is+iss.
:" /urth"r hol0 that ti+"lB +otions list"0 un0"r N!2, 4Fa?F4? toll Doth th" ti+" to a--"al /ro+ th"
/inal Gu0g+"nt an0 th" ti+" to a--"al /ro+ a s-"cial or0"r "nt"r"0 a/t"r /inal Gu0g+"nt.
2ccor0inglB, this court also has Guris0iction to consi0"r th" +"rits o/ a--"llantCs a--"al /ro+ th"
0istrict courtCs or0"r aAar0ing attorn"B /""s an0 costs in /a<or o/ r"s-on0"nt.
(88%N8%ES
1. LS"" N!2, 3Fa?; 2l<is <. Stat", >a+ing Control B0., 99 N"<. 184, ''$ ,.0 98$ F1983?.
. N!2, 4Fa?F4?.
3. N!C, #$FD?; N!C, #9FD?.
4. N!C, 'F"?.
#. L97 N"<. ##$, ##3 nn. 1 R , '3# ,.0 98, 3$$ nn. 1 R F1981?.
'. L119 N"<. #1, #4&##, ' ,.30 741, 743 F$$3?.
7. L30. at #4, ' ,.30 at 74&43.
8. L30.
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9. LS"" N!C, ' 0ra/t"rCs not" F$$4?.
1$. L30.
11. LS"", ".g., NaltB <. NaltB %r"" (ar+, '#4 (.Su--. 131# FS...2la.1987?; M%ushn"r <. 6.S. .ist.
Court /or C"nt. .ist. o/ Cal., 89 (.0 8#3 F9th Cir.1987?; M7"rro <. QuaE"r 8ats Co., 84 (.30 39
F7th Cir.199'?.
1. L'#4 (.Su--. at 1317.
13. L30.
14. L30.
1#. L30. at 1317&18.
1'. L84 (.30 39, 4.
17. L30.
18. L30.
19. L89 (.0 at 8##&#'.
$. L30. Fciting NaltB, '#4 (.Su--. at 1317?.
1. L30. at 8##&#'.
. L119 N"<. at #4, ' ,.30 at 74&43.
3. N"lson <. 4""r, 11 N"<. 83, 1 ,.30 1#, 1#3 F$$#?.
4. LCusto+ CaDin"t, 119 N"<. at ##, ' ,.30 at 743.
#. L84 (.30 at 4.
'. N!2, 4Fa?F4?.
00141
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7. LS"" 2lDios <. 4oriNon Co++uniti"s, 3nc., 1 N"<. 4$9, 13 ,.30 1$ F$$'?; M5cNair <.
!i<"ra, 11$ N"<. 4'3, 4'8 n. ', 874 ,.0 14$, 144 n. ' F1994?; MBra0l"B <. !o+"o, 1$ N"<. 1$3,
1$#, 71' ,.0 7, 8 F198'?; M:"st"rn 3n0us., 3nc. <. >"n"ral 3ns. Co., 91 N"<. , 9&3$, #33
,.0 473, 478 F197#?.
8. LS+ith <. CroAn (inancial S"r<ic"s, 111 N"<. 77, 89 n. , 89$ ,.0 7'9, 771 n. F199#?.
9. LS"" >u++ <. 5ainor, 118 N"<. 91, #9 ,.30 1$ F$$?.
3$. N!2, 4Fa?F1?.
31. LS"", ".g., 5att"r o/ 2--lication o/ .uong, 118 N"<. 9$, 9&3, #9 ,.30 11$, 11 F$$?
Fconclu0ing that a ti+"lB /il"0 +otion to a+"n0 or +aE" a00itional /in0ings o/ /act toll"0 th" ti+" to
a--"al /ro+ a /inal Gu0g+"nt 0"nBing a -"tition to s"al cri+inal r"cor0s?; MCha-+an 3n0ustri"s <.
6nit"0 3nsuranc", 11$ N"<. 4#4, 4#7, 874 ,.0 739, 741 F1994? Fconclu0ing that ti+"lB /il"0 tolling
+otions toll"0 th" ti+" to a--"al /ro+ th" /inal Gu0g+"nt?; M2Dl" El"ctric, 3nc. <. =au/+an, 1$4 N"<.
9, 31&3, 7# ,.0 18, $ F1988? Fconclu0ing that a +otion to alt"r or a+"n0 toll"0 th" ti+" to
a--"al /ro+ th" /inal Gu0g+"nt?.
3. LS"", ".g., 4allicra/t"rs Co. <. 5oor", 1$ N"<. #', 78 ,.0 441 F198'?.
33. L(or+an <. Eagl" %hri/tB .rugs R 5arE"ts, 89 N"<. #33, #3', #1' ,.0 134, 13# F1973?,
o<"rrul"0 on oth"r groun0s DB >ar<in <. .ist. Ct., 118 N"<. 749, 7#1, #9 ,.30 118$, 1181 F$$?.K
:inston ,ro0ucts <. ."Bo"r, 1 N"<. 20<.8-. 48, 134 ,. 3r0 7' F$$'?;
%h" aDo<", a0+itt"0lB ")t"n0"0 citation, a--li"s to this issu"s at han0. :h"r"/or", th"
u0n"rsign"0 s""Es a co-B o/ th" 8r0"r /ro+ th" 11 3$ , $11 %rial, inclu0ing anB Cont"+-t 8r0"r,
Ahich +ust s"t /or th" Aith s-"ci/icitB -ursuant to 4ouston <. Eight @u0icial .istirct Court Ah"n
@u0g" ,o+"ranN" -ut 4ouston in cu//s /or aDout 3$ +inut"s, a cas" 3 a+ so+"Ahat aAar" o/:
Coughlin 5an0a+us:
htt-:11cas"in/o.n<su-r"+"court.us1-uDlic1cas"Vi"A.0oScs33.T74'
4ouston 5an0a+us:
htt-:11cas"in/o.n<su-r"+"court.us1-uDlic1cas"Vi"A.0oScs33.T14$#
.2%E. this ."c"+D"r 1'th, $11
U1s1 Zach Coughlin
Zach Coughlin
."/"n0ant
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DECLARATION OF ZACH COUGHIN
1. 3 a+ th" ."/"n0ant in this action.
. 3 a+ not sur" ")actlB Ahat @u0g" 4oAar0 8r0"r"0 at th" conclusion o/ th" No<"+D"r $
th
,
$ll %rial
3. 3 ha<" not D""n "ntir"lB sur" Ahat th" 0i//"r"nc" is D"tA""n "+ails an0 /a)"s, as +anB -"o-l"
s"n0 /a)"s /ro+ th"ir co+-ut"rs, liE" "+ail, an0 it is +B un0"rstan0ing that all "l"ctronic
trans+issions, Ah"th"r t")t, soun0, <i0"o, Ahat"<"r, ar" ulti+at"lB Gust con<"rt"0 to s"ri"s o/
1Cs an0 $Cs....Non"th"l"ss, 3 ha<" r"a0 th" !5C! !ul" # on s"r<ic" o/ +otions DB /asci+il"
an0 +a0" r"asonaDl" att"+-ts to co+-lB Aith 5s. !oD"rts r"qu"st that 3 int"r-r"t that rul" to
+"an a trans+ission o/ 1Cs an0 $Cs that is not I"+ailK Das"0. 2s such, 3 /a) h"r /ro+ a /a)
nu+D"r o/ +in", 949&''7&74$ an0 ha<" /a)"0 h"r th" ."c"+D"r 13
th
5otion /or a N"A %rial,
"tc. to 5s. !oD"rts at h"r /a) nu+D"r. 3 EnoA o/ EnoA rul" that alloAs 5s. !oD"rts, a -uDlic
"+-loB"", to all th" su00"n 0"clar" a citiN"n is not alloA"0 to "+ail h"r, +uch l"ss o--osing
couns"l in a cas".
4. 2ttorn"Bs in -ri<at" -ractic", as /ar as 3 EnoA, +anag" to o-"n attach+"nts, us" S-BDot,
5alAar"DBt"s, Su-"r2ntiS-BAar", Ahat"<"r....th"B +aE" it ha--"n Aithout a su-"r Dloat"0
go<"rn+"ntal salarB an0 0onCt clai+ a I/"ar o/ <irus"sK shoul0 0ictat" "<"rBthing, in +B
o-inion.
#. 2t th" conclusion o/ th" No<"+D"r 3$
th
, $11 %rial, in0""0, s"<"ral hours -rior to its
conclusion "<"n, 3 Aas ")tr"+"lB /aint an0 it Aas <"rB 0i//icult to /unction at th" l"<"l
n"c"ssarB to -ut on a 0"/"ns". 3 0o not Aish to go into th" AhBCs an0 Ah"r"/or"s o/ this, it
1# Notic" o/ ."nial o/ S"r<ic"; 8--osition CitB o/ !"noCs Notic" o/ ."nial o/ S"r<ic"; !"qu"st /or Clari/ication !"gar0ing
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+aB in<ol<"0 2.21-ri<acB issu"s1+"0ical issu"s, Dut, su//ic" to saB, 3 in no AaB coul0 ha<"
i+agin"0 that th" !5C Aoul0 s"" /it to hol0 "<"rBon" th"r", +anB g"tting -ai0 quit" a Dit o/
o<"rti+", in so+" incr"0iDl" "//ort to +aE" sur" this on" littl" ol0 -"tit larc"nB trial got 0on"
su-"r, su-"r /ast. 3 coul0 ha<" n"<"r i+agin"0 that th" %rial Aoul0 continu" until al+ost 9 -+
at night, AhB, in +B ")-"ri"nc", go<"rn+"nt "+-loB""s g"n"rallB l"a<" th"ir o//ic" Duil0ings
as soon a/t"r # -+ as hu+anlB -ossiDl". 2s such, 3 Aas in no AaB -r"-ar"0,
-hBsicallB1+"ntallB1+"0icallB, "tc. to continu" on that lat" into th" "<"ning.
'. 2--ar"ntlB, at th" clos" o/ %rial, @u0g" 4oAar0 +a0" a ruling. 3 ha<" r"c"i<"0 con/licting
r"-orts as to Ah"th"r th" !5C is ass"rting that 3 "nt"r"0 a guiltB -l"a F3 0o not D"li"<" that
ass"rtion co+-orts Aith r"alitB in anB AaB? or Ah"th"r @u0g" 4oAar0 +a0" a /in0ing o/
Cont"+-t co++itt"0 in th" -r"s"nc" o/ th" Court .$3$ an0 su++arilB s"nt"nc"0 +" to
thr"" 0aBs in Gail, Aith no -ossiDilitB o/ staB or a--"llat" r"<i"A, 0"s-it" @u0g" 4oAar0 ha<ing
0"ni"0 +" +B Si)th 2+"n0+"nt !ight %o Couns"l, assuring +" h" Aoul0 not or0"r anB
incarc"ration. 3 outlin"0 to @u0g" 4oAar0 Ahat a 0"<astating "//"ct his ruling +ight ha<" on
+B cli"nts cas"s to th" ")t"nt h" Aas not a//or0ing +" anB o--ortunitB to h"l- th"+ +aE"
oth"r arrang"+"nts to a<oi0 -r"Gu0icing th"ir cas"s, an0 @u0g" 4oAar0 agr""0 that h" Aas sa0
aDout that th"n angrilB l"/t th" D"nch a/t"r ")clai+ing so+"thing liE" IA" ar" o// th" r"cor0K.
7. 2t that -oint @u0g" 4oAar0Cs t"a+ o/ 5arshalls F3 thinE aDout /our o/ th" 5arshalls, at l"ast
A"r" AorEing at o<"rti+" Aag"s at that -oint in th" night to insur" that th" :al&5art cl"rE
Aoul0 not D" Dur0"n"0 DB ha<ing to r"turn to court 0uring nor+al Dusin"ss hours shoul0 a
continuanc" ha<" D""n grant"0? stor+"0 u- to +" an0 0"+an0"0 3 assu+" a han0cu//"0
-osition, 0"s-it" +B -assionat" -l"as that 3 n""0"0 to D" aDl" to hit th" Isa<"K Dutton on +B
not"s /ro+ th" trial on +B n"tDooE co+-ut"r. %h" 5arshals tol0 +" that Aas not alloA"0 to
1' Notic" o/ ."nial o/ S"r<ic"; 8--osition CitB o/ !"noCs Notic" o/ ."nial o/ S"r<ic"; !"qu"st /or Clari/ication !"gar0ing
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hit th" Isa<"K Dutton an0 that th"B 0i0nCt car" aDout +B not"s D"ing lost. 3ts r"allB Aas quit"
r"+arEaDl" th" ")t"nt to Ahich th"s" 5arshals tr"at"0 +" liE" 3 Gust EnocE"0 o// a liquor stor"
Aith a /ir"ar+, -istol Ahi--"0 th" cashi"r, th"n ha--"n"0 u-on th"+ in th" -arEing lot a/t"r
th"B Aitn"ss"0 th" "ntir" "<"nt.
8. 3 Aas taE"n DacE to a hol0ing c"ll /or s"<"ral +inut"s, Ah"r"u-on 3 Aas su++on"0 DacE into
th" court roo+ an0 @u0g" 4oAar0s -r"s"nc" Ah"r" h" talE"0 so+" +or". 2s 3 r"call, @u0g"
4oAar0 +"ntion"0 a 1$ 0aB li+itations -"rio0 or 0"a0lin" that Aoul0 D" running /ro+ th"
notic" o/ "ntrB o/ his V"r0ict an0 Cont"+-t (in0ing. @u0g" 4oAar0 +"ntion"0 that, gi<"n
that h" Aas incarc"rating +" /or th" n")t 3 0aBs, h" Aas going to ")t"n0 all 0"a0lin"s Ahich
+ight a--lB to anB notic"s o/ a--"al or +otions s""Eing a n"A trial, to s"t asi0" th" Gu0g+"nt,
<acat", "tc an a00itional thr"" 0aBs a/t"r th" nor+al ti+" on Ahich thos" li+itations -"rio0s
Aoul0 run. @u0g" 4oAar0 s""+"0 to ")-lain that this Aoul0 ha<" th" "//"ct o/ gi<ing +"
+or" ti+" to un0"rtaE" to /il" th"s" -l"a0ings, +otions, an0 notic"s i/ 3 so choos" so that th"
su++arB incarc"ration FAhich @u0g" 4oAar0 Aas sur" to -oint out Aoul0 not D" DailaDl" or
oth"rAis" circu+<"nt"0 DB anB att"+-ts to acc"ss Gustic"? Aoul0 not -r"Gu0ic" +B aDilitB to
0o so. 2s 3 un0"rstoo0 it this +"ant l"ngth"ning th" ti+" 3 ha0 to /il" such -a-"rs, not
short"ning it, an0 @u0g" 4oAar0 s""+"0 to in0icat" that th" -"rio0 to /il" such things Aoul0
still D" a0Gu0g"0 to D" Aithin th" 11 0aBs or l"ss cit"0 in N!C, 'Fa?, an0, as such, non
Gu0icial 0aBs Aoul0 not count toAar0s th" 1$ 0aBs Aithin Ahich 3 +ust /il" th" <arious -ost
V"r0ict -a-"rs 3 +ight Aant to /il". @u0g" 4oAar0 s""+"0 to in0icat" that th" thr"" a00itional
0aBs h" Aas granting +" Aoul0 D" a00"0 on a/t"r th" ")-iration o/ thos" 1$ non Gu0icial 0aBs
/ro+ notic" o/ "ntrB o/ @u0g" 4oAar0Cs 8r0"r Aas /il"0 Aith th" !5C an0 s"r<"0 u-on +".
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9. 3t is +B r"coll"ction that @u0g" 4oAar0 th"n l"/t th" courtroo+ an0 3 Aas l"/t alon" Aith
aDout 4 5arshals, all coll"cting o<"rti+". 2t that -oint th" got a Dit rough Aith +" an0
start"0 s-"aEing in <"rB hostil", o+inous ton"s, sho<ing so+" -a-"rs in /ront o/ +B /ac", Dut
not long "nough /or +" to D" aDl" to r"a0 th"+ or 0isc"rn Ahat th"B r"lat"0 to. %h" 5arshals
D"gan 0"+an0ing that 3 sign th"s" -a-"rs. 3 asE"0 th"+ i/ th"B A"r" +ortgag" 0ocu+"nts or
-"rha-s so+" stu0"nt loan agr""+"nts or oth"r sorts o/ 0ocu+"nts /or Ahich anB r"asonaDl"
-"rson Aoul0 Aant an o--ortunitB to r"<i"A -rior to signing. %his +a0" th" 5arshals "<"n
+or" angrB than th"B nor+allB s""+, an0 th"B tB-icallB s""+ <"rB, <"rB angrB +ost o/ th"
ti+", to +" at l"ast. 3n /act, 5arshal 5"ntN"l, at 5B 8ctoD"r 11
th
, $11 arraign+"nt ha0
D"co+" "nrag"0 Aith +" /or asEign qu"stions aDout +B Si)th 2+"n0+"nt !ight to Couns"l. 3
r"-ort"0 this to th" court an0 "<"n +a0" a notation aDout it, 3 D"li"<", on th" 0ocu+"nt
5arshal 5"ntN"l 0"+an0"0 3 sign on that 0aB. %hat sa+" 0aB 5arshal 5"ntN"l criticiN"0 +"
to +B /ac" a/t"r 3 a--"ar"0 D"/or" @u0g" >ar0n"r /or th" arraign+"nt. 5"ntN"l tol0 +" 3 ha0
asE"0 @u0g" >ar0n"r stu-i0 qu"stions, an0 3 D"li"<" h" +a0" so+" oth"r insulting an0
thr"at"ning r"+arEs to +" at that ti+", Dut 3 a+ a Dit a/rai0 to g"t into h"r" in +uch 0"tail.
1$. So, on No<"+D"r 3$
th
, $11, a/t"r @u0g" 4oAar0 l"/t th" courtroo+ th" 5arshals Aoul0 not
l"t +" r"a0 th" -a-"rs th"B Aant"0 +" to sign /or +or" than a s"con0 or tAo D"/or" th"B
D"gan houn0ing +" to sign th"+ in angrB an0 thr"at"ning ton"s. 3 Aas so 0istraught /ro+ th"
<arious irr"gulariti"s 3 -"rc"i<"0 in th" %rial, an0 that Aas onlB co+-oun0"0 DB th" thuggish
D"ha<ior o/ th" 5arshals, Aho quicElB in/or+"0 +" that th"B 0i0nCt ha<" ti+" /or +" to r"a0
anBthing an0 0ragg"0 +" aAaB to th" 3 0aBs o/ incarc"ration 3 /ac"0, Ahil" +B car Aas sur"
to g"t toA"0 F"s-"ciallB consi0"ring th" ."-ut""s at th" :asho" CountB @ail saA /it to r"/us"
to alloA +" to +aE" +or" than, 3 D"li"<", a singl" -hon" call, shortlB a/t"r arri<ing at th" Gail,
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Ah"r"u-on th"B A"nt into th"ir usual routin" o/ r"taliating against on" Aho r"/us"s to 0i<ulg"
th"ir r"ligious -r"/"r"nc" or on" Aho cannot ansA"r all o/ th"ir highlB in<asi<" qu"stions Aith
th" ")act 0"gr"" o/ s-"ci/icitB th"B 0"+an0. %his r"taliation, in +B cas", inclu0"0 /orcing +"
into so+" sort o/ -osition on +B En""s ")tr"+"lB clos" to th" crotch"s o/ s"<"ral :CS8
."-ut""s in so+" sort o/ sa0istic /orc"0 si+ulation o/ +B -"r/or+ing oral s") u-on th"+, at
l"ast /ro+ +B -oint o/ <i"A. 3 Aas -lac"0 in a /r""Ning col0 roo+, Aith a c"+"nt /loor, DB
+Bs"l/, in r"taliaton /or /ailing to 0isclos" +B r"ligious -r"/"r"nc" an0 in0icating that 3 Aas
not ")actlB sur" hoA +uch +on"B 3 +a0" "ach +onth gi<"n th" <ariaDl" natur" o/ +B
co+-"nsation. 3 Aas -lac" alon" in a hol0ing c"ll Aith nothing Dut a Aoo0"n D"nch, an0 th"
ic" col0 c"+"nt /loor 0u" to th" c"ll D"ing s"qu"st"r"0 aAaB /ro+ th" Duil0ings h"at sourc"s,
inclu0ing oth"r -"o-l". 5B 0og Aas l"/t to /"n0 /or its"l/. 5B 0og Aas /"atur" in this
."c"+D"rCs N"<a0a 7aAB"r +agaNin", @acEson ,aAlucE, a 3 B"ar ol0 ,"Eingn"s".
11. 3 .aBs lat"r Ah"n 3 Aas r"l"as" /ro+ Gail, th" -"rsonal -ro-"rtB r"turn"0 to +" 0i0 not
inclu0"0 anB V"r0ict or Cont"+-t (in0ing18r0"r r"lat"0 to th" No<"+D"r 3$
th
, $11 %rial in
!5C 11 C! 17'. 3 call"0 s"<"ral ti+"s in th" 0aBs /olloAing +B r"l"as" an0 s-oE" Aith
V"ronica 7o-"N Fthough it tooE s"<"ral 0aBs to asc"rtain h"r last na+" gi<"n that n"ith"r sh"
nor anBon" associat"0 Aith th" !5C Aoul0 0i<ulg" it to +"? Aho+ in/or+"0 +" that 3 ha0
D""n s"r<"0 @u0g" 4oAar0Cs 8r0"r at th" conclusion o/ th" No<"+D"r 3$
th
, $11 %rial. 5s.
7o-"N i++"0iat"lB tooE a DullBing, hostil", aggr"ssi<" ton" Aith +" that s""+ co+-l"t"lB out
o/ -lac" co+ing /ro+ h"r gi<"n th" -osition o/ authoritB th" -uDlic has "ntrust"0 h"r Aith an0
Ahat 3 /""l is a 0utB on h"r -art to att"+-t to co+" across as IGu0icialK rath"r than tBrannical.
1. 3 in/or+"0 5s. 7o-"N that 3 0i0 not /""l 3 ha0 D""n s"r<"0 at all, an0 that 3 Aas not at all sur"
Ahat sh" Aas r"/"rring to, Dut that 3 Aoul0 0"/init"lB liE" to g"t a co-B o/ anB 8r0"r
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i++"0iat"lB, as A"ll as a co-B o/ th" au0io o/ th" %rial. 3 D"li"<" 5s. 7o-"N in/or+"0 +"
that 3 Aoul0 not D" alloA"0 a co-B o/ th" au0io, Dut that 3 Aoul0 n""0 to -aB /or a transcri-t to
D" +a0". 3 a+ sur", hoA"<"r, that a /"+al" !5C /iling o//ic" count"r "+-loB"" tol0 +" on
or aDout th" sa+" 0aB that 3 Aoul0 not "<"r D" -ro<i0"0 a co-B o/ th" au0io r"cor0ing o/ th"
trial Dut that 3 Aoul0 n""0 to -aB to ha<" a transcri-t +a0", an0 that 3 coul0 onlB us" ,a+
7ongoni, th" !5CCs 8//icial %ranscri-tist.
13. 3 call"0 5s. 7ongoni an0 Ah"n 3 /inallB got ahol0 o/ h"r sh" in/or+"0 +" that sh" Aoul0 n""0
th" !5C to alloA h"r acc"ss to th" au0io F0"s-it" h"r D"ing IlinE"0K to th" !5CCs sBst"+s?,
an0 that until that Aas 0on", sh" coul0 not quot" +" an "sti+at" /or th" transcri-t cost, nor
coul0 sh" acc"-t anB -aB+"nt /or+ +". 3 D"li"<" 5s. 7ongoni /urth"r in0icat"0 to +" that 3
Aoul0 not D" aDl" to g"t a co-B o/ th" actual au0io r"cor0ing "ith"r
14. 3 ha<" s"nt s"<"ral Aritt"n co++unications an0 ha0 s"<"ral <"rDal co++unications Aith ..
Ballar0 an0 oth"r !5C -"rsonn"l ")-r"ssing +B ")ig"nt 0"sir" to g"t a co-B o/ th" au0io o/
th" %rial, an0 hoA n"c"ssarB it Aas to -r"-aring /ilings1+otions1-l"a0ings /or Ahich 3 ha0 a
<"rB li+it"0 -"rio0 o/ ti+" to cra/t.
1#. B"/or", Ahil", an0 a/t"r s-"aEing Aith 5s. Ballar0, a g"ntl"+an Ahos" na+" "sca-"s +" Dut
Aho is a /iling count"r cl"rE at th" !5C tol0 +" 3 Aoul0 n""0 to g"t a suD-o"na to g"t a co-B
o/ th" !5C 0ocE"t in +B cas", an0 that h" coul0nCt gi<" +" co-i"s o/ anBthing in +B cas",
c"rtainlB not th" 8r0"r st"++ing /ro+ th" No<"+D"r 3$
th
, $11 %rial, that h" 0i0 not ha<"
acc"ss to such, an0 "<"n i/ h" 0i0, Aoul0 not -ro<i0" it, an0 that his sBst"+ 0i0 not shoA
"ntrB o/ anBthing in conn"ction Aith th" No<"+D"r 3$
th
, $11 %rial. 4" /urth"r <"ri/i"0 that
th"r" ha0 not D""n anB "ntrB in his I0ocE"tK /or !5C 11 C!17' 3 an0 that no Notic" o/
EntrB o/ 8r0"r or EntrB o/ 8r0"r ")ist"0 in his sBt"+ or co+-ut"r /or that +att"r /olloAing
$ Notic" o/ ."nial o/ S"r<ic"; 8--osition CitB o/ !"noCs Notic" o/ ."nial o/ S"r<ic"; !"qu"st /or Clari/ication !"gar0ing
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th" %rial. 4" 0i0 in0icat" that Ith"BK sai0 th" 5otion /or N"A %rial that 3 ha0 r"c"ntlB /il"0
Aas ti+"lB, an0 3 D"li"<" h" sai0 Ith"BK sai0 th" 0aB h" an0 3 A"r" curr"ntlB s-"aEing Aas
Ith" last 0aB th"B ga<" Bou to /il"K, Ahich 3 D"li"<" %u"s0aB, ."c"+D"r 13
th
, an0 gi<"n th"
Ia00itional 3 0aBsK languag" that 3 r"call @u0g" 4oAar0 +"ntioning h" Aas a00ing on to
alloA +" +or" ti+" to /il", Aoul0 +"an that Ith"BK F3 tooE Ith"BK to D" IV"ronicaK, Aho+
th" g"ntl"+an cl"rE st"a0/astlB r"/us"0 to i0"nti/B DB last na+" an0 /or Ahich th" -hon"
nu+D"r h" Arot" 0oAn /or +" in his oAn han0Ariting Aith IV"ronicaK Aritt"n out turn"0 out
to D" a 0isconn"ct"0 nu+D"r? ha0 assu+"0 s"r<ic" Aas a--ro-riat"lB -"r/or+"0 at th"
conclusion o/ th" %rial, an0 that 13 0aBs D"gan running on th" /olloAing 0aB, that th" hal/ a
0aB th" !5C is o-"n on (ri0aBs Aoul0 count as a /ull Gu0icial 0aB, an0 that non Gu0icial 0aBs
Aoul0 D" inclu0"0 in counting toAar0s this 13 0aBs gi<"n th" AaB Ith"BK or IV"ronicaK ha0
int"r-r"t"0 @u0g" 4oAar0Cs 8r0"r, a--ar"ntlB in a AaB that +a0" th" ti+" 3 ha0 to /il" th"s"
<arious -a-"rs short"r than it Aoul0 ha<" D""n ha0 @u0g" 4oAar0 si+-lB not grant"0 an
a00itional thr"" 0aBs gi<"n th" 0ictat"s o/ not counting non Gu0icial 0aBs in N!C, 'F"?. 3t is
+B un0"rstan0ing, hoA"<"r, th" 3 ha<" not "<"n D""n s"r<"0 this V"r0ict18r0"r, an0 that anB
li+itations -"rio0 +ust not "<"n D"gin running until 3 a+ a--ro-riat"lB s"r<"0. V"ronica
a0+itt"0 to +" on th" -hon", 3 D"li"<" on 5on0aB or %u"s0aB Ah"n 3 call"0 h"r /ro+ th"
/r"" -hon" in th" :asho" CountB 7aA liDrarB Aith laA liDarian "+-loB"" 7in0a BlaE"l"B
sitting Aithin "arshot, that th" !5C /"lt it ha0 a--ro-riat"lB s"r<"0 +" th" 8r0"r at th"
conlcusion o/ th" trial an0 ha0 /ail"0 to oth"rAis" s"n0 +" a co-B in th" +ail or DB /a). 3
asE"0 5s. 7o-"N i/ 3 coul0 g"t a co-B o/ th" 8r0"r, as A"ll as anB oth"r 8r0"rs that ha0 D""n
issu"0 in th" cas". Sh" agr"" to /a) +" onlB th" 8r0"r /ro+ th" conclusion o/ th" No<"+D"r
3$
th
, $11 %rial, r"/using to -ro<i0" anB oth"r 8r0"rs. 2s o/ B"t, 0"s-it" r"a0ing DacE to h"r
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+B /a) nu+D"r at l"ast tAic", 3 ha<" B"t to r"c"i<" a /a) containing anBthing /ro+ th" !5C,
+uch l"ss th" 8r0"r /olloAing th" No<"+D"r 3$, $11 %rial.
2,,73C2%38N (8! .E(E!!27 8! :23VE! 8( C86!% (EES 2N. C8S%
%his is an 2--lication /or ."/"rral o/ Court (""s an0 Costs.
S%2%E5EN%S 52.E %8 %4E C86!% 6N.E! 82%4. 3 sA"ar or a//ir+ that th" in/or+ation in this a--lication is
tru" an0 corr"ct. 3 +aE" this stat"+"nt un0"r th" -"naltB o/ -ros"cution /or -"rGurB i/ it is 0"t"r+in"0 that 3 0i0 not t"ll th"
truth.
3 a+ r"qu"sting a 0"/"rral or Aai<"r o/ th" /olloAing /""s an0 costs in +B cas":
UUU)UUU2nB or all o/ th" /olloAing: 2ll /iling /""s; /""s /or th" issuanc" o/ "ith"r a su++ons an0 suD-o"na;
UUU)UUU(""s /or oDtaining on" c"rti/i"0 co-B o/ a t"+-orarB or0"r in a 0o+"stic r"lations cas" or a /inal or0"r, Gu0g+"nt
or 0"cr"" in all cri+inal -roc""0ings.
UUU)UUU(""s /or s"r<ic" o/ -roc"ss DB a sh"ri//, +arshal, constaDl" or laA "n/orc"+"nt. (""s /or s"r<ic" DB -uDlication.
UUUVUUU(iling /""s an0 -hotoco-B /""s /or th" -r"-aration o/ th" r"cor0 on a--"al.
UUUVUUUCourt r"-ort"rWs /""s o/ r"-ort"rs or transcriD"rs "+-loB"0 DB th" court /or th" -r"-aration o/ th" transcri-t.
%h" Dasis /or th" r"qu"st is:
1. :23VE!: 3 a+ -"r+an"ntlB unaDl" to -aB. 5B inco+" an0 liqui0 ass"ts ar" insu//ici"nt or Dar"lB su//ici"nt to +""t
th" 0ailB "ss"ntials o/ li/" an0 unliE"lB to chang" in th" /or"s""aDl" /utur".
. .E(E!!27:
a. 5B inco+" is insu//ici"nt or is Dar"lB su//ici"nt to +""t th" 0ailB "ss"ntials o/ li/", an0 inclu0"s no allot+"nt that coul0
D" Du0g"t"0 /or th" /""s an0 costs that ar" r"quir"0 to gain acc"ss to th" court.
D. 3 0o not ha<" th" +on"B to -aB th" court /""s an0 costs noA. 3 0o not EnoA i/ 3 can -aB th" /""s an0 costs at a lat"r
0at".
2((3!52%38N ,ursuant to N!S 39B.$3$
%h" un0"rsign"0 0o"s h"r"DB a//ir+ that th" -r"c"0ing 0ocu+"nt 0o"s not contain
th" social s"curitB nu+D"r o/ anB -"rson.
,ursuant to N!S #3.$4#, 3 0"clar" un0"r -"naltB o/ -"rGurB that th" /or"going is tru" an0 corr"ct. E)"cut"0 on ."c"+D"r
1', $11
.2%E. this ."c"+D"r 1'th, $11
U1s1 Zach Coughlin
Zach Coughlin
."/"n0ant
Notic" o/ ."nial o/ S"r<ic"; 8--osition CitB o/ !"noCs Notic" o/ ."nial o/ S"r<ic"; !"qu"st /or Clari/ication !"gar0ing
00150
tIQ: uchClqhl1n
]
PRO
OF !13
2
I, Zach Coughlin, declare:
d
4 On December 16.2011. I. Mr. Zach Coughlin served the forgoing document by eailing
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JD
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ad fing a true copy thereof to:
Pamela G Roberts, Esq.
Reno City Attorey's O ice Criminal Divison
A.O. Box 1900 Reno , NV 89505
Phone Number: 775-334-2050
Fax number: 775334-2420
Email: robeeno.gov
Reno Municipal Court
renomunirr o,eoy
Clerkl Administrator
One South Siera Street
Reno, Nevada 8950 I
Fax: 7S 326 5105
DATED THIS 16th day ofDecember, 2011 HY:
+
?3 NodccDC_ o(S Re (o
roln
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8 Notc QfA Mn 10 V ad or Se Aide. JCRCP 59. JCRCP Mo or
00152
---... -... -.-.... ~ . . .. . . -- .. ~ ~ .. -.-.,--
QfAppeal. M9tjon V acvte and
Aside. JCRCP 59. JCRCP 60. Motion for
. .
00152
Windows Live Hotmail Print Message http://by148w.bay148.maillive.corn/mail/PrintMessages.aspx?cpids=57...
RE: your failure to propound discovery
From: Zach Coughlin (zachcoughlin@hotmail.com)
Sent: Thu 12/08/11 5:14 PM
To: hazlett-stevensc@reno.gov
Chris,
I am engaging you in relation to 11 CR 22176 an your failure to provide me
access to or copies of the discovery from the arrest of September 9, 2011, not
the trespass case. We will deal with the trespass case later. For now, please
just address your failure of provide copies of the discovery when I requested.
Can you check your phone records? Would you like me to check mine?
How about your fax records. Mine? I think you will find that we definately
did speak. Anyways, can you indicate your offices standard operating
procedure when a defendant or accused calls and writes your office up
requesting discovery within a day after the arrest? Must you provide
something within 48 hours of the arrest? What about if the arraignment is set
out one month from the arrest? Must an arraignment occur prior to that? It
seems rather suspect to assert that your office does not have any records or
discovery incident to the an arrest of September 9, 2011, when the accused
calls and writes requesting documentation incident to the arrest on
approximately September 13th, 2011 and again soon thereafter, and again
somewhat later, when discovery subsequently provided by Pam Roberts
shows a fax (only a partial portion of which, apparently, was included in the
discovery) from Sargent Avansino to your office dated September 12,
2011...Further, you did not indicate that your office had something but
wouldn't provide it, you indicated that your office simply did not have
anything. You made remarks about how you weren't going to tell this and
that person how to do their job, etc...Remember? It seems patently unfair for
the prosecutor to be provided access to this documentation over one month
prior to the defendant being afforded access to it, and sufficient time to do
who knows what with it (several pages of Sargent Avansino's fax appear
missing and the Probable Cause sheet does not appear to be reviewed and
signed off on for a probable cause finding by any Magistrate, the form is
simply blank), particularly were a continuance was at first agreed to by
Roberts in writing (only to have her weasel out of that at trial while making
jokes about the defendant's need to use the restroom in open court). Please
indicate, further, in writing, if your office received any faxed or emailed
records request from me, Zach Coughlin, at any time, including the period of
1 of 7 12/12/2011 4:21 PM
00153
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time prior to the Oct 10th, 2011 arraignment.
Sincerely,
Zach Coughlin, Esq.
817 N. Virginia St. #2
Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
Licensed in Nevada and USPTO
** Notice** This message and accompanying documents are covered by the electronic Communications Privacy Act, 18
U.S.C. 2510-2521, and may contain confidential information intended for the specified individual (s) only. If you are not
the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you
have received this document in error and that any review, dissemination, copying, or the taking of any action based on the
contents of this information is strictly prohibited. This message is confidential, intended only for the named
recipient(s) and may contain information that is privileged, attorney work product or exempt from disclosure
under applicable law. If you are not the intended recipient(s), you are notified that any disclosure, copying,
distribution or any action taken or omitted to be taken in reliance on the contents of this information is prohibited
and may be unlawful. If you receive this message in error, or are not the named recipient(s), please notify the
sender, delete this e-mail from your computer, and destroy any copies in any form immediately. Receipt by anyone
other than the named recipient(s) is not a waiver of any attorney-client, work product, or other applicable
privilege.
Date: Thu, 8 Dec 2011 16:05:11 -0800
From: Hazlett-StevensC@reno.gov
To: zachcoughlin@hotmail.com
Subject: RE: your failure to propound discovery
Mr. Coughlin. I have never spoken to you and have never denied discovery to a defendant in any matter. Again
you seek to engage me in a convesation about the pending trespassing. I cannot speak with you. You are
represented by counsel.
Thank you,
Chris
Christopher Hazlett-Stevens
Deputy City Attorney
City of Reno
Tel: 326-6628
Fax: 334-4226
2 of 7 12/12/2011 4:21 PM
00154
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ATTORNEY-CLIENT PRIVILEGED
This e-mail message transmission and any documents, files or previous e-mail messages attached to it, are
confidential and are protected by the attorney-client privilege and/or work product doctrine. If you are not the
intended recipient or a person responsible for delivering it to the intended recipient you are hereby notified that
any review, disclosure, copying, dissemination, distribution or use of any of the information contained in, or
attached to this e-mail transmission is STRICTLY PROHIBITED. If you have received this transmission in error,
please immediately notify us by forwarding this e-mail to the sender or by telephone at (775) 334-2050 and
then delete the message and its attachments.
- - - Original Message - - -
From: Zach Coughlin <zachcoughlin@hotmail.com>
To: <hazlett-stevensc@reno.gov>, <robertsp@reno.gov>
Date: Thu, 8 Dec 2011 15:44:36 -0800
Subject: RE: your failure to propound discovery
Mr. Hazlett-Stevens,
We did definately talk on the phone regarding the matter to which I do not
have representation, the RSIC arrest case 11 DR 22176 21 for which Deputy
City Attorney Pam Roberts is the prosecutor. I was denied my Sixth
Amendment right to court appointed defense counsel in that matter, and
represented myself. As such, there is no rule precluded you from
communicating with me about 11 DR 22176 21. You did speak with me
about that. I called you within a couple days of the September 9th, 2011
arrest in that matter describing my exigent desire to obtain a copy of the
discovery. I was transferred to you and we spoke at length about it, you
describing why you could not give it to me. Is it your contention that your
office or the State does not have a duty to provide the defendant a copy of
certain pieces of discovery within 48 hours of arrest?
Regarding the matter for which Mr. Puentes took the baton from Mr. Taitel,
is it clear to you how Mr. Taitel was somehow, apparently, able to assent to
a continuance, only to, apparently, find some need to pass the baton to Mr.
Puentes very, very shortly thereafter? Why did Mr. Taitel's status as
attorney of record change? Was it due to a conflict? Why didn't that
conflict prevent Mr. Taitel from abstaining from assenting to the
continuance in the trespass case, which was scheduled for trial December
13, 2011?
Sincerely,
3 of 7 12/12/2011 4:21 PM
00155
Zach Coughlin, Esq.
Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
U.S.C. 2510-2521, and may contain confidential information intended for the specified individual (s) only. If you are
not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that
you have received this document in error and that any review, dissemination, copying, or the taking of any action based
on the contents of this information is strictly prohibited. This message is confidential, intended only for the named
distribution or any action taken or omitted to be taken in reliance on the contents of this information is
prohibited and may be unlawful. If you receive this message in error, or are not the named recipient(s), please
notify the sender, delete this e-mail from your computer, and destroy any copies in any form immediately.
Receipt by anyone other than the named recipient(s) is not a waiver of any attorney-client, work product, or
other applicable privilege.

Date: Wed, 7 Dec 2011 07:34:25 -0800
Subject: Re: your failure to propound discovery
Mr. Coughlin. You are represented by counsel and I cannot correspond with you. I have never correponded
with you, and your statement that you spoke with me is false. I have never spoken with you. You may have
your attorney, Roberto Puentes, contact me with any discovery issues or issues regarding the City's Motion to
Continue. Please do not correspond with me regarding this case in the future. As an attorney, you are fully
aware that I cannot communicate with a you as a represented party. Do not contact me without your
counsel.
Thank you,
Chris
City of Reno
Tel: 326-6628
Fax: 334-4226
confidential and are protected by the attorney-client privilege and/or work product doctrine. If you are not
4 of 7 12/12/2011 4:21 PM
the intended recipient or a person responsible for delivering it to the intended recipient you are hereby
notified that any review, disclosure, copying, dissemination, distribution or use of any of the information
contained in, or attached to this e-mail transmission is STRICTLY PROHIBITED. If you have received this
transmission in error, please immediately notify us by forwarding this e-mail to the sender or by telephone at
(775) 334-2050 and then delete the message and its attachments.
-----Original Message-----
To: <hazlett-stevensc@reno.gov>
Date: Wed, 7 Dec 2011 01:48:03 -0800
Subject: your failure to propound discovery
Dear Mr. Hazlett-Stevens,
I am writing to request a copy of any and all discovery, pleadings, documentation,
correspondences, or media in any way connected to the trespass case against me for
which Lew Taitel was apparently my court appointed attorney, but whom no longer is.
Further, I wish to be copied on everything past and present in any way related to this
matter until and after I procure another attorney. I did not agree to the continuance you
sought, nor was I informed you were seeking it. I find it particularly troubling that a
continuance was granted in the trespass case to the same man who is applying an
unlawful rent distraint on both my client files, personal property, AND THE
EXCLUPATING EVIDENCE I NEED TO DEFEND MYSELF IN THE PETIT
LARCENYCASE FOR WHICH I DETAIL THE COMPLAINTS I HAVE AGAINST
YOU AND YOUR OFFICE'S HANDLING BELOW. NO CONTINUANCE WAS
GRANTED OR AGREED TO AT TRIAL BYTHE RMC OR MS. ROBERTS,
PERHAPS SHE WAS TOO BUSYALLEGEDLYSUBORNING THE PERJURYOF
RSIC OFFICER KAMERON CRAWFORD.
In the discovery your office provided in the petit larceny matter Ms. Roberts prosecuted
against me there is a fax from the RSIC to you that has a fax heading for what appears to
be "page 1" followed by pages without that heading...then a heading with "page 4" etc...
I want the entire contents of anything provided by the RSIC and Walmart to you or
anyone connected with the Reno City Attorney or the Reno Municipal Court. Further, I
want all media provided by Walmart, and I question why you needed 45 minutes with
the three witness who testified at the November 30th, 2011 trial, from 1pm to 1:45pm.
Additionally, you are hereby served a NRCP 11 motion requiring you to correct the
perjury you suborned in court with respect to the patently contradictory testimony of
Officer Crawford vis a vis the video evidence you yourself provided in discovery.
5 of 7 12/12/2011 4:21 PM
Further, I spoke with you, Mr. Hazlett-Stevens, shortly after the September 9, 2011
arrest in this matter demanding a copy of all documentation or discovery that I had any
right to. I was told I would not have any opportunity to review such materials prior to
the arraignment, which was not set for a full 30 days out from the arrest. Do I not have
a right to a copy of the pc sheet, arrest report, and witness statements within 48 hours of
the arrest? The fax to your office from the RSIC is dated 9/12/2011, yet my written
demands and requests for such discovery and documentation were met with refusals to
provide such materials, and, in some case, claims that your office did not even have such
materials and would not get them until after the arraignment. Further, I spoke with and
provided written requests to RSIC Sargent Avansino within 2 days after the arrest and he
refused to provide the materials, as did the Reno Municipal Court. Please alert the court
to any wrongdoing on your's or the Reno City Attorney or the RSIC part in this regard in
prejudicing my ability to defend my case by delaying the production of essential
discovery, then refusing to agree to a continuance at trial, after earlier providing a
written agreement to such a continuance.
Sincerely,
Zach Coughlin, Esq.
Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
** Notice** This message and accompanying documents are covered by the electronic Communications Privacy Act,
18 U.S.C. 2510-2521, and may contain confidential information intended for the specified individual (s) only. If you
are not the intended recipient or an ag ent responsible for delivering it to the intended recipient, y ou are hereby notified
that you have received this document in error and that any review, dissemination, copying, or the taking of any action
based on the contents of this information is strictly prohibited. This message is confidential, intended only for the
named recipient(s) and may contain information that is privileged, attorney work product or exempt from
disclosure under applicable law. If you are not the intended recipient(s), you are notified that any disclosure,
copying, distribution or any action taken or omitted to be taken in reliance on the contents of this information
is prohibited and may be unlawful. If you receive this message in error, or are not the named recipient(s),
please notify the sender, delete this e-mail from your computer, and destroy any copies in any form
immediately. Receipt by anyone other than the named recipient(s) is not a waiver of any attorney-client, work
product, or other applicable privilege.

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6 of 7 12/12/2011 4:21 PM
7 of 7 12/12/2011 4:21 PM
Nevada Court Services
475 So. Arlington Suite 1A
Reno, Nevada 89501
(775) 348-7560
(Toll Free) 800-570-5583
Fax: (775) 348-7977
Email: nevcs@nevcs.com
The following Attorney is associated with and highly recommended by Nevada Court Services
"Serving the People of Nevada"
Lewis S. Taitel
Attorney at Law
475 S. Arlington Suite 1A
Reno, Nevada 89501
(775) 322-2272
Fax: (775) 348-7977
Nevada State Bar No. 4397
Disclaimer: "The State Bar of Nevada does not certify any lawyer as a specialist or expert.."
Criminal Law - DUI Defense - Personal Injury
Property Law - Collections - Divorce - Civil Law
Adoption - Family Law
Nevada Attorney Directory
Page 1 of 2 Nevada Court Services - Attorney
12/12/2011 http://www.nevcs.com/attorney.html
Copyright 1997-2011 - Nevada Court Services - All Rights Reserved
Page 2 of 2 Nevada Court Services - Attorney
12/12/2011 http://www.nevcs.com/attorney.html
00156
motion for continuance
Sent: Fri 11/11/11 1:40 AM
To: robertsp@reno.gov
Zach Coughlin
121 River Rock St.
Reno, NV 89501
775 338 8118
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RE: motion for continuance
privilege.
Sent: Wed 11/16/11 3:35 PM

Thank You,

Date: Mon, 14 Nov 2011 10:36:45 -0800
From: robertsp@reno.gov
Subject: Re: motion for continuance
Mr. Coughlin, we were closed on Friday and I have just read your email. If you have not received confirmation
from the Court that your trial date has been continued, you will need to appear this afternoon at 1:00 pm in
Courtroom B of the Reno Municipal Court. We can discuss your case further at that time and if we are unable to
resolve the case, you can ask the Court again for a continuance and I won't object. However, it is the Court's
decision to grant your motion to continue.
It is also the Court's decision whether to appoint you a legal defender. I do not plan to ask for jail time, so the
Court is not required to appoint you an attorney. In addition, you have no right to a jury trial in a misdemeanor
case.
I hope your housing situation improves. See you this afternoon. Pam Roberts, Deputy City Attorney.
To: <robertsp@reno.gov>
Date: Fri, 11 Nov 2011 01:40:53 -0800
Subject: motion for continuance
Zach Coughlin
121 River Rock St.
Reno, NV 89501
775 338 8118

Sent: Wed 11/16/11 5:30 PM

Zach Coughlin, Esq.
121 River Rock St.
Reno, NV 89501
775 338 8118
Licensed in Nevada
privilege.

Date: Wed, 16 Nov 2011 17:12:21 -0800
Subject: RE: motion for continuance
Mr. Coughlin, you should have already received a notice regarding the availability of discovery and request for
reciprocal discovery. You just need to call ahead at 334-2050 and arrange to pick it up. You are entitled to
copies of all the reports and witness statements and video we may have on this case. Since I am not calling any
additional witnesses that are not already mentioned in the reports/statements, I am not obligated to send you
an additional list of witnesses. I am also not obligated to do any further investigation or interviews. Pam
Roberts.
Date: Wed, 16 Nov 2011 15:35:48 -0800

Thank You,

Date: Mon, 14 Nov 2011 10:36:45 -0800
Mr. Coughlin, we were closed on Friday and I have just read your email. If you have not received
confirmation from the Court that your trial date has been continued, you will need to appear this afternoon at
1:00 pm in Courtroom B of the Reno Municipal Court. We can discuss your case further at that time and if we
are unable to resolve the case, you can ask the Court again for a continuance and I won't object. However, it
is the Court's decision to grant your motion to continue.
It is also the Court's decision whether to appoint you a legal defender. I do not plan to ask for jail time, so
the Court is not required to appoint you an attorney. In addition, you have no right to a jury trial in
a misdemeanor case.
00157
Date: Fri, 11 Nov 2011 01:40:53 -0800
Zach Coughlin
121 River Rock St.
Reno, NV 89501
775 338 8118
are not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified

Sent: Thu 11/17/11 3:37 PM
Dear Ms. Roberts,

I do not mean to suggest you do not know what your duty it. Believe me, I am well aware that you could mop
up the court room with a neophyte attorney such as myself. I was merely hoping to get some direction from you
regarding trial practice approaches in general.

Sincerely,

Zach
Sent: Mon 11/21/11 1:05 PM
Sincerely,
Zach Coughlin, Esq.
121 River Rock St.
Reno, NV 89501
775 338 8118
Licensed in Nevada
privilege.

Date: Thu, 17 Nov 2011 07:40:44 -0800
CC: colterp@reno.gov
Mr. Coughlin, the three witnesses who were there at the first trial date include: Thomas Frontino (Walmart
employee) and Officers Crawford and Braunworth from the Reno Sparks Indian Colony Police. I obtained the
video at the first trial date from the Walmart employee and it is available for you to view or get a copy. You
may want to view it at the City Attorney's Office as the CD doesn't seem to work on everyone's computer. Penie
Colter will be able to assist you. I am not clear on what you think my duty is, but I know what my duty is and I
will not debate it via email. Pam Roberts, Deputy City Attorney.
Date: Wed, 16 Nov 2011 17:30:36 -0800

Zach Coughlin, Esq.
121 River Rock St.
Reno, NV 89501
775 338 8118
Licensed in Nevada

Date: Wed, 16 Nov 2011 17:12:21 -0800
Mr. Coughlin, you should have already received a notice regarding the availability of discovery and request for
reciprocal discovery. You just need to call ahead at 334-2050 and arrange to pick it up. You are entitled to
copies of all the reports and witness statements and video we may have on this case. Since I am not calling
any additional witnesses that are not already mentioned in the reports/statements, I am not obligated to send
you an additional list of witnesses. I am also not obligated to do any further investigation or interviews. Pam
Roberts.
Date: Wed, 16 Nov 2011 15:35:48 -0800

Thank You,

Date: Mon, 14 Nov 2011 10:36:45 -0800
confirmation from the Court that your trial date has been continued, you will need to appear this afternoon
at 1:00 pm in Courtroom B of the Reno Municipal Court. We can discuss your case further at that time and
if we are unable to resolve the case, you can ask the Court again for a continuance and I won't object.
However, it is the Court's decision to grant your motion to continue.
It is also the Court's decision whether to appoint you a legal defender. I do not plan to ask for jail time, so
the Court is not required to appoint you an attorney. In addition, you have no right to a jury trial in
a misdemeanor case.
Date: Fri, 11 Nov 2011 01:40:53 -0800
Zach Coughlin
121 River Rock St.
Reno, NV 89501
775 338 8118
00158
temporary address change and instruction to pursue a continuance
18 U.S.C. 2510-2521, and may contain confidential information intended for the specified individual (s) only. If
you are not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby
notified that you have received this document in error and that any review, dissemination, copying, or the taking of
any action based on the contents of this information is strictly prohibited. This message is confidential, intended
only for the named recipient(s) and may contain information that is privileged, attorney work product or
exempt from disclosure under applicable law. If you are not the intended recipient(s), you are notified that
any disclosure, copying, distribution or any action taken or omitted to be taken in reliance on the contents
of this information is prohibited and may be unlawful. If you receive this message in error, or are not the
named recipient(s), please notify the sender, delete this e-mail from your computer, and destroy any copies
in any form immediately. Receipt by anyone other than the named recipient(s) is not a waiver of any
attorney-client, work product, or other applicable privilege.

Sent: Mon 11/21/11 4:06 PM
To: howardk@reno.gov; robertsp@reno.gov

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Zach Coughlin
privilege.
Sent: Mon 11/21/11 7:18 PM
Ms. Roberts, the opposing attorney's unlawful rent distraint is preventing me from providing all the discovery I
would like to provide you with or ascertain the need to do, and further is preventing me from having access to
the materials and information I need to litigate this case.
Zach Coughlin, Esq.
121 River Rock St.
Reno, NV 89501
775 338 8118
Licensed in Nevada
privilege.

Date: Mon, 14 Nov 2011 10:36:45 -0800
Mr. Coughlin, we were closed on Friday and I have just read your email. If you have not received confirmation
from the Court that your trial date has been continued, you will need to appear this afternoon at 1:00 pm in
Courtroom B of the Reno Municipal Court. We can discuss your case further at that time and if we are unable to
resolve the case, you can ask the Court again for a continuance and I won't object. However, it is the Court's
decision to grant your motion to continue.
It is also the Court's decision whether to appoint you a legal defender. I do not plan to ask for jail time, so the
Court is not required to appoint you an attorney. In addition, you have no right to a jury trial in a misdemeanor
case.
Date: Fri, 11 Nov 2011 01:40:53 -0800
Zach Coughlin
121 River Rock St.
Reno, NV 89501
775 338 8118
verint user agreement

Sent: Mon 11/21/11 8:40 PM
Zach Coughlin, Esq.
121 River Rock St.
Reno, NV 89501
775 338 8118
Licensed in Nevada
00159
Re: temporary address change and instruction to pursue a continuance
privilege.
From: Ken Howard (HowardK@reno.gov)
Sent: Tue 11/22/11 7:01 AM
To: Zach Coughlin (zachcoughlin@hotmail.com); robertsp@reno.gov
Mr. Zach Coughlin
There is an appropriate manner in which to tender "motions" to the court. They are to be properly
prepared and filed. Do not use this e-mail address to communicate directly with the judge.
Ken Howard
Reno Municipal Court Judge
Department 4
(775) 326-6673
To: <howardk@reno.gov>, <robertsp@reno.gov>
Date: Mon, 21 Nov 2011 16:06:32 -0800
Subject: temporary address change and instruction to pursue a continuance

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Zach Coughlin
on the contents of this information is strictly prohibited. This message is confidential, intended only for the named recipient(s)
and may contain information that is privileged, attorney work product or exempt from disclosure under applicable law. If you are
not the intended recipient(s), you are notified that any disclosure, copying, distribution or any action taken or omitted to be taken in
reliance on the contents of this information is prohibited and may be unlawful. If you receive this message in error, or are not the
named recipient(s), please notify the sender, delete this e-mail from your computer, and destroy any copies in any form immediately.
Receipt by anyone other than the named recipient(s) is not a waiver of any attorney-client, work product, or other applicable
privilege.

Sent: Tue 11/29/11 1:33 PM
Dear Ms. Roberts,

The opposing attorney in the Summary Eviction Proceeding against me in my home law office/business is
asserting a lien against my office, law practice files, and materials necessary to discovery production and
defending the case that you are the prosecutor on. I believe a continuance is absolutely necessary in the
interests of justice. Additionaly, you have been informed that Walmart previous to the arrest in this matter
became upset at the accused and made threats of malicious prosecution and abuse of process incident to the
accused questioning various Wal-mart personnel and managers about Wal-Marts curious practice of remixing
and forgetting the Return Policy stated in writing at Walmart.com (and expressly made applicable to purchases
made in Wal-Mart stores). A manager named "Ellis", though who may have identified himself as "John" and a
Loss prevention associate at the West 7th Street Wal-Mart in Reno allegedly told the accused that they would
have him banned from all Wal-Marts in retaliation for the accused seeking to do something to which he was
legally entitled to do, return and item at a Wal-Mart stores in accordance with Wal-Mart's stated and written
Return Policy. There are other retaliatory aspects to the conducts and statements made by both Wal-Mart and
RSIC personnel in this case.

Additionally, the video "evidence" that you provided is shameful. It consists of two short clips in some Wal-Mart
back room where 5-6 people, including 2 RSIC officers acting under color of state law on land their employer
owns and leases to Wal-Mart attempt to coerce not only a confession, but a consent to search. There is no audio
of the video, at least not the video you provided, that is. Where is the video of the alleged acts? How you can
maintain a case such as this stemming from the accused acts in a store like Wal-Mart, that has hundreds of
cameras and only provide video from some backroom that proves nothing and, in the words of "Jeannie" the
contact person at your office "doesn't show anything", I am not sure, and whether that is violative of your duties
as a prosecutor, Nifong, NRCP 11 (see Schumacher's application of that civil rule to the DA) is not clear. You
have been informed that the RSIC officer committed police misconduct and yet you brazenly announce in writing
that you do not intend to follow up on that, nor do you feel compelled to.
Zach Coughlin, Esq.
Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
privilege.

Date: Tue, 22 Nov 2011 07:59:37 -0800
Dear Mr. Coughlin, you will need to file a motion to continue in compliance with Reno Municipal Court
procedures. As I have stated in a previous email, I do not object to your motion to continue, however, it is up
to the Judge whether or not he will grant your motion. Regarding the video which I obtained at your previous
court date, I have told you that you can come to our office and view the video. If you still want a copy, I
believe our staff will be able to make one for you. NRS 174.235 does not require me to do more than what I
have already done. We have provided you with the reports we have, listed the witnesses we will call and made
the video available to you. Pam Roberts, Deputy City Attorney.
Date: Mon, 21 Nov 2011 13:05:28 -0800
Sincerely,
Zach Coughlin, Esq.
121 River Rock St.
Reno, NV 89501
775 338 8118
Licensed in Nevada

Date: Thu, 17 Nov 2011 07:40:44 -0800
CC: colterp@reno.gov
Mr. Coughlin, the three witnesses who were there at the first trial date include: Thomas Frontino (Walmart
employee) and Officers Crawford and Braunworth from the Reno Sparks Indian Colony Police. I obtained the
video at the first trial date from the Walmart employee and it is available for you to view or get a copy. You
may want to view it at the City Attorney's Office as the CD doesn't seem to work on everyone's computer.
Penie Colter will be able to assist you. I am not clear on what you think my duty is, but I know what my duty
is and I will not debate it via email. Pam Roberts, Deputy City Attorney.
Date: Wed, 16 Nov 2011 17:30:36 -0800
00160

Zach Coughlin, Esq.
121 River Rock St.
Reno, NV 89501
775 338 8118
Licensed in Nevada
are not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified

Date: Wed, 16 Nov 2011 17:12:21 -0800
Mr. Coughlin, you should have already received a notice regarding the availability of discovery and request
for reciprocal discovery. You just need to call ahead at 334-2050 and arrange to pick it up. You are entitled
to copies of all the reports and witness statements and video we may have on this case. Since I am not
calling any additional witnesses that are not already mentioned in the reports/statements, I am not
obligated to send you an additional list of witnesses. I am also not obligated to do any further investigation
or interviews. Pam Roberts.
Date: Wed, 16 Nov 2011 15:35:48 -0800

Thank You,

Date: Mon, 14 Nov 2011 10:36:45 -0800
confirmation from the Court that your trial date has been continued, you will need to appear this
afternoon at 1:00 pm in Courtroom B of the Reno Municipal Court. We can discuss your case further at
that time and if we are unable to resolve the case, you can ask the Court again for a continuance and I
won't object. However, it is the Court's decision to grant your motion to continue.
It is also the Court's decision whether to appoint you a legal defender. I do not plan to ask for jail time,
so the Court is not required to appoint you an attorney. In addition, you have no right to a jury trial in
a misdemeanor case.
Date: Fri, 11 Nov 2011 01:40:53 -0800
Zach Coughlin
121 River Rock St.
Reno, NV 89501
775 338 8118
** Notice** This message and accompanying documents are covered by the electronic Communications Privacy
Act, 18 U.S.C. 2510-2521, and may contain confidential information intended for the specified individual (s)
only. If you are not the intended recipient or an agent responsible for delivering it to the intended recipient, you are
hereby notified that you have received this document in error and that any review, dissemination, copying, or the
FW: temporary address change and instruction to pursue a continuance
taking of any action based on the contents of this information is strictly prohibited. This message is confidential,
intended only for the named recipient(s) and may contain information that is privileged, attorney work
product or exempt from disclosure under applicable law. If you are not the intended recipient(s), you are
notified that any disclosure, copying, distribution or any action taken or omitted to be taken in reliance on
the contents of this information is prohibited and may be unlawful. If you receive this message in error, or
are not the named recipient(s), please notify the sender, delete this e-mail from your computer, and
destroy any copies in any form immediately. Receipt by anyone other than the named recipient(s) is not a
waiver of any attorney-client, work product, or other applicable privilege.

Sent: Tue 11/29/11 3:14 PM
To: robertsp@reno.gov; renomunirecords@reno.gov
1 attachment
Motion for Continuance to Reno City Atty Roberts RMC.pdf (448.9 KB)
Ms. Roberts and RMC Records Supervisor Donna,
I am forwarding this apology I sent to Judge Howard in response to his remonstration responding to my email to
him, in an abundance of caution to avoid ex parte communications with the court, outside your presence. Please
also find attach e a NRCP Rule 11 safe harbor filing ready sanctions motions I am hereby serving on you,
invoking the 21 day safe harbor, with a reservation that any misconduct you commit in the court's presence may
be punished sua sponte or subject to contemporaneous sanctions requests, particular with regard to you blase
dismissal of the official misdoncut, malicious prosecution, 42 USC Sec 1983 deprivations of civil rights under
color of state law and all those other things your office and Hartshorn, et all have been sued for over the years.

Please find attached my Motion for Continuance, being filed by fascimile today with the RMC.
Zach Coughlin, Esq.
Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
your cop lying, see your video drivers license produce ap overview at
6:49 mark
privilege.

From: zachcoughlin@hotmail.com
To: howardk@reno.gov
Subject: RE: temporary address change and instruction to pursue a continuance
Date: Tue, 22 Nov 2011 17:22:45 -0800

Zach Coughlin,
Sent: Sun 12/04/11 3:37 AM
To: robertsp@reno.gov; kadlicj@reno.gov; kadlicj@ci.reno.nv.us

Zach Coughlin, Esq.
Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
privilege.
00161
FW: your cop lying, see your video drivers license produce ap overview at
6:49 mark
Sent: Sun 12/04/11 3:45 AM

Zach Coughlin, Esq.
Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
privilege.

From: zachcoughlin@hotmail.com
Subject: your cop lying, see your video drivers license produce ap overview at 6:49 mark
Date: Sun, 4 Dec 2011 03:37:24 -0800
your cop lying, see your video drivers license produce ap overview at
6:49 mark

Zach Coughlin, Esq.
Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
privilege.
Sent: Sun 12/04/11 4:05 AM
To: lcooley@rsic.org; voldenburg@rsic.org; rariwite@rsic.org; police@rsic.org; robertsp@reno.gov
pgoins@rsic.org, lcooley@rsic.org; voldenburg@rsic.org; rariwite@rsic.org; police@rsic.org
Subject: your cop lying, see your video drivers license produce ap overview at 6:49 mark
THE OFFICERS ARE KAMERON CRAWFORD AND BRAUNWORTH, WHO CAME ACROSS A
FAR MORE COGNITIVELYIMPAIRED IN COURT THAN HE DID IN PERSON, TO AN EXTENT
THAT WOULD SUGGEST HE WAS DISHONORING THE LEGAL PROCESS BYHIS
"PARTICIPATION", AND ITS ALL ON TAPE.
Zach Coughlin, Esq.
Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
discovery request;
privilege.
Sent: Wed 12/07/11 1:16 AM
To: robertsp@reno.gov; kadlicj@reno.gov

00162
RE: your failure to propound discovery

Zach Coughlin, Esq.
Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
privilege.
Sent: Thu 12/08/11 3:44 PM
To: hazlett-stevensc@reno.gov; robertsp@reno.gov

Zach Coughlin, Esq.
Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
privilege.

Date: Wed, 7 Dec 2011 07:34:25 -0800
Subject: Re: your failure to propound discovery
Mr. Coughlin. You are represented by counsel and I cannot correspond with you. I have never correponded
with you, and your statement that you spoke with me is false. I have never spoken with you. You may have
your attorney, Roberto Puentes, contact me with any discovery issues or issues regarding the City's Motion to
Continue. Please do not correspond with me regarding this case in the future. As an attorney, you are fully
aware that I cannot communicate with a you as a represented party. Do not contact me without your counsel.
Thank you,
Chris
City of Reno
Tel: 326-6628
Fax: 334-4226
confidential and are protected by the attorney-client privilege and/or work product doctrine. If you are not the
intended recipient or a person responsible for delivering it to the intended recipient you are hereby notified that
any review, disclosure, copying, dissemination, distribution or use of any of the information contained in, or
attached to this e-mail transmission is STRICTLY PROHIBITED. If you have received this transmission in error,
please immediately notify us by forwarding this e-mail to the sender or by telephone at (775) 334-2050 and
then delete the message and its attachments.
To: <hazlett-stevensc@reno.gov>
Date: Wed, 7 Dec 2011 01:48:03 -0800
Subject: your failure to propound discovery
Dear Mr. Hazlett-Stevens,
I am writing to request a copy of any and all discovery, pleadings, documentation,
correspondences, or media in any way connected to the trespass case against me for which
Lew Taitel was apparently my court appointed attorney, but whom no longer is. Further, I
wish to be copied on everything past and present in any way related to this matter until
and after I procure another attorney. I did not agree to the continuance you sought, nor
was I informed you were seeking it. I find it particularly troubling that a continuance was
granted in the trespass case to the same man who is applying an unlawful rent distraint on
both my client files, personal property, AND THE EXCLUPATING EVIDENCE I NEED
TO DEFEND MYSELF IN THE PETIT LARCENYCASE FOR WHICH I DETAIL THE
COMPLAINTS I HAVE AGAINST YOU AND YOUR OFFICE'S HANDLING
BELOW. NO CONTINUANCE WAS GRANTED OR AGREED TO AT TRIAL BY
THE RMC OR MS. ROBERTS, PERHAPS SHE WAS TOO BUSYALLEGEDLY
SUBORNING THE PERJURYOF RSIC OFFICER KAMERON CRAWFORD.
In the discovery your office provided in the petit larceny matter Ms. Roberts prosecuted
against me there is a fax from the RSIC to you that has a fax heading for what appears to
be "page 1" followed by pages without that heading...then a heading with "page 4" etc... I
want the entire contents of anything provided by the RSIC and Walmart to you or anyone
connected with the Reno City Attorney or the Reno Municipal Court. Further, I want all
media provided by Walmart, and I question why you needed 45 minutes with the three
witness who testified at the November 30th, 2011 trial, from 1pm to 1:45pm.
Additionally, you are hereby served a NRCP 11 motion requiring you to correct the
perjury you suborned in court with respect to the patently contradictory testimony of
Officer Crawford vis a vis the video evidence you yourself provided in discovery.
Further, I spoke with you, Mr. Hazlett-Stevens, shortly after the September 9, 2011 arrest
in this matter demanding a copy of all documentation or discovery that I had any right to.
I was told I would not have any opportunity to review such materials prior to the
arraignment, which was not set for a full 30 days out from the arrest. Do I not have a
right to a copy of the pc sheet, arrest report, and witness statements within 48 hours of the
arrest? The fax to your office from the RSIC is dated 9/12/2011, yet my written demands
and requests for such discovery and documentation were met with refusals to provide such
materials, and, in some case, claims that your office did not even have such materials and
would not get them until after the arraignment. Further, I spoke with and provided written
requests to RSIC Sargent Avansino within 2 days after the arrest and he refused to provide
the materials, as did the Reno Municipal Court. Please alert the court to any wrongdoing
on your's or the Reno City Attorney or the RSIC part in this regard in prejudicing my
ability to defend my case by delaying the production of essential discovery, then refusing
to agree to a continuance at trial, after earlier providing a written agreement to such a
continuance.
Sincerely,
Zach Coughlin, Esq.
Reno, NV 89501
tel: 775 338 8118
fax: 949 667 7402
not the intended recipient or an agent responsible for delivering it to the intended recipient, y ou are hereby notified that

00163
00164
Case 1:05-cv-02827-GET Document 1 Filed 11/02/05 Page 1 of 7 Case 1:05-cv-02827-GET Document 1 Filed 11/02/05 Page 2 of 7
00165
Case 1:05-cv-02827-GET Document 1 Filed 11/02/05 Page 7 of 7
11 cr 22176 2I
x
Judge Howard
Zachary Barker Coughlin
November 30, 2011
1pm
Zach Coughlin
29th November 2011
"Ellis" or "John", Customer Service Manager or ASM W. 7th St. Walmart 89503
Loss prevention manager and
00166
2:06-cv-10887-GCS-VMM Doc # 1 Filed 02/28/06 Pg 1 of 19 Pg ID 1 2:06-cv-10887-GCS-VMM Doc # 1 Filed 02/28/06 Pg 2 of 19 Pg ID 2
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+ 4 (+,** 4 w $~ * ^ *"^<***Y+7+4*P-+~.^ **V " '*~^^^^"^~- ^^"W*^*
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Document Code:
Za Coughlin
Nevada Ba No: 9473
1422 E. 91 Sl #2
Reno, N89512
Tele: 7753388118
Fax: 9496677402
rr1 JhI0BhI0
l|LLU
dLh6NURICIlAL lUUJ
IlNAR1 | r [ [
BY
Attomey for Pro SC Attorey Plaintif Denied Sixth Amendment Right t Counsel
IN THE RENO MUNICIPAL COURT OF THE STATE OF NEVADA
IN AND FOR 1 COUNTY OF WASHOE
ITY OF RENO;
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PLAT .
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CaSe Nc JJ TB 268CC
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CHCOUGHU;
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DEFENDANT.
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COMES NOW, Defendant Zach Coughlin. by and through himself and files the above title
document onms own behalf.
The wtdersiged means to show nothing but respet for this Court. especially considering
Your Honor holds the honor of being one of the fmt 100 women eve admited to practice law in our
ste, 75th. See Exhibit 1. Like Your Honor. my father has a backgound in football (he played
fullback forTulane from 1964-1968. on scholarship from Dayton. Ohio
)
. One thing that we don't see
in football too much is a team hiring a liftime ofensive coordinator to be the team's defensive
~ ) ~
NOTICB OF APPEAL OP SUMARY ONTEPT ORDER; MTION To RETURN PERSONAL PROPERTY CONFISCATED
BY RENO MUNIIPAL CORT AND ITS MARSHALS; HOTION FOR NEW TRIAL AND TO ALTER OR AbD
>VKT CONTEMPT ORDER
00171
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coordinator. 7ou Cu0t donBt ever 0ee that. 7et" >e have Cudge0 >ho have 0?ent much o. their careerB0
a0 ?ro0ecutor0 ta@ing the =ench. 5n0u?ri0ingl-" a0 here" the re0ult can o.ten -ield 0ituation0 >here it
a??ear0 the Cudge i0 0till >or@ing a0 a ?ro0ecutor. &hi0 i0" to =e clear" not meant to im?l- an
ina??ro?riate =ia0 or intent. 2o>ever" one 0im?l- doe0nBt ?la- tenni0 right handed their >hole li.e
then move the rac@et to the other hand and immediatel- have Duite the 0ame de)terit-. 2ere"
e..ectivel-" De?ut- Cit- ,ttorne- 3rma0 =ecame the 0econd chair on thi0 ca0e. No>" 0hortl- a.ter 1
have =een adCudge a victim o. dome0tic violence and granted t>o di..erent 3rder0 .or /rotection =-
<a0ter Edmund0on Athi0 Court re.u0ed to hear an-thing a=out thi0 in 0ummaril- den-ing m-
e)cu0a=le neglect argument0 vi0 a vi0 the deadline0 .or ?re'trial motion0...-et 3rma0 and Sargent
&arter are allo>ed to call time out right =e.ore the &rial and com?are their ?o0ition0 or Econ.erEF;.
No>" a0ide .rom having m- alread- 0@int =an@ account ?racticall- em?tied ?a-ign a G3++ to>ing =ill
.or m- car incurred during thi0 0ummar- incarceration" and having 0everal clientB0 ca0e0 =adl-
damaged A>h- thi0 ?uni0hment could not have =een dela-ed even a da- i0 not clear to me" rather" it i0
di0tur=ing...and the e)cu0e the lac@ o. concern .or the0e client0 =- 0hi.ting =lame to the under0igned
.or Healou0l- advocating on =ehal. o. the accu0ed mi00e0 the ?oint and .urther engage0 in a EHero 0um
gameE mind0et that !eno and it0 citiHen0 do not need right no>;. 1n hi0 o>n te0timon- Sargent
&arter admitted to a retaliator- motive .or the citation here. (urther he o?ened the door to 0everal
matter0 thi0 Court clearl- did not >ant to have 0ee the light o. da-. &he0e include" the .act that
Sargent &arter told the accu0ed he @ne> he >a0 going to turn le.t on (orre0t St. and head =ac@
to>ard0 2illB0 la> o..ice" and that i0 >h- he ?ulled the accu0ed over" in addition to the .act that the
accu0ed" allegedl- Edid not come to a com?lete 0to? in front o. the >hite line" =ut onl- a.ter the
>hite lineE. &hi0 EinchingE into the inter0ection >a0 nece00ar- to gain a vie> o. >hether an- car0
mgith =e coming even car0 going the >rong >a- do>n a one >a- 0treet li@e (orre0t Adrun@ or craH-
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NOTICE OF APPEAL OF !""AR# CONTE"PT ORDER$ "OTION TO RET!RN PERONAL PROPERT# CONFICATED
%# RENO "!NICIPAL CO!RT AND IT "AR&AL$ "OTION FOR NE' TRIAL AND TO ALTER OR A"END
!""AR# CONTE"PT ORDER
00172
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driver0 do not cea0e to e)i0t" a0 Sargent &arter im?lied" merel- =ecau0e a 0treet i0 de0ignated a0 a
Eone >a-E. 1t0 ironic" =eca0ue the accu0ed and Sargent &arter argued a=out >hether the rationale
Sargent &arter ?ro.erred .or ?ulling the accu0ed over made an- 0en0e" a0" according to the accu0ed"
turning le.t on (orre0t to get =ac@ to 2illB0 o..ice> at *%2 (orre0t St >hile the accu0ed >a0 heading
ea0t on St. 6aurence >ould have reDuired goign do>n the E>rong >a-E o. a Eone >a- 0treet"
(orre0tE...it >a0 at a=out that time that Sargent &arter decided he could hear no more .rom the
accu0ed. !egardle00" &arter >a0 tailing the accu0ed" the accu0ed >a0 a>are o. it" and the accu0ed
care.ull- o=e-ed all la> o. tra..ic a0 he 0u0?ected &arter >ould tr- to >rite 0ome ?hon- tra..ic tic@et.
&hi0 clearl- contradict0 &arter0 a00ertion that he >a0 ?ar@ed and not tailing the accu0ed" nor had he
=egun to" until a.ter >itne00ing the alleged E.ailure to come to a com?lete 0to?E violation" >hich
included &arterB0 highl- 0u0?ect te0timon- >hich 0eemed to de.- the la>0 o. ?h-0ic0 and o?tic0" in
addition to other la>0.
De.endant .ile0 thi0 Aonl- to the e)tent it i0 even nece00ar- and 0ome alternate re0olution
cannot =e had...=arring that" ?lea0e treat thi0 a0 a Notice o. ,??eal a0 >ell" though treating thi0 a0 a
Etolling motionE" N!C/ %2" N!C/ %9Aa;"Ae;" etc. ma- al0o =e a nice a??roach ?reventing the .a0t
?ace a??eal0 ?roceed at an or o=viating the need .or me to .ile 0uch a Notice o. ,??eal; a0 he >a0
denied hi0 Si)th ,mendment !ight &o Coun0el A A thi0 Si)th ,mendment !ight to Coun0el i0
mentioned clearl- in the 2++$ 6imited 4uri0diction CourtB0 Bench Boo@ .or Nevada 4udge0" along
>ith the 2+1+ Su??lement thereto" and >hile a ver- learned 4udge li@e 4udge 2o>ard ma- cite to
Scott v. 1llinoi0 .or 0u??ort that no 0uch right e)i0t0 >here incarceration i0 not actuall- e..ectuated" it
clearl- >a0 here" .ive da-0 >orth" com?lete >ith a G3++ =ill .or the under0ignedB0 car =eing to>ed;"
and .ile0 thi0 <otion &o Set ,0ide 4udge Na0h 2olme0 (e=ruar- 27th" 2+12 Summar- Contem?t
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3rder and al0o to move .or a continuance >ith re0?ect to the ne)t &rial date that >a0 mentioned >hile
the under0igned >a0 in cu0tod-. See E)hi=it 1.
LEGAL ARGUMENT
,??ellant argue0 that =- den-ing hi0 reDue0t to cro00'e)amine >itne00e0 a=out their ?otential
=ia0" the trial court a=ridged hi0 Si)th ,mendment right to con.ront the >itne00e0 again0t him. Bia0
e)i0t0 I>hen a >itne00 ha0 a general >illingne00 or motivation to te0ti.- .al0el- on the 0tand.J !o0e v.
5nited State0" $79 ,.2d 9$*" 99% AD.C.2++%;. IBia0 cro00'e)amination o. a main government >itne00
i0 al>a-0 a ?ro?er area o. cro00'e)amination and i0 relevant in a00e00ing the >itne00B credi=ilit- and
evaluating the >eight o. the evidence.J Blunt v. 5nited State0" $*3 ,.2d $2$" $33 AD.C.2++4;9
accord" Scull v. 5nited State0" %*4 ,.2d 11*1" 11*% AD.C.19$9; AIBia0 i0 al>a-0 a ?ro?er 0u=Cect o.
cro00'e)amination . and the alleged =ia0 or unrelia=ilit- o. a >itne00 i0 never a collateral i00ueJ
Acitation0 omitted;;. 3n the other hand" although the Io??ortunit- to cro00'e)amine adver0e >itne00e0
i0 an inherent com?onent o. the de.endantB0 Si)th ,mendment right o. con.rontation . that right i0
0u=Cect to rea0ona=le limit0 im?o0ed at the di0cretion o. the trial Cudge . to ?revent hara00ment"
?reCudice" con.u0ion o. the i00ue0" or re?etitive" cumulative" or onl- marginall- relevant Due0tioning.J
1d. at 11*4 Acitation0 omitted;. , I?ro?er .oundationJ i0 reDuired .or cro00'e)amination to e0ta=li0h
=ia0" including a ?ro..er o. .act0 0u..icient to ena=le the court Ito evaluate >hether the ?ro?o0ed
Due0tion i0 ?ro=ative o. =ia0.J 4one0 v. 5nited State0" %1* ,.2d %13" %17 AD.C.19$*;. &he ?ro..er
mu0t include I K0ome .act0 >hich 0u??ort a genuine =elie.L that the >itne00 i0 =ia0ed in the manner
a00erted"J id. Acitation omitted;" or at lea0t Ia K>ell'rea0oned 0u0?icionL rather than Kan im?ro=a=le
.light o. .anc-L to 0u??ort the ?ro?o0ed cro00'e)amination.J Scull" %*4 ,.2d at 11*4 ADuoting 5nited
State0 v. /ugh" 141 5.S.,??. D.C. *$" 71" 43* (.2d 222" 22% A197+;;. &hi0 0tandard i0 a .airl- lenient
one" and an- deci0ion a=out the adeDuac- o. the ?ro..er lie0 >ithin the 0ound di0cretion o. the trial
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court. Bro>n v. 5nited State0" *$3 ,.2d 11$" 124'12% AD.C.199*;. (inall-" >hen challenging an
adver0e ruling on a ?ro..er o. >itne00 =ia0" an a??ellant mu0t 0ho> Ithat he >a0 ?rohi=ited .rom
engaging in other>i0e a??ro?riate cro00'e)amination de0igned to 0ho> a ?rotot-?ical .orm o. =ia0 on
the ?art o. the >itne00" and there=- Kto e)?o0e to the Cur- the .act0 .rom >hich Curor0 . could
a??ro?riatel- dra> in.erence0 relating to the relia=ilit- o. the >itne00.L J Dela>are v. #an ,r0dall"
47% 5.S. *73" *$+" 1+* S.Ct. 1431" $9 6.Ed.2d *74 A19$*; Acitation omitted;. ,??ellant argue0 that
he >a0 not a=le to ?re0ent to the Cur- hi0 theor- o. de.en0e" >hich >a0 that the ?olice ?lanted the
evidence allegedl- .ound on or near him in retaliation .or hi0 ?ending civil 0uit" =ecau0e the trial
court limited hi0 a=ilit- to cro00'e)amine the governmentB0 >itne00e0. Be.ore the trial =egan" de.en0e
coun0el ?ro..ered to the court evidence a=out >hich he >i0hed to cro00'e)amine 0ome o. the
government >itne00e0 regarding =ia0. Coun0el e)?lained to the court" a.ter the ?ro0ecutor o=Cected"
that in an earlier incident 3..icer0 <a0on and Branch" >ho >ere al0o ?art o. the 0earch >arrant team"
came to a??ellantB0 home and =ro@e hi0 arm" and that a0 a re0ult a??ellant .iled 0uit.4 De.en0e coun0el
0tated: MBNa0ed on all o. tho0e .actor0" >hether or not the- 0a- the- @ne> the o..icer0 or not" >hether
or not the- tal@ed MtoN the o..icer0 or not" it 0eem0 to u0 that a =ia0 i00ue e)i0t0" and the Court 0hould
?ermit thi0 and let the Cur- decide. M&Nhe Cur- can 0ort out >hether or not thi0 in.ormation 0omeho>
got to ?eo?le >ho >ere ?art o. the arre0t MteamN" and arre0ted the de.endant. % &he court ruled: 1n thi0
ca0e there i0 no relevance at all =ecau0e the o..icer0 that are te0ti.-ing'each one o. them no> ha0 told
u0 that the- had no idea a=out the ?rior incident" the notice or the la>0uit" on the da- o. the arre0t o.
<r. 2o>ard in thi0 ca0e. &o allo> te0timon- a=out that 0e?arate incident that the0e o..icer0 didnBt
even @no> a=out >ould =e con.u0ing" mi0leading" and ?reCudicial" and 1Bm not going to allo> it.* 1t
a??ear0 to u0 that the court mi0ta@enl- a??lied a ?re'trial credi=ilit- .inding" on >hich it had relied to
decide the i00ue o. ?ro=a=le cau0e" to the 0e?arate determination o. the trial'related i00ue o. >hether
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the de.endant had ?ro..ered 0u..icient .act0 to >arrant cro00'e)amination on ?otential =ia0. ,t the
0u??re00ion hearing" the court had concluded that 3..icer !andol?h" >ho ?re?ared the 0earch >arrant
a??lication" did not @no> o. the ?ending civil 0uit and had not =een directed =- 3..icer Branch or
3..icer <a0on to get a 0earch >arrant .or a??ellantB0 home" 0o the >arrant >a0 valid. &hi0 .inding"
ho>ever" did not .oreclo0e the de.en0e trial theor- that the o..icer0 at the 0cene >ere =ia0ed =ecau0e
o. the la>0uit or ma- have =een im?ro?erl- in.luenced =- 3..icer Branch A>ho >a0 in the room
>hen the drug0 >ere .ound on a??ellant; or 3..icer <a0on A>ho >a0 ?art o. the 0earch team;" and
intentionall- im?licated a??ellant even though Aaccording to the de.en0e; no drug0 >ere actuall-
.ound on hi0 ?er0on. C.. Sullivan v. 5nited State0" 4+4 ,.2d 1%3" 1*+ AD.C.1979; AIMgNreat latitude i0
a??ro?riatel- e)tended to a 0ho>ing o. a com?laining >itne00B =ia0 =- mean0 o. cro00'e)amination
concerning that >itne00B ?ending la>0uit ver0u0 the de.endant again0t >hom he ha0 te0ti.iedJ =ecau0e
the la>0uit i0 Irelevant to a 0ho>ing o. . hi0 ill'>ill to>ard the de.endantJ Acitation0 omitted;;.
,lthough the trial court .ound" at the 0u??re00ion hearing" that 3..icer !andol?h >a0 credi=le and did
not @no> o. the la>0uit at the time he o=tained the 0earch >arrant or the at the time o. it0 e)ecution"
and thu0 concluded that the >arrant >a0 valid" it >a0 not u? to the court to determine the credi=ilit-
o. >itne00e0 at trial regarding their ?otential =ia0. See Ne>man v. 5nited State0" 7+% ,.2d 24*" 2%9
AD.C.1997; AI1n evaluating the relia=ilit- o. the ?ro..er . the court mu0t not 0ee@ to evaluate the
relia=ilit- o. the >itne00J;. De0?ite the courtB0 a00e00ment o. the o..icer0B credi=ilit- in ruling on the
validit- o. the >arrant at the 0u??re00ion hearing" it >a0 error to rel- on that credi=ilit- determination
to ?reclude =ia0 cro00'e)amination at trial =ecau0e IMcNonditioning =ia0 cro00'e)amination on the
courtB0 a=ilit- to a00e00 the credi=ilit- o. the 0ource o. the alleged motive run0 too clo0e to u0ur?ing
the Cur-B0 .unction.J Bro>n v. 5nited State0" 74+ ,.2d %33" %37 AD.C.1999;. ,t trial" de.en0e coun0el
0ought to cro00'e)amine 0ome o. the ?olice >itne00e0 a=out their @no>ledge o. the civil 0uit again0t
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the ?olice de?artment and to a0@ them >hether that @no>ledge in.luenced the e)ecution o. the 0earch
>arrant. Coun0el ?ro..ered .act0 >hich 0ugge0ted that the >itne00e0 might =e =ia0ed in the manner
a00erted: that 3..icer0 Branch and <a0on had ?reviou0l- =een involved in an incident in >hich
a??ellantB0 arm >a0 =ro@en" that the 0ame o..icer0 A.rom the Si)th Di0trict; >ere ?re0ent at the
e)ecution o. the 0earch >arrant >hich re0ulted in a??ellantB0 arre0t" and that a??ellant had .iled a civil
0uit again0t the ?olice de?artment" a0 >ell a0 3..icer0 Branch and <a0on. &he0e .act0 0u??orted at
lea0t Ia >ell'rea0oned 0u0?icionJ that the o..icer0 involved in the e)ecution o. the 0earch >arrant" all
.rom the Si)th Di0trict" ma- have had a motive to te0ti.- .al0el-" or at lea0t to 0tretch the truth"
regarding the 0eiHure o. drug0 .rom a??ellant. Since Sergeant :aine-" 3..icer !andol?h" and 3..icer
Brac@ett >ere all ?re0ent >hen 0ome or all o. tho0e drug0 >ere recovered" the court 0hould have
allo>ed coun0el to cro00'e)amine the government >itne00e0 =e.ore the Cur- to e)?lore >hat the-
@ne> a=out the la>0uit and >hether the- >ere" during the 0earch" in.luenced in an- >a- in.luenced
=- that @no>ledge. 3nce coun0el made hi0 ?ro..er" the credi=ilit- o. the >itne00e0 >a0 .or the Cur- to
decide" and cro00'e)amination a=out the la>0uit >a0 a??ro?riate. ,0 the Su?reme Court ha0 0aid: 8e
cannot 0?eculate a0 to >hether the Cur-" a0 0ole Cudge o. the credi=ilit- o. a >itne00" >ould have
acce?ted thi0 line o. rea0oning had coun0el =een ?ermitted to .ull- ?re0ent it. But >e do conclude that
the Curor0 >ere entitled to have the =ene.it o. the de.en0e theor- =e.ore them 0o that the- could ma@e
an in.ormed Cudgment a0 to the >eight to ?lace on Mthe >itne00BN te0timon- >hich ?rovided Ia crucial
lin@ in the ?roo. . o. ?etitionerB0 act.J Davi0 v. ,la0@a" 41% 5.S. 3+$" 317" 94 S.Ct. 11+%" 39 6.Ed.2d
347 A1974; Acitation omitted;. &he trial courtB0 concern in thi0 ca0e a=out ?o00i=le Cur- con.u0ion >a0
mi0?laced =ecau0e IMaNn- ?otentialit- o. con.u0ion to the Cur- ma- =e eliminated =- ?ro?er
in0truction0.J Scull" %*4 ,.2d at 11*% A.ootnote omitted;. ,??ellant ha0 I0tateMdN a violation o. the
Con.rontation Clau0e =- 0ho>ing that he >a0 ?rohi=ited .rom engaging in other>i0e a??ro?riate
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cro00'e)amination de0igned to 0ho> a ?rotot-?ical .orm o. =ia0 on the ?art o. the >itne00Me0N" and
there=- Kto e)?o0e to the Cur- the .act0 .rom >ich Curor0 . could a??ro?riatel- dra> in.erence0 relating
to the relia=ilit- o. the >itne00 Me0N.L J #an ,r0dall" 47% 5.S. at *$+" 1+* S.Ct. 1431. &he trial court
erred =- con.u0ing the 0earch >arrant determination >ith the adeDuac- o. the =ia0 ?ro..er in0tead o.
con0idering the ?ro..er 0e?aratel-" and thu0 im?ro?erl- ?recluded relevant cro00'e)amination a0 to
=ia0. Becau0e the trial courtB0 ruling ?revented a??ellant .rom ?re0enting hi0 main de.en0e theor-" >e
cannot .ind harmle00 error under Cha?man v. Cali.ornia" 3$* 5.S. 1$" 24" $7 S.Ct. $24" 17 6.Ed.2d
7+% A19*7;. See #an ,r0dall" 47% 5.S. at *$4" 1+* S.Ct. 1431 Athe denial o. a de.endantB0 o??ortunit-
to im?each a >itne00 .or =ia0 i0 0u=Cect to Cha?man harmle00 error anal-0i0;. &he .act that the
de.en0e >a0 allo>ed to ?re0ent te0timon- =- 6e0ter 2o>ard that he did not 0ee an- drug0 recovered
.rom a??ellant and that he and a??ellant >ere a=u0ed =- the ?olice doe0 not alleviate the harm o.
?rohi=iting the relevant and di0tinct =ia0 te0timon- a=out the >itne00e0B @no>ledge o. the la>0uit. 8e
reached a 0imilar conclu0ion in Scull" in >hich >e held that it >a0 not harmle00 error .or the trial
court to ?reclude the cro00'e)amination o. >itne00e0 a0 to relevant =ia0 A.ear o. their o>n
?ro0ecution; even though it allo>ed other cro00'e)amination o. the 0ame >itne00e0 a0 to =ia0
0temming .rom a di..erent motivation. ISince the i00ue o. thi0 ?ro?o0ed cro00'e)amination >a0
entirel- di0tinct .rom that allo>ed =- the trial court" central to the Cur-B0 evaluation o. the credi=ilit-
o. @e- >itne00e0" and admi00i=le" it0 e)clu0ion >a0 con0titutional error.J %*4 ,.2d at 11**. See al0o
Davi0" 41% 5.S. at 31$" 94 S.Ct. 11+% AI8hile coun0el >a0 ?ermitted to a0@ Mthe >itne00N >hether he
>a0 =ia0ed" coun0el >a0 una=le to ma@e a record .rom >hich to argue >h- Mthe >itne00N might have
=een =ia0ed or other>i0e lac@ed that degree o. im?artialit- e)?ected o. a >itne00 at trialJ;. &here.ore"
the error cannot =e deemed harmle00 =e-ond a rea0ona=le dou=t. 111 ,??ellant al0o argue0 that the
trial court 0hould not have ?ermitted Sergeant :aine- to te0ti.- a=out the re0ult0 o. the internal ?olice
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inve0tigation a=out the u0e o. .orce again0t 6e0ter 2o>ard. 2e maintain0 that the admi00ion o. thi0
te0timon- denied him a .air trial =ecau0e he could not cro00'e)amine the >itne00e0 at the ?olice
de?artment hearing.7 3n thi0 ?oint >e .ind no error. 8hile cro00'e)amining Sergeant :aine-"
de.en0e coun0el elicited the .act that the ?olice de?artment had conducted an internal inve0tigation o.
the earlier incident9 the government re0?onded on redirect =- clari.-ing that the u0e o. .orce >a0
ultimatel- .ound to have =een Cu0ti.ied. Such remedial e..ort0 are allo>ed under the doctrine o.
curative admi00i=ilit-. See :oine0 v. 5nited State0" 9+% ,.2d 79%" $++ AD.C.2++*;. &hat doctrine
I?rovide0 that in certain circum0tance0 the ?ro0ecution ma- inDuire into evidence other>i0e
inadmi00i=le" =ut onl- a.ter the de.en0e ha0 Ko?ened the doorL >ith regard to thi0 evidence.J <ercer
v. 5nited State0" 724 ,.2d 117*" 1192 AD.C.1999;. &he doctrine i0 limited" ho>ever" and ?ermit0
remedial evidence Ionl- to the e)tent nece00ar- to remove an- un.air ?reCudice >hich might
other>i0e have en0ued .rom the original evidence.J 1d. Acitation omitted;. Becau0e de.en0e coun0el
o?ened the door to evidence a=out the internal ?olice inve0tigation" it >a0 not an a=u0e o. di0cretion
.or the trial court to allo> the government to a0@ .urther Due0tion0 on redirect. &hrough it0
Due0tioning" the government re.uted the im?lication that Sergeant :aine- might =e =ia0ed =ecau0e o.
the inve0tigation. :aine-B0 te0timon- on redirect >a0 limited to clari.-ing that the ?olice de?artment
routinel- conducted 0uch inve0tigation0 >hen .orce >a0 u0ed =- it0 o..icer0" that he >a0 not .ear.ul o.
=eing im?licated in an- >rongdoing" and that the inve0tigation concluded that the u0e o. .orce in thi0
in0tance >a0 Cu0ti.ied. 8hen the government elicit0 te0timon- on a 0u=Cect during redirect
e)amination that the de.en0e =rought u? during cro00'e)amination" the de.endant Icannot >ell
com?lain o. =eing ?reCudiced =- a 0ituation >hich MheN created"J 6ane- v. 5nited State0" %4 ,??.
D.C. %*" *+" 294 (. 412" 41* A1923;" =ecau0e Ithe error that occurred" i. an-" >a0 invited =- de.en0e
coun0el.J :onHaleH v. 5nited State0" *97 ,.2d $19" $2* AD.C.1997;9 0ee /ar@er v. 5nited State0" 7%7
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,.2d 12$+" 12$*'12$7 AD.C.2+++; Aciting :onHaleH and 6ane- ;. Becau0e de.en0e coun0el elicited
te0timon- on the 0u=Cect in the .ir0t in0tance during hi0 cro00'e)amination o. Sergeant :aine-" the
government >a0 entitled on redirect to di0?el an- ?otential ?reCudice and to re.ute" i. it could" an-
im?lication o. =ia0.J 238,!D" v. 5N1&ED S&,&ES" ,??ellee. No. +$'C('173. ,rgued <a- *"
2++9. '' ,ugu0t 27" 2++9
Court .ind0 ?olice chie. and o..icer0 inve0tigated man .or retaliator- rea0on09 damage0 a>arded" ho>ever" >ere
e)ce00ive !a@ovich v. 8ade" $19 (.2d 1393 A7th Cir. 19$7;.
(ederal a??eal0 court rever0e0 deci0ion holding ?olice chie. and o..icer0 lia=le .or alleged retaliator- inve0tigation
!a@ovich v. 8ade" $%+ (.2d 11$+ A7th Cir. 19$$;.
/rocedural: Evidence
&rial CudgeB0 re.u0al to allo> a ?lainti.. in an e)ce00ive .orce la>0uit to cro00 e)amine the
de.endant o..icer regarding hi0 ?rior di0ci?line and conduct" >hich allegedl- >ould have 0ho>n that
he >a0 ha=ituall- di0hone0t in hi0 Co=" re0ulting in hi0 re0ignation" >a0 an a=u0e o. di0cretion"
reDuiring a ne> trial on claim0 again0t the o..icer. &he e)ce00ive .orce claim again0t him revolved
around an i00ue o. hi0 credi=ilit-" 0o that =arring thi0 evidence >a0 not harmle00. ,0 .or claim0
again0t the cit-" alleged negligent monitoring o. an o..icer cannot =e the =a0i0 o. a .ederal civil right0
claim" and the ?lainti.. .ailed to e0ta=li0h an- inadeDuate training =- the cit- on u0e o. .orce or
?roviding reDuired medical care. 2inoCo0a v. Butler" No. +7'%+%**" 2++$ 5.S. ,??. 6e)i0 222$2 A%th
Cir.;.
8hen a trial CudgeB0 in0truction0 a=out the legal 0tandard .or e)ce00ive u0e o. .orce >ere correct"
the CudgeB0 error concerning in0truction0 a=out the ?ro?er u0e o. a ?olice inve0tigatorB0 re?ort
concerning the 0hooting o. a 0u0?ect >ere harmle00. &he re?ort" containing 0tatement0 the 0hooting
o..icer made to a 0u?ervi0or a.ter the 0hooting" >hile Ehear0a- >ithin hear0a-E could have ?ro?erl-
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=een con0idered a0 admi00ion0 =- a ?art-'o??onent in the la>0uit. &he trial court had" ho>ever"
allo>ed the re?ort to =e entered into evidence" and the 0tatement0 in the re?ort >ere mo0tl- u0e.ul .or
?ur?o0e0 o. im?eachment. ,0 the ?lainti..B0 attorne- u0ed the 0tatement0 .or that ?ur?o0e" an- error in
in0truction0 concerning the u0e o. the re?ort >ere harmle00. ,licea v. !al0ton" No. +*'4%21" 2++$
5.S. ,??. 6e)i0 1+73* A5n?u=. 3rd Cir.;.
/ortion0 o. a re?ort =- a ?olice de?artmentB0 1nternal 1nve0tigation0 Section >hich concluded that
o..icer0 detaining a man did 0o >ithout rea0ona=le 0u0?icion or ?ro=a=le cau0e" u0ed e)ce00ive .orce"
and >ithheld medical treatment >a0 relevant evidence under (ed. !. Evidence 4+1" and ?ortion0 o.
the re?ort >ere admi00i=le a0 an inve0tigative re?ort under (ed. !. Evid. $+3A$;AC;. &he court"
ho>ever" granted the cit-B0 motion to e)clude ?ortion0 o. the re?ort con0i0ting o. intervie>0 o. .our
e-e>itne00e0 A>hich it .ound con0tituted Edou=le hear0a-E;" and the legal conclu0ion o. the cit-B0
chie. la>-er. No>ell v. Cit- o. Cincinnati" No. 1:+3cv$%9" 2++* 5.S. Di0t. 6e)i0 *$1$2 AS.D. 3hio;.
MNO!N
1n arre0teeB0 la>0uit again0t 0tate troo?er .or alleged e)ce00ive .orce u0ed again0t him during the
arre0t" evidence that the troo?er had .ailed a ?ol-gra?h te0t given on unrelated criminal charge0
=rought again0t him >a0 not admi00i=le a0 evidence" and evidence o. tho0e unrelated criminal charge0
>ere al0o not relevant to the i00ue o. >hether the troo?er had u0ed e)ce00ive .orce. 4ur- verdict in
.avor o. troo?er u?held on a??eal. Coo@ v. State De?t. o. /u=lic Sa.et-" No. 2++% C, +47%" 92$ So.
2d %$9 A6a. ,??. 2++*;. MNO!N
1n a la>0uit =- an arre0tee claiming that o..icer0 u0ed e)ce00ive .orce again0t him" even i. the
de?artmentB0 rule0 e0ta=li0hing ?rocedure0 .or re0?onding to dome0tic violence call0 >a0 relevant in
0ome 0en0e" the trial Cudge did not a=u0e hi0 di0cretion in e)cluded it .rom evidence" =ecau0e it had
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the ?otential to con.u0e or mi0lead the Cur- concerning the i00ue0 in the ca0e. !u..in v. Cit- o.
Bo0ton" No. +3'21+2" 14* (ed. ,??). %+1 A10t Cir. 2++%;. MNO!N
Evidence o. threat0 that an arre0tee allegedl- made =e.ore hi0 arre0t" >hich >ere rela-ed to the
o..icer0 >ho arrived on the 0cene >ere admi00i=le in e)ce00ive .orce la>0uit to 0ho> o..icer0B rea0on
.or entering a hou0e >ith their >ea?on0 dra>n and immediatel- rolling him .rom the 0o.a to the .loor
to handcu.. him. :allagher v. Cit- o. 8e0t Covina" No. +3'%%391" 141 (ed. ,??). %77 A9th Cir.
2++%;. MNO!N
(ederal a??eal0 court overturn0 Cur- verdict in .avor o. la> en.orcement de.endant0 >ho allegedl-
inter.ered >ith the e..ort0 o. ?rivate ?er0on0 to re0cue a man >ho Cum?ed into a river" and .ailed to
o..er a rea0ona=le alternative re0cue 0ervice. Court hold0 that Ecumulative'errorE doctrine 0hould
a??l- to civil ca0e0" and that a ne> trial >a0 reDuired =ecau0e o. a num=er o. evidentiar- error0 made
=- the trial court. Bec@ v. 2ai@" No. +1'2723 2++4 5.S. ,??. 6e)i0 1%%9+ A*th Cir.;. M2++4 6! Se?N
1n a la>0uit again0t a to>n .or the death o. a motori0t >ho0e vehicle >a0 0truc@ =- an o..icerB0 car"
the nature o. the call that the o..icer >a0 re0?onding to at the time >a0 relevant to determining
>hether the o..icer acted in rec@le00 di0regard o. the 0a.et- o. other0" and there.ore >a0 admi00i=le.
,llen v. &o>n o. ,mher0t" 77$ N.7.S.2d %9$ A,.D. 4th De?t. 2++4;. MNO!N
/lainti.. >ho >a0 0hot =- ?olice o..icer could not >ithhold hi0 medical record0 in a .ederal civil
right0 la>0uit again0t the cit- and o..icer on the =a0i0 o. doctor'?atient ?rivilege or medical record0
?rivilege" nor could he a00ert the right o. ?rivac- =a0ed on a ?rovi0ion o. the Cali.ornia 0tate
con0titution to ?revent the di0clo0ure o. tho0e record0. &he ?lainti.." >ho claimed that he >a0 0hot in
the =ac@ =ecau0e the o..icer >a0 in ?oor ?h-0ical condition and >a0 there.ore una=le to ?ur0ue him
on .oot" >a0 al0o entitled in the ca0e to the di0clo0ure o. the o..icerB0 medical record0" including tho0e
in a >or@er0B com?en0ation .ile. 2utton v. Cit- o. <artineH" 219 (.!.D. 1*4 AN.D. Cal. 2++3;. MNO!N
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,rre0tee could not 0ucce00.ull- 0ee@ damage0 =a0ed merel- on a cu0todial interrogation >ithout
<irada >arning0 >hen none o. her elicited 0tatement0 >ere ever u0ed again0t her at trial. (ederal
a??eal0 court al0o overturn0 G$+"+++ maliciou0 ?ro0ecution a>ard to arre0tee" >ho claimed that
o..icer0 .iled .al0e charge0 again0t her and maliciou0l- ?ur0ued them in order to a00i0t her o..icer
=o-.riend" >ho 0he accu0ed o. dome0tic a=u0e. /lainti..B0 o?ening 0tatement at trial ?ut the Due0tion
o. the de.endant o..icerB0 truth.ul character into i00ue" 0o it >a0 ?reCudicial error to e)clude evidence
o. that character. !enda v. Ping" +1'2421" 347 (.3d %%+ A3rd Cir. 2++3;. M2++4 6! (e=N
1n ca0e >here elderl- cou?le challenged the validit- o. 0earch >arrant .or their home" de.endant0
could =e reDuired to either ?roduce a con.idential in.ormant .or an Ein cham=er0E de?o0ition" to
reveal hi0 identit-" or to convince the court that" .or rea0on0 o. 0a.et-" hi0 identit- need not =e
revealed. 1n the alternative" the de.endant0 could =e =arred .rom ?re0enting an- evidence at trial
=a0ed on the alleged e)i0tence o. the in.ormant. Smith v. Cit- o. Detroit" No. +1'7+74+" 212 (.!.D.
%+7 AE.D. <ich. 2++3;. M2++3 6! ,ugN
,dmi00ion into evidence o. a videota?e 0ho>ing the ?lainti.. conducting her dail- activitie0
during a trial o. her claim that 0he had 0u..ered 0eriou0 inCurie0 .rom the e)ce00ive u0e o. .orce =- a
?olice o..icer >a0 not im?ro?er and did not con0titute Eun.air 0ur?ri0eE >hen the ?lainti..B0 attorne-
>a0 .urni0hed >ith a co?- and given a chance to vie> it ?rior to it0 admi00ion. <ei0elman v. B-rom"
2+7 (. Su??. 2d 4+ AE.D.N.7. 2++2;. MNO!N
,dmi00ion into evidence o. an audiota?e o. an arre0teeB0 conver0ation >ith a ?olice di0?atcher >a0
not an a=u0e o. di0cretion in a .ederal civil right0 ca0e in >hich the arre0tee claimed that 0he had =een
im?ro?erl- arre0ted .or ?u=lic into)ication. &he audiota?eB0 re?roduction o. the arre0teeB0 Eh-0terical
conver0ationE >ith the di0?atcher >a0 Eno more ?reCudicialE than the arre0ting o..icerB0 account o.
Eher drun@en =ehavior"E 0o that the court could not 0a- that it0 admi00ion >a0 0o ?reCudicial that it
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violated the ?lainti..B0 E0u=0tantial right0.E Diamond v. 2o>d" ++'*323" 2$$ (.3d 932 A*th Cir.
2++2;. MNO!N
4ur- >a0 ?re0umed to have .ollo>ed trial CudgeB0 in0truction0 that la>-er0B 0tatement0 and
argument0 >ere not evidence" 0o that alleged mi0conduct =- de.endant ?olice o..icer0B la>-er in
giving in.erence to the Cur- a=out item0 not in evidence during clo0ing argument0 >a0 in0u..icient to
0u??ort a rever0al o. the Cur-B0 verdict .or the de.endant0 in a homeo>nerB0 .ederal civil right0 la>0uit
over alleged unrea0ona=le 0earch o. her hou0e under a >arrant. 4one0 v. 8illiam0" ++'%*929" 3%
(ed. ,??). 424 A9th Cir. 2++2;. MNO!N
State troo?er0 de0tro-ed ta?e0 relating to an incident in good .aith ?ur0uant to normal ?ractice0
=e.ore an- litigation >a0 ?ending" and additionall-" the ?lainti..0 received tran0cri?t0 o. the ta?e0" 0o
that there could =e no adver0e in.erence a0 to E0?oilation o. evidenceE in an arre0teeB0 claim .or
inCurie0. ,rre0tee could not collect damage0 .or hi0 .all and crac@ed 0@ull >hile re0trained at the
?olice 0tation .ollo>ing hi0 arre0t .or driving >hile into)icated" =a0ed on te0timon- =- ?lainti..B0 o>n
e)?ert >itne00 that he >a0 ?ro?erl- re0trained" and that" >hile there >ere alternative re0training
method0" the- ?o0ed their o>n ri0@0. !a-mond v. State" 74+ N.7.S.2d 743 A,.D. 2++2;. MNO!N
/lainti.. arre0teeB0 ?rior hi0tor- o. drin@ing ha=it0" o>ner0hi? o. gun0" and u0e o. ?re0cri?tion
drug0 >a0 ?ro?erl- admitted into evidence >hen the ?lainti.. an0>ered Due0tion0 on tho0e i00ue0 on
cro00'e)amination >ithout o=Cection0. &rial CudgeB0 comment0 a=out arre0tee acting a0 hi0 o>n
la>-er in .al0e arre0t la>0uit did not reDuire a ne> trial. 3BBrien v. 4ohn0on" $++ So. 2d *4 A6a. ,??.
4th Cir. 2++1;. MNO!N
34%:14+ (iling o. >rong.ul death claim 2$ da-0 a.ter arre0tee died gave count- and 0heri..B0
de?artment actual notice that it 0hould not de0tro- audio ta?e0 o. 911 call0 and radio tran0mi00ion0
concerning incident9 Cali.ornia a??eal0 court order0 .urther hearing0 to determine >hether 0anction0
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again0t de.endant0 in la>0uit are a??ro?riate. Nel0on v. Su?erior Court" B147*+7" 1+7 Cal. !?tr. 2d
4*9 ACal. ,??. 2++1;.
34%:141 Evidence that 0u0?ect" a ?arolee" ?o00e00ed a gun at the time o..icer0 tried to detain him
on 0u0?icion o. auto the.t" >a0 admi00i=le in hi0 la>0uit again0t o..icer0 .or 0hooting and >ounding
him9 it >a0 relevant a0 tending to 0u??ort the o..icer0B ver0ion o. the incident that he u0ed hi0 vehicle
a0 a >ea?on to endanger them in hi0 de0?eration to e0ca?e" Cu0ti.-ing their u0e o. deadl- .orce.
Steven0on v. D.C. <etro?olitan /olice De?t." 24$ (.3d 11$7 AD.C. Cir. 2++1;.
343:1+% 1ntroduction o. evidence o. arre0teeB0 later 0econd arre0t .or dome0tic violence >a0 no
=a0i0" in the a=0ence o. ?ro?er o=Cection" .or 0etting a0ide Cur-B0 verdict in .avor o. arre0ting o..icer0
on hi0 .al0e arre0tOe)ce00ive .orce claim0. 5dem=a v. Nicoli" ++'124*" 237 (.3d $ A10t Cir. 2++1;.
MNO!N Evidence 0u??orted Cur-B0 verdict in .avor o. o..icer0 on .al0e arre0t claim. Even i. o..icer
>a0 tre0?a00ing on arre0teeB0 =u0ine00 ?ro?ert-" the ?lainti..B0 action in 0lamming the door on the
o..icerB0 hand >a0 an unrea0ona=le u0e o. .orce >hich could 0u??ort hi0 arre0t .or =atter-. &rial court
erroneou0l- denied de.endantB0 reDue0t .or G27"+++ in co0t0 .or com?uteriHed evidence u0ed .or
?re0entation to Cur-" .urther hearing0 on rea0ona=lene00 reDuired. Ce.alu v. #illage o. El@ :rove" No.
9$'27+$" 211 (.3d 41* A7th Cir. 2+++;.
343:1+% (ederal trial court =ar0 evidence o. ?rior unrelated de?artmental di0ci?linar- action0
again0t o..icer accu0ed =- arre0tee o. e)ce00ive u0e o. .orce" a0 >ell a0 evidence a=out the e)i0tence
o. lia=ilit- in0urance9 te0timon- a=out >hether the arre0tee actuall- hit hi0 >i.e =e.ore the ?olice
arrived >a0 not relevant to >hether the o..icer u0ed im?ro?er .orce. <unle- v. Carl0on" 12% (. Su??.
2d 1117 AN.D. 1ll. 2+++;.
341:7% ,udio ta?e o. ?olice radio" including 0ound o. 0iren in unmar@ed car =eing activated" >a0
?ro?erl- admitted into evidence and 0hi.ted the =urden to the motori0t ?lainti.. to 0ho> the
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inauthenticit- o. the ta?e9 hi0 mere a00ertion that he had heard no 0iren did not create a genuine i00ue
o. .act in hi0 la>0uit over the 0to? and 0earch o. hi0 vehicle. Smith v. Cit- o. Chicago" No. 99'29*%"
242 (.3d 737 A7th Cir. 2++1;.
329:74 Evidence that occu?ant0 o. a motor vehicle >or@ed in the Eadult entertainment indu0tr-E
and that one o. them >a0 a ?ro0titute >ho had >or@ed in a legal =rothel >a0 irrelevant to i00ue0 in
.ederal civil right0 la>0uit over o..icerB0 detention o. them .ollo>ing a vehicle 0to? and 0earch o.
their ?o00e00ion09 introduction o. evidence >ould al0o =e ?reCudicial9 0tate la> emotional di0tre00
claim did not alter re0ult. S@ultin v. Bu0hnell" $2 (.Su??. 2d 12%$ AD. 5tah 2+++;.
334:1%+ (ederal a??eal0 court u?hold0 Cur- verdict in .avor o. o..icer >ho u0ed ?olice dog to
0u=due an auto the.t 0u0?ect9 ?lainti..B0 t>o ?rior .elon- conviction0" =a0ed on no conte0t ?lea0" >ere
?ro?erl- u0ed to im?each hi0 te0timon-9 ?lainti.. >a0 not entitled to an e)?licit Cur- in0truction
concerning Ealternative cour0e0 o. actionE availa=le to the o..icer or the o..icerB0 alleged Elac@ o.
?ro=a=le cau0eE to =elieve that the ?lainti.. >a0 armed. Bre>er v. Cit- o. Na?a" 9$'1*4*+" 21+ (.3d
1+93 A9th Cir. 2+++;.
MNO!N E)clu0ion o. non?art- ?olice o..icer0B te0timon- >hich >a0 con0i0tent >ith ?lainti..B0
ver0ion o. incident in >hich he >a0 mi0ta@enl- a??rehended =- de.endant o..icer0 in grocer- 0tore
>a0 not harmle00" >hen detaineeB0 ?rinci?al e-e>itne00 could =e vie>ed a0 un?er0ua0ive =ecau0e o.
her alleged =ia0 again0t ?olice. 8a00erman v. Bartholome>" No. S'$23$" 9$7 /. 2d 74$ A,la0@a
1999;.
327:39 3..icer >a0 legall- Cu0ti.ied in 0hooting and @illing a man advancing to>ard0 t>o o..icer0
>ith a @ni.e held to hi0 o>n throat >ho had ?reviou0l- 0ta==ing hi0 =rother9 the .act that he ?o0ed a
threat to the o..icer0 rendered irrelevant an- evidence o. ?o00i=le alternate 0trategie0 o..icer0 might
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have u0ed ?rior to that ?oint" or evidence concerning the o..icerB0 ?a0t di0ci?linar- record0 or cit- u0e
o. .orce ?olic-. 7ello>=ac@ v. Cit- o. Siou) (all0" 2+719" *++ N.8.2d %%4 AS.D. 1999;.
327:43 ,??eal0 court u?hold0 Cur- verdict in .avor o. ?olice o..icer0 in la>0uit over alleged
?o0itional a0?h-)ia in ca0e >here the- u0ed @neeling >ri0tloc@ on di0tur=ed man to ta@e him into
?rotective cu0tod-9 u0e o. courtroom demon0tration o. @neeling >ri0tloc@ techniDue >a0 ?ro?erl-
admitted into evidence. 4one0 v. !all0" 9$'3%14" 1$7 (.3d $4$ A$th Cir. 1999;.
33+:$3 De?ut- ?ro?erl- u0ed deadl- .orce again0t man advancing on him >ith a ?iece o. concrete
in hi0 hand9 0heri..B0 .ailure to train de?utie0 in the u0e o. deadl- .orce again0t EcraH-E ?eo?le >a0 no
=a0i0 .or lia=ilit- >hen general ?olic- on u0e o. deadl- .orce >a0 correct and no 0ho>ing o. a ?rior
?ro=lem in thi0 area >a0 0ho>n9 =a0i0 .or e)clu0ion o. e)?ert >itne00 >a0 erroneou0" =ut Cur- did not
need e)?ert hel? to conclude that de?ut- acted rea0ona=l-. /ena v. 6eom=runi" No. 99'143%" 2++
(.3d 1+31 A7th Cir. 1999;.
33+:$4 4ur- ?ro?erl- heard evidence o. alleged a..air =et>een ma-or and arre0teeB0 >i.e" and trial
court ?ro?erl- declined to in0truct Cur- that arre0tee had a dut- to 0u=mit to an arre0t >ithout
re0i0tance even i. it >a0 unCu0ti.ied9 a??eal0 court u?hold0 a>ard0 totaling G114"+++ again0t ?olice
chie. and ma-or in la>0uit claiming that im?ro?er arre0t >a0 made >ith e)ce00ive .orce =a0ed on a
?urel- ?er0onal di0?ute =et>een ma-or and arre0tee. :o.. v. Bi0e" 9$'2$49" 173 (.3d 1+*$ A$th Cir.
1999;.
331:1+$ 3..icerB0 un0igned and un0>orn memorandum" ?re?ared .or ?olice de?artmentB0 legal
0ection" >a0 inadmi00i=le hear0a- >hich >a0 im?ro?erl- relied on =- trial Cudge in granting 0ummar-
Cudgment in maliciou0 ?ro0ecution ca0e =rought =- a mem=er o. a communit- ?olice monitoring
organiHation >ho >a0 i00ued a citation .or .ollo>ing a ?olice vehicle in >hich t>o mem=er0 o. her
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grou? >ere =eing tran0?orted .ollo>ing their arre0t. Si@ora v. :i==0" No. 9$,/'*%%" 72* N.E.2d %4+
A3hio ,??. 1999;.
322:1%1 /lainti.. in civil right0 la>0uit concerning hi0 arre0t did not im?liedl- >aive thera?i0t'
?atient ?rivilege =- including a claim .or emotional di0tre009 medical record0 during ?lainti..B0 t>o'
-ear con.inement in mental health center a.ter incident not di0covera=le. 2uc@o v. Cit- o. 3a@
(ore0t" 1$% (.!.D. %2* AN.D. 1ll. 1999;. EditorB0 Note: 3ther ca0e0 on thi0 i00ue include: #ander=ilt
v. &o>n o. Chilmar@" 174 (.!.D. 22% AD. <a00. 1997; Amere a00ertion o. emotional damage claim
doe0 not con0titute a >aiver o. thera?i0t'?atient ?rivilege;9 and three ca0e0 in >hich an im?lied
>aiver >a0 .ound" (o) v. &he :ate0 Cor?." 179 (.!.D. 3+3 AD. Col. 199$;" #a0concell0 v. C-=e)"
9*2 (.Su??. 7+1 AD. <d. 1997;" and Sar@o v. /enn'Del Director- Co." 17+ (.!.D. 127 AE.D. /a.
1997;.
QNO!R (ederal trial Cudge im?ro?erl- determined that he did not have di0cretion to con0ider
additional evidence >hen deciding >hether or not to u?hold a magi0trateB0 recommendation in an
arre0teeB0 la>0uit again0t inve0tigating o..icer09 he could ?ro?erl- receive and con0ider ne> evidence
to determine >hether there >ere genuine i00ue0 o. .act that >ould de.eat a motion .or 0ummar-
Cudgment. (reeman v. Count- o. Be)ar" 9%'%+1$$ 142 (.3d $4$ A%th Cir. 199$;.
3+%:77 Convicted ro==er could not .ile 0uit o=Cecting to the di0clo0ure o. medical record0 at hi0
criminal trial >hen he did not contend that he and the ?er0on treated .or gun0hot >ound0 at ho0?ital
>ere the 0ame ?er0on. :reen v. Coo?er <edical 2o0?ital" 9*$ (.Su??. 249 AE.D. /a. 1997;.
3+7:1+9 3..icer0 >ere entitled to good .aith immunit- .or 0eiHure o. truc@ >ith mi00ing #ehicle
1denti.ication Num=er9 evidence uncovered =- their >arrantle00 0earch o. truc@ >a0 admi00i=le
evidence in e0ta=li0hing their de.en0e even i. 0earch >a0 illegal9 .ederal a??eal0 court rule0 that
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e)clu0ionar- rule doe0 not a??l- in .ederal civil right0 la>0uit09 o..icer0 al0o entitled to o..icial
immunit- on &e)a0 0tate la> claim0. 8ren v. &o>e" 13+ (.3d 11%4 A%th Cir. 1997;.
3+9:14+ Evidence o. arre0teeB0 out0tanding ?arole >arrant and ?rior drug di0tri=ution conviction
>a0 admi00i=le in arre0teeB0 e)ce00ive .orce la>0uit again0t o..icer09 evidence o. ?rior mi0demeanor
conviction0 and other conviction0 >hich >ere more than ten -ear0 old >a0 not. Daniel0 v. 6oiHHo"
9$* (.Su??. 24% AS.D.N.7. 1997;.
31+:1%% <an arre0ted .or murder and then con.ined" .or ten -ear0" in ?0-chiatric .acilit- >hile
incom?etent .or trial" entitled to ne> trial in civil right0 la>0uit again0t o..icer0 alleging .al0e
im?ri0onment and maliciou0 ?ro0ecution9 0uit claimed that con.e00ion to ?olice >a0 ?rocured through
?rior ta?ed conver0ation0 >ith mini0ter >ho allegedl- E.edE 0u0?ect detail0 o. crime9 e)clu0ion o.
ta?e0 .rom evidence >a0 rever0i=le error. Sut@ie>icH v. <onroe Count- Sheri.." 11+ (.3d 3%2 A*th
Cir. 1997;.
31+:1%* /lainti.. in e)ce00ive .orce ca0e again0t ?olice involving E?o0itional a0?h-)iaE could not
com?el de?o0ition o. de.endant0B la>-er regarding hi0 ?er0onal @no>ledge o. the danger0 o.
E?o0itional a0?h-)iaE >hen ?lainti.. .ailed to 0ho> that in.ormation >a0 uno=taina=le through other
mean0" relevant and non'?rivileged" and crucial to ?re?aration o. the ca0e. 4one0 v. Bd. o. /olice
ComBr0 o. Pan0a0 Cit-" <o." 17* (.!.D. *2% A8.D. <o. 1997;.
29*:124 1n 0uit over o..'dut- o..icerB0 0hooting o. ?a00enger in 0to??ed vehicle" trial court did not
err in e)cluding evidence o. ?rior incident in >hich 0ame o..icer 0hot a 0u0?ect .rom another 0to??ed
vehicle or in e)cluding evidence o. 1,C/ EmodelE ?olicie0 concerning tra..ic 0to?0 =- o..'dut-
o..icer0" >hen i00ue >a0 not >hether 0to? >a0 ?ro?er" =ut >hether u0e o. .orce again0t ?a00enger
once 0to? >a0 made >a0 e)ce00ive Soller v. <oore" $4 (.3d 9*4 A7th Cir. 199*;.
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2$7:172 3..icer >a0 im?ro?erl- =arred .rom te0ti.-ing a0 e)?ert >itne00 a0 to >hether 0heri..B0
alleged .ailure to train de?utie0 on ?ro?er retrieval and u0e o. 0hotgun0 0tored in loc@ed trun@0 o.
crui0er0 created un0a.e >or@ing condition09 0ummar- Cudgment .or de.endant 0heri.. and count-
overturned in 0uit =rought =- de?ut- 0hot =- a00ailant >hile attem?ting to retrieve 0hotgun .rom trun@
:entr- v. <angum" 4** S.E.2d 171 A8.#a. 199%;.
2$%:137 Cit- and mental health agenc- >a0 not lia=le .or o..icerB0 0hooting o. ?aranoid
0chiHo?hrenic a0 he e)ited hi0 =edroom" allegedl- advancing on o..icer >ith hatchet rai0ed9
de.endant0 adeDuatel- e)?lained rea0on0 .or 0tri@ing t>o =lac@ Curor0" and trial Cudge correctl-
e)cluded evidence >hich >a0 not relevant to the ca0e at hand <cPeel v. Cit- o. /ine Blu.." 73 (.3d
2+7 A$th Cir" 199*;.
279:3$ E)?ert >itne00 te0timon- on Ehedonic damage0E Athe enCo-ment value o. human li.e;.
=arred =- trial court in la>0uit over ?olice 0hooting o. individual ,-er0 v. !o=in0on" $$7 (.Su??.
1+49 AN.D.1ll. 199%;.
2$2:$4 Drug evidence .rom hou0e e)cluded at criminal trial =ecau0e o. illegalit- o. 0earch >a0
?ro?erl- introduced into evidence in civil de.amation la>0uit =rought =- re0ident again0t ?olice chie.
>ho allegedl- told hi0 em?lo-er he >a0 a Edrug dealerE9 Ne> 2am?0hire Su?reme Court decline0 to
a??l- e)clu0ionar- rule in civil de.amation 0uit Sim?@in0 v. &o>n o. Bartlett" **1 ,.2d 772 AN2
199%;.
2$*:147 5.S. Su?reme Court ado?t0 thera?i0t'?atient ?rivilege ?rotecting di0clo0ure0 during
thera?- 0e00ion0 .rom com?elled di0clo0ure in court9 a..irm0 ordering o. ne> trial in >hich Cur-
a>arded G%4%"+++ in ?olice 0hooting ca0e >here Cur- >a0 told it could ?re0ume >ithheld thera?-
record0 >ould =e un.avora=le to o..icer 4a..ee v. ,llen" 11* S.Ct. 1923 A199*;.
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QNO!R Statement on 911 ta?e >hich allegedl- de0cri=ed o..icerB0 =eating o. ?lainti.. >a0 not
admi00i=le into evidence in a=0ence o. an- 0ho>ing that the ?er0on ma@ing the de0cri?tion had a .ir0t
hand @no>ledge o. >hat he de0cri=ed Bemi0 v. Ed>ard0" 4% (.3d 13*9 A9th Cir. 199%;.
QNO!R 1t >a0 not an a=u0e o. di0cretion to re.u0e to allo> >itne00e0 >ho >ere not di0clo0ed in
?lainti..B0 ?retrial li0t o. >itne00e0 to te0ti.-9 cit- ?olice de?artment >ritten ?olicie0 >ere not relevant
in ?roving arre0teeB0 claim0 again0t cit- <arti v. Cit- o. <a?le>ood" <o" %7 (.3d *$+ A$th Cir.
199%;.
2*9:*7 &a?e recording o. arre0t and alleged =eating o. arre0tee >hich revealed that o..icer
directed a racial e?ithet at arre0tee 0hould have =een admitted into evidence a0 it >a0 relevant to the
Cur-B0 ta0@ o. deciding >hether .orce u0ed >a0 rea0ona=le under the circum0tance09 a??eal0 court
rule0 that e)clu0ion o. thi0 ?ortion o. ta?e >a0 an a=u0e o. di0cretion reDuiring a ne> trial in civil
right0 0uit =rought =- arre0tee Bro>n v. Cit- o. 2ialeah" 3+ (.3d 1433 A11th Cir. 1994;.
2*9:74 Evidence o. ?lainti..B0 ?rior criminal conviction0 >a0 ?ro?erl- admitted into evidence
during hi0 cro00'e)amination >hen hi0 direct te0timon- o?ened the door to the evidence Duncan v.
8ell0" 23 (.3d 1322 A$th Cir. 1994;.
272:121 De.endant ?olice o..icer0 had the right" in arre0teeB0 .ederal civil right0 e)ce00ive .orce
0uit again0t them" to cro00'e)amine arre0tee regarding hi0 ?rior .elon- conviction0 during ?a0t ten
-ear09 cro00'e)amination regarding .elon- conviction0 older than ten -ear0 =arred a0 undul-
?reCudicial Charle0 v. Cotter" $*7 (.Su??. *4$ AN.D.1ll. 1994;.
Erroneou0 admi00ion o. narcotic0 in.ormerB0 hear0a- 0tatement0 into evidence >a0 not harmle00
and reDuired rever0al o. Cur- verdict in .avor o. arre0tee in civil right0 0uit again0t narcotic0 agent
6i??a- v. Chri0to0" 99* (.2d 149+ A3rd Cir. 1993;.
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&rial court ?ro?erl- admitted certi.ied record0 o. ?lainti..B0 ro==er- and ?o00e00ion o. concealed
>ea?on0 conviction0 into evidence" a0 >ell a0 evidence o. hi0 conviction o. /C/ drug to im?each hi0
0tatement0" including 0tatment0 that he had never u0ed /C/ :ee v. /ride" 992 (.2d 1%9 A$th Cir.
1993;.
<otori0t inCured in colli0ion >ith ?olice vehicle could ?re0ent evidence" in 0uit again0t cit-" that
o..icer allegedl- attem?ted to inter.ere >ith =-0tander attem?t0 to aid him .ollo>ing the accident9
evidence >a0 relevant to i00ue o. motori0tB0 emotional inCurie0 Creed v. Cit- o. Colum=ia" 42* S.E.2d
7$% ASC 1993;.
,rre0tee 0uing o..icer0 .or alleged ?rete)tual arre0t 0hould have =een allo>ed to introduce
evidence o. ?rior incident0 >hich >ere too long ago to =e the =a0i0 .or a 0uit" =ut >hich 0till could =e
u0ed to 0ho> o..icer0B alleged retaliator- motive .or arre0ting him !o==in0 v. Cit- o. <iami Beach"
*13 So.2d %$+ A(la ,??. 1993;.
Sue0tion0 concerning ?lainti..B0 ?rior .elon- conviction0 >ere clearl- ?ro?er .or ?ur?o0e0 o.
im?eaching hi0 truth.ulne00 a0 a >itne009 Due0tion0 concerning hi0 current incarceration" >hile
generall- inadmi00i=le .or im?eachment ?ur?o0e0" >ere allo>a=le .or the ?ur?o0e o. re.uting hi0
claim that it >a0 the de.endant o..icer0B action0 that led to hi0 Enegative ?erce?tionE o. la>
en.orcement :ora v. Co0ta" 971 (.2d 132% A7th Cir. 1992;.
&rial court ?ro?erl- admitted evidence o. medical record0 o. ?lainti.. in 0uit over .ight >ith ?olice
o..icer9 i00ue o. >hether ?lainti.. had the a=ilit- to control hi0 anger and initiated .ight made
admi00ion to ho0?ital @no>n a0 treatment center .or ?0-chiatric ?ro=lem0 relevant 4one0 v. 8il=ur"
*+4 ,.2d 779 A!1 1992;.
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Evidence o. charge0 and conviction o. ra?e and @idna??ing >hich >ere rea0on .or arre0t >ere
admi00i=le in civil right0 la>0uit =rought =- arre0tee .or alleged e)ce00ive .orce 2ernandeH v.
Ce?eda" $*+ (.2d 2*+ A7th Cir. 19$$;.
/lainti.. 0ue0 o..icer0 .or e)ce00ive u0e o. .orce in arre0ting him9 no error to admit evidence o. hi0
?rior conviction0 .or ro==er-" ra?e and .orci=le 0odom- 4one0 v. Bd o. /olice Commi00ioner0" $44
(.2d %++ A$th Cir. 19$$;. Congre00ional re?ort on ?olice mi0conduct inadmi00i=le ,nder0on v. Cit-
o. Ne> 7or@" *%7 (.Su??. 1%71 AS.D.N7 19$7;.
State trial CudgeB0 te0timon- a=out o..icer0B credi=ilit- inadmi00i=le in arre0teeB0 civil right0
la>0uit9 o..icer0 granted ne> trial SchultH v. &homa0" $32 (.2d 1+$ A7th Cir. 19$7;.
,rre0tee a>arded G1%1"*$+ .or alleged a00ault =- o..icer09 admi00ion into evidence o. di0mi00al o.
charge0 >a0 error =ut cured =- Cur- in0truction0 4ared v. Cit- o. Ne> 7or@" %19 N.7.S.2d 717 A,.D.
19$7;.
1n =rutalit- 0uit again0t o..icer" 2a>aii 0u?reme court admit0 evidence o. other >rong0 he
committed and character evidence 0ho>ing ?ro?en0it- .or violence <e-er v. Cit- and Count- o.
2onolulu" 731 /.2d 149 A2a>aii 19$*;.
,rger0inger v. 2amlin A4+7 5.S. 2%; e0ta=li0he0 that the right to the a00i0tance o. coun0el"
>hether retained or court a??ointed" i0 reDuired in all ?ro0ecution0 >hich ma- re0ult in
im?ri0onment" unle00 a com?lete (aretta canva0 ha0 =een com?leted and the reDue0t .or >aiving
coun0el i0 granted.
8hile there i0 a time and ?lace" ?erha?0 .or 3rder0 .inding Summar- Contem?t under N!S
22.+3+...?erha?0" the greate0t 0trength a Cudge can demon0trate i0 the a=ilit- to 0ho> a little >ea@ne00"
to demon0trate 0omething other than ruling >ith an iron hand" to do 0omething other than cru0h an-
voice o. di00ent in her court. &o 0trangle out o. litigant0 the .reedom to Healou0l- adovocate on their
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o>n or anotherB0 =ehal. Ain the ca0e o. licen0ed attorne-0; i0 ?erha?0 the mo0t heinou0" 0ad" and ugl-
thing a Cudge could do. , Cudge >hom demon0trate0 an a=ilit- to over0ee that >hich ma@e0 her le00
than com.orta=le in her courtroom" that >hich 0he doe0 not nece00aril- agree >ith" i0 a Cudge 0ecure
in hher a=ilitie0 and a>are o. the ?remium on re0traint and ?atience called .or in order .or a Cudge and
court to tran0cend .rom mere de=t collector .or the Cit- ,ttorne- to im?artial ar=iter o. .act and la>.
&o demon0trate other>i0e ma- create an atmo0?here >here court em?lo-ee0 over0te? their =ound0
and =egin to =ull- and hara00 tho0e 0ee@ing to acce00 Cu0tice" a true violation o. the tru0t in >hich the
?u=lic endo>0 0uch ?u=lic 0ervant0. Even ?erha?0" >here <ar0hal0 are a=le to >hi0?er into 3rma0B0
ear" in o?en court" then >here the under0igned need0 to u0e the re0troom" the Court 3rder0 him to
leave hi0 note?ad in the courtroom" then the udner0igned i0 0ummaril- interrogated =- the Court .rom
the Bench in 0ome >a- a=out Edevice0E li@e he i0 a ma.ia in.ormant =eing rundo>n =- the Don" then
the under0igned i0 arre0ted" 0tri? 0earched" ha0 hi0 ?ro?ert- con.i0cated. ,nd it0 im?ortant ?ro?ert-"
including" =ut not limited to t>o di..erent cell ?hoen0. 2o> i0 the under0igned 0u??o0ed to
communicate >ith client0F (urther" the under0igned i0 a recent victim o. dome0tic violence A(#12'
++1$7 and (#12'++1$$;" and rendering him more vulnera=le through conver0ion o. hi0 mean0 o.
emergenc- communiction0" hi0 cell ?hone0" i0 not Cu0ti.ied here.
N
8here0 De.endant >ent to great length0 to demon0trate to 4udge 2o>ard and the !<C that
he i0 indigent" he" a??arentl-" i0 not Iallo>edJ to =e 0o" 0o much 0o that thi0 Court >ent again0t the
Nevada Court o. 6imited 4uri0diction Bench Boo@ o. 2++$ and it0 2+1+ Su??lement in den-ing the
under0igned the hi0 Si)th ,mendment !ight &o Coun0el" 0et .orth e)?licitl- in 0everal location0 in
the Bench Boo@ and mandator- authorit- in the5nited State0. ,rger0inger v. 2amlin" A4+7 5.S. 2%;.
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, /etition to /roceed in 1(/ and receive a co?- o. the audio recording o. an- ?roceeding0 in thi0
matter i0 0u=mitted along >ith thi0 in0tant .iling.
Nevada N!C/ *+A=;A3; allo>0 a ?art- to move .or relie. .rom a Cudgment >hich i0 void" and
>hile motion0 made under N!C/ *+A=; are generall- reDuired to E=e made >ithin a rea0ona=le timeE
and to =e adCudicated according to the di0trict courtB0 di0cretion" thi0 i0 not true in the ca0e o. a void
Cudgment. Nece00aril- a motion under thi0 ?art o. the rule di..er0 mar@edl- .rom motion0 under the
other clau0e0 o. !ule *+A=;. &here i0 no Due0tion o. di0cretion on the ?art o. the court >hen a motion
i0 made under Mthi0 ?ortion o. the !uleN. Nor i0 there an- reDuirement" a0 there u0uall- i0 >hen
de.ault Cudgment0 are attac@ed under !ule *+A=;" that the moving ?art- 0ho> that he ha0 a
meritoriou0 de.en0e. Either a Cudgment i0 void or it i0 valid. Determining >hich it i0 ma- >ell ?re0ent
a di..icult Due0tion" =ut >hen that Due0tion i0 re0olved" the court mu0t act accordingl-. B- the 0ame
to@en" there i0 no time limit on an attac@ on a Cudgment a0 void. . . . MENven the reDuirement that the
motion =e made >ithin a Erea0ona=le time"E >hich 0eem0 literl- to a??l- . . . cannot =e en.orced >ith
regard to thi0 cla00 o. motion. 5nder0tanda=l-" the ?artie0 >ere not attuned to our recent 4aco=0
deci0ion during oral argument. ,ccordingl-" it >a0 determined at that time to allo> the ?artie0 to
0u??lement their =rie.0 in order to determine >ith certaint- >hether" in .act" no de.ault had =een
entered again0t :arcia ?rior to the entr- o. the de.ault Cudgment. :arciaB0 0u??lemental material
0u??lied additional evidence that no de.ault >a0 ever entered" including an a..idavit =- Clar@ Count-
Court Cler@ 6oretta Bo>man atte0ting that no 0uch .iling e)i0t0 in the ca0e .ile. !e0?ondent0 al0o
ac@no>ledged that no de.ault >a0 ever entered =ut argue in their 0u??lemental =rie. that 4aco=0
0hould not =e a??lied retroactivel-" noting that the de.ault Cudgment at i00ue herein >a0 entered ?rior
to our 4aco=0 deci0ion. &hi0 argument i0 >ithout merit. &he court in 4aco=0 determined" con0i0tent
>ith la> .rom other Curi0diction0" that the de.ault Cudgment entered in 4aco=0 >a0 void. 8e
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accordingl- ordered the di0trict court to grant relie. .rom the void Cudgment" de0?ite the .act that the
ruling in 4aco=0 >a0" o. cour0e" ?receded =- entr- o. the de.ault Cudgment again0t 4aco=0. 1. thi0 ca0e"
rather than 4aco=0" >ere =e.ore u0 a0 a ca0e o. .ir0t im?re00ion" >e >ould have reached the 0ame
conclu0ion. , void Cudgment i0 void .or all ?ur?o0e0 and ma- not =e given li.e under a theor- =a0ed
u?on lac@ o. legal ?recedent. :arcia v. 1deal Su??l- Co." 11+ Nev. 493" $74 /.2d 7%2 ANev.
%O19O1994;. &he de.ective 0ervice rendered the di0trict courtB0 ?er0onal Curi0diction over :a00ett
invalid and the Cudgment again0t her void. (or a Cudgment to =e void" there mu0t =e a de.ect in the
courtB0 authorit- to enter Cudgment through either lac@ o. ?er0onal Curi0diction or Curi0diction over
0u=Cect matter in the 0uit. /u?hal v. /u?hal" **9 /.2d 191 A1daho 19$3;. 1n /rice v. Dunn" 1+* Nev.
1++" 7$7 /.2d 7$% A199+;. 8e no> hold that the .iling o. a motion to 0et a0ide a void Cudgment
?reviou0l- entered again0t the movant 0hall not con0titute a general a??earance. See" e.g." Do=0on v.
Do=0on" 1+$ Nev. 34*" 349" $3+ /.2d 133*" 133$ A1992;. Nonethele00" 0ince the order >a0 void" a
Cudgment =a0ed thereon >ould li@e>i0e =e void.. Nel0on v. Sierra Con0tr. Cor?." 77 Nev. 334" 3*4
/.2d 4+2. 5nder N!C/ *+A=; a motion to 0et a0ide a void Cudgment i0 not re0tricted to the 0i) month0B
?eriod 0?eci.ied in the rule. N!C/ %4Aa; ?rovide0 that the >ord ECudgmentE a0 u0ed in the0e rule0
include0 an- order .rom >hich an a??eal lie0. &here.ore there i0 no merit to a??ellant0B contention
that the motion to vacate the Cudgment >a0 not timel- made. (o0ter v. 6e>i0" 7$ Nev. 33+" 372 /.2d
*79 ANev. *O19O19*2;. , void Cudgment i0 0u=Cect to collateral attac@9 a Cudgment i0 void i. the
i00uing court lac@ed ?er0onal Curi0diction or 0u=Cect matter Curi0diction9 See 49 C.4.S. 4udgment0 T
4+1" at 792 A1947 U 0u??. 1991;9 4* ,m.4ur.2d 4udgment0 TT *21'%* A19*9 U 0u??. 1991;.
!eno Cit- ,ttorne-B0 8ong and 3rmaa0 0ho>ed a di0tur=ing lac@ o. concern >ith regard to
the re?ort0 that an !/D had admitted to ta@ign =ri=e0 .rom !ichard :. 2ill" E0D. (urther" thi0 Corut
e)?loded at the under0igned at one ?oitn in the &rial" threatening to Ethro> -ou in Cail i. -ou 0a- the
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name !ichard 2ill one more timeVE. &hi0 &ra..ic citation0 >a0 i00ued minute0 a.ter the under0igned
>a0 told to leave !ichard :. 2illB0 la> o..ice =- !/D Sargent &arter A>ho didnBt even >rite the tic@et
here" and a0 0uch the *th ,mendment right to con.ront the accu0er >a0 violated =- the other o..icerB"
the material >itne00" not =eing ?re0ent .or the &rial. he >a0nBt ?re0ent .or the ECali.ornia !ollE
either" 0o it0 unclear >h- it0 o@a- .or Sargent &arter to have him >rite the tic@et .or Sargent &arter"
>hom admitted he had onl- >ritten one 0uch tic@et in the entire -ear ?receding hi0 involvment in thi0
11O1%O11 incident. Shortl- =e.ore Sargetn &arter told the under0igned to leave 2illB0 la> o..ice
A>here the udner0igned >ent 0hortl- a.ter =eing relea0ed .rom a lovel- 3 da- 0ta- in Cail ?ur0uant to
2illB0 0ignign a criminal tre0?a00 Com?laint in 11 cr 2*4+% A>here !<C a??ointed de.ender too@ on
re?re0entation de0?ite a clear con.lict" then &aitel agree to a continuance =ecau0e 2ill >a0 goign to =e
on vacation .or a month" all >ithout con0ulting the under0igned client" etc...W;<r. 8ong did e)?re00 a
com?lete lac@ o. concern to the under0igned >hen it >a0 re?orted to him that a !/D 3..icer" Chri0
Carter" had admitted to the under0igned that the o??o0ing coun0el in !4C !E#2+11'++17+$
0ummar- eviction .rom a commercial tenanc- la> o..ice >here non ?a-ment o. rent >a0 not alleged
Ain violation o. N!S 4+.2%3B0 e)?re00 dictate again0t 0uch action0; had ?aid mone- to !/D 3..icer
Carter to arre0t the under0igned Aa =ri=e;. <r. 8ong indicated a com?lete lac@ o. con0ternation in
thi0 regard and e)?re00ed that he intended to conduct Hero .ollo> u? >ith re0?ect to that trou=ling
=reach o. the ?u=lic tru0t" even though" a0 a !eno Cit- ,ttorne-" <r. 8ong li@el- ha0 a dut- to do 0o
and hi0 .ailure to >ill augur 0trongl- to>ard a .inding that the !eno Cit- ,ttorne- i0 lia=le .or an-
!/D mi0conduct on a negligent hiring" training" and 0u?ervi0ion claim and that the !eno Cit-
,ttorne- i0 a>are o. and" in .act" rati.ie0 or endor0e0 0uch =ri=e ta@ing =- the !/D .rom !ichard :.
2ill" E0D" o??o0ing coun0el in that !4C eviction matter.
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5nder .ederal la>" a0 >ell a0 the la> o. 0ome 0tate0" the mi0=ehavior that ?ermit0 0ummar-
action mu0t in addition ?re0ent an imminent threat to the admini0tration o. Cu0tice9 it mu0t
immediatel- im?eril the Cudge in the ?er.ormance o. hi0 or her Cudicial dut- or con0titute an actual
o=0truction o. Cu0tice. 5.S. v. &urner" $12 (.2d 1%%2 A11th Cir. 19$7; Aattorne-B0 ?o0ing o. 0ingle
Due0tion to >itne00 a=out race o. certain individual0" though in clear violation o. ver=al court order"
did not 0o o=0truct Cu0tice a0 to ena=le court to re0ort to 0ummar- ?rocedure .or contem?t under
(ederal !ule o. Criminal /rocedure 42A=;;9 1n re 2ollo>a-" 99% (.2d 1+$+ AD.C. Cir. 1993; Aattorne-
?ur0ued line0 o. Due0tioning ruled out =- Cudge;.8itne00B0 re.u0al to an0>er Due0tion0 the court
order0 him to an0>er i0 contumaciou0 conduct >hich ma- 0u=Cect >itne00 to 0ummar- ?uni0hment
.or criminal contem?t under Direct contem?t Cu0ti.-ing 0ummar- di0?o0ition i0 con.ined to
e)ce?tional circum0tance0 involving act0 threatening the Cudge" di0ru?ting the hearing" or o=0tructing
court ?roceeding0. !ule 42. 1n re Bo-den" *7% (.2d *43 A%th Cir. 19$2;. Becau0e 0ummar- contem?t
?rocedure .ill0 a need .or the immediate ?enal vindication o. the dignit- o. the court" it0 a??lication i0
con.ined to unu0ual 0ituation0 >here the courtB0 in0tant action i0 nece00ar- to ?rotect the Cudicial
in0titution it0el.. 1n re :u0ta.0on" *19 (.2d 13%4" %$ ,.6.!. (ed. 1 A9th Cir. 19$+;" on rehBg" *%+ (.2d
1+17 A9th Cir. 19$1;.
N!S 22. +3+. Summar- ?uni0hment o. contem?t committed in immediate vie> and
?re0ence o. court9 a..idavit or 0tatement to =e .iled >hen contem?t committed out0ide
immediate vie> and ?re0ence o. court9 di0Duali.ication o. Cudge:
I1. 1. a contem?t i0 committed in the immediate vie> and ?re0ence o. the court or Cudge at
cham=er0" the contem?t ma- =e ?uni0hed 0ummaril-. 1. the court or Cudge 0ummaril- ?uni0he0
a ?er0on .or a contem?t ?ur0uant to thi0 0u=0ection" the court or Cudge 0hall enter an order
that:
Aa; !ecite0 the .act0 con0tituting the contem?t in the immediate vie> and ?re0ence o. the court
or Cudge9
A=; (ind0 the ?er0on guilt- o. the contem?t9 and
Ac; /re0cri=e0 the ?uni0hment .or the contem?t...J
1%4 ,6! 1227" Nece00it- and Su..icienc- o. <a@ing and !ecording Su=0idiar- or Detailed
(inding0 Su??orting ,dCudication o. Direct Contem?t.
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Statute ?roviding that in all ca0e0 o. contem?t ari0ing >ithout immediate vie> and ?re0ence o.
court" Cudge o. court in >ho0e contem?t de.endant i0 alleged to =e" 0hall not ?re0ide at 0uch
trial over o=Cection o. de.endant" i0 con0titutional. N.C.6.1929" T $943. <cCormic@ v. Si)th
4udicial Di0t. Court in and .or 2um=oldt Count-" 19%+" 21$ /.2d 939" *7 Nev. 31$. Contem?t
(or ?ur?o0e0 o. 0tatute governing 0ummar- contem?t ?roceeding0 .or direct contem?t committed
in CudgeB0 ?re0ence" >hich reDuire0 court to Ienter an order"J >hile a trial courtB0 oral
contem?t order i0 immediatel- en.orcea=le" a >ritten order including the 0tatuteB0 reDuired element0
mu0t =e ?rom?tl- entered. 2ou0ton v. Eighth 4udicial Di0t. Court e) rel. Count- o.
Clar@" 2++*" 13% /.3d 12*9" 122 Nev. %44.
,??ro?riate remed- .or attorne- >ho had =een .ound in direct contem?t o. court in divorce
?roceeding in >hich he re?re0ented >i.e" >here contem?t order had =een .ound to =e in0u..icient
=- Su?reme Court" in that it did not contain a 0u..icient 0tatement concerning >hat conduct
>a0 held to =e contem?tuou0" >a0 to ?ermit trial court to enter amended order" given that
Su?reme CourtB0 o?inion addre00ed i00ue o. .ir0t im?re00ion and announced 0tandard .or content0
o. >ritten contem?t order. 2ou0ton v. Eighth 4udicial Di0t. Court e) rel. Count- o.
Clar@" 2++*" 13% /.3d 12*9" 122 Nev. %44.
2ere" 0eemingl-" the Summar- Contem?t 3rder relie0 in ?art on Econtinuing line0 o. inDuir-
a.ter told =- the Court not to do 0o...E ho>ever an- 0uch alleged in0tance0 o. thi0 are e)?lained a>a-
=- the .act that an- 0uch Due0tion0 >here not ?o0ed to ?rove the truth o. the matter a00erted =ut rather
.or other ?ermi00i=le ?ur?o0e0 Aand thi0 >a0 ?ointed out to the Court at trial; and the ultimate
Due0tion Cu0t ?rior to thi0 CourtB0 continuing the &rial >a0 onl- hal.>a- .ini0hed ?rior to the Court
interCecting the ?uni0hment. (urther" .or 4udge Na0h 2olme0 ruling that it i0 not relevant here
>hether !/D >a0 retaliating again0t the under0igned" or made an- mention o. doing 0o i0 ?lain error.
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, >ritten 0ummar- contem?t order" i00ued ?ur0uant to 0tatute governing 0ummar- contem?t
?roceeding0 .or direct contem?t committed in CudgeB0 ?re0ence" mu0t 0et .orth 0?eci.ic .act0
concerning the conduct .ound to =e contem?tuou0. 2ou0ton v. Eighth 4udicial Di0t. Court e) rel.
Count- o. Clar@" 2++*" 13% /.3d 12*9" 122 Nev. %44. 4udge Na0h 2olmeB 3rder i0 a??arentl- not
even in >riting Aa0 .ar a0 the under0igned @no>0 at thi0 ?oint" and i. criminal de.endnat0 can lo0e
their right to an a??eal >here N!S 1$9.+1+ hold0 them to an incredi=l- Duic@ 1+ calendar da-0 to .ile
a notice o. a??eal" thi0 Court 0hould lo0e it0 right to reduce the Summar- Contem?t 3rder to 0?eci.ic"
detailed >ritten order >here it ha0 not alread- done 0o; or in a Echec@ the =o)E variet-" on a
?re?rinted .orm" 0eemingl- ta@en .rom the Bench Boo@" containing mere conclu0or- and circular
0tatement0 a=out the ?ur?orted contem?t and in no >a- 0ati0.ie0 the a=ove 0tandard. 1ndeed" 4udge
Na0h 2olme0 doe0 not 0?eci.- >hat Eline0 o. inDuir-E >ere continued" nor i0 it clear ho> a ?ro 0e
de.endant denied hi0 Si)th ,mendment !ight &o Coun0el could rea0ona=l- @no> >hat i0 reDuired o.
him to com?l- >ith 4udge Na0h 2olme0 vague and menacing contem?t ?ronoucement0 >hile al0o
Healou0l- advocating on the de.endantB0 =ehal.. &he under0igned could not have rea0ona=l- =een
0aid to have =een >arned >ith an- 0?eci.icit- a0 to >hat >a0 ver=oten or ho> he could com?l- >ith
the CourtB0 >arning" ?articularl- i. .undamental notion0 o. due ?roce00 and .air ?la- >ere to a??l-"
>hich i0 im?licit in all action0.
8ritten 0ummar- contem?t order .inding attorne- .or >i.e in divorce ?roceeding in direct
contem?t o. court .ailed to indicate >hat ?articular comment0 =- attorne- >ere held to =e
contem?tuou0" and" thu0" order >a0 in0u..icient" under 0tatute governing 0ummar- contem?t
?roceeding0 .or direct contem?t committed in CudgeB0 ?re0ence. 2ou0ton v. Eighth 4udicial Di0t.
Court e) rel. Count- o. Clar@" 2++*" 13% /.3d 12*9" 122 Nev. %44.
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3ther than indicating the de.endant Eloo@ed in thi0 ?oc@et0E" 4udge B0 3rder doe0 little to
com?l- >ith the a=ove 0tandard. (urther" 4udge Na0h 2olme0 ma@e0 allegation0 o. IlaughterJ"
ho>ever" and thi0 goe0 to the Ievident im?artialit-O<otion .or !ecu0alJ" 4udge Na0h 2olme0 0eemed
to go to great length0 to 0tri@e .rom the record an-thing that might =e 0aid to ?lace the !<C or the
!eno Cit- ,ttorne- on notice" 0u..icient ot de.eat an- ?lau0i=le denia=ilit- claim" o. !/D
im?ro?riet-" ?otentiall- in connection >ith a negligent hiring" training" and 0u?ervi0ion claim or other
action" a la 42 5SC Sec 19$3" >herein the training" cu0tom0" and ?olicie0 o. the !/D and !eno Cit-
,ttorne- ma- =e im?ortant to @no>. 44udge Na0h 2olme0 doe0 not ma@e clear ho> attem?t to
?rohi=it 0uch allo>0 .or a de.endant to Healou0l- advocate on hi0 o>n =ehal." or >hether it i0 ever
?ermi00i=le" or even a 0@ill.ul trial tactic" .or a litigant to engage in >hatever it >a0 that u?0et thi0
Court. !eall-" >hat 4udge Na0h 2olme0 0eem0 to >ant the mo0t i0 .or tho0e de.endant0 that he
>i0he0 to .ind guilt- to la- do>n and die a death o. 0ort0 in hi0 courtroom" and to than@ the !<C .or
it0 >i0J
During the .ive da- incarceration .or 0ummar- contem?t ordered in thi0 matter" the
under0igned >a0 denied a 0ingle ?hone call or tier time =- Sheri..B0 De?utie0 on one da-" and on
another ma@ing 0uch ?hone call0 >a0 im?o00i=le given the im?lementation o. a ne> ?hone 0-0tem at
the Cail" re0ulting in much ?reCudice to hi0 clientB0 ca0e0. 1t i0 0im?l- unto>ard .or Cudge0 to leverage
clientB0 >oe0 to .urther ?uni0h an attorne-" >here" a0 here" the Court 0eemed to 0ugge0t that an-
re0?on0i=ilit- o. thi0 Court to a??ro?riatel- con0ider and rule on a <otion to Sta- or other>i0e allo>
.or ?recaution0 to =e ta@en to avoid ?reCudice to client matter0 not the courtB0 concern" =ut rather" >a0
?urel- the under0ignedB0 .ault.
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1t i0 in0tructive to com?are 4ac@0onB0 inter?retation o. the 4udge Na0h 2olme0B0 3rder" and to
con0ider to e)tent to >hich 0he ma- =e acting in a Cudicial ca?acit- Aunle00 thi0 Court >ill ?rovide
0ome indication o. >hether 4ac@0onB0 email >a0 done at the =ehe0t o. an- o. the !<C 4udge0;.
<otivational in0?iration .or the !<C" Cit- o. !eno <ar0hal0 2-lin" and Chie. !o?er" and
can =e .ound in 6i??i0 v. /eter0" 112 Nev. 1++$" 921 /.2d 124$ A199*;:
I&he Cudgment a>arding .ee0 in thi0 ca0e im?o0e0 u?on t>o Cu0tice0B court0 and 0even
Cu0tice0 o. the ?eace an o=ligation to ?a- to the tenant0B attorne-0 the 0um o.
G1$"*93.%+. &hi0 Cudgment doe0 ?re0ent a ?ro=lem >hen >e 0tart to thin@ a=out ho>
the0e ?u=lic o..icial0 and t>o court0 o. la> might go a=out allocating the o=ligation o.
G1$"*93.%+. 1t >ould not a??ear that the court0 them0elve0 are 0u=Cect to e)ecution
?roce009 and" there.ore" the .ee" i. it >ere going to =e ?aid" >ould have to =e ?aid =-
the individual Cu0tice0" >ho >ould have to ?a-" i. the matter >ere handled .airl-"
G2"*7+.%+ each. &he Cu0tice0B Cudgment o=ligation to ?a- attorne-0B .ee0 i0 =a0ed A1; on
their having .ollo>ed a ?rocedural rule A4C!C/ 1+*; enacted =- thi0 court and A2; on
their having made 0everal erroneou0 Cudicial deci0ion0. 8e he0itate to get into the
thorn- ?ro=lem0 ?re0ented =- thi0 Cudgment" ?ro=lem0 relating to e)ecution u?on
?u=lic ?ro?ert-" relating to o..icial immunit- and Cudicial immunit- and 0ome other
0imilar ?ro=lem0 that attend the en.orcement o. 0uch a Cudgment...J 6i??i0 v. /eter0"
112 Nev. 1++$" 921 /.2d 124$ A199*;: I1n their action challenging Cu0tice court0B
?ractice o. den-ing a??eal0 to di0trict court in 0ummar- eviction action0" tenant0 did
not allege that the- >ere de?rived o. .ederal right0" and there.ore the- could not claim
attorne- .ee0 under .ederal civil right0 0tatute. 42 5.S.C.,. TT 19$3" 19$$.J
De.endant ma- ultimatel- =e .orced to =e 0o alleging 0uch a de?rivation and or claim 0uch
attorne-B0 .ee09 See, also, Cheung v. Eighth 4udicial Di0t. Court e) rel. Count- o. Clar@" 124 /.3d
%%+" %%2" 121 Nev. $*7" $*9 A2++%;9 Schneider v. El@o Count- Sheri..B0 De?t." 17 (.Su??.2d 11*2"
11*% A199$;9 :.C. 8allace" 1nc. v. Eighth 4udicial Di0t. Court o. State" e) rel. Count- o. Clar@" 2*2
/.3d 113%" 114+X" 127 Nev. ,dv. 3?. *4" *4X A2+11;.
,??eala=ilit- o. contem?t adCudication or conviction. 33 ,.6.!.3d 44$ A3riginall- ?u=li0hed
in 197+;9 T 12MaN :enerall-Y!ule o. a??eala=ilit- MCumulative Su??lementN Contem?t ?roceeding0
not characteriHed a0 criminal or civil have .reDuentl- =een held or recogniHed to =e a??eala=le in the
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a=0ence o. 0tatute0 other than tho0e generall- ma@ing .inal deci0ion0 a??eala=le.5S 1n re !-an" %3$
(.2d 43%" 7* 2 5.S. &a) Ca0. ACC2; / 9%1$" 3$ ,.(.&.!.2d %4%2 AD.C. Cir. 197*; ,la 5hl0 v 5hl0
A19$9" ,la ,??; %%1 So 2d 1+*% E) ?arte Bo-@in A1994" ,la Civ ,??; *%* So 2d $21 ,la0@a
:illette v Co..er A1912; 4 ,la0@a *22 ArecogniHing rule; Cal 6aBella v Pai0er (oundation 2ealth
/lan" 1nc. A1977; 72 Cal ,?? 3d 499" 13$ Cal !?tr 212 (or Cali.ornia ca0e0" 0ee T 1*" in.ra Colo 2ill
v Boatright A1994" Colo ,??; $9+ /2d 1$+" reh den ASe? 1%" 1994; and cert gr A(e= 2+" 199%; DC 33
,.6.!.3d 44$ /age 17$ 33 ,.6.!.3d 44$ A3riginall- ?u=li0hed in 197+; (or Di0trict o. Colum=ia
ca0e0" 0ee T 3MaN" 0u?ra (la State e) rel. /ear0on v 4ohn0on A(la ,??; 334 So 2d %4 (or (lorida ca0e0"
0ee T *MaN" 0u?ra :a <anning v <NC Con0umer Di0count Co. A1994; 212 :a ,?? $24" 442 SE2d
919" 94 (ulton Count- D ! 1442 (or :eorgia ca0e0" 0ee T 1%" in.ra 1ll /eo?le e) rel. 2inc@le- v
/ir.en=rin@ A1$79; 9* 1ll *$ ArecogniHing rule; E) ?arte Smith A1$$*; 117 1ll *3" 7 NE *$3
ArecogniHing rule; 6e0ter v Ber@o>itH A1$$$; 12% 1ll 3+7" 17 NE 7+* ArecogniHing rule; /eo?le v
:il=ert A1917; 2$1 1ll *19" 11$ NE 19* 2ill v &homa0 B. 4e..er- Co. A192+; 292 1ll 49+" 127 NE 124
/eo?le e) rel. ,ndre>0 v 2a00a@i0 A19%%; * 1ll 2d 4*3" 129 NE2d 9 But 0ee /eo?le e) rel. :eneral
<otor0 Cor?. v Bua A19*7; 37 1ll 2d 1$+" 22* NE2d *" in.ra. ,nd 0ee 1llinoi0 ca0e0 limiting revie> to
Due0tion o. a=u0e o. di0cretion" T 13" in.ra. 8a0te <anagement" 1nc. v 1nternational Sur?lu0 6ine0
1n0. Co. A1991; 144 1ll 2d 17$" 1*1 1ll Dec 774" %79 NE2d 322 ,lmgren v !u0hZ/re0=-terianZSt.
6u@eB0 <edical Ctr. A1994; 1*2 1ll 2d 2+%" 2+% 1ll Dec 147" *42 NE2d 12*4" mod and reh den ANov
1%" 1994; !o=in0on v /eo?le A19+*; 129 1ll ,?? %27 Pell- v Chicago" B. U S. !. Co. A1919; 213 1ll
,?? 29* ArecogniHing rule; /eo?le e) rel. !u0ch v Pirgi0 A193*; 2$7 1ll ,?? 37$" 4 NE2d $94
&egtme-er v &egtme-er A1937; 292 1ll ,?? 434" 11 NE2d *%7 ArecogniHing rule; /eo?le e) rel.
!u0ch v (erro A1942; 313 1ll ,?? 2+2" 39 NE2d 7+7 Pemen- v S@orch A19%9; 22 1ll ,?? 2d 1*+" 1%9
NE2d 4$9 <a->ood v 4ac@0on A19*3; 42 1ll ,?? 2d 29" 19+ NE2d %93 Poch v <ettler A19*4; 49 1ll
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,?? 2d 2%1" 199 NE2d 417 !e 3cto=er 19$% :rand 4ur- A19$7" 10t Di0t; 1%4 1ll ,?? 3d 2$$" 1+7 1ll
Dec 342" %+7 33 ,.6.!.3d 44$ /age 179 33 ,.6.!.3d 44$ A3riginall- ?u=li0hed in 197+; NE2d *"
a?? gr A1ll; 113 1ll Dec 3+4" %1% NE2d 113 and vacated on other ground0 A19$$; 124 1ll 2d 4**" 12%
1ll Dec 29%" %3+ NE2d 4%3 !e <arriage o. !-an A19$9" 2d Di0t; 1$$ 1ll ,?? 3d *79" 13* 1ll Dec 1"
%44 NE2d 4%4 &e0tin v Dre-er <edical Clinic A1992; 23$ 1ll ,?? 3d $$3" 179 1ll Dec %*" *+% NE2d
1+7+" a?? gr 149 1ll 2d **1" 1$3 1ll Dec $72" *12 NE2d %24 1n re <arriage o. Dieter A199%" 10t Di0t;
271 1ll ,?? 3d 1$1" 2+7 1ll Dec $4$" *4$ NE2d 3+4 /eo?le e) rel. 2a>thorne v 2amilton" 9 1ll ,??
3d %%1" 292 NE2d %*3 <d Drone- v Drone- A199%; 1+2 <d ,?? *72" *%1 ,2d 41% <ich /eo?le e)
rel. /ort 2uron U :. !. Co. v 4one0 A1$7*; 33 <ich 3+3 2aine0 v 2aine0 A1$7*; 3% <ich 13$ !e
Bi00ell A1$79; 4+ <ich *3 ArecogniHing rule; !o00 v !o00 A1$$1; 47 <ich 1$%" 1+ N8 193 See
/eo?le v Den 5-l A1949; 323 <ich 49+" 3% N82d 4*7. But 0ee <ichigan ca0e0 limiting revie> to
Due0tion o. a=u0e o. di0cretion" T 13" in.ra. <inn (or <inne0ota ca0e0" 0ee T $MaN" 0u?ra <i00 (or
<i00i00i??i ca0e0" 0ee T 1%" in.ra <o (or <i00ouri ca0e0" 0ee T 3M=N" 0u?ra Ne= Dunning v &allman
A1993; 244 Ne= 1" %+4 N82d $% N7 8atrou0 v Pearne- A1$$+; 79 N7 49* ArecogniHing rule;
Strong v 8e0tern :a0 U (uel Co. A19+4; 177 N7 4++" *9 NE 721 ArecogniHing rule; Ping v ,0hle-
A19+4; 179 N7 2$1" 72 NE 1+* !e 2a->ard A1$99; 44 ,?? Div 2*%" *+ N7S *3* ArecogniHing rule;
<oore v <oore A191+; 141 ,?? Div %32" 12* N7S 412 !e Ba@er A1$%%; 11 2o> /r 41$
ArecogniHing rule;9 !e /erc- A1$*$; 2 Dal- %3+ ArecogniHing rule;9 !ichie v Bedell A1$$%" Su?; 22
N7 8ee@ Dig %*39 (inc@ v <annering A1$$7; 4* 2un 3239 !e ,non-mou0 A1$$7; 1$ ,== NC 21*
ArecogniHing rule;9 33 ,.6.!.3d 44$ /age 1$+ 33 ,.6.!.3d 44$ A3riginall- ?u=li0hed in 197+;
/eo?le e) rel. /o0t v :rant A1$$$; 13 N7 Civ /roc 3+%" revd on merit0 %+ 2un 243" 3 N7S 142
ArecogniHing rule;9 Boon v <c:uc@en A1$93; *7 2un 2%1" 22 N7S 4249 !e De 6ong A1$9*; 2% Civ
/roc 3*3" 41 N7S 2+19 Siegel v Solomon A19+%" Su? ,?? &; 92 N7S 23$ ArecogniHing rule;.
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<cCredie v Senior A1$34; 4 /aige 37$ But 0ee <itchellB0 Ca0e A1$*1; 12 ,== /r 249. ND State v.
Zahn" 1997 ND *%" %*2 N.8.2d 737 AN.D. 1997; 3hio (or 3hio ca0e0" 0ee T 1%" in.ra /a Scranton v
/eo?leB0 Coal Co. A1922; 274 /a *3" 117 , *73 State :rand 6odge v <orri0on A1923; 277 /a 41" 12+
, 7*9 ArecogniHing rule; !e ,ung0t A19*3; 411 /a %9%" 192 ,2d 723 ArecogniHing rule; !e <-er0 U
Brei A1924; $3 /a Su?er 3$3 ,??eal o. !ea? A192*; $$ /a Su?er 147 ArecogniHing rule;
Common>ealth v <orri0e- A1942; 1%+ /a Su?er 2+2" 27 ,2d 44* De<a0i v De<a0i A1991" /a
Su?er; %97 ,2d 1+1 Common>ealth e) rel. Ziccardi v 2endric@0 A19*4; 33 /a D U C2d 419
ArecogniHing rule; But 0ee /enn0-lvania ca0e0 limiting revie> to Due0tion o. a=u0e o. di0cretion" T 13"
in.ra. SC (or South Carolina ca0e0" 0ee T 13" in.ra 5tah Smith v Pim=all A193+; 7* 5tah 3%+" 2$9 /
%$$" 7+ ,6! 1+1 ArecogniHing rule; #t But 0ee #ila0 v Burton A1$%4; 27 #t %*. !e Con0olidated
!endering Co. A19+7; $+ #t %%" ** , 79+" a..d 2+7 5S %41" %2 6 Ed 327" 2$ S Ct 17$ Aa??arentl-
recogniHing rule; Cutting v Cutting A192$; 1+1 #t 3$1" 143 , *7* ArecogniHing rule; Socon- <o=ile
3il Co. v <a00ena 1ron U <etal Co. A19**; 12% #t 4+3" 217 ,2d %* #a Street v. Street" 24 #a. ,??.
14" 4$+ S.E.2d 11$ A1997; 33 ,.6.!.3d 44$ /age 1$1 33 ,.6.!.3d 44$ A3riginall- ?u=li0hed in
197+; (or #irginia ca0e0" 0ee T 1%" in.ra , Cudgment o. contem?t .or ?u=li0hing in a ne>0?a?er an
article critical o. the Cudge in a ?ending ca0e >a0 held revie>a=le =- >rit o. error" in /eo?le v :il=ert
A1917; 2$1 1ll *19" 11$ NE 19*. &he court 0aid that >hile the court again0t >hich the alleged
contem?tuou0 matter i0 ?u=li0hed ?a00e0 on the Due0tion >hether or not the ?u=li0hed matter i0
actuall- contem?tuou0" -et the deci0ion o. that court i0 not conclu0ive: a >rit o. error ma- =e 0ued out
to revie> the Cudgment o. the lo>er court. ,n order o. commitment .or contem?t o. court .or
re.u0ing to give a de?o0ition >a0 held to =e a .inal" a??eala=le order" in 2ill v &homa0 B. 4e..er- Co.
A192+; 292 1ll 49+" 127 NE 124. &he court 0aid that the order o. commitment =- the 0u?erior court
>a0 a .inal Cudgment in the ancillar- ?roceeding that >a0 =rought to en.orce the interlocutor- order
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directing the ?lainti.. to a??ear and te0ti.-. 8hile the ?ur?o0e o. that ?roceeding >a0 connected >ith
and had it0 .oundation in the main ca0e" rea0oned the court" it >a0 a 0e?arate ca0e ?ro0ecuted
inde?endentl- to en.orce a com?liance >ith the order o. the court. &he court 0aid that >hether that
order to te0ti.- >a0 interlocutor- or .inal >a0 immaterial: i. it >a0 la>.ull- made it >a0 the ?lainti..B0
dut- to o=e- it" and a Cudgment either that he >a0 guilt- o. contem?t or that he >a0 not >a0 a .inal
Cudgment. See" ho>ever" /eo?le e) rel. :eneral <otor0 Cor?. v Bua A19*7; 37 1ll 2d 1$+" 22* NE2d
*" >here the court 0aid that >hile ordinaril- a contem?t adCudication i0 a .inal and a??eala=le order"
thi0 rule >ould not =e .ollo>ed >here" in0tead o. the traditional .ine or im?ri0onment a0 ?uni0hment
.or contem?t" the de.endant held in contem?t >a0 ?uni0hed =- having it0 an0>er to the amended
com?laint 0tric@en and Cudgment entered again0t it. &he contem?t >a0 adCudged .or .ailure to com?l-
>ith ?retrial di0cover- order0" and >hile the court determined that the 0tri@ing o. ?leading0 and the
entr- o. a de.ault Cudgment >a0 ?ermi00i=le a0 a 0anction .or the non?roduction o. document0 under a
court rule authoriHed =- the legi0lature" the court held that thi0 could not =e u0ed to render an
interlocutor- order .inal and a??eala=le =- the u0e o. contem?t language. &he im?o0ition o. a .ine or
im?ri0onment a0 a 0anction .or contem?t i0 .inal and a??eala=le =ecau0e it i0 an original 0?ecial
?roceeding" collateral to and inde?endent o. the ca0e in >hich the contem?t ari0e0" e)?lained the
court" =ut the 0anction im?o0ed in thi0 ca0e did not directl- a..ect the outcome o. the ?rinci?al action.
&here.ore the court concluded that 0ince the contem?t order" in e..ect" determined lia=ilit- >ithout a
determination o. damage0" it >a0 not -et .inal and a??eala=le. 8hile recogniHing the right to a??eal"
the court in /eo?le v Den 5-l A1949; 323 <ich 49+" 3% N82d 4*7" in con0idering an a??eal .rom
one con.ined .or contem?t in re.u0ing to an0>er certain Due0tion0 =e.ore an e)amining magi0trate"
ruled that the di0mi00al o. the ?rinci?al ca0e A=ecau0e the ?ro0ecution could not ?roceed >ithout the
>itne00B te0timon-; a=ated the contem?t ?roceeding and reDuired the di0mi00al o. the a??eal. &he
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court" ho>ever" in the order di0mi00ing the a??eal" al0o di0mi00ed the >arrant o. commitment under
>hich the >itne00 >a0 con.ined. , chancer- decree adCudging a cor?oration to =e in contem?t o.
court .or di0o=e-ing a court order >a0 held a??eala=le in Socon- <o=il 3il Co. v <a00ena 1ron U
<etal Co. A19**; 12% #t 4+3" 217 ,2d %*" on the authorit- o. an earlier ca0eM2N that di..ered .rom the
ca0e at =ar onl- =ecau0e it originated in the Count- Court rather than the Court o. Chancer-" and that
>a0 held to =e ?ro?erl- tran0.erred to the Su?reme Court =- >a- o. a =ill o. e)ce?tion0. ,n' 33
,.6.!.3d 44$ /age 1$2 33 ,.6.!.3d 44$ A3riginall- ?u=li0hed in 197+; other ca0e"M3N >hich held
that an a??eal >ould not lie .rom the decree o. thechancellor in matter0 o. contem?t" >a0 relied u?on
to 0u??ort a motion to di0mi00 the a??eal" =ut the court" ?ointing out that a 1941 0tatute ?rovided that
cau0e0 heard in chancer- ?a00 to the Su?reme Court in the 0ame manner a0 a??eal0 .rom Count-
Court" 0aid that the e..ect o. thi0 legi0lation >a0 to a=oli0h a??eal0 in chancer- a0 the- ?reviou0l-
e)i0ted" and to 0u=0titute the 0tatute0 a??lica=le to o=tain revie> o. Count- Court ?roceeding0.
&here.ore" concluded the court" the #ila0 Ca0e ?re0ented no o=0tacle to the ?ending a??eal.
C5<56,&1#E S5//6E<EN& Ca0e0: &o o=tain a??ellate revie>" 0u=?oenaed ?art- mu0t de.-
di0trict courtB0 en.orcement order" =e held in contem?t" and then a??eal contem?t order" >hich i0
regarded a0 .inal. D-neg- <id0tream Service0 v. &rammochem" 4%1 (.3d $9 A2d Cir. 2++*;. 8here
0ecuritie0 trading cor?oration >a0 adCudged in contem?t .or .ailing to turn over ta?e recording a0
ordered =- court" court had Curi0diction to revie> contem?t order even though im?o0ition o. 0anction0
>a0 0ta-ed and no 0anction0 >ere .ormulated ?rior to entr- o. 0ta-. !e &hree :rand 4ur- Su=?oena0
A19$$" C,2 N7; $47 (2d 1+24. , di0trict courtB0 ruling on an a??lication .or a contem?t order i0
revie>ed .or a=u0e o. di0cretion. (rontier'Pem?er Con0tructor0" 1nc. v. ,merican !oc@ Salt Co." 224
(. Su??. 2d %2+ A8.D. N.7. 2++2;. /o0t'Cudgment order0 o. contem?t are >ithin an a??ellate courtB0
Curi0diction a0 revie>a=le E.inal order0.E 2$ 5.S.C.,. T 1291. Berne Cor?. v. :overnment o. &he
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#irgin 10land0" %7+ (.3d 13+ A3d Cir. 2++9;. Court o. ,??eal0 had Curi0diction o. de.endantB0 a??eal
o. contem?t order" although contem?t order o. it0el. did not con0titute a .inal order that could =e
a??ealed" >here ?ortion o. order that included contem?t .inding >a0 com?lete and .inal. in Behr :m=2 U Co." 2$9 (ed. ,??). 927 A*th Cir. 2++$;. 8hen the di0o=e-ed order
>ould =e inde?endentl- a??eala=le under an e)ce?tion to the .inal' deci0ion rule" then the contem?t
citation al0o ma- =e a??eala=le. S.E.C. v. <cNamee" 4$1 (.3d 4%1" (ed. Sec. 6. !e?. ACC2; / 94172
A7th Cir. 2++7;. :rant or denial o. contem?t order i0 revie>ed .or a=u0e o. di0cretion" =ut order o.
contem?t i0 revie>ed more 0earchingl-. 5.S. v. &ee?le" 2$* (.3d 1+47" $9 ,.(.&.!.2d 2++2'21+2
A$th Cir. 2++2;. Contem?t adCudication i00ued in ?o0tCudgment ?ha0e o. civil action >a0 a??eala=le
>hether contem?t >a0 con0idered to =e civil or criminal" 0ince adCudication ?o00e00ed attri=ute0 o.
o?erativene00 and con0eDuence nece00ar- to a??eala=ilit-. Con0umer0 :a0 U 3il" 1nc. v. (armland
1ndu0trie0" 1nc." $4 (.3d 3*7" 34 (ed. !. Serv. 3d 1%%+ A1+th Cir. 199*;. Denial o. motion .or order to
0ho> cau0e >h- ?art- 0hould not =e held in contem?t i0 .inal" a??eala=le order. &homa0 v. Blue
Cro00 and Blue Shield ,00Bn" %94 (.3d $14 A11th Cir. 2+1+;. , contem?t order i0 .inal and a??eala=le
>hen the o??ortunit- to ?urge the contem?t ha0 ?a00ed and the ?o0ition o. the ?artie0 ha0 =een
a..ected =- the contem?t order. Sei@o E?0on Cor?. v. NuZPote 1ntern." 1nc." 19+ (.3d 13*+" %2
5.S./.S.2d ABN,; 1+11 A(ed. Cir. 1999;" rehBg denied" in =anc 0ugge0tion declined" A3ct. 19" 1999;.
33 ,.6.!.3d 44$ /age 1$3 33 ,.6.!.3d 44$ A3riginall- ?u=li0hed in 197+; , contem?t order i0 a
.inal" a??eala=le order. &helman v. State" 37% ,r@. 11*" 2$9 S.8.3d 7* A2++$;. Contem?t Cudgment
i0 revie>a=le .inal order. C.:.S.,. T %1Z33. State v. Bre0cia" 123 Conn. ,??. 342" 1 ,.3d 114%
A2+1+;. ,??ellate Court >ill rever0e a .inding o. contem?t onl- i. the Court conclude0 the trial court
a=u0ed it0 di0cretion. Do>d v. Do>d" 9* Conn. ,??. 7%" $99 ,.2d 7* A2++*;. Even i. adCudication o.
contem?t >a0 con0idered .inal Cudgment" court >a0 >ithout Curi0diction >here notice o. a??eal >a0
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.iled more than a month =e.ore 0entencing. 8e0t v 5nited State0 ADi0t Col ,??; 34* ,2d %+4. 3rder
o. .amil- court in matrimonial action determining cu0tod- o. children demanding 0u??ort ?a-ment0"
alloting ?er0onal ?ro?ert- and .inding ?artin contem?t .or violation o. ?rior order >a0 .inal and
a??eala=le" not>ith0tanding continuing Curi0diction o. .amil- court to modi.- order. Cleveland v
Cleveland A1977" 2a>aii; %%9 /2d 744. , contem?t order i0 a??eala=le under the 0ame
circum0tance0 a0 another order or Cudgment entered in a civil or criminal action. Callaghan v.
Callaghan" 142 1daho 1$%" 12% /.3d 1+*1 A2++%;. 5nder rule that revie> o. alread- i00ued contem?t
order mu0t =e =- >rit o. revie> or =- a??eal" >rit o. ?rohi=ition >a0 not ?ro?er remed- =- >hich to
conte0t order .inding divorced >i.e in contem?t .or .ailure to grant vi0itation right0 to divorced
hu0=and. De- v Cunningham" 93 1daho *$4" 471 /2d 71. 3rdinaril-" adCudication in contem?t
?roceeding i0 .inal and a??eala=le =ecau0e it i0 original 0?ecial ?roceeding" collateral to" and
inde?endent o." ca0e in >hich contem?t ari0e0" >here im?o0ition o. 0anction doe0 not directl- a..ect
outcome o. ?rinci?al action" even though 0uch adCudication doe0 not di0?o0e o. all i00ue0 in litigation.
Earle0 v. Earle0" 2$7 1ll. Dec. 4++" $1% N.E.2d 12+3 A,??. Ct. 3d Di0t. 2++4;. 1t i0 a??ro?riate .or a
?art- to reDue0t that a contem?t order =e entered again0t it 0o that ?art- ma- 0ee@ immediate a??eal
o. a trial courtB0 di0cover- order. 8e== v. <ount Sinai 2o0?. and <edical Center o. Chicago" 1nc."
2$3 1ll. Dec. 1$%" $+7 N.E.2d 1+2* A,??. Ct. 10t Di0t. 2++4;. 8hen an individual a??eal0 .rom a
contem?t 0anction im?o0ed .or violating" or threatening to violate" a di0cover- order" the contem?t
.inding i0 .inal and a??eala=le and ?re0ent0 to the revie>ing court the ?ro?riet- o. that di0cover-
order. !eda v. ,dvocate 2ealth Care" 199 1ll. 2d 47" 2*2 1ll. Dec. 394" 7*% N.E.2d 1++2 A2++2;.
4udgment o. contem?t again0t la> .irm .or violating order to >ithdra> a??earance a.ter .irm >a0
di0Duali.ied .rom re?re0enting de.endant con0tituted .inal and a??eala=le Cudgment and ?re0ented to
court .or revie> ?ro?riet- o. courtB0 order" even though 0ugge0tion that la> .irm re.u0e to >ithdra>
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came .rom trial Cudge and underl-ing controver0- >a0 not certi.ied .or revie>. 1nde) (uture0 :rou?"
1nc. v Street A19$7" 10t Di0t; 1*3 1ll ,?? 3d *%4" 114 1ll Dec 73%" %1* NE2d $9+. &he Court o.
,??eal0 >ill rever0e a trial courtB0 .inding o. contem?t onl- >here there i0 no evidence or in.erence0
.rom the record to 0u??ort it. Deel v. Deel" 9+9 N.E.2d 1+2$ A1nd. Ct. ,??. 2++9;. Contem?t
Cudgment .or violation o. an order o. the court regarding child vi0itation >a0 .inal and there.ore
a??eala=le. &hi=odeau) v. &hi=odeau)" 74$ So. 2d 11$+ A6a. Ct. ,??. %th Cir. 1999;. 33 ,.6.!.3d
44$ /age 1$4 33 ,.6.!.3d 44$ A3riginall- ?u=li0hed in 197+; 1nterlocutor- Cudgment .inding e)Z
>i.e in contem?t and ordering her to ?a- a .ine and attorne- .ee0 threatened irre?ara=le inCur-" and
thu0" direct a??eal could =e ta@en. Duc@0>orth v. Duc@0>orth" 727 So. 2d 12%4 A6a. Ct. ,??. 4th
Cir. 1999;. , ?art- .ound in contem?t ha0 a right to a??eal .rom that deci0ion even though the merit0
o. the litigation in >hich the contem?t order >a0 entered have not -et =een re0olved. <orri0 v.
8alden" $%* So. 2d 7+% A<i00. Ct. ,??. 2++3;. ,??ellate court >ill not rever0e a contem?t citation
>here the chancellorB0 .inding0 are 0u??orted =- 0u=0tantial credi=le evidence. :ood0on v. :ood0on"
$1* So. 2d 42+ A<i00. Ct. ,??. 2++2;. ,lthough 0e?arate i00ue0 o. main ?etition and contem?t >ere
addre00ed >ithin 0ame Cudgment" each ?ortion o. Cudgment >a0 0e?aratel- a??eala=le. S&6 Ca?ital
S: 1 >ould li@e to =ring a claim =ut am >orried a=out retaliation. 8hat 0hould 1 doF ,: !etaliation
.or 0ee@ing acce00 to the court0 or ?rotecting -our civil right0 i0 it0el. a civil right0 violation. 5nder
0ome circum0tance0 -ou >ould =e entitled to immediate inCunctive relie. .rom the court0 to 0to? an-
hara00ment or retaliator- action.
<anagement" 66C v. Brda" 2+7 S.8.3d *49 A<o. Ct. ,??. E.D. 2++*;.
8hile contem?t order0 generall- are .inal and not a??eala=le" e)ce?tion e)i0t0 .or .amil-Z la> ca0e0"
in >hich a??eal0 are ?ermitted. 2eath v 2eath A199%" <ont; 9+1 /2d %9+. ,lthough contem?tZo.Z
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court order0 i00ued =- Di0trict Court are .inal and u0uall- unrevie>a=le e)ce?t =- >a- o. >rit o.
certiorari or revie>" e)ce?tion e)i0t0 .or contem?t order0 made in di00olutionZo.Zmarriage
?roceeding0. 1n re <arriage o. Bohar0@i A1993; 2%7 <ont 71" $47 /2d 7+9. ,n a??ellate court"
revie>ing a .inal Cudgment or order in a contem?t ?roceeding" revie>0 .or error0 a??earing on the
record. Dougla0 Count- e) rel. Dougla0 Count- ,00e00orB0 3..ice v. Po>al" 27+ Ne=. 9$2" 7+$
N.8.2d **$ A2++*;. ,??ellate court" revie>ing .inal Cudgment or order in contem?t ?roceeding"
revie>0 .or error0 a??earing on record. Plingin0mith v. 8ichmann" 2%2 Ne=. $$9" %*7 N.8.2d 172
A1997;. , contem?t order im?o0ing a ?unitive 0anction i0 a .inal order and i0 revie>a=le on a??eal.
<cDermott v. <cDermott" $ Ne=. ,??. $*+" *+2 N.8.2d *7* A1999;. 8hether the trial court adhered
to the reDui0ite ?rocedure0 in a criminal contem?t ?roceeding i0 a Due0tion o. la>" >hich i0 revie>ed
de novo. <ortgage S?eciali0t0" 1nc. v. Dave-" 9+4 ,.2d *%2 AN.2. 2++*;. , .inding o. contem?t"
com=ined >ith a 0anction .or contem?t" .orm0 a .inal a??eala=le order. State v. ,dam0" 1%3 3hio
,??. 3d 134" 2++3'3hio'3+$*" 791 N.E.2d 1+4% A7th Di0t. 2arri0on Count- 2++3;. , contem?t
?roceeding" even though it gro>0 out o. another ?roceeding" i0 ordinaril- regarded a0 a collateral or
0e?arate action .rom the underl-ing ca0e and i0 0e?aratel- a??eala=le" >ith a??ellate revie> limited
to the contem?t order it0el.. 6erma v. 8al'<art Store0" 1nc." 2++* 3P $4" 14$ /.3d $$+ A3@la. 2++*;.
3rder o. contem?t i0 .inal and a??eala=le >hen the order contain0 a ?re0ent .inding o. contem?t and
im?o0e0 0anction0. 1n re C.8." 2++$ /, Su?er 2%4" 9*+ ,.2d 4%$ A2++$;. , contem?t order i0
a??eala=le >here the order con0titute0 a .inal one that im?o0e0 0anction0 u?on the o..ending ?art-.
&a@o0@- v. 2enning" 2++* /, Su?er 237" 9+* ,.2d 12%% A2++*;. Su?erior Court >ill rever0e trial
courtB0 determination a0 to contem?t conviction onl- >hen there ha0 =een ?lain a=u0e o. di0cretion.
Com. v. 2aigh" 2++% /, Su?er 139" $74 ,.2d 1174 A2++%;" reargument denied" A4une 17" 2++%;.
Contem?t order ?reventing neigh=or0
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.rom u0ing ?ro?ert- o>ner0B ?ond >a0 immediatel- a??eala=le9 it im?o0ed co0t o. =ond on
neigh=or0" and thi0 0anction could not =e ?urged. 33 ,.6.!.3d 44$ /age 1$% 33 ,.6.!.3d 44$
A3riginall- ?u=li0hed in 197+; 8olanin v. 2a0hagen" 2++3 /, Su?er 2%$" $29 ,.2d 331 A2++3;. 1n a
ca0e o. contem?t" the trial court ma- .ind a ?artin contem?t and that ?art- ma- a??eal the .inding o.
contem?t" =ut the ?art- a0@ing .or the contem?t ma- not" a0 it i0 not aggrieved. Borough o. Slatington
v. Ziegler" $9+ ,.2d $ A/a. Comm>. Ct. 2++%;. Since a contem?t order i0 .inal in nature" an order
com?elling di0cover- ma- =e a??ealed onl- a.ter a trial court hold0 a ?artin contem?t. &uc@er v.
2onda o. South Carolina <.g." 1nc." %$2 S.E.2d 4+% AS.C. 2++3;. &he .inding o. contem?t i0
immediatel- a??eala=le. E) ?arte Cannon" *$% S.E.2d $14 AS.C. Ct. ,??. 2++9;. Circuit courtB0
remed- or ?uni0hment .or contem?t o. court i0 revie>ed under the a=u0e o. di0cretion 0tandard.
SaHama v. State e) rel. <uilen=erg" 2++7 SD 17" 729 N.8.2d 33% AS.D. 2++7;. , trial courtB0 .inding
o. contem?t i0 revie>ed .or a=u0e o. di0cretion. State e) rel. (lo>er0 v. &enne00ee &ruc@ing ,00Bn
Sel. 1n0. :rou? &ru0t" 2+9 S.8.3d *+2 A&enn. Ct. ,??. 2++*;" a??eal denied" A3ct. 3+" 2++*;. , trial
courtB0 0entence .or contem?t" li@e the e)erci0e o. it0 contem?t ?o>er" i0 revie>a=le .or a=u0e o.
di0cretion. State v. Clar@" 2++% 5& 7%" 124 /.3d 23% A5tah 2++%;. &rial court0 have di0cretion to
i00ue contem?t order0" and rever0al o. a contem?t Cudgment i0 a??ro?riate onl- i. the trial courtB0
di0cretion >a0 either totall- >ithheld or e)erci0ed on ground0 clearl- untena=le or unrea0ona=le. 1n re
Duc@man" $9$ ,.2d 734 A#t. 2++*;. ,n adCudication o. contem?t i0 a??eala=le i. it i0 a .inal order or
Cudgment9 i.e." the contumac-" the ?art-B0 >ill.ul re0i0tance to the contem?t order" i0 e0ta=li0hed" and
the 0anction i0 a coercive one de0igned to com?el com?liance >ith the courtB0 order. !,/ 2.2Aa;. 1n re
E0tate0 o. Smaldino" 212 /.3d %79 A8a0h. Ct. ,??. Div. 1 2++9;. ,??eal0 .rom contem?t order0 are
one'Cudge a??eal0. 8.S.,. 7%2.31A2;Ah;. 1n re 8a0hington" 2++* 81 ,?? 99" 71* N.8.2d 17* A8i0.
Ct. ,??. 2++*;.
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1 @no> 4udge 2o>ard and 4udge Na0h 2olme0 are li@el- ver- u?0et >ith me. Both recentl- 0entenced
me to 0everal da-0 o. incarceration ?ur0uant to a Summar- Contem?t Committed in the CourtB0 /re0ence .inding. (urther"
4udge 2olme0 ha0 a??arentl- had m- t>o cell ?hone0 and ?erha?0 0ome other material0 con.i0cated ?ur0uant to the 0earch
incident to arre0t in connection >ith m- 0ummar- contem?t incarceration incident to the recent &rial in !<C tra..ic
citation matter 11 tr 2*$++ Atic@et num=er %442$1; >hich occurred at 1 ?m (e=. 27th" 2+11 =e.ore 4udge 2olme0"
>herein !eno Cit- ,ttorne- 3rmaa0 >a0 re?re0enting the Cit- o. !eno.
&he Cail did not give me =ac@ m- t>o cell ?hone0 and other item0 o. ?er0onal ?ro?ert-..the- 0aid the !eno
<unici?al Court A!<C; con.i0cated tho0e item0 on 2O2$O12" though the- indicated that the- did not reDuire the !<C
Aactuall- the !eno <ar0halB0 divi0ion; to 0ho> a court order or >arrant ?rior to 0o con.i0cating tho0e item0. ,??arentl-
the- are holding the0e item0 ?ur0uant to E?ro=a=le cau0eE" o. >hat 1 do not @no>. 4udge Na0h 2olme0 0ua 0?onte
interrogated me in o?en court A0hortl- a.ter 1 ?ointed out that <ar0hal 2-lin and !eno Cit- ,ttorne- >ere >hi0?ering in
each otherB0 ear0 during the &rial here; a0 to >hether 1 >a0 recording the ?roceeding. &he ?roceeding0 are recorded a0 a
matter o. la> =- the court" and the ?roceeding i0 an o?en hearing" ?art o. the ?u=lic record" 0o...1 am not 0ure >hat 0he
>a0 getting at" =ut...&he !eno <ar0halB0 <ar0hal 2a-ne- Aor 2ine-" not 0ure; and the !eno Cit- ,ttorne- 3rmaa0 >ere
0een >hi0?ering in each otherB0 ear0 during the hearing A1 noted that ver=all- into the record; and a.ter the hearing" >hile
<ar0hal 2a-ne- >a0 0earching me ?ur0uant to m- =eing arre0ted A>hich >a0 odd given 1 >a0 in the ?roce00 o. attem?ting
to ?a- the alternate di0ci?line 4udge 2olme0 had o..ered" G%++" >hich >a0 0u??o0ed to ena=le me to avoid 0erving the %
da-0 Cail time" then" .or 0ome rea0on" 1 >a0 denied the o??ortunit- to ma@e 0uch a ?a-ment rather a=ru?tl- and >ith great
te0to0terone and .ur- =- <ar0hal 2-ne-;" he immediatel- 0tarted accu0ing me o. ErecordingE and told the other <ar0halB0
to re?ort that 1 had =een doing 0o to the 4udge" 4udge Na0h 2olme0" =a0ed u?on nothing reaon0a=l- allo>ing him to
0u0?ect that or ma@e 0uch allegation0" ?articularl- >here <ar0hal 2ine- >a0 0till 0o u?0et that the under0igned ha0 dared
to Due0tion him earlier that da-" immediatel- ?rior to &rial" >ho gave 2ine- the Notice o. the 2earing on the 3rder to
Sho> cau0e in C#11'+3*2$ Aanother 0ituation involving the alleged tre0?a00 at i00ue here" the eviction in !4C !Ev2+11'
++17+$" and the tra..ic citation i00ued here;. 1t i0 Cun@ .ood Cu0tice to 0ugge0t that none o. thi0 i0 ErelevantE to thi0 matter.
&he ca0e num=er in thi0 !<C tra..ic citation matter i0 11 tr 2*$++ !<C Atic@et num=er %442$1; and the &rial or
2earing occurred at 1 ?m (e=. 27th =e.ore 4udge 2olme0
,=out 1+ da-0 ago 1 .iled an a??lication .or a tem?orar- ?rotection order again0t a !eno 4u0tice Court Baili..
named !e-e0. Baili.. !e-e0 had" on ?ro=a=l- Novem=er 2$" 2+11 or 0o" told me he >a0 going to E?ut hi0 .oot u? -our
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a00E. 2e continued to =e menacing and aggre00ive to me and .inall- 1 .iled a ?rotection order a=out 1+ da-0 ago. &o m-
@no>ledge" no deci0ion or hearing ha0 =een held on that ?rotection order" and Paren Stancil" Chie. Civil Cler@ >ith the
!4C in.ormed me it >a0 =eing tran0.erred to S?ar@0 4u0tice Court A1 =elieve; do to the !4C having a con.lict. ,l0o" 1
re?orted to !4C Court ,dmini0trator &uttle another incident >herein Chie. Baili.. <ichael Se)ton ha0 made menacing
commentar- to me regarding m- Ea00E a0 >ell" t>ice during &han@0giving >ee@ in the Civil Divi0ion (iling 3..ice.
Additional L!al Point" to Con"idr#
N!S 11$,.39+ 5nla>.ul removal or e)clu0ion o. tenant or >ill.ul interru?tion o. e00ential item0 or 0ervice09
?rocedure .or e)?edited relie.. 1. 1. the landlord unla>.ull- remove0 the tenant .rom the ?remi0e0 or e)clude0 the tenant
=- =loc@ing or attem?ting to =loc@ the tenantL0 entr- u?on the ?remi0e0" >ill.ull- interru?t0 or cau0e0 or ?ermit0 the
interru?tion o. an- e00ential item or 0ervice reDuired =- the rental agreement or thi0 cha?ter or other>i0e recover0
?o00e00ion o. the d>elling unit in violation o. N!S 11$,.4$+" the tenant ma- recover immediate ?o00e00ion ?ur0uant to
0u=0ection 4" ?roceed under N!S 11$,.3$+ or terminate the rental agreement and" in addition to another remed-"
recover the tenantL0 actual damage0" receive an amount not greater than G2"%++ to =e .i)ed =- the court" or =oth. 2. 1n
determining the amount" i. an-" to =e a>arded under 0u=0ection 1" the court 0hall con0ider: Aa; 8hether the landlord acted
in good .aith9 A=; &he cour0e o. conduct =et>een the landlord and the tenant9 and Ac; &he degree o. harm to the tenant
cau0ed =- the landlordL0 conduct. 3. 1. the rental agreement i0 terminated ?ur0uant to 0u=0ection 1" the landlord 0hall
return all ?re?aid rent and 0ecurit- recovera=le under thi0 cha?ter. 4. E)ce?t a0 other>i0e ?rovided in 0u=0ection %" the
tenant ma- recover immediate ?o00e00ion o. the ?remi0e0 .rom the landlord =- .iling a veri.ied com?laint .or e)?edited
relie. .or the unla>.ul removal or e)clu0ion o. the tenant .rom the ?remi0e0" the >ill.ul interru?tion o. an- e00ential item
or 0ervice or the recover- o. ?o00e00ion o. the d>elling unit in violation o. N!S 11$,.4$+. %. , veri.ied com?laint .or
e)?edited relie.: Aa; <u0t =e .iled >ith the court >ithin % Cudicial da-0 a.ter the date o. the unla>.ul act =- the landlord"
and the veri.ied com?laint mu0t =e di0mi00ed i. it i0 not timel- .iled. 1. the veri.ied com?laint .or e)?edited relie. i0
di0mi00ed ?ur0uant to thi0 ?aragra?h" the tenant retain0 the right to ?ur0ue all other availa=le remedie0 again0t the
landlord. A=; <a- not =e .iled >ith the court i. an action .or 0ummar- eviction or unla>.ul detainer i0 alread- ?ending
=et>een the landlord and tenant" =ut the tenant ma- 0ee@ 0imilar relie. =e.ore the Cudge ?re0iding over the ?ending action.
*. &he court 0hall conduct a hearing on the veri.ied com?laint .or e)?edited relie. not later than 3 Cudicial da-0 a.ter the
.iling o. the veri.ied com?laint .or e)?edited relie.. Be.ore or at the 0cheduled hearing" the tenant mu0t ?rovide ?roo. that
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the landlord ha0 =een ?ro?erl- 0erved >ith a co?- o. the veri.ied com?laint .or e)?edited relie.. 5?on the hearing" i. it i0
determined that the landlord ha0 violated an- o. the ?rovi0ion0 o. 0u=0ection 1" the court ma-: Aa; 3rder the landlord to
re0tore to the tenant the ?remi0e0 or e00ential item0 or 0ervice0" or =oth9 A=; ,>ard damage0 ?ur0uant to 0u=0ection 19 and
Ac; EnCoin the landlord .rom violating the ?rovi0ion0 o. 0u=0ection 1 and" i. the circum0tance0 0o >arrant" hold the
landlord in contem?t o. court. 7. &he ?a-ment o. all co0t0 and o..icial .ee0 mu0t =e de.erred .or an- tenant >ho .ile0 a
veri.ied com?laint .or e)?edited relie.. ,.ter an- hearing and not later than .inal di0?o0ition o. the .iling or order" the
court 0hall a00e00 the co0t0 and .ee0 again0t the ?art- that doe0 not ?revail" e)ce?t that the court ma- reduce them or >aive
them" a0 Cu0tice ma- reDuire.
NRS $$%A&'() Unla*f+l r,o-al or ./l+"ion of tnant or *illf+l intrr+0tion of
""ntial it," or "r-i/"; 0ro/d+r for .0ditd rlif& E1. 1. the landlord unla>.ull-
remove0 the tenant .rom the ?remi0e0 or e)clude0 the tenant =- =loc@ing or attem?ting to
=loc@ the tenantL0 entr- u?on the ?remi0e0" >ill.ull- interru?t0 or cau0e0 or ?ermit0 the
interru?tion o. an- e00ential item or 0ervice reDuired =- the rental agreement or thi0 cha?ter
or other>i0e recover0 ?o00e00ion o. the d>elling unit in violation o. N!S 11$,.4$+" the
tenant ma- recover immediate ?o00e00ion ?ur0uant to 0u=0ection 4" ?roceed under N!S
11$,.3$+...4. E)ce?t a0 other>i0e ?rovided in 0u=0ection %" the tenant ma- recover
immediate ?o00e00ion o. the ?remi0e0 .rom the landlord =- .iling a veri.ied com?laint .or
e)?edited relie. .or the unla>.ul removal or e)clu0ion o. the tenant .rom the ?remi0e0" the
>ill.ul interru?tion o. an- e00ential item or 0ervice or the recover- o. ?o00e00ion o. the
d>elling unit in violation o. N!S 11$,.4$+. %. , veri.ied com?laint .or e)?edited relie.:
Aa; <u0t =e .iled >ith the court >ithin % Cudicial da-0 a.ter the date o. the unla>.ul act =-
the landlord" and the veri.ied com?laint mu0t =e di0mi00ed i. it i0 not timel- .iled. 1. the
veri.ied com?laint .or e)?edited relie. i0 di0mi00ed ?ur0uant to thi0 ?aragra?h" the tenant
retain0 the right to ?ur0ue all other availa=le remedie0 again0t the landlord. A=; <a- not =e
.iled >ith the court i. an action .or 0ummar- eviction or unla>.ul detainer i0 alread-
?ending =et>een the landlord and tenant" =ut the tenant ma- 0ee@ 0imilar relie. =e.ore the
Cudge ?re0iding over the ?ending action. *. &he court 0hall conduct a hearing on the
veri.ied com?laint .or e)?edited relie. not later than 3 Cudicial da-0 a.ter the .iling o. the
veri.ied com?laint .or e)?edited relie.. Be.ore or at the 0cheduled hearing" the tenant mu0t
?rovide ?roo. that the landlord ha0 =een ?ro?erl- 0erved >ith a co?- o. the veri.ied
com?laint .or e)?edited relie.. 5?on the hearing" i. it i0 determined that the landlord ha0
violated an- o. the ?rovi0ion0 o. 0u=0ection 1" the court ma-: Aa; 3rder the landlord to
re0tore to the tenant the ?remi0e0 or e00ential item0 or 0ervice0" or =oth9 A=; ,>ard damage0
?ur0uant to 0u=0ection 19 and Ac; EnCoin the landlord .rom violating the ?rovi0ion0 o.
0u=0ection 1 and" i. the circum0tance0 0o >arrant" hold the landlord in contem?t o. court. E
(urther" NRS $$%A&1%) Landlord2" r/o-r3 of 0o""""ion of d*llin! +nit# E&he
landlord 0hall not recover or ta@e ?o00e00ion o. the d>elling unit =- action or other>i0e"
including >ill.ul diminution or interru?tion or cau0ing or ?ermitting the diminution or
interru?tion o. an- e00ential item or 0ervice reDuired =- the rental agreement or thi0
cha?ter" e)ce?t: 1. B- an action .or ?o00e00ion or other civil action or 0ummar- ?roceeding
in >hich the i00ue o. right o. ?o00e00ion i0 determined9 2. 8hen the tenant ha0 0urrendered
?o00e00ion o. the d>elling unit to the landlord9 or 3. 8hen the tenant ha0 a=andoned the
d>elling unit a0 ?rovided in N!S 11$,.4%+E
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N!S 11$,.4$+ come0 into ?la- i. the landlord did ta@e Erecover- o. ?o00e00ionE o. m- .ormer home la> o..ice
at 121 !iver !oc@ St. ?rior to =eing legall- allo>ed to do 0o. &o anal-He thi0" one mu0t @no> >hat t-?e o. 0ervice o.
the 3rder o. Summar- Eviction i0 reDuired. &hi0 =eing a civil matter" the Erendition o. Cudgment or orderE or
ErenderedE language one .ind0 in criminal 0tatute0 li@e N!S 1$9.+1+ A>herein the deadline .or .iling a Notice o.
,??eal .rom a criminal conviction i0 0et .orth; i0 ina??lica=le. &hat =eing 0aid" and a0 e)?licitl- 0et .orth in N!S
, letter .rom the 8a0hoe Count- Sheri..B0 3..ice A8CS3; Civil Divi0ionB0 6iH Stuchell ?rovide0 0ome in0ight a0 to
>hether the loc@out that too@ ?lace on Novem=er 1" 2+11 in thi0 ca0e >a0 ?ermi00i=le.
ESu=Cect: !E: 8CS3 De?ut- <achemB0 E?er0onall- 0ervedE ,..idavit o. 11O1O2+11
Date: &ue" 7 (e= 2+12 11:4+:39 '+$++
(rom: 6Stuchell[>a0hoecount-.u0
&o: Hachcoughlin[hotmail.com
CC: m@andara0[da.>a0hoecount-.u0
<r. Coughlin"
3ur record0 indicate that the eviction conducted on that da- >a0 ?er0onall-
0erved =- De?ut- <achen =- ?o0ting a co?- o. the 3rder to the re0idence. &he re0idence
>a0 unoccu?ied at the time.
6iH Stuchell" Su?ervi0or 8CS3 Civil SectionE
/ut 0im?l-" the Novem=er 1" 2+11 loc@out" .or >hich 8CS3 De?ut- <achem indicate0 he E?er0onall- 0ervedE
the 3rder o. Summar- Eviction" >a0 not la>.ull- conducted" and a0 0uch i0 ine..ective and invo@e0 the ?rovi0ion o.
N!S 11$,.4$+. 8hen con0idering that the tenant did .ile 0uch a com?laint .or illegal loc@out" and the .act that the
!4C .ailed to rule on tenant0 .iling Aand a good deal o. other 0uch .iling0 =- the tenant have langui0hed in the !4C
unruled on de0?ite reDue0t0 .or 0u=mi00ion =eing 0u=mitted...;" the current criminal tre0?a00 ?roceeding in the !<C in
11 C! 2*4+% and the 2earing on the 3rder to Sho> Cau0e currentl- 0et .or <arch 23rd at 11:++ am in De?artment 7 in
C#11'+3*2$" the a??eal .rom the eviction matter involving !ichard :. 2ill" E0D. in !4C !ev2+11'++17+$.
&hi0 >hole =u0ine00 a=out I&he court ma- thereu?on i00ue an order directing the 0heri.. or con0ta=le o. the
count- to remove the tenant >ithin 24 hour0 a.ter recei?t o. the order...J i0 ina??lica=le to thi0 0ituation" >here an
3rder :ranting Summar- Eviction >a0 0igned =- 3cto=er 27th" 2+11. &hat language i0 onl- .ound in 0ituation0
ina??lica=le to the current one. N!S 4+.2%3A3;A=;A2;" and N!S 4+.2%3A%;Aa; are the onl- 0ection0 o. N!S 4+ >here thi0
I>ithin 24 hour0J language occur0" and tho0e 0ituation0 onl- a??l- >here" in:
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4+.2%3A3;A=;A2;: I 3. , notice 0erved ?ur0uant to 0u=0ection 1 or 2 mu0t: ...A=; ,dvi0e the tenant: \. A2; &hat i. the court
determine0 that the tenant i0 guilt- o. an unla>.ul detainer" the court ma- i00ue a 0ummar- order .or removal o. the tenant
or an order ?roviding .or the nonadmittance o. the tenant" directing the 0heri.. or con0ta=le o. the count- to remove the
tenant >ithin 24 hour0 a.ter recei?t o. the orderJ
and"
4+.2%3A%;Aa;: I%. 5?on noncom?liance >ith the notice: Aa; &he landlord or the landlordL0 agent ma- a??l- =- a..idavit o.
com?laint .or eviction to the Cu0tice court o. the to>n0hi? in >hich the d>elling" a?artment" mo=ile home or commercial
?remi0e0 are located or to the di0trict court o. the count- in >hich the d>elling" a?artment" mo=ile home or commercial
?remi0e0 are located" >hichever ha0 Curi0diction over the matter. &he court ma- thereu?on i00ue an order directing the
0heri.. or con0ta=le o. the count- to remove the tenant >ithin 24 hour0 a.ter recei?t o. the order.J &he >a- the0e 0ummar-
eviction ?roceeding0 are =eing carried out in !eno 4u0tice Court ?re0entl- 0hoc@0 the con0cience and violate0 Nevada
la>. &here i0 not =a0i0 .or e..ectuating a loc@out the >a- 8CS3B0 De?ut- <achem did in thi0 ca0e. &he a=ove t>o
0ection0 containing the I>ithin 24 hour0 o. recei?tJ language are ina??lica=le" a0 tho0e 0ituation0 do not invo@e the
?re0ent circum0tance0" >here the &enant did .ile an ,..idavit and did conte0t thi0 matter to a degree not o.ten 0een. &o
reDuire NevadaB0 tenant0 to get u? and get out I>ithin 24 hour0J o. Irecei?t o. the orderJ A>hat doe0 that even meanF &he
u0e o. term0 li@e IrenditionJ" IrenderedJ" Inotice o. entr-J" I?ronouncedJ" i0 a=0ent here" and thi0 Irecei?t o. the orderJ
language i0 0omething rarel- .ound el0e>here in Nevada la>'0ee attached D<# 0tatutor- citation0" and in em?lo-ment
la> litigation0 >here one mu0t .ile a Com?laint >ithin 9+ da-0 o. Irecei?tJ o. a !ight &o Sue 6etter" a 0ituation >hich
.ollo>0 N!C/ %A=;" and N!C/ *Ae; in im?uting recei?t o. 0uch a letter" >hen actual recei?t i0 not 0ho>n" =- a??l-ing a
Icon0tructive noticeJ 0tandard that relie0 u?on the da-0 .or mailing e)ten0ion o. time .or item0 0erved in the mailing"
etc.;. 1n ,=raham v. 8ood0 2ole 3ceanogra?hic 1n0titute" %%3 (.3d 114 A10t Cir. 2++9;" the record did not re.lect >hen
the ?lainti.. received hi0 right'to'0ue letter. &he letter >a0 i00ued on Novem=er 24" 2++*. &he court calculated that the 9+'
da- ?eriod commenced on Novem=er 3+" 2++*" =a0ed on three da-0 .or mailing a.ter e)cluding Saturda-0 and Sunda-0.
1n order to =ring a claim under either &itle #11 or the ,D," a ?lainti.. mu0t e)hau0t admini0trative remedie0 and 0ue
>ithin 9+ da-0 o. recei?t o. a right to 0ue letter. See 42 5.S.C. T 2+++e'%A.;A1;. See Bald>in Count- 8elcome Center v.
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Bro>n" 4** 5.S. 147" 14$ n.1" 1+4 S.Ct. 1723" $+ 6.Ed.2d 19* A19$4;Agranting ?lainti.. an additional three da-0 .or
mailing ?ur0uant to !ule *;....J ...
htt?:OOen.>i@i?edia.orgO>i@iOServiceWo.W?roce00
ESu=0tituted 0ervice: 8hen an individual ?art- to =e 0erved i0 unavaila=le .or ?er0onal
0ervice" man- Curi0diction0 allo> .or 0u=0tituted 0ervice. Su=0tituted 0ervice allo>0 the
?roce00 0erver to leave 0ervice document0 >ith another re0?on0i=le individual" called a
?er0on o. 0uita=le age and di0cretion" 0uch a0 a coha=iting adult or a teenager. 5nder
the (ederal !ule0" 0u=0tituted 0ervice ma- onl- =e made at the a=ode or d>elling o. the
de.endant.M4N Cali.ornia" Ne> 7or@"M%N 1llinoi0" and man- other 5nited State0
Curi0diction0 reDuire that in addition to 0u=0tituted 0ervice" the document0 =e mailed to
the reci?ient.M%N Su=0tituted 0ervice o.ten reDuire0 a 0erving ?art- 0ho> that ordinar-
0ervice i0 im?ractica=le" that due diligence ha0 =een made to attem?t to ma@e ?er0onal
0ervice =- deliver-" and that 0u=0tituted 0ervice >ill reach the ?art- and e..ect notice.
M%NE
1 am ?rett- 0ure E?er0onall- 0ervedE mean0 -ou 0erved the ?er0on in ?er0on" not that a ?er0on Aor 8CS3
De?utee; >ent and ?o0ted a notice on a door" ?er0onall- him0el.. See" 1 thin@ the 8CS3 are thin@ing o. the E?er0onE in
the >ord ?er0onall- a0 a??l-ing to the 0erver" >hen in all in0tance0 1 have ever 0een it u0ed in the la>" the E?er0onE ?art
o. E?er0onall-E a??lie0 to the ?er0on =eing 0erved. (urther adding con.u0ion here i0 the .act that 0ome" including tho0e
in the !4C Civil Divi0ion (iling 3..ice 0eem to =elieve that the I>ithin 24 hour0J o. Irecei?t o. the orderJ mentioned
.or 0erving an 3rder .or Summar- Eviction Aonl- >here the tenant did not .ile a &enantB0 ,n0>er" 0o...not li@e in the
in0tant ca0e; reDuire0 the 8CS3 to e..ect the loc@out >ithin 24 hour0 o. the 8CS3 receiving the loc@out
3rder...other>i0e 0uch an 3rder >ould =ecome staleF
1t i0 not 0o rare a gi.t to =e a=le to tear 0omeone do>n" to ?uni0h" to 0care" to con.i0cate. 2o>ever" it i0 trul- a
>ondrou0 0ite to 0ee one >ith the ?o>er to reha=ilitate a lo0t cau0e" and one da- ma@e that lo0t cau0e u0e.ul to another
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human =eing. , ?o>er 0een in e0teemed Nevada 6a>-er0 and 4udge0" and legal ?ro.e00ional0 li@e Coe " Peith " &om"
/aul " Chuc@" Bo=" Pell-" <icheal" Pim" Ben" and 0o man- other0 Aand the under0igned .eel0 remi00 at not having a
.emale name to mention among0t tho0e Cu0t cited to;. &here ha0 =een ?lent- o. ?uni0hment here alread-" .amil-
relation0hi?0 have =een tore u? and =arel- remain on li.e 0u??ort. &he !eno Cit- ,ttorne- could ?ro=a=l- get =-
>ithout =loodletting another G17% and 4 ?oint0 .rom the under0igned. 8h- Sargent &arter mu0t =e 0u=Cected to thi0
cro00 e)amination i0 unclear" one >ould thin@ the !eno Cit- ,ttorne- >ould ho?e to avoid it =- 0ome mean0 other
than" 0eemingl-" rel-ing on the !<C to gerr-mander the relevanc- i00ue0 here to hel? Sargent &arter" et al to avoid
an0>ering an- uncom.orta=le Due0tion0. 1t i0 0im?l- tac@ .or CourtB0 to 0ua 0?onte cro00 e)amine de.endant0 an or
>itne00e0 on =ehal. o. ?ro0ecutor0" ?articularl- >here 1 canBt even one time recall 0eeing it done the other >a-.
2o>ever" to tho0e >ho >ould Cudge or a00ert 0ome E0?ecial treatmentE i0 =eing 0ought" a0@ -our0el. >hether
-ou =rought home >ith -ou over the la0t 3+ -ear0 ever-oneB0 overdo0ing on methadone" or >al@ing out o. oneB0 o..ice
a.ter ma@ing ever- a00urance that 0uicide >a0 not at all a ?o00i=ilit- onl- to reveal that" indeed it >a0" or have countle00
>ee@end0 and vacation0 involve ?hone call0 concerning >hether a ?atient i0 E.ull codeE or Eno codeE...7ou =ring that
home >ith -ou .or 3+ -ear0 and tell me >hat 0ort o. com?en0ation i0 a??ro?riate and then com?are it to the managed
care era .amil- ?h-0icianB0 and then >e can di0cu00 E0?ecial treatmentE. ,nd -ou do that >ithout a drin@ in 3+ -ear0
and then -ou can tal@. But all thi0 E0?ecial treatmentE di0cu00ion 0eem0 a =it 0trained >hen di0cu00ing >hether !ichard
:. 2ill com.ort level nece00itate0 e)acting even more mone- out o. me >hen it ought =e .airl- o=viou0 that 1 am doing
ever-thing 1 ?o00i=l- can to" =uc@et =- =uc@et" remove the >ater ?ooling at the =ottom o. m- tin-" one ?er0on canoe.
,nd >here thi0 involve0 a rugged" tall" 23 -ear veteran Sargent o. the !eno /D >ith ?ale =lue e-e0 >ho ha0 dou=tle00
earned the com?en0ation he no> garner0" ?erha?0 the !eno Cit- ,ttorne- >ould =e >i0e to Cu0t let the tra..ic tic@et go.
3r" ?erha?0" not" given the econom- >e are all 0truggling >ith e)act0 it0 .orce0 u?on the Cudgment o. the !eno Cit-
,ttorne-B0 3..ice a0 >ell" and the- didnBt get >here the- are =- =eing light>eight0 or lac@ing in di0cretion or valor.
<a-=e the =e0t thing >ould =e to Cu0t hit the ?au0e =utton .or a >hile and 0ee >hether the ?er0on o. inDuir- continue0
to 0uit u? and 0ho> u? and do their =e0t to .unction a0 a legal ?ro.e00ional an earn an hone0t living. 2o>ever" an-
di0cu00ion o. E0?ecial treatmentE 0hould include allo>ing 3rmaa0 and Sargent &arter e)tra time to Emeet and con.erE
>ell a.ter the 0tart time 0et .or thi0 &rial....it 0hould .urther con0ider that a??arentl- the ?rivilege o. the ?artici?ant that
all >itne00e0 in all trial0 enCo- 0eemingl- doe0 not allo> the under0igned to alleged untruth.ullne00 on Sargent &arterB0
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?art a=0ent a 0ummar- % da- incarceration and con.i0cation o. the under0ignedB0 ?er0onal ?ro?ert- >ell therea.ter" even
>ithout a >arrant. So much .or the Bill o. !ight0.
N!S 4+.4++ !ule0 o. ?ractice. &he ?rovi0ion0 o. N!S" Nevada !ule0 o. Civil /rocedure and
Nevada !ule0 o. ,??ellate /rocedure relative to civil action0" a??eal0 and ne> trial0" 0o .ar a0
the- are not incon0i0tent >ith the ?rovi0ion0 o. N!S 4+.22+ to 4+.42+" inclu0ive" a??l- to the
?roceeding0 mentioned in tho0e 0ection0.
N!S 4+.39+ ,??ellate court not to di0mi00 or Dua0h ?roceeding0 .or >ant o. .orm. 1n all
ca0e0 o. a??eal under N!S 4+.22+ to 4+.42+" inclu0ive" the a??ellate court 0hall not di0mi00 or
Dua0h the ?roceeding0 .or >ant o. .orm" ?rovided the ?roceeding0 have =een conducted
0u=0tantiall- according to the ?rovi0ion0 o. N!S 4+.22+ to 4+.42+" inclu0ive9 and amendment0
to the com?laint" an0>er or 0ummon0" in matter0 o. .orm onl-" ma- =e allo>ed =- the court at
an- time =e.ore .inal Cudgment u?on 0uch term0 a0 ma- =e Cu0t9 and all matter0 o. e)cu0e"
Cu0ti.ication or avoidance o. the allegation0 in the com?laint ma- =e given in evidence under
the an0>er.
(urther ?ro=lematic >ith 4udge S.erraHHaB0 a??roach in !4C !ev2+11'++17+$ i0 that" >hile hi0 inter?retation
o. N!S 4+.2%3 allo>ed an eviction =a0ed onl- on a No Cau0e Eviction Notice to 0omeho> reDuire a rent e0cro>
de?o0it o. G2"27% .or a litigant >ith nothing to 0?are" 0uch an a??roach did not allo> .or that tenant to a00ert
counterclaim0" de0?ite the e)?licit authorit- .or the tenant doing 0o u?on a court a??l-ing NRS $$%A&1() A/tion"
4a"d +0on non0a3,nt of rnt# Co+ntr/lai, 43 tnant; d0o"it of rnt *it5 /o+rt; 6+d!,nt for -i/tion.
1ndeed" the under0igned tenant in that matter did attem?t to a00ert 0uch counterclaim0" ho>ever hi0 right to do 0o >a0
denied. Sim?l- ?ut" the landlord >a0 a=le to have it hi0 >a- in 0o man- di..erent >a-0 in thi0 eviction matter. 2e >a0
a=le to ?roceed under a no cau0e 0ummar- eviction notice >herein the non?a-ment o. rent >a0 not alleged >hile at the
0ame time =ene.iting .rom the court .orcing the tenant to de?o0it a rent e0cro> amount o. G2"27%. &hi0 a??roach i0
.urther under0cored =- the .act that onl- 1+ da-0 or 0o a.ter receiving the 0ummar- eviction order the landlordB0 coun0el
0u=mitted to the tenant a landlordB0 a..idavit .or 0ummar- eviction =a0ed on the non?a-ment o. rent. 1t >ould 0eem
onl- .air and indeed reDuired =- N!S 11$,.49+ allo> the tenant to a00ert counterclaim0 >here the tenant i0 0o .orced
to ma@e a rent e0cro> de?o0it. ,nd" >hile the 6ea0e ,greement ?rovided that the landlord 0hall =e" at 0u=0ection 2$:
7%& LIABILITY: management 0hall not =e lia=le .or an- damage or inCur- to !e0ident or
another ?er0on or to an- ?ro?ert- occurring on the ?remi0e0 or an- ?art thereo." or in
common are0 thereo." +nl"" "+/5 lia4ilit3 i" 4a"d on t5 n!li!nt a/t" or o,i""ion of
,ana!,nt8 5i" a!nt8 or ,0lo3...E
4udge S.erraHHa 0ummaril- ruled that :reen ,ction 6a>n Service >a0 an Einde?endent contractorE and" a0
0uch" Su=0ection 2$ o. the 6ea0e ,greement did not a..ord the tenant an o??ortunit- to a00ert counterclaim0 under N!S
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11$,.4$+. 2o>ever" even i. the ,??ellate Di0trict Court revie>ing !4C !ev2+11'++17$ in C#11'+3*2$ .ind0 thi0 0o"
the .act that the revie> i0 a Ede novoE revie> ?ermit0 the a??ellate court to con0ider >hether" even it >ere the ca0e that
the landlordB0 land0ca?er0 >ere Einde?endent contractor0E" that Su=0ection 2$ >ould 0till allo> .or lia=ilit- .or their act0
to =e accorded to the landlord. !egardle00" 4udge S.erraHHaB0 ruling on >hether or not lia=ilit- e)i0t0 or >hether tenant
>a0 allo>ed to litigate counterclaim0 in the trial court are 0im?l- not matter0 >ell 0uited to 0ummar- Cudgment" and"
regardle00" tenant met hi0 =urden in that regard 0u..icient to ?reclude 0uch a 0ummar- di0?o0ition o. tho0e matter0.
8hile 4udge S.erraHHa ruled that the damage done =- the landlordB0 :reen ,ction 6a>n Service did not ?re0ent
an o??ortunit- .or the tenant to a00ert counterclaim0 Aeven though 0u=0ection 2$ o. the 6ea0e ,greement ?rovide0 0o;"
the tenant 0hould have =een a..orded 0uch an o??ortunit- to 0o a00ert 0uch counterclaim0" ?articularl- >here 0uch a rent
e0cro> de?o0it >a0 not onl- reDuired" =ut then retained =- the court .or at lea0t 1+ da-0 a.ter 0igning the 3rder .or
Summar- Eviction. (urther" it i0 ?reci0el- the0e t-?e0 o. am=iguou0 ?oint0 o. contractual inter?retation that are ill'
0uited to di0?o0al on 0ummar- Cudgment: &he =urden o. ?roo. a??lica=le to a Summar- Eviction /roceeding under N!S
4+.2%3 dictate0 that" the court >ill allo> =oth ?artie0 to 0?ea@ and ?re0ent evidence on their =ehal. a.ter >hich the court
>ill determine >hether there i0 Ia genuine di0?ute o. material .act0.J ASee ,nvui" 66C v. :.6. Dragon" 66C in >hich
the Nevada Su?reme Court held that 0ummar- eviction ca0e0 0hould =e evaluated li@e motion0 .or 0ummar- Cudgment.
in ,nvui" 66C v. :.6. Dragon" 66C" 123 Nev. 212" 1*3 /.3d 4+% A2++7;" the Nevada Su?reme Court ruled that it0
revie> o. an order granting 0ummar- eviction under N!S 4+.2%3A*; i0 Ide novoJ =ecau0e tho0e ?roceeding0 are
analogou0 to an order granting 0ummar- Cudgment under N!C/ %*. 1d. at 21%" 1*3 /.3d at 4+7. Burden o. ?roo. o.
movant" hearing and determination /art- moving .or 0ummar- Cudgment ha0 =urden o. ?roving that no tria=le i00ue0
remain. Nevada !ule0 Civ./roc." !ule %*. 2arr- v. Smith" 199%" $93 /.2d 372" 111 Nev. %2$. 1n order to ?revail on hi0
motion .or 0ummar- Cudgment" general ?artner >a0 reDuired to demon0trate .rom record" a..idavit0" or other evidence"
a=0ence or conclu0ive .al0it- o. limited ?artner0B claim0 o. .raud or mi0re?re0entation in connection >ith di00olution o.
?artner0hi? agreement9 although he >a0 not reDuired to 0u=mit a..idavit0 in 0u??ort o. hi0 motion" he >a0 reDuired to
?rove Iother indiciaJ o. none)i0tence o. .raud. !ule0 Civ./roc." !ule %*. <aine v. Ste>art" 1993" $%7 /.2d 7%%" 1+9
Nev. 721" rehearing denied. Burden o. ?roving a=0ence o. tria=le .act0 allo>ing entr- o. 0ummar- Cudgment i0 u?on
?art- moving .or 0ummar- Cudgment. !ule0 Civ./roc." !ule %*Aa;. Butler v. Bogdanovich" 19$%" 7+% /.2d **2" 1+1 Nev.
449" rehearing denied. 1n 0uit again0t o>ner o. 0ervice 0tation .or death o. em?lo-ee o. contractor engaged in alteration0
at 0ervice 0tation" de.endant >hich moved .or 0ummar- Cudgment had =urden o. e0ta=li0hing that de.endantB0
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relation0hi? to decea0ed >a0 tantamount to that o. em?lo-er 0o that ?lainti..B0 e)clu0ive remed- >a0 the 1ndu0trial
1n0urance ,ct. N!C/ %*A=" c;9 N.!.S. *1*.+1+ et 0eD." *1*.+$%. 8eaver v. Shell 3il Co." 197%" %3% /.2d 7$7" 91 Nev.
324. &he =urden o. e0ta=li0hing the lac@ o. tria=le i00ue o. .act i0 u?on the ?art- moving .or 0ummar- Cudgment.
2idden 8ell0 !anch" 1nc. v. Stri? !ealt-" 1nc." 19*7" 42% /.2d %99" $3 Nev. 143.
See" :omeH v. 1nde?endence <anagement o. Dela>are" 1nc." 9*7 ,.2d 127* AD.C. 2++9;: E.n 19. 8e have 0aid
in another conte)t that a claim o. Ia retaliator- motive i0 a Due0tion o. .act .or the Cur- Aor the Cudge in a non'Cur- trial;"
and" li@e other t-?e0 o. claim0 in >hich motive or intent i0 in i00ue" i0 not >ell 0uited to di0?o0ition on a motion .or
0ummar- Cudgment.J ,rthur 7oung U Co. v. Sutherland" *31 ,.2d 3%4" 3*$ AD.C.1993; Are.erring to a claim o.
retaliator- action under the DC2!,;9 0ee Ed>ard0" 0u?ra note 1$" 13+ 5.S. ,??. D.C. at 141" 397 (.2d at 7+2 AI&he
Due0tion o. ?ermi00i=le or im?ermi00i=le ?ur?o0e i0 one o. .act .or the court or Cur-]J;. 8e have 0aid the 0ame thing
a=out claim0 o. di0crimination" 0ee" e.g." 2ollin0 v. (ederal National <ortgage ,00Bn" 7*+ ,.2d %*3" %79'$+ AD.C.2+++;"
=ut >e have" on occa0ion" u?held a trial court grant o. 0ummar- Cudgment in .avor o. a de.endant accu0ed o.
di0crimination. See" e.g." 2amilton v. 2o>ard 5niver0it-" 9*+ ,.2d 3+$" 31%'1* AD.C.2++$;9 8allace v. S@adden" ,r?0"
Slate" <eagher U (lom 66/" 799 ,.2d 3$1" 3$* AD.C.2++2;9 2ollin0" 7*+ ,.2d at %71. 8e there.ore do not .oreclo0e
the ?o00i=ilit- that" on a ?ro?erl- 0u??orted record" the trial court ma- di0?o0e o. a de.en0e o. retaliator- eviction at the
0ummar- Cudgment 0tage. 8hen the 0tatutor- ?re0um?tion o. retaliator- action ha0 =een triggered" ho>ever" the record
>ould have to e0ta=li0h" under the 0tandard0 that govern 0ummar- Cudgment" that the landlord ha0 re=utted it =- clear
and convincing evidence.E
1ndeed" thi0 i0 true >hen con0idering that a tough choice .ace0 the landlord in thi0 matter. 1. the tenant >a0 a
commercial tenant" then N!S 4+.2%3 .or=id0 ?roceeding under the 0ummar- eviction ?rocedure .ound therein >here
onl- a No Cau0e Eviction Notice >a0 0erved Aie" the non'?a-ment o. rent >a0 not alleged;" a0 >a0 the ca0e in that
matter. 2o>ever" to the e)tent the landlord >i0he0 to argue the tenant >a0 not a commercial tenant Ade0?ite the 6ea0e
,greement e)?licitl- allo>ing .or 0uch u0e a0 >ell a0 local Honing la>0; then the dictate0 o. N!S 4+.3$% a??l-" and the
tenant mu0t =e accorded a 0ta- o. eviction u?on de?o0iting >ith the court the ?altr- 0ome o. G2%+" much le00 the G2"27%
Erent e0cro> de?o0it reDuired to ?re0erve the right to litigate ha=ita=ilit- i00ue0E the !4C continued to hold a.ter the
3rder .or Summar- Eviction >a0 0igned" and .or >hich the !4C cla00i.ied it a0 the E=ond to cover the co0t0 on a??ealE.
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1ndeed" NRS 1)&'%9 Sta3 of ./+tion +0on a00al; d+t3 of tnant *5o
rtain" 0o""""ion of 0r,i"" to 0a3 rnt d+rin! "ta3& 5?on an a??eal .rom an order
entered ?ur0uant to N!S 4+.2%3: 1. E)ce?t a0 other>i0e ?rovided in thi0 0u=0ection" a
0ta- o. e)ecution ma- =e o=tained =- .iling >ith the trial court a =ond in the amount o.
G2%+ to cover the e)?ected co0t0 on a??eal. , 0uret- u?on the =ond 0u=mit0 to the
Curi0diction o. the a??ellate court and irrevoca=l- a??oint0 the cler@ o. that court a0 the
0uret-L0 agent u?on >hom ?a?er0 a..ecting the 0uret-L0 lia=ilit- u?on the =ond ma- =e
0erved. 6ia=ilit- o. a 0uret- ma- =e en.orced" or the =ond ma- =e relea0ed" on motion in
the a??ellate court >ithout inde?endent action.
2o>ever" ?lea0e donBt mi0under0tand" the under0igned i0 Duite .ond o. the e)tremel- intelligent and chari0matic
4udge S.erraHHa and doe0 not mean thi0 Ehind0ight'Dua0i'2+O2+ vie>?ointE and overl- critical tone to indicate a lac@ or
re0?ect .or the Court or 4udge S.erraHHa" ?articularl- >here !ichard :. 2ill" E0D. and hi0 venera=le a00ociate Ca0e-
Ba@er" E0D. do 0uch a .ine Co= o. ?re0enting their ?o0ition0" almo0t machine li@e in their e..icienc- and clarit- o.
?re0entation... and NevadaB0 6andlord &enant 6a> i0 0o hard to under0tand that a National <erit (inali0t could 0?end *
month0 0tud-ing it night and da- and 0till =arel- under0tand it...to 0a- nothing o. >hat i0 a0@ed o. the !eno 4u0tice
Court 4udge0" >hom mu0t gra0? 0uch a varied cro00 0ection o. the la> on a dail- =a0i0" that it literall- =oggle0 the mind
the ta0@ .aced =- the0e mem=er0 o. the 4udiciar-. 1t i0 certainl- not a ?o0ition the under0igned could .athom .illing
an-time 0oon" and mo0t li@el- never.
NRS $$%A&1() A/tion" 4a"d +0on non0a3,nt of rnt# Co+ntr/lai, 43 tnant;
d0o"it of rnt *it5 /o+rt; 6+d!,nt for -i/tion& 1. 1n an action .or ?o00e00ion =a0ed
u?on non?a-ment o. rent or in an action .or rent >here the tenant i0 in ?o00e00ion" t5
tnant ,a3 dfnd and /o+ntr/lai, for an3 a,o+nt *5i/5 t5 tnant ,a3 r/o-r
+ndr t5 rntal a!r,nt8 t5i" /5a0tr8 or ot5r a00li/a4l la*& E
!ichard 2ill got me arre0ted .or 2+ hour0 .or Ca->al@ing on 1O12O12...1 >a0 .ilming .rom a ?u=lic 0?ot hi0
contractor0 ?utting lot0 o. m- ?o0e00ion0 A.ormer" 1 gue00" =ut S.erraHHaB0 12O21O11 E3rder !e0olving <otion to Conte0t
/Er0onal /ro?ert- 6ienE ma-=e =e vulnera=le to a *+= voidne00 0et a0ide a0 the !4C .ailed to com?l- >ith N!S
4+.2%3A7; and A$;B0 dictate0 that the !4C 0et a hearing >ithin 1+ da-0 and have the 0heri.. 0erved notice thereo.....the !4C
0eem0 to onl- .ollo> N!S dictate0 >hen the- =ene.it landlord0 or tho0e >ith =ig mone- attorne-0 i0 >hat 0ome ?eo?le
0a-" 1 hear" not that 1 >ould 0a- an- 0hit li@e that" no?e....&hen !ichard 2ill .iled .or a 0tal@ingOhara00ment 3!der again0t
me on 1 12 12 >hile 1 >a0 in the 0Duad car at the 0cene at 4?m. 4udge Schroeder got a 0igned &/3 .iled >ithin 4%
minute0....the e)ten0ion hearing >a0 -e0terda-" 2ill 0ho>ed u? 0aid EiBve 0een neither hide nor hair o. him" 0o 1 am
moving to >ithdra> itE...&hi0 a=u0e o. ?roce00 and e)tremel- du=iou0l- .iled &/3 =- !ichard :. 2ill" E0D. Cu0t ha??ened
to inter.ere >ith m- a=ilit- to collect evidence .or the >rong.ul eviction 0uit" 0o 2ill =ought him0el. an a=u0e o. ?roce00
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0uit or 0omething....it0 Cu0t =u0ine00 to me" i am not mad at him" =ut he i0 co0ting me mone- and time and energ-. 1 tried
to ?ut 0ome o=Cection0 on the record at the &/3 e)ten0ion hearing A>hich la0t % 0econd0; and !4C 4udge Schroeder"
0narled Edo -ou >ant to go to CailVE" 1 0aid Eno 0ir" -our honorE and ?ac@ed u? m- 0tu.. and le.t...
1 might get 0u0?ended .rom the ?ractice o. la> over 0ome o. thi0 or other>i0e have to re?ort
thing0 to the 0tate =ar under SC! 111 Aconviction o. E0eriou0 crime0E; incident to =eing arre0ted .or
tre0?a00 at m- .ormer la> o..icethen the !4C 0eem0 to .igure out that that0 a no'no and hurrie0 u? to
get me 0erved .or a hearing A>hether 1 li@e it or not or >hether it com?lie0 >ith nrc? * or
0erviceOnotice rule0; to get me =ac@ the G23++...0o the !4C didnBt need m- ?ermi00ion to 0et that
hearing" =ut then the- claim the couldnBt com?l- >ith the Emandator- hold hearing on <otion to
Conte0t /er0onal /ro?ert- 6ien >ithin 1+ da-0 and have notice o. it 0erved =- the Sheri.. u?on
6andlordE .ound in N!S 4+.2%3A7; and A$; =ecau0e E-ou didnBt give u0 ?ermi00ion to 0et the hearingE
Athe <otion to Conte0t /Er0onal /ro?ert- 6ien >a0 .iled 11O17O11" and the- emailed me and 2ill
called 0a-ing a hearing >a0 on .or 11 22 11...1 0ho>ed u? .or it =ut it >a0 vacated or cancelled
=ecau0e 1 EdidnBt give them ?ermi00ion to 0et it or go .or>ard >ith itE or 0omething....0o 1 didnBt get a
hearing on the 6ien undtil 12O2+O11...>hereu?on S.erraHHa e)ceeded hi0 Curi0diction under N!S
4+.2%3A7;" A$; re0erving all thi0 Cur0idiction0" ruling on thing0 he >a0nBt given authorit- to" etc."
etc...&he ca0e i0 on a??eal right no> and 1 am in need o. hel? >ith it....But there i0 0till a chance Ano
claim ?reclu0ion; to .ile a >rong.ul eviction la>0uit Ai >a0 not even ?ermitted to a00ert counterclaim0
in the 0ummar- eviction ?roce00...and =ecau0e the- onl- ?ur0ued that under a No Cau0e Eviction
Notice" =ecau0e the- @ne> alleging non ?a-ment >ould o?en ?andoraB0 =o)" the- violated N!S
4+.2%3B0 dictate that 0ummar- eviction ?roceeding0 are im?ermi00i=le again0t commercial tenant0
unle00 non ?a-ment o. rent i0 alleged. &he- can ?ro=a=l- 0ho> it >a0 m- home and la> o..ice"
=ut...1 0a- mi)ed u0ed or even incidental u0e Duali.ie0 me a0 a commercial tenant. &he 6ea0e
,greement 0a-0 1 can u0e the ?ro?ert- .or an- ?ur?o0e and it >a0 a dui coun0eling 0chool ?reviou0 to
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m- tenanc-" 0o it i0 Hone .or commercial u0e" e0?eciall- ?ro.e00ional o..ice u0e" etc....
&here i0 all 0ort0 o. claim0 again0t 2ill here" a=u0e o. ?roce00 Athe ?hon- &/3" !/D 3..icer
Carter admitting 2ill ?a-0 him mone- to arre0t ?eo?le Athe- >ill 0a- it0 >a0 a Co@e" =ut it0 not a
Co@ing 0ituation >hen -ou are arre0ting an attorne- .or tre0?a00 a.ter 2ill 0end0 a =ill .or the .ull
rental value o. the ?ro?ert- Anot Cu0t rea0ona=le 0torage moving and e)?en0e0 undre N!S 11$a.4*+;
G9++ .or Novem=er" ?lu0 21ll ha0 thi0 contractor named /hil >ho @ee?0 0u=mitting the0e Cac@ed u?
=ill0 AG1+%+ to =oard u? the ?orch a0 Erea0ona=le 0torage" moving and inventor-ingE de0?ite hi0 not
ta@ing an un0ecured >indo> unit ac out o. the >indo>...and the ?lace >a0 =urlgariHed on 12O12O11
.or a=out G$"+++ or 0o o. ?er0onal ?ro?ert-;...?lu0 >ithheld m- clientB0 .ile0 .or * >ee@0" m- driver0
licen0e .or 7 da-0...(DC/, violation0...the- 0till havenBt returned the G7++ 0ecurit- de?o0it...hi0
Declaration0 are .ull o. ?erCur-"in m- o?inion" a0 are hi0 contractor0...
CONCLUSION
Ba0ed u?on the .oregoing the under0igned re0?ect.ull- reDue0t0 that thi0 Court Set ,0ide the
Summar- Contem?t 3rder incident to the (e=ruar- 27" 2+12 &rial" return all o. the under0igned
/er0onal /ro?ert-" and Di0mi00 thi0 Criminal Com?laint" and another relie. thi0 Court deem0 Cu0t.
AFFIRMATION PURSUANT TO NRS 7'(B&)')
&he under0igned doe0 here=- a..irm that the ?receding document doe0 not contain the 0ocial
0ecurit- num=er o. an- ?er0on.
Dated: <arch *" 2+12
OSO Zach CoughlinWWWWWWWW
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PROOF OF SER:ICE
/ur0uant to N!C/ %A=;" 1 certi.- that 1 0erved a co?- o. the .oregoing document u?on the
.ollo>ing ?art- =- .a)ing" emailing" dro??ing !. at their o..ice" and ?lacing a true and correct co?-
o. the .oregoing document in the u0 mail. addre00ed t?:
,li0on <. 3rmaa0" E0D.
3ne Ea0t (ir0t Street" 3rd (loor
(a) num=er: 77%'334'422*
ormaa0a[reno.gov" @adlicC[reno.gov
4ohn Padlic" E0D.
!eno Cit- ,ttorne-B0 3..ice ' Criminal Divi0on
/.3. Bo) 19++ !eno " N# $9%+%
&el: 77%'334'2+%+ (a): 77%'334'242+
,ttorne- .or Cit- o. !eno 77% 334 3$24
!eno <unici?al Court .iled =- .a) to :
Date thi0 <arch *" 2+12
OSO Zach Coughlin
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INDE; TO E;HIBITS
1. E)hi=it 1: variou0 relevant material0" including la> revie> article0" etc. on retaliator- arre0t0"
retaliator- ?ro0ecution0" etc. 3ne hundred 0i)t-'0i) A1**; ?age0.
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EXHIBIT 1
EXHIBIT 1
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PDA
seansbabyluv
Prison Talk > U.S. REGIONAL FORUMS > COLORADO > Colorado News & Events > Owens
judge picks were many, male and often DAs
View Full Version : Owens judge picks were many, male and often
DAs
09-09-2007, 01:08 PM
Owens judge picks were many, male and often DAs
By DENNIS HUSPENI (dennis.huspeni@gazette.com)
THE GAZETTE
September 9, 2007 - 8:25AM
Former Republican Gov. Bill Owens appointed more judges in his two terms in office than
any other governor in Colorados history.
Owens 174 appointments, from County Court judge up to Supreme Court justice,
outnumbered both governors before him combined: Roy Romer appointed 114 and Dick
Lamm named 59. Each served three terms.
Owens first pick for the Colorado Supreme Court, Denver Deputy District Attorney Nathan
Ben Coats in 2000, showed early the type of judge Owens preferred.
Almost half of Owens judges were prosecutors or former prosecutors, and 70 percent were
men.
A Gazette review of Owens judicial appointments during his eight years in office shows at
least 72 had served multiple years as prosecutors. In that same period, Owens appointed
only four judges with public defender experience.
Though not even a full year into his first term, Gov. Bill Ritter has appointed more judges
five with public defender experience. One attorney, former Deputy Public Defender
Jonathan Walker, is thought to be the first active public defender named to a judgeship in
nearly a decade. Walker was appointed by Ritter as an El Paso County Court judge in May.
Of Ritters first 22 appointments, five have public defender experience, seven were former
prosecutors and 10 were from private practice or already judges. Nearly 40 percent were
women.
I absolutely think its one of the most important things a governor does, said Ritter,
former Denver District Attorney from 1993 through 2004 and a Democrat.
As of July 1, there were 285 judges in the state: county, district, court of appeals and
Supreme Court justices. That means Owens appointed more than 60 percent of the states
judges in his two terms.
While more recent appointments are bringing judges with diverse backgrounds to the
bench, most legal experts say they dont think the change will have a significant impact on
what happens in most courtrooms.
Its only in the states highest courts that judges rule as a group.
During his tenure, Owens appointed 14 of the 19 Court of Appeals judges, or 73 percent.
Among the seven Colorado Supreme Court Justices, Owens appointed two judges, both
considered conservative.
Still, most of the justices were put on the bench by Romer, a Democrat, and legal experts
say it leans left politically.
Owens declined to comment for this story.
A MATTER OF IDEOLOGY?
Owens judge picks were many, male and often DAs [Archive] - Prison Talk http://www.prisontalk.com/forums/archive/index.php/t-289418.html
1 of 4 3/7/2012 10:18 AM
00229
Political and legal experts say its natural for a governor to appoint judges who share his or
her ideology.
Owens made no secret he wanted tough judges to hand out stiff sentences.
There werent a lot of prosecutors appointed to the bench in recent years, Owens told the
House Republican Caucus shortly after taking office in 1999.
I think Ive done exactly what I said I would do: I said I would appoint a different type of
judge, Owens said in 2002. I said I would, in fact, put judges on the bench who
understand the impact of crime and understand the importance of the criminal justice
system. A major function of government is to provide for public safety. So I plead guilty to
that charge.
A judges leanings toward prosecutors or defense attorneys is important: its one of the
things the states Commissions on Judicial Performance looks at when evaluating judges for
retention recommendations.
Will those judges affect Colorados crowded prison system and county jails?
Many Colorado legal experts dont see a need for alarm.
The impact is not going to be as great as some people might fear, said David Getches,
dean of the University of Colorado at Boulders Law School.
The nominating commissions from each of Colorados 22 Judicial Districts send the
governor three candidates. The governor then has 15 days to make a choice, or it falls to
the states chief justice.
Frankly, they dont send up people who are incompetent, Getches said. Id be very
surprised to see a politicalization of the bench in either direction. ... You dont see any
swerves in the road.
Getches concurs picking judges is a key duty of Colorados governor.
It leaves a lasting legacy, Getches said. When you appoint a couple hundred judges,
theyll be around for 10, 20 or 30 years beyond that governors term. Thats a profound
kind of impact to have.
A QUESTION OF BALANCE
University of Denver law professor Robert Hardaway, an expert in politics and the law,
said Owens reliance on prosecutors for judges didnt bother him.
Many of those prosecutors have private practice experience, which would usually include
criminal defense work, he said.
I have always thought it was a terrible idea to appoint a judge who has only been on one
side of the fence, Hardaway said. If I were governor, I would never appoint someone
who was a lifetime prosecutor. By the same token, I wouldnt appoint someone who had
been a lifetime public defender, either.
Former Colorado Supreme Court Justice Rebecca Love Kourlis, who founded DUs Institute
for the Advancement of the American Legal System, said theres a difference between an
ideal group of judicial candidates, and reality.
Ideally, the judiciary should be balanced between civil attorneys, criminal attorneys, men,
women and people of all color and backgrounds, Love Kourlis said. On the other hand,
with the exception of the Court of Appeals and the Colorado Supreme Court, each judge
sits alone. So the balance of the whole system is probably less important than each
individual judges ability to set aside personal bias and be fair.
Ritter, a Democrat, said he doesnt look at a judicial candidates political leanings.
Certainly, people will have their own ideologies when coming on the bench, Ritter said. I
always strive for candidates who will check that advocacy role, that part of their political
2 of 4 3/7/2012 10:18 AM
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scaredinlove
irshnrse
Vigilant
seansbabyluv
Vigilant
ideology, and do the work of administering the law.
Ritter said hes worked in front of great judges who were former public defenders, so he
is trying to strike a balance with his appointments. He also spoke highly of former
prosecutors whove become judges, many from his office when he was district attorney.
Each judge brings a different experience to the bench, Ritter said. If someone has
expertise in defending insurance claims, other judges can ask about that when they have
those cases. Thats part of the reason you want a balance.
Getches said its obvious most people are satisfied with Colorados judges, as evidenced by
voters rejecting term limits for Colorado judges last year.
If we had a judicial system given to political mood swings, or prosectorial or defense
swings, someone in the Bar would have been speaking for term limits, Getches said. I
dont know of any lawyers who were for that.
WHERE THE INFORMATION CAME FROM
The Gazette obtained the list of 174 judges appointed by former Gov. Bill Owens, and the
22 appointed by current Gov. Bill Ritter, from the Office of the State Court Administrator.
The judges biographies were checked using information from the states Commissions on
Judicial Performance, which recommends whether or not judges should be retained when
standing for retention election. Information also was obtained from the individual judicial
districts Web sites and in some cases by calling the judges clerks. Biographical
information was unavailable for 10 judges appointed by Owens.
09-09-2007, 05:26 PM
Thanks for posting.
09-09-2007, 10:14 PM
Thanks Cindy.
09-10-2007, 03:41 AM
Cindy. This is exceptionally informative! Thank you for providing some, shall we say,
ammunition! Information like this is most valuable, especially if we choose to go to those
meetings. The statistics don't lie.
I'm s-o glad I found PTO. I have become a bit apathetic and definitely exhausted doing my
own research. PTO is not only informative, it creates a bond. The support is excellent!
Blessings to you!
:bow:
09-10-2007, 03:47 AM
You're very welcome. I only wish the public would pay more attention to what our
lawmakers are up to...then maybe we wouldn't be in this fiscal money crisis with the
prisons...we'd be putting our money into rehabilitation instead. But like Owens said, he
was all about punishment. Ironically that didn't apply to his son who along with other
friends a few years ago, vandalized the school buses belonging to Cherry Creek while he
was attending high school there. He was only required to pay restitution...and he was a
juvenile at the time, so with his records sealed, we'll never know if he actually paid it all or
not. :cool:
09-10-2007, 10:27 AM
Hi Cindy...
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Owens - son - did - WHAT?????? If THAT doesn't prove the existence of blatant elitism in
governor Owens office, what does???
My bet is on a cover-up. No restitution, no charges, no nothing!
Aah. What a way to wake up.
Right you are. People need to pay attention to the so-called leaders. I'm just lately
W-I-D-E awake concerning the deceptions of politicians and how they are constantly
targeting the average Joe/Jane. This bit of history requires more research on my part to
add to my growing list of grievances.
Thank you once again! I, for one, am SO glad Owens is gone. I despised his laughing-
at-you grin --- which was noted by many news anchors all over the nation as being
inappropriate during the Columbine incident.
Major sigh.......
:banghead: COFFEE!!!
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Home
Are We Becoming a Police State?
Traffic enforcement has become a major industry in the United States. This essay
presents a look at some of the social, psychological, and economic trends behind the
emergence of this big business.
Are we becoming a police state? That is a difficult question, but it can certainly be
argued that in some places in the United States, yes, we definitely are. Let's take a look
at some trends that have emerged since the late 1970's.
But first, let's go back in history. Public police forces did not exist in the United States
until the middle of nineteenth century, when their introduction met with significant
resistance from the populace.
1
By the 1950's, excluding the largest cities (many of which
have had problems with corrupt law enforcement officers dating well back into the 19th
century), citizens generally had a highly favorable opinion of law enforcement
officers. Good people had little to fear from the police, and the moral person's
encounters with police were generally favorable. The sheriff was a "good guy," the
"white hat" celebrated in so many of the Old West movies and television programs of that
era. Children at play fought over who got to be the sheriff, and this esteem for law
enforcement could be seen in many other places in our culture.
Contrast this with the present. Good people now become uneasy when a police car pulls
out behind them. The average encounter with police is often stressful and ends with the
citizen having to divert a bunch of his income to the local powers-that-be (perhaps more
like the bands of outlaws, or "black-hats" of those same Old West movies).
What happened? There are a several different phenomena that I believe explain this
cultural shift.
"Us vs. Them" Mentality
Let's go back 40 years. Most places had "beat cops," patrolmen who would travel
around their jurisdiction on foot. These patrolmen would regularly encounter the
merchants and residents in their jurisiction, greet them, exchange some pleasantries or
family news, and maybe even be treated to a free cup of coffee at the corner
store. These cops knew the people they were protecting, and they were reminded several
times a day of the community values they were protecting, and of the people they were
protecting. I attribute much of this to the unofficial face-to-face encounters that were
Are We Becoming a Police State? http://www.freeexistence.org/police_state.html
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inherent to the job.
Fast forward to the present. John Q. Suburbia no longer has a single, friendly officer
patrolling his neighborhood on foot. In the interest of police efficiency, a much more
anonymous team of people in cruisers takes turns driving through that same
neighborhood. The community interactions of the average patrolman are now only a
narrow subset of what they once were. Now, for many patrolmen, these on-duty
encounters are typically limited to: 1. getting out of their car to respond to a call (often
because someone is acting irrationally or violently), and 2. pulling people over for traffic
infractions, said people thus being inherently disagreeable. Many of the favorable
interactions are now gone. Good people now see less of the police except in unfavorable
circumstances. And conversely, the police now see less of the citizenry except in
unfavorable circumstances. It's only natural that, in this situation, police officers will
begin to perceive their community as little more than a giant playground of dysfunctional
children who really need to be kept in line. Perhaps I am overstating things with this
metaphor, but the stated situation will, at a minimum, greatly increase the cynicism of our
patrolman.
Now, add to this mix officers who spend the majority of their time enforcing traffic
laws. These patrolmen make their living hunting for speeders, or waiting for drivers to
slip up and make some kind of fine-worthy mistake. The citizens these patrolmen
encounter are quite reasonably regarded by them as prey; the typical citizen who is pulled
over is going to react to the officer with some combination of fear and anger. Obviously,
the bond between the citizen and the patrolman is not exactly strengthened (in either
direction) by this state of affairs. This trend has been exacerbated by the growing power
and budget of state patrols, law enforcement organizations chartered exclusively for
traffic enforcement (and thus, revenue generation; see "Critical Mass," below). State
Troopers are often little more than roving "meter maids" looking to issue tickets for the
most trivial of infractions. Further, they generally lack many of the powers granted to
police officers. As a result of these factors, they are held in much the same public
contempt as meter maids.
This "Us vs. Them" attitude can emerge anywhere, even in the smallest of towns, given
the growing influence of state patrols whose troopers have jurisdiction on any public road
in your state. State patrols typically have very little citizen oversight. Unlike a sheriff's
office where the sheriff must periodically be re-elected (albeit by a populous often
apathetic to such less prominent offices), state troopers have no such motivation to keep
from angering or frustrating the commuting public.
Decreasing Public Confidence
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The 1982 Figgie Report on Fear of Crime revealed a growing belief that police are not
effective in controlling crime. This sentiment has been echoed in the free market: by
1990, there were over twice as many private police (watchmen, guards, security experts)
as public police in the United States. Between 1964 and 1981, employment at firms
providing these private police services increased over 400 percent as more individuals
and companies sought a more effective solution in the private sector.
1
Police Patrol Resource Critical Mass
This is a simple issue of economics. Note that this example does not rely on any
assumption of community growth. Now, let's assume you live in a a rural county or
small town with few police officers. The duties of the patrolman are going to be
primarily responding to calls, and generally trying to keep their community safe. Now,
add some more officers into our mix. At some point, you'll hit critical mass, that is, you'll
reach a point where, on the average day, you've got more police officers on the clock
than you have work for them to do. What do you do with these extra patrolmen? You
inevitably send some of them out to do traffic patrols (ticketing the out-of-staters and
whatnot). These tickets then bring in additional revenue to our town or county that
would not have existed without the additional traffic patrols. A couple of years pass, and
the local government takes notice of the revenue brought in by our police department or
sheriff's office, and starts directing some of that money back into the police
department. After upgrading some equipment and possibly their facility, they begin
hiring additional police. After all, the sheriff figures, if their current staffing lets them do
a good job at minimizing crime and bringing in revenue, then adding patrolmen will let
them do a great job at those things. What do these additional patrolmen do? In terms of
protecting and serving you, the police department is now even more overstaffed than
before. As such, a significant percentage of the new patrolmen are sent out to do
additional traffic enforcement. This cycle continues, and with each new iteration, the
community ends up with even more officers on the streets. Maybe the crime rate drops
by a couple of percent, and few complain about the cost of all the officers since the
police department is now a significant source of revenue. It is now standard practice for
many police agencies to staff additional officers exclusively for traffic enforcement
duties, under the assumption that these officers will pay their own salaries with income
from traffic citations. Law enforcement agencies refer to such officers as "self-paid".
Also exacerbating things is the way public budgeting works, wherein the failure of an
agency to spend all its annual budget may result in a reduction of budget allocation next
year. This parallels public road construction, wherein construction crews are assigned to
resurface a perfectly good road just to consume and conceal a budgetary
surplus. Likewise, once the agency and local government become dependent on traffic
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enforcement revenue, this reliance will prevent any reduction in traffic enforcement later
on.
This phenomenon is probably most likely in growing communities, since it's easier to
justify more patrolmen when you're regularly adding to your staff to compensate for
growth. It is not hard to imagine officers in these communities being rewarded (the old
notion of "quotas" for a period of time, or less officially in some law enforcement
organizations, with an award at the end of the period for most citations issued). Such a
reward is just the institutionalization of the organization's desire for more traffic
enforcement revenue.
Big Profits from Enforcement
One particularly alarming trend relating to traffic ticket revenue is the increasing
percentage that police agencies get to keep. Traditionally, only a small amount of the
revenue collected from a given traffic ticket actually went to the police agency issuing the
citation; the rest went into a general fund for the state, county, or municipality in which
the cited offense occurred. This has changed dramatically; some police agencies (such as
the Larimer County Sheriff's Department in Colorado) actually keep 75 percent of
collected revenue from traffic tickets! It doesn't take much imagination (unless you're a
Colorado legislator, evidently) to realize that exploitive levels of enforcement of minor
traffic laws will result, which is exactly what has happened in Larimer County. Such
police agencies are happy to share the wealth with their enforcers: one half of the highest
paid Larimer County officials are officers in the Larimer County Sheriff's
Department! It's hard to imagine a police agency that perpetually complains about having
too low a budget to function paying someone over $100,000 to drive around a rural area
and issue speeding citations to motorists -- a job any high school graduate is qualified to
perform.
Conclusion
It's not hard to see that if either of the above phenomena happen in the community, the
most fundamental values of your local law enforcement organizations have changed
significantly. Overshadowing all of this is the growing profit motive of law enforcement
agencies (mirrored in the "War on Drugs," wherein law enforcement agencies and local
municipalities regularly make a great deal of money through the confiscation of property
loosely attached to a drug transaction). This business model is parasitical by nature, and
this cannot help but color the activities of the law enforcement agency. The motto on the
police cruiser remains "To Protect and Serve," but in many jurisdictions it would more
accurately read "To Raise Revenue off the Backs of the Citizens."
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Without a doubt, there are still a lot of good people in the field of law
enforcement. Unfortunately, these people are outnumbered at least 2-1 (according to
one law enforcement officer I spoke with) by the glorified hall monitor type figure we
have all come to fear. And perhaps that is the most important difference between the
America of now versus the America of 40 years past.
Recent Updates
April 2011: Corrupt local governments have begun balancing their budgets on the backs
of drivers as states across the US triple speeding fines and add ridiculous surcharges to
moving violations. The City of Los Angeles now makes $1.5 million a year from
cameras at a single intersection in the San Fernando Valley.
November 2010: Many states have a disproportionately large number of judges who
were former prosecutors, but almost no judges who were former public defenders. See,
e.g., this article regarding trends in recent judicial appointments in Colorado.
January 2007: Check out Overkill: The Rise of Paramilitary Police Raids in America on
the CATO Institute website. This article also has an interactive US map showing recent
botches paramilitary police raids.
December 2006: Do police departments turn away applicants for being too
intelligent? Click here to find out.
Bibliography
1 Benson, Bruce. The Enterprise of Law. San Francisco, CA: Pacific Research Institute
for Public Policy, 1990.
Reminder: All content on this site is automatically copyrighted by virtue of the Berne
Convention for the Protection of Literary and Artistic Works.
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Columbia Law Review
May, 2009
Note
*755 BETWEEN HEALTHY AND HARTMAN: PROBABLE CAUSE IN RETALIATORY
ARREST CASES
John Koerner
Copyright (c) 2009 Directors of The Columbia Law Review Association, Inc.; John Koerner
This Note addresses a circuit split concerning retaliatory arrest claims. In most cir-
cuits, a defendant police officer cannot be held liable for retaliatory arrest if the arrest
was made with probable cause. This is inconsistent with the Supreme Court's decision in
Mt. Healthy City School District Board of Education v. Doyle, which requires defend-
ants in retaliation claims to show that they would have taken the same action in the ab-
sence of a retaliatory motive. But there are a number of exceptions to the Mt. Healthy
rule, including the Supreme Court's recent decision in Hartman v. Moore. In Hartman,
the Supreme Court ruled that a plaintiff in a retaliatory prosecution claim must prove
that the prosecutor brought charges without probable cause. This Note argues that courts
should follow Hartman and require a plaintiff to prove the absence of probable cause
only in a subset of retaliatory arrest cases: cases involving complex causation and cases
where the officer had probable cause to believe that the plaintiff had committed a felony
offense. In all other retaliatory arrest cases, courts should follow Mt. Healthy and permit
plaintiffs to bring suit even if the officer had probable cause. This nuanced approach
strikes the appropriate balance between free speech rights and the needs of law enforce-
ment.
Introduction
On March 12, 1997, Anthony Greene walked into the Grand Rapids police department to
retrieve his car, which had been towed from a no parking zone. [FN1] When he was told that
he would have to pay a storage fee for the car, Mr. Greene started arguing loudly with Lieu-
tenant Jack Barber and cursing at him. [FN2] The argument was loud enough that interns an-
swering telephones nearby had to put their callers on hold. [FN3] Lieutenant Barber told Mr.
Greene, You can't talk to me like that in my building. [FN4] Greene responded that he was
simply exercising his freedom of speech. [FN5] Barber replied, Well, not in my building.
[FN6] Greene said, Well, if that's how you feel, you're really stupid. [FN7] At that point,
Barber told Greene that he was under arrest. [FN8] Greene protested that the arrest *756 was
illegal; as the officers struggled to subdue him, he was pepper sprayed. [FN9] Greene was
charged with creating a disturbance and with hindering and opposing a police officer, but was
acquitted of both charges. [FN10] He sued for retaliatory arrest. [FN11]
109 CLMLR 755 Page 1
109 Colum. L. Rev. 755
2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
00238
In the typical retaliation case, a plaintiff must show that the defendant took a significant
adverse action against the plaintiff, [FN12] and that the action was substantially motivated
against the plaintiffs' exercise of constitutionally protected conduct. [FN13] The defendant
can escape liability by showing that she would have reached the same decision . . . even in
the absence of the protected conduct. [FN14] The burden then shifts to the plaintiff to rebut
the defendant's showing. This burden-shifting framework was established by the Supreme
Court's decision in Mt. Healthy City School District Board of Education v. Doyle. [FN15] For
Greene, meeting the standard would require convincing a jury that Lieutenant Barber would
not have made the arrest if he had not felt personally insulted.
Notwithstanding the general applicability of Mt. Healthy to retaliation cases, [FN16]
courts have carved out a number of exceptions to its pleading standards, based on various
policy or evidentiary concerns. In retaliation cases brought by prisoners, for example, some
courts leave the burden with the plaintiff prisoner to show that the defendant's actions would
not have occurred in the absence of a retaliatory motive. [FN17] In the recent decision of
Hartman v. Moore, the Supreme Court upheld another such exception to Mt. Healthy, ruling
that a plaintiff must plead and prove the absence of probable cause to state a claim for retaliat-
ory prosecution. [FN18] Some courts have extended this retaliatory prosecution exception into
retaliatory arrest cases, requiring plaintiffs to prove that the defendant officer did not have
arguable probable cause to make the arrest. [FN19] If Mr. Greene found himself in one of
these circuits, he would be required *757 to show that Lieutenant Barber did not have argu-
able probable cause to make the arrest--a requirement that could easily have proved fatal to
his claim. [FN20]
Given that a rule like Hartman's, which allows defendants to defeat a retaliation claim
based on probable cause, diverges from the Supreme Court's general burden-shifting frame-
work in Mt. Healthy, [FN21] what approach should courts adopt when faced with a retaliatory
arrest case? There are compelling arguments to support positions both for and against requir-
ing plaintiffs to establish the absence of probable cause. On the one hand, the facts of Greene
v. Barber strongly suggest retaliatory motive on Lieutenant Barber's part--the officer claimed
to be immune from the First Amendment, made the arrest after Greene challenged his author-
ity and called him stupid, and arrested Greene on a minor violation without first trying to
find another solution to the problem. It seems unjust to apply a pleading standard which would
exclude Greene's claim based on the rather technical detail that Lieutenant Barber had prob-
able cause to make the arrest. On the other hand, many cases will not involve such clear evid-
ence of retaliatory motive. A bright-line rule that would dismiss claims on the basis of prob-
able cause would be less burdensome both for police officers and for judges. Some cases in-
volve complex chains of causation, where the plaintiff faces the difficult burden of proving
that one official induced another official to make the arrest. [FN22] Other cases involve
plaintiffs who have committed more serious offenses, where the arresting officer's retaliatory
motive is less likely to have played an important role in the arrest decision. [FN23]
Currently, courts resolve this dilemma in retaliatory arrest cases by siding either with the
Mt. Healthy rule, which never requires a specific showing of no probable cause, or the Hart-
man rule, which always requires such a showing. [FN24] This Note argues that an all-
or-nothing rule that sides with one approach and rejects the other wholesale is misguided and
00239
will lead to an incoherent doctrine, as such a rule makes no attempt to properly fit the facts of
individual cases. While many questionable retaliatory arrest cases warrant a departure from
Mt. Healthy and a dismissal on a showing of probable cause, there are also many cases where
such a departure will deny redress for a clear injury and allow a wrongdoer to escape *758
punishment. This Note argues that a more nuanced approach is necessary, one that requires a
showing of no probable cause only in certain retaliatory arrest cases.
This discussion has important implications that go well beyond the retaliatory arrest con-
text. First Amendment retaliation doctrine has sparked numerous circuit splits, [FN25] creat-
ing incentives for forum shopping and undermining consistency and fairness in the application
of the law. [FN26] Some of this inconsistency may arise from the courts' insistence on carving
out categorical exceptions to Mt. Healthy, without analyzing the policy concerns that justify
their divergence. [FN27] By crafting more narrowly honed exceptions that closely mirror un-
derlying policy concerns, courts of appeals may be able to resolve some of the chaos that has
characterized this area of law.
Part I discusses First Amendment retaliation doctrine and outlines the elements of a retali-
atory arrest claim, with a special focus on the standard of causation set forth in Mt.
Healthy. It systematically analyzes First Amendment retaliation law and examines several
areas where courts have departed from Mt. Healthy. Part II focuses on the Supreme Court's
recent departure in Hartman and concludes with an explanation of the circuit split with respect
to retaliatory arrest cases in the wake of Hartman. Part III reviews the evidentiary and policy
concerns that motivated the Supreme Court's departure from Mt. Healthy in Hartman-
-complex causation, presumption of regularity, and the evidentiary value of probable cause. It
aligns these concerns with certain retaliatory arrest cases: cases involving complex causation
and cases involving felony arrests. In these cases, and only in these cases, courts should de-
part from Mt. Healthy and require a plaintiff to plead and prove the absence of probable cause.
I. First Amendment Retaliation in Theory and Practice
The First Amendment prohibits government officials from retaliating against individuals
on the basis of their protected speech. [FN28] This principle is founded on the notion that re-
taliation against protected speech threatens to discourage the exercise of First Amendment
rights. [FN29] *759 While cases about prior restraints on the freedom of speech tend to dom-
inate First Amendment jurisprudence, [FN30] courts will not permit the government to use a
regime of subsequent punishments to suppress protected speech that it could not otherwise
reach through a prior restraint. [FN31] The Supreme Court has expressly recognized that the
right to be free from retaliation is a long-established right. [FN32]
Retaliation can be difficult to identify, [FN33] and the courts have endeavored to structure
a cause of action that strikes an appropriate balance between protecting First Amendment
freedoms and shielding public officials from meritless or vindictive lawsuits. Part I.A de-
scribes the elements of a retaliatory claim. Part I.B provides a more detailed analysis of the
causation element, and examines the Supreme Court's decision in Mt. Healthy, [FN34] which
sets forth the predominant causation standard for retaliation cases. Part I.C catalogs and dis-
00240
cusses departures from Mt. Healthy's causation standard.
A. The Elements of a Retaliation Claim
To establish a prima facie claim of First Amendment retaliation, the plaintiff must prove
three elements: (1) protected speech (they were engaged in constitutionally protected activ-
ity); (2) injury (the defendants'*760 actions caused them to suffer an injury that would chill
a person of ordinary firmness from continuing to engage in that activity); and (3) causation
(the defendants' adverse actions were substantially motivated against the plaintiffs' exercise
of constitutionally protected conduct). [FN35] The defendant may rebut this prima facie case
by proving by a preponderance of the evidence that it would have reached the same decision .
. . even in the absence of the protected conduct. [FN36]
1. The First Element: Protected Speech.--In the context of retaliatory arrest claims, the
first prong is usually met. In a number of cases, the plaintiff's speech is nothing more than
verbal abuse directed at the police officers, [FN37] and defendants frequently argue that the
plaintiff's speech falls into the unprotected category of fighting words. [FN38] Fighting
words is a narrow exception, [FN39] however, and the Supreme Court has held that the First
Amendment protects a significant amount of verbal criticism and challenge towards police of-
ficers, who are expected to exercise greater restraint in their response than the average citizen.
[FN40] Accordingly, while the fighting words defense does occasionally succeed, [FN41] in
most cases *761 the plaintiff will have little difficulty convincing a federal court that the
speech in question was protected. [FN42]
2. The Second Element: Injury.--Just as the first factor rarely decides a retaliatory arrest
case, the second factor is rarely debated at all. [FN43] An arrest is certainly an injury that
would chill a person of ordinary firmness from continuing to engage in protected speech.
[FN44] Most of the cases contesting the injury requirement arise out of the Second Circuit,
which has occasionally required the plaintiff to prove that the defendants' actions effectively
chilled the exercise of his First Amendment right. [FN45] This is a minority view, [FN46]
and the Second Circuit itself has not always adhered to this subjective standard, recognizing
that the fact that a plaintiff continued to engage in protected speech should not constitute a
free pass for alleged police conduct that was constitutionally odious. [FN47]
For the great majority of retaliatory arrest cases, therefore, liability will turn on whether
the plaintiff can satisfy the third prong and, if so, whether the defendant officer can rebut the
prima facie case by showing that she would have reached the same decision in the absence of
the *762 protected conduct. These two questions turn on a single issue: causation. Fortu-
nately, this crucial element has been squarely addressed by the Supreme Court in Mt. Healthy.
[FN48]
B. Causation: The Mt. Healthy Decision
Mt. Healthy involved an untenured teacher who was fired by his school board after he
conveyed the contents of an internal school memorandum to a radio station. [FN49] The
00241
Board had listed the radio station broadcast as one of the two reasons for firing the teacher.
[FN50] The teacher sued, claiming, inter alia, that the school board's decision to fire him viol-
ated his rights under the First and Fourteenth Amendments. [FN51] The Supreme Court ruled
that a plaintiff can establish a prima facie case of First Amendment retaliation by showing that
her conduct was constitutionally protected, and that her conduct was a substantial factor or,
in other words, a motivating factor in the decision to take adverse action. [FN52] But after a
plaintiff established this prima facie case, the trial court must allow the defendant to prove by
a preponderance of the evidence that it would have reached the same decision . . . even in the
absence of the protected conduct. [FN53] The Court noted that without this rebuttal, a retali-
ation claim could place an employee in a better position as a result of *763 the exercise of
constitutionally protected conduct than he would have occupied had he done nothing. [FN54]
1. The Prima Facie Case.--While the precise quanta of proof required to state a prima facie
case is somewhat unclear, [FN55] the Mt. Healthy opinion establishes several clear principles.
First, a plaintiff is not required to show that the retaliatory motive dwarfed all other factors.
[FN56] The phrase a substantial factor, as distinguished from the substantial factor,
clearly contemplates that a decision may be the product of more than one substantial factor.
[FN57] Second, a plaintiff is not required to prove but-for causation to state a prima facie
claim. [FN58] Imposing such a requirement would essentially merge the plaintiff's prima facie
case and the defendant's rebuttal. [FN59] Finally, the opinion suggests that a plaintiff can es-
tablish a prima facie case through either direct or circumstantial evidence. [FN60] The Mt.
Healthy decision does not draw a distinction between *764 the two forms of evidence, and it
would be unreasonable to restrict a plaintiff to direct evidence, which is likely to be rare.
[FN61]
2. Defendant's Rebuttal.--Once a plaintiff establishes a prima facie case, the burden shifts
to the defendant to prove by a preponderance of the evidence that it would have reached the
same decision . . . even in the absence of the protected conduct. [FN62] Mt. Healthy is clear
that the defendant must prove that she would have reached the same decision in the absence of
the plaintiff's conduct, not that she could have reached this decision--indeed, the plaintiff in
Mt. Healthy was an untenured teacher, and the defendant could have fired him for no reason
whatsoever. [FN63] Thus, Mt. Healthy requires proof that the defendant actually would have
taken the challenged action, rather than mere proof that the action was justified. [FN64]
In practice, the defendant will attempt to prove this counterfactual with evidence showing
that the decision was justifiable on independent grounds. [FN65] But the distinction remains-
-showing that the same decision would have been justified . . . is not the same as proving
that the same decision would have been made. [FN66]
C. Exceptions to Mt. Healthy
The burden-shifting standard that the Court established in Mt. Healthy has become the
standard method of ascertaining retaliatory purpose in constitutional contexts. [FN67] As
courts have adapted the Mt. *765 Healthy rule to a number of different settings, they have oc-
casionally applied modified versions of the causation standard set forth in that case. The Su-
00242
preme Court has rejected some of these changes, [FN68] but it has endorsed others as well.
[FN69]
1. Prisoner Cases.--As in other areas of constitutional law, [FN70] some courts have been
hesitant to apply the full protections of First Amendment retaliation doctrine to prisoners.
There is currently a circuit split regarding the appropriate pleading standard for a retaliation
case brought by a prisoner. In some circuits, the usual Mt. Healthy burden-shifting framework
applies. [FN71] But in other circuits, the burden never shifts from the plaintiff prisoner to
show that the defendant's retaliatory motive was a but-for cause for the adverse action. [FN72]
These courts depart from the burden-shifting framework in Mt. Healthy and leave the burden
with the plaintiff to show that the defendant's actions would not have occurred absent the re-
taliatory motive. [FN73] The Eighth and Ninth Circuits are particularly strict in their pleading
standards, dismissing cases automatically if the allegedly retaliatory action arose from a dis-
ciplinary violation. [FN74]
*766 The courts that depart from Mt. Healthy justify their heightened pleading standards
by referring to the deference accorded to prison officials [FN75] and the need to ensure that
prisoners do not inappropriately insulate themselves from disciplinary actions by drawing the
shield of retaliation around them. [FN76] Some of these courts also rely on the Supreme
Court's decision in Sandin v. Conner, [FN77] which arguably established separate due process
standards for claims filed by prisoners. [FN78]
2. Retaliatory Counterclaims.--Individuals have a First Amendment right of access to the
judicial system, [FN79] and it is unlawful for a government official to retaliate against a
plaintiff for exercising this right. [FN80] Difficult issues arise, however, when the government
official's allegedly retaliatory action is the filing of a counterclaim against the plaintiff. Be-
cause filing a lawsuit in retaliation for protected activity is unlawful, [FN81] it stands to reas-
on that filing a counterclaim should likewise be unlawful. But it is not clear how the govern-
ment can meet its Mt. Healthy burden to show that it would have filed the counterclaim in the
absence of the plaintiff's protected conduct, since a counterclaim is, by definition, a response
to the plaintiff's filing a lawsuit. [FN82] Moreover, government officials also enjoy a constitu-
tional right of access to the courts, and arguably cannot be prevented from bringing even a re-
taliatory counterclaim unless the counterclaim is baseless. [FN83]
*767 Once again, courts have split over the proper handling of this issue. The Second and
Fourth Circuits add an intent element to the Mt. Healthy standard in these cases, requiring a
plaintiff to show that the government acted with retaliatory intent. [FN84] The Fifth Circuit
denies such claims outright. [FN85] Other courts require proof that the counterclaim was
without a reasonable basis. [FN86] No court applies an unmodified version of the Mt. Healthy
standard. [FN87]
3. Employment Cases Involving After-Acquired Evidence.--Several forms of employment
discrimination and retaliation are evaluated under the Mt. Healthy framework. [FN88] Under
Mt. Healthy, an employer may not rebut the plaintiff's prima facie case with evidence that it
has discovered only as a result of its decision to terminate the employee. Because the employ-
er would never have discovered this evidence absent its unlawful motive, the employer can
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hardly argue that it would have fired the employee if it had acted in a lawful manner.
[FN89] Nevertheless, some courts granted judgment for the employer in cases involving after-
acquired evidence of rsum fraud, [FN90] embezzle-*768 ment, [FN91] or other serious
forms of misconduct. [FN92] These courts reasoned that it would hardly make sense to or-
der [the employee] reinstated to a job which he lied to get and from which he properly could
be discharged for that lie. [FN93]
The Supreme Court overruled these cases in McKennon v. Nashville Banner Publishing
Co., holding that plaintiff employees in after-acquired evidence cases should be permitted to
bring claims for back pay. [FN94] The Supreme Court recognized that it could not require
the employer to ignore the information, but suggested that courts should address this problem
by limiting remedies to backpay from the date of the unlawful discharge to the date the new
information was discovered. [FN95] Although McKennon brings employment cases more
closely in line with Mt. Healthy, the Court did not seem particularly concerned with the fact
that the court below had strayed from the standard. Indeed, the Court held that Mt. Healthy
did not apply at all in its ruling because there was no question that the employer's retaliatory
motive was the only justification for the termination. [FN96]
II. Exceptions to Mt. Healthy
In principle, the application of Mt. Healthy to a retaliatory arrest case should be straight-
forward. After the plaintiff establishes a prima facie case, the defendant must show that they
would have arrested the plaintiff even in the absence of the plaintiff's protected speech.
[FN97] Because police officers do not invariably arrest suspects whenever they have probable
cause, [FN98] evidence of probable cause is insufficient to meet this burden. *769 Under Mt.
Healthy, [t]he presence of probable cause does not determine the action for retaliatory arrest
because it simply provides one possible justification for the challenged arrest, and . . . the
presence of an alternate, non-retaliatory justification for the challenged action does not, as a
matter of law, defeat a retaliation claim. [FN99] There would seem to be no justification for
requiring a plaintiff to prove that the arresting officer lacked arguable probable cause, a re-
quirement the Second, Fifth, Eighth, and Eleventh Circuits currently impose. [FN100]
As the foregoing discussion has demonstrated, however, courts have carved out exceptions
to Mt. Healthy in a variety of contexts, based on a number of evidentiary and policy con-
cerns. In the recent case of Hartman v. Moore, the Supreme Court endorsed a similar excep-
tion to Mt. Healthy in retaliatory prosecution cases. [FN101] Hartman's reasoning may justify
such an exception for certain retaliatory arrest claims.
Part II.A analyzes the important Supreme Court case of Hartman v. Moore, which estab-
lished an exception to Mt. Healthy in retaliatory prosecution cases. Because retaliatory pro-
secution cases are closely analogous to retaliatory arrest cases, Hartman is a useful starting
point for a discussion of the proper pleading standard in retaliatory arrest cases. Part II.B ex-
amines the current circuit split surrounding retaliatory arrest cases in more detail. Part II.C
identifies some problems with this circuit split.
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A. Hartman v. Moore
Until 2006, courts were split over the proper application of Mt. Healthy to retaliatory pro-
secution cases. Some circuits required plaintiffs to prove that the prosecution was brought
without probable cause; [FN102] others imposed no such requirement. [FN103] The Supreme
Court resolved the split in Hartman v. Moore, siding with the courts that required plaintiffs to
prove the absence of probable cause. [FN104]
*770 1. Background.--Hartman involved a long-running dispute between a private com-
pany and the U.S. Postal Service. In 1983, the Postal Service announced that it would use
single-line optical scanners to sort its mail. [FN105] The plaintiff, the CEO of a company that
manufactured multiline optical scanners, successfully lobbied Congress and the public to pres-
sure the Postal Service to switch to multiline scanners. [FN106] Shortly thereafter, the Postal
Service investigated the plaintiff and his company, expressing concern that they may have
been linked to an illegal kickback scheme. [FN107] Despite very limited evidence linking
the plaintiff CEO to any wrongdoing, an Assistant U.S. Attorney filed charges. [FN108] The
plaintiff CEO was indicted, but ultimately acquitted when the district court found that there
was a complete lack of direct evidence to link the plaintiff to any wrongdoing. [FN109]
The CEO then filed suit. Since the prosecutor was absolutely immune from liability for
his decision to file charges, [FN110] the plaintiff sued the Postal Service, arguing that high-
ranking Postal Service officials had arranged the prosecution in retaliation for his lobbying
activities. [FN111] The defendants motioned for summary judgment, arguing that the prosecu-
tion was supported by probable cause. [FN112]
2. The Hartman Decision and Its Rationale.--In an opinion by Justice Souter, [FN113] the
Supreme Court held that pleading no probable cause should be a requirement for a retaliatory
prosecution claim. [FN114] Although *771 the ruling was a shift away from Mt. Healthy,
[FN115] the Court did not signal that it was rejecting that standard in general. [FN116] In-
stead, the Court stressed three factors that supported a heightened pleading standard in retali-
atory prosecution cases: complex causation, evidentiary concerns, and the presumption of pro-
secutorial regularity.
The Court first discussed the need to prove a chain of causation from animus to injury in
a case of retaliatory prosecution. [FN117] Retaliatory prosecution differs from the typical re-
taliation case, where the government agent allegedly harboring the animus is also the indi-
vidual allegedly taking the adverse action. [FN118] Because prosecutors are immune from
suit for filing charges, [FN119] plaintiffs must sue other retaliating officials for inducing the
prosecutor to bring suit. [FN120] The need to prove this complex causation supported a re-
quirement that the absence of probable cause be proved and alleged. [FN121]
The Court next noted that evidence about probable cause (or its absence) is likely to serve
as highly probative evidence of retaliatory motive. [FN122] Since evidence of probable cause
will likely emerge in most cases anyway, requiring that it be pled by the plaintiff will impose
little added cost. [FN123] Conversely, evidence of retaliatory motive other than the lack of
probable cause is likely to be rare and consequently [a] poor guide[ ] in structuring a cause of
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action. [FN124] Eliminating the no-probable-cause requirement would be a little like pro-
posing that retirement plans include the possibility of winning the lottery. [FN125]
Finally, the Court stated that prosecutors enjoy a longstanding presumption of regularity
in their decisionmaking. [FN126] Though plaintiffs would not be suing prosecutors directly,
[FN127] they would still have to prove *772 that the prosecutor would not have brought the
case in the absence of the retaliating official's influence. [FN128] This would require some
showing to overcome the presumption of regularity.
Taking these three hurdles together, the Court ruled that it makes sense to require a
plaintiff to plead absence of probable cause as part of the prima facie case. [FN129] This blunt
statement leaves little guidance for the lower courts, which have struggled to determine how
broadly Hartman should sweep. [FN130] As a general rule, the Supreme Court tries to resolve
only those constitutional questions that are necessary to the case at hand. [FN131] And the
Hartman Court was very careful to focus on the specific features of retaliatory prosecution
claims. [FN132] Noting this, several lower courts have declined to extend Hartman beyond re-
taliatory prosecution. [FN133]
However, the basic concern that the Court was enunciating--that proving causation in a re-
taliation case is difficult when the defendant can point to a possible legitimate reason for the
decision--is not unique to retaliatory prosecution cases. [FN134] Moreover, the Court did not
clearly indicate*773 that its opinion was to be confined to the prosecution context. [FN135]
Some courts have accepted the invitation to extend Hartman's holding to cases that do not in-
volve retaliatory prosecution. [FN136] This conflict about the scope of Hartman has extended
to the retaliatory arrest context, where courts are still split over the proper role of probable
cause.
B. Hartman's Impact on the Circuit Split Concerning Retaliatory Arrest
Before the Court's ruling in Hartman, the circuits were split about the role that probable
cause should play in a retaliatory arrest claim. Though Hartman has not resolved this split,
and courts continue to disagree over the significance of probable cause in retaliatory arrest
claims, Hartman offers courts additional grounds and guidance for abandoning the burden-
shifting framework articulated in Mt. Healthy. First, it provides another illustration of the
ways in which courts deviate from Mt. Healthy. Second, because the Supreme Court ruled
against the circuits that applied a traditional version of the Mt. Healthy causation standard,
Hartman shows that the Supreme Court is not necessarily opposed to movement away from
that standard. Finally, the Court's ruling in Hartman was based on concerns that are also
present in many retaliatory arrest cases. [FN137]
The question remains, however, under what circumstances this departure is justi-
fied. Should courts adopt an all-or-nothing rule that either accepts or rejects Mt. Healthy
across the board for all retaliatory arrest cases? And if not, when are divergences from Mt.
Healthy appropriate?
1. The Pre-Hartman Split.--Even prior to Hartman, most courts departed from Mt. Healthy
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and allowed retaliatory arrest cases to go forward only if the plaintiff could prove that the ar-
resting officer lacked probable cause. The Second, Fifth, Eighth, and Eleventh Circuits all
dismissed claims for retaliatory arrest where the defendant police officer established arguable
probable cause. [FN138] Of the circuits that had considered *774 the issue, only the Tenth
and Sixth Circuits followed Mt. Healthy and treated probable cause (or its absence) as nothing
more than evidence of the defendant officer's intent. [FN139]
The pre-Hartman decisions that imposed a heightened pleading standard did so without
considering the specific problem of First Amendment retaliation, and instead looked to pre-
cedent dealing with Fourth Amendment claims. [FN140] In each of these precedent cases, the
defendants had obtained qualified immunity upon a showing of arguable probable cause.
[FN141] Based on these precedents, the courts concluded that [w]hen a police officer has
probable cause to believe that a person is committing a particular public offense, he is justi-
fied in arresting that person, even if the offender may be speaking at the time that he is arres-
ted. [FN142] Without any further explanation, the courts applied this Fourth Amendment
standard to First Amendment retaliation claims, and dismissed them for failing to disprove
probable cause. [FN143]
However, failure to meet the Fourth Amendment standard does not mean that the plaintiff
has likewise failed to state a First Amendment retaliation case. Probable cause is a defense to
a Fourth Amendment claim, but it does not immunize the officer from claims arising out of
other constitutional provisions, such as claims under the Equal Protection Clause. [FN144]
Accordingly, the courts should have examined First Amendment retaliation law, as set forth in
Mt. Healthy, rather than dismissing*775 the retaliation claim on the basis of Fourth Amend-
ment precedent. [FN145]
2. The Post-Hartman Split.--Hartman's departure from Mt. Healthy in the context of retali-
atory prosecutions demonstrates that the Supreme Court is not wedded to the traditional ver-
sion of the Mt. Healthy causation standard, nor is it opposed to movement away from that
standard. However, the Supreme Court's signal has evoked mixed interpretations among
lower courts faced with retaliatory arrest cases. Retaliatory arrest case law is a mess, with
some courts siding entirely with Hartman, others rejecting Hartman outright, and still others
having yet to take a position. The Eighth and Eleventh Circuits continue to require a showing
of no probable cause, [FN146] and one assumes that the Second and Fifth Circuits will contin-
ue to do so as well. [FN147] The Sixth Circuit, which had previously permitted plaintiffs to
bring claims even if the arresting officer had probable cause, [FN148] initially held that Hart-
man required the contrary rule. [FN149] In a subsequent case, however, the circuit suggested
that the matter might remain open, although it declined to directly address the issue. [FN150]
And the Ninth Circuit, which had not previously ruled on the issue, decided to permit
plaintiffs to bring claims despite the officer's probable cause, Hartman notwithstanding.
[FN151] It remains to be seen whether Hartman will lead the Tenth Circuit to reexamine its
decision to let plaintiffs bring claims against defendants with probable cause. [FN152] The re-
maining courts of appeals still have not addressed the issue. [FN153]
*776 C. Problems with the Current Approach
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Although the circuits have taken opposing views on the proper role of probable cause in a
retaliatory arrest claim, [FN154] their decisions all share one common feature: They apply a
uniform pleading standard to all retaliatory arrest cases within that circuit. In other words,
each circuit has selected a uniform pleading standard that applies regardless of the specific
facts of the retaliatory arrest case before it. [FN155]
This all-or-nothing approach is problematic. The rule in the majority of circuits, which re-
quires a plaintiff to plead and prove the absence of probable cause for all retaliatory arrest
cases, is too restrictive. It imposes a heightened pleading standard on plaintiffs even in cases
where none of the concerns raised in Hartman--complex causation, the presumption of regu-
larity, and the lack of alternative evidence [FN156]--is present. The Ninth Circuit's approach,
by contrast, which never requires a showing of no probable cause, [FN157] is too permissive.
It allows plaintiffs to bring claims in cases where one or more of the concerns raised in Hart-
man are present. The majority rule unduly impinges on speech rights; [FN158] the Ninth Cir-
cuit rule imposes an unjustifiable burden on law enforcement officials. [FN159] *777 Neither
rule is appropriately tailored to reflect the reasoning behind the Supreme Court's holding in
Hartman and the policy concerns that are implicated by retaliatory arrest claims. As a result,
courts will either grant unwarranted leniency to certain retaliatory arrest cases [FN160] or
scrutinize particular claims with excessive rigor, [FN161] and accordingly fail to balance the
needs of law enforcement and the free speech rights of individual citizens.
This all-or-nothing approach is also problematic in that it perpetuates the current circuit
split over retaliatory arrests. Requiring plaintiffs to prove no probable cause is appropriate in
certain types of retaliatory arrest cases, but not others. It is entirely random as to whether the
governing case in each jurisdiction will fall into the first or second category. Accordingly, a
circuit split will naturally develop and worsen as long as each circuit takes an all-or-nothing
approach to retaliatory arrest cases.
Even within a single circuit, an all-or-nothing approach will result in inconsistent doctrine
and unprincipled vacillation between Mt. Healthy and Hartman. This process can be seen at
work in the Sixth Circuit, where there is internal inconsistency in retaliatory arrest case
law. In Barnes v. Wright, the Sixth Circuit was faced with a retaliatory arrest case with com-
plex causation. Because Hartman was the more appropriate rule for the case before it, the
court chose Hartman as the categorical rule for retaliatory arrest cases. [FN162] But less than
a year later, the Sixth Circuit was faced with a retaliatory arrest claim without complex causa-
tion issues. The majority declined to apply Hartman, totally disregarding Barnes. [FN163] The
Sixth Circuit's insistence on categorical rules for retaliatory arrest cases resulted in an internal
split in authority. A similar phenomenon may explain some of the splits between circuits in
First Amendment retaliation law. [FN164] A rule that more narrowly tailors pleading stand-
ards to reflect underlying fact patterns would resolve and avoid the chaos that has character-
ized this area of law.
III. The Proper Role of Probable Cause In Retaliatory Arrest Claims
This Part argues that Hartman and its requirement of no-probable-cause pleading should
00248
apply only to a subset of retaliatory arrest cases--cases of complex causation where a retaliat-
ing government official induces a police officer to arrest the plaintiff, and cases where the po-
lice officer had probable cause to suspect the plaintiff of a felony offense. In *778 all other
cases, Hartman and its concerns fail to justify departure from Mt. Healthy's burden-shifting
framework. This more nuanced standard would more closely reflect the policy concerns iden-
tified in Hartman, and would strike a reasonable accommodation between the needs of law en-
forcement [FN165] and the free speech rights of individual citizens. [FN166]
Part III.A lines up the rationales driving the Hartman decision with the considerations
present in retaliatory arrest cases, and concludes that the justifications for Hartman's
heightened pleading standard extended to retaliatory arrest cases where there is complex caus-
ation and a presumption of regularity. Part III.B discusses another departure from the Mt.
Healthy burden-shifting standard for felony arrest cases. It evaluates the probative value of
requiring plaintiffs to plead probable cause in retaliatory arrest cases, with special attention to
the pleading standards for probable cause and the role of police discretion. Part III.C dis-
cusses the availability of forms of evidence that do not relate to probable cause but can be
used to prove retaliatory animus, and concludes that courts should limit departure from Mt.
Healthy to these two exceptions only. Part III.D synthesizes these discussions into a clear
pleading standard, and addresses some counterarguments to this Note's proposed framework.
A. Aligning the Hartman Decision with Retaliatory Arrests
In distinguishing retaliatory prosecution claims from ordinary First Amendment retaliation
law, the Hartman Court focused on two important factors that make such claims more difficult
to prove than the typical retaliation case: the presumption of prosecutorial regularity, and
complex causation. Hartman's pleading standard was built on the notion that a special sort of
allegation is needed both to bridge the gap between the nonprosecuting government agent's
motive and the prosecutor's action, and to address the presumption of prosecutorial regular-
ity. [FN167] Where there is no gap between motive and action [FN168] and no heightened
presumption of regularity, [FN169] these two justifications for Hartman's heightened pleading
standard vanish. A court could then turn to the standard pleading rules set forth in Mt.
Healthy. [FN170]
1. Complex Causation.--In the typical retaliation case, the government agent allegedly
harboring the animus is also the individual allegedly taking the adverse action. [FN171]
However, in complex causation cases, the defendant induces another party to take action
against the plaintiff. [FN172] *779 Accordingly, the plaintiff must shoulder a heavy burden to
show a link between animus and action. [FN173] This is a more onerous burden than a
plaintiff faces in an ordinary retaliation case, where courts have long taken proof of animus
and adverse action as a circumstantial demonstration that the one caused the other. [FN174]
The majority of retaliatory arrest claims do not involve this complex causation, though
there are exceptions. In the typical retaliatory arrest case, a police officer makes a warrantless
arrest, and the plaintiff subsequently claims that the officer was acting out of retaliatory anim-
us. [FN175] No intervening actor is present to break the chain of causation. In some cases,
00249
however, the alleged retaliation comes from public officials who pressure or conspire with po-
lice officers to arrest the plaintiff in retaliation for protected speech. [FN176] There are also
cases where the defendant officers seek a warrant from a magistrate or an indictment from a
grand jury before making the arrest. [FN177] These two categories of cases strongly implicate
the complex causation concerns that the Court identified in Hartman. In these cases, where the
retaliating official is not the official making the arrest, [FN178] Hartman is directly implic-
ated, and courts should require a pleading of no probable cause, both as a matter of precedent
and as a matter of policy. The plaintiff must create a link between one official's animus and
another official's action, a difficult burden that justifies a heightened pleading standard.
[FN179] Admittedly, this heightened standard might screen out some cases where the link
between the retaliating *780 official and the arresting officer is clear. [FN180] But the same
might be said about Hartman, where the plaintiff produced the proverbial smoking gun to
show evidence of a causal link. [FN181]
2. The Presumption of Validity.--As the Hartman Court noted, absent clear evidence to the
contrary, courts presume that prosecutors have properly discharged their official duties.
[FN182] The decision to prosecute has long been regarded as the special province of the Ex-
ecutive Branch, and courts have been hesitant to interfere with this core executive function.
[FN183] Furthermore, the decision to prosecute involves policy concerns, such as the proper
allocation of enforcement resources, that are not readily susceptible to judicial review.
[FN184] For these reasons, the pleading standards for allegations of prosecutorial misconduct
have always been strict. [FN185] Logically, a plaintiff seeking to show that a prosecutor's
*781 decision was tainted by the undue influence of another government official should simil-
arly face a heightened pleading standard. [FN186]
To a certain extent, the same reasoning applies to retaliatory arrest cases. Courts grant all
public officials, including police officers, a presumption of regularity in conducting their offi-
cial duties. [FN187] Moreover, the decision to make an arrest, no less than the decision to pro-
secute, may involve competing policy concerns that are not well suited to judicial review.
[FN188] Though these considerations might suggest that Hartman's logic extends to all retali-
atory arrest cases, [FN189] it is important to note that the Hartman decision focused specific-
ally on the presumption of validity that attaches to prosecutorial decisions--it did not merely
invoke the general presumption of validity accorded to all public officials. [FN190] After all,
if the general presumption of validity were enough to defeat a retaliation claim, First Amend-
ment retaliation doctrine would be reduced to practically nothing. [FN191] And in practice,
courts rarely invoke a blanket presumption of validity on behalf of police officers. [FN192]
Instead, courts *782 generally accord varying degrees of deference to police searches and
seizures, depending on such factors as whether a warrant was obtained or where the search or
seizure took place. [FN193] For example, courts are willing to presume that an arrest made
with a warrant was supported by probable cause, [FN194] but will apply greater scrutiny when
the arrest is made without a warrant. [FN195] Without expressly repudiating the presumption
of validity that nominally attaches to police actions, most courts remain sensitive enough to
concerns about police misconduct to seriously evaluate the legality of the arrest. [FN196]
An arrest made pursuant to a warrant or a grand jury indictment enjoys a presumption of
validity [FN197] and, in the spirit of Hartman, should justify a departure from Mt. Healthy's
00250
approach. Courts presume that such arrests are legal, [FN198] a presumption that closely re-
sembles the presumption of validity that attaches to prosecutorial activity. [FN199] In war-
rantless arrest cases, by contrast, police officers do not benefit from heightened judicial defer-
ence. [FN200] Courts should therefore follow Hartman and require plaintiffs to plead the ab-
sence of probable cause only in retaliatory arrest cases where the arrest is made pursuant to a
warrant or grand *783 jury indictment. Since these cases also involve complex causation, this
reinforces the argument that a heightened pleading standard is required for complex causation
cases, and does not require a separate exception.
B. The Evidentiary Value of Probable Cause
As a matter of precedent, a court might reasonably leave the matter there, and conclude
that Hartman does not apply to retaliatory arrest claims that do not involve complex causation
or a heightened presumption of regularity. [FN201] A court could then turn to the standard
pleading rules set forth in Mt. Healthy. [FN202]
Yet as noted above, courts do not always apply an unaltered version of Mt. Healthy, even
in cases where the Supreme Court has not carved out a specific exception. [FN203] Moreover,
in Hartman, the Court gave probable cause a special evidentiary role [b]ecause showing an
absence of probable cause will have high probative force, and can be made mandatory with
little or no added cost. [FN204] Even if not bound to do so by Hartman, a court might choose
to require plaintiffs to show no probable cause in retaliatory arrest cases out of deference to
the high probative force that probable cause carries. This section addresses this argument,
and concludes that courts should only require a showing of no probable cause in felony arrest
cases.
1. The Standard for Probable Cause.--For present purposes, the evidentiary value of prob-
able cause depends on its usefulness in distinguishing between cases where the defendant ac-
ted out of retaliatory motive and cases where the defendant would have arrested the plaintiff
in the absence of any retaliatory animus. [FN205] This question in turn depends on how easily
a police officer can mask animus behind a screen of probable cause. There is reason to believe
that probable cause is not well suited to the task of identifying unlawful retaliation in misde-
meanor arrest cases, *784 because it requires nothing more than a hypothetically rational
basis for intrusions on individual liberty. [FN206]
Commentators argue that the standard does little more than to prevent irrational police ac-
tion. [FN207] Probable cause is found where the facts and circumstances within [the arrest-
ing officers'] knowledge and of which they had reasonably trustworthy information [are] suffi-
cient in themselves to warrant a man of reasonable caution in the belief that an offense has
been or is being committed. [FN208] Probable cause does not demand any showing that
such a belief [is] correct or more likely true than false. [FN209] Courts emphasize practical
considerations and reasonableness [FN210] in order to provide a workable standard to regu-
late day-to-day police activity. [FN211] But while probable cause is intended to protect indi-
viduals*785 from arbitrary or groundless arrests, [FN212] an officer can generally rely on the
standard's flexibility to overcome any challenge to a determination of probable cause. The of-
00251
ficer can point to any objective facts that might have justified the arrest, [FN213] and need
only show that these facts would lead a reasonable person to have more than bare suspicion
that an offense has been committed. [FN214] This has led some, including Justice Stevens, to
argue that probable cause requires nothing more than a hypothetically rational basis for intru-
sions on individual liberty. [FN215]
This already lax standard is further weakened in civil suits against police officers, where
the doctrine of qualified immunity limits the probable cause standard. Under qualified im-
munity, police officers are immune from suit insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have
known. [FN216] For the purposes of qualified immunity, a right is only clearly established if
a reasonable officer would understand that what she is doing violates that right. [FN217] The
right to be free from retaliation for the exercise of First Amendment freedoms is one example
of a clearly established right. [FN218] In effect, qualified immunity protects all but the
plainly incompetent or those who knowingly violate the law. [FN219] Since this burden of
proof is relatively low, there is reason to doubt that probable cause will always be strong evid-
ence of a legitimate motive in a retaliation case.
2. The Evidentiary Problem of Police Discretion.--Even laying these problems to the side,
there is another reason to believe that probable cause will be of low evidentiary
value. Proving that an officer had probable cause to make an arrest establishes a possible le-
gitimate justification for the officer's action, but this is not the burden of proof that Mt.
Healthy requires. [FN220] The defendant must show that she would have made the arrest ab-
sent her retaliatory motive, not that she had probable cause and could have made the arrest.
Probable cause is only one factor that may prompt a police officer to make an arrest, and it
is often eclipsed by other factors. Police officers *786 enjoy significant discretion to refrain
from arresting a suspect, even when they have probable cause to make the arrest. [FN221] In a
world of limited resources, a police officer cannot arrest every suspect. [FN222] And even
when it is possible to make the arrest, an officer might refrain from taking the suspect into
custody for several reasons: to honor a victim's request for leniency, [FN223] to secure in-
formation from an informant, [FN224] or simply to let an offender go free where an arrest
would be impractical. [FN225]
The discretion not to take a suspect into custody is so ingrained in the practice of law en-
forcement that it may exist despite statutory language to the contrary. Every state has long-
standing statutes that require police officers to arrest suspects in certain circumstances.
[FN226] In some states, these statutes impose a mandatory duty upon police officers to arrest
anyone who has committed any crime, [FN227] while others are limited to enumerated of-
fenses [FN228] or crimes of domestic violence. [FN229] Read literally, *787 these statutes
seem to significantly restrain police discretion. Nevertheless, the U.S. Supreme Court ruled in
Town of Castle Rock v. Gonzales that even a statute providing that officers shall arrest any-
one suspected of violating a restraining order was not truly mandatory. [FN230] In reaching
this conclusion, the Court noted that a well established tradition of police discretion has long
coexisted with apparently mandatory arrest statutes. [FN231]
00252
For minor offenses, releasing a suspect is not simply a legally permissible exercise of po-
lice discretion; it is a common practice. Studies of police behavior suggest that when it comes
to minor offenses--such as disorderly conduct or public intoxication--a police officer views an
arrest as one resource among many that he may use to deal with disorder, but . . . not the only
or even the most important. [FN232] It is a rare exception that the law is invoked merely be-
cause the offender has technically violated the statute, and an arrest is typically used only
when other means for controlling the troublesome aspects of some person's presence are not
available. [FN233] When an officer does choose to make an arrest*788 for a minor offense, it
is likely that some factor has led the officer to conclude that the exceptional solution of an ar-
rest was needed. [FN234] To the extent these studies are true, then at least for minor offenses,
probable cause is not particularly probative evidence of what the defendant officer would have
done, absent the plaintiff's protected speech. And if other evidence suggests that the plaintiff's
protected speech was what led the officer to make the arrest, the argument for allowing the
plaintiff to take the case to the jury without a showing of probable cause is strong.
The case law supports the argument that probable cause for a misdemeanor offense is easy
to allege, and that defendant officers use misdemeanor crimes as pretexts for retali-
ation. Retaliatory arrest cases abound with situations in which the plaintiff was arrested with
probable cause, only to be acquitted on subsequent criminal charges. [FN235] Equally fre-
quent are cases in which the plaintiff was arrested for offenses--such as disturbing the peace
or a minor traffic violation--that do not usually result in arrest. [FN236] In these cases, the
evidentiary value of probable cause is not *789 high enough to justify a departure from the
Mt. Healthy pleading standards. [FN237]
3. The Evidentiary Value of Probable Cause in Felony Cases.--Although the foregoing dis-
cussion demonstrates that probable cause is of limited value in misdemeanor cases, this does
not mean that probable cause can never play an important evidentiary role. If the offense is
more severe--such as a felony-- it will generally be more difficult for the officer to point to
evidence that the plaintiff committed the unlawful act. [FN238] And if the officer did in fact
have probable cause to arrest the plaintiff for a felony, it is much more likely that she would
have arrested the plaintiff in any event. [FN239] For retaliation cases involving serious of-
fenses or plaintiffs who are physically confrontational, [FN240] the likelihood that the officer
would choose not to make an arrest is slight, and probable cause is of greater evidentiary
value.
The challenge for a court is to sort out these cases, ex ante, from cases where probable
cause does not play a strong evidentiary role. A court could do so by requiring plaintiffs to
plead and prove the absence *790 of probable cause only in felony cases. This standard would
arguably fail to capture some serious offenses, such as misdemeanor assault, where probable
cause also has high probative value. [FN241] But drawing the line at felonies would ensure
that minor offenses would not be unjustifiably drawn into the no-probable-cause rule, while
leaving courts free to deal with meritless misdemeanor cases through tools such as summary
judgment. [FN242]
C. The Availability of Alternative Evidence
00253
The limited value of probable cause is only one side of the argument, however. In Hart-
man, the Court also reasoned that a no-probable-cause rule would be essentially costless be-
cause a plaintiff would rarely be able to prove causation without resort to evidence about
probable cause. [FN243] A brief survey of the retaliatory arrest case law reveals that this
premise is unsound in the retaliatory arrest context. Plaintiffs in retaliatory arrest cases are of-
ten able to present compelling evidence of retaliatory animus, without resort to issues of prob-
able cause. Thus, the lack of alternative evidence does not counsel for any further departure
from the Mt. Healthy pleading standards beyond the retaliatory arrest cases that directly raise
Hartman's policy concerns and that involve an underlying felony.
1. Direct Evidence.--With some frequency, plaintiffs in retaliatory arrest cases are able to
point to specific statements, made by the arresting officer, that clearly reveal retaliatory anim-
us. Many of these cases involve police officers who threatened to arrest the plaintiffs if they
did not desist from their speech activities. [FN244] In other cases, police officers, after mak-
ing the arrest, explained that their actions were motivated by the plaintiffs' speech. [FN245]
The case of Torries v. Hebert is an illustrative example of *791 both forms of evidence.
[FN246] In Torries, the plaintiffs owned a skating rink, and played gangster rap music for
their customers. [FN247] When the police came to break up a fight at the rink, they seized the
music and threatened to arrest the plaintiffs if they did not close the rink until further notice.
[FN248] The plaintiffs were later arrested for contributing to the delinquency of a minor.
[FN249] The defendant officer not only informed the plaintiffs that they were being arrested
for the content of the music they played, but he also expressed as much in a letter to local
members of the clergy. [FN250] The defendant officer also informed the plaintiffs that they
would be re-arrested if they played this music again. [FN251] This sort of evidence leaves no
doubt that the police officer was arresting the plaintiffs on the basis of their speech. [FN252]
2. Circumstantial Evidence.--Aside from this direct evidence, the plaintiff may be able to
produce circumstantial evidence to prove retaliatory intent. One particularly strong form of
circumstantial evidence is proof that the defendant had a motive to retaliate against the
plaintiff. The plaintiff may be able to show that the defendant officer carried a grudge against
her for her prior exercise of protected speech. A particularly dramatic example of this evid-
ence is found in Bennett v. Hendrix, in which business owners supported a referendum to re-
duce the powers of the local sheriff's office. [FN253] In addition to threatening the plaintiffs
with arrest and subjecting them to close police scrutiny, [FN254] the sheriff's office mailed
more than 35,000 campaign fliers defaming them as Convicted Criminals, Real Crimin-
als, members of a Chain Gang and the Same Type of Criminals That Terrorize Forsyth
County. [FN255] In light of this *792 evidence, it is hard to believe that the referendum
would not be a substantial factor on the defendant officers' minds at the time of an arrest.
Bennett is an unusual case, and it is rare to find such clear background evidence that the
defendant officer was brimming over with unconstitutional wrath toward the plaintiff's
speech. [FN256] It is not infrequent, however, to find something that would give the officer a
strong motive to retaliate against the plaintiff--most commonly, a complaint or civil suit
against the officer. [FN257] Many cases also involve personal insults directed at the officers.
[FN258] Unlike direct evidence of retaliatory animus, [FN259] this evidence does not neces-
sarily prove wrongdoing on the part of the officer, and courts should be careful not to impose
00254
liability on an officer simply because the plaintiff has said or done something provocative.
[FN260] Evidence of motive may be sufficient, however, if the plaintiff can point to other
forms of direct or circumstantial evidence.
Another form of circumstantial evidence is proof that the plaintiff was arrested while sim-
ilar offenders were let free. Consider the case of Bethel v. Escambia County. [FN261] The
plaintiffs in Bethel alleged that the sheriff's office had threatened to arrest them for preaching
and panhandling without a permit. [FN262] They further alleged that the sheriff's office had
permitted secular organizations to engage in similar demonstrations, without requiring permits
or threatening the demonstrators with arrests. [FN263] The plaintiffs would have had strong
evidence of retaliatory motive*793 if the sheriff's office had carried out these threats. Stand-
ing alone, such evidence of disproportionate impact might not be enough to state a claim,
since the Supreme Court has indicated that disproportionate impact alone does not prove im-
proper intent. [FN264] But coupled with additional evidence of retaliatory intent, selective ar-
rest can serve as highly probative evidence that the arrest was made in retaliation for protected
speech. [FN265]
One final form of circumstantial evidence, relied upon heavily in employment cases, is
evidence of temporal proximity between the protected action and the alleged retaliation. In
employment cases, causation may be shown by proof that the protected activity was followed
closely by the adverse action. [FN266] Temporal proximity is perhaps less fitting in the typic-
al retaliatory arrest case. An officer investigating suspicious conduct will almost always make
the arrest shortly after her initial interactions with the plaintiff, whether or not retaliatory
motive is present. And some courts have suggested that allowing claims to proceed based
solely on proof of temporal proximity would make retaliatory arrest cases too easy to plead.
[FN267] But even in retaliatory arrest cases, courts have been willing to entertain evidence
that the plaintiff was arrested immediately after an antagonistic statement as proof of retaliat-
ory intent. [FN268] At a minimum, temporal proximity can be corroborative of other evidence
of retaliatory intent.
*794 Taken together, these five forms of evidence--verbal threats, verbal statements of in-
tent, motive to retaliate, disproportionate impact, and temporal proximity--create a large body
of alternative evidence in retaliatory arrest cases. The lack of alternative evidence does not re-
quire any further departure from Mt. Healthy.
D. Counterarguments
Drawing these arguments together, courts should require a showing of no probable cause
only in cases involving complex causation or felony arrests. This more nuanced standard
would more closely reflect the policy concerns identified in Hartman, and would strike a reas-
onable balance between the needs of law enforcement and the rights of individual citizens.
The remainder of this section addresses counterarguments to this intermediate standard.
1. Arguments in Favor of a Blanket Hartman Rule.--The Second, Fifth, Eighth, and Elev-
enth Circuits currently apply Hartman's no-probable-cause requirement to retaliatory arrest
00255
cases. [FN269] Although the argument that such a holding is required as a matter of precedent
has already been rebutted, [FN270] one could argue that the Hartman rule nevertheless saves
government officials the time and expense of defending against meritless claims.
A rule that allows most retaliation claims to be brought, despite probable cause, may bur-
den government officials, because [r]etaliation claims may be fabricated easily. [FN271]
Although summary judgment may help to weed out some improper cases, [FN272] the Mt.
Healthy framework is a highly fact-intensive standard that often requires a jury trial. [FN273]
Even if the defendant wins at trial, the time and expense that must be expended to defend
against the claim may be considerable. And while retaliatory arrest claims are relatively rare,
[FN274] the risk of a retaliation claim might deter police officers from making valid arrests.
To paraphrase the Fifth Circuit's observation about retaliation claims brought by prisoners,
courts *795 should not allow suspects to inappropriately insulate themselves from [arrests]
by drawing the shield of retaliation around them. [FN275]
However, the argument that the objectives of law enforcement take primacy over the cit-
izen's right to avoid retaliation [FN276] is largely a false dilemma. Retaliation doctrine does
not prevent an officer from making any arrests that they would have made in the absence of
protected speech. [FN277] And the purpose of retaliation doctrine is to prevent police officers
from substituting personal animosity for legitimate law enforcement objectives. [FN278] If a
police officer would not have made the arrest in the absence of the protected speech, there is
no sound reason for a court to encourage the officer to instead make the arrest.
Additionally, by screening out cases involving complex causation or felony arrests, the
courts can offer some protection for police officers facing meritless retaliatory arrest
claims. In other situations, courts can rely on more traditional screening methods: qualified
immunity, [FN279] motions for summary judgment, and sanctions for frivolous lawsuits.
[FN280]
An across-the-board Hartman rule is particularly problematic because plaintiffs who can-
not establish the absence of probable cause are those who need First Amendment retaliation
doctrine the most. A plaintiff who has been arrested without probable cause may state a claim
for false arrest, even without proof that the defendant officer was acting with retaliatory in-
tent. [FN281] The Fourth Amendment, by constraining unreasonable police action, also
provides protection against such violations of First Amendment freedoms. [FN282] But the
Fourth Amendment cannot stop a police officer from abusing an otherwise reasonable arrest to
crush First Amendment freedoms. Given the wide reach of many criminal statutes, [FN283]
the potential for abuse is large.
2. Arguments in Favor of a Blanket Mt. Healthy Rule.--Some courts adhere to the Mt.
Healthy decision and permit plaintiffs to bring claims *796 without first showing that the de-
fendant officer lacked probable cause. Perhaps the strongest argument in favor of this rule is
that courts are bound to follow a controlling Supreme Court precedent until it is explicitly
overruled by that Court. [FN284] Because probable cause does not demonstrate what the de-
fendant officer would have done in the absence of the plaintiff's protected speech, [FN285]
there is no justification for requiring plaintiffs to demonstrate its absence in complex causa-
00256
tion or felony cases. [FN286] Any rule to the contrary would disregard Mt. Healthy, a binding
Supreme Court precedent.
However, there are numerous exceptions to Mt. Healthy, some of which have been de-
veloped among the federal courts without any urging from the Supreme Court. [FN287] Hart-
man can be read to uphold these departures, since the Court affirmed a rule that carved out an
exception to Mt. Healthy. [FN288] Although it is difficult to identify a clear rationale or legal
principle to support these deviations from precedent, it is clear that a resort to Mt. Healthy's
precedential force is not sufficient to justify a categorical Mt. Healthy rule in the retaliatory
arrest context.
Aside from this argument based on precedent, there is a concern that screening out felony
cases or complex causation cases will unfairly deny plaintiffs a remedy. The Supreme Court
has indicated that courts should rely on qualified immunity, [FN289] rather than heightened
pleading standards, to protect public officials from the threat of meritless lawsuits. [FN290]
Since qualified immunity already provides extensive protection to public officials, the need to
further immunize public officials from liability cannot justify a rule that places a thumb on
the defendant's side of the scales when the merits of a claim that the defendant knowingly vi-
olated the law are being resolved. [FN291]
While any heightened pleading standard has the potential to unjustly deny valid claims,
these arguments have been rebutted by Hartman. In retaliatory arrest cases involving complex
causation, courts are bound to follow Hartman as a matter of binding precedent. [FN292] And
although felony cases are not controlled by Hartman, the Hartman Court made clear that a no-
probable-cause requirement could be justified even if some legitimate *797 claims would be
denied thereby. [FN293] Additionally, because it is unlikely that a plaintiff would be able to
meet the Mt. Healthy burden of proof in a felony arrest case, [FN294] denying those claims ex
ante will reduce a burden to police officers without imposing a concomitant burden on
plaintiffs--a pragmatic form of balancing that the Supreme Court clearly approved in Hart-
man.
Conclusion
A standard of proof reflects the value society places on individual liberty. [FN295]
This Note argues that a pleading standard in retaliatory arrest cases that only requires proof of
no probable cause in complex causation cases and felony arrest cases strikes the appropriate
balance between individual liberty and government efficiency. The circuits that categorically
require plaintiffs to plead no probable cause unjustly deny plaintiffs a remedy, impinging on
First Amendment freedoms and leaving injured parties without redress. The circuits which
never require plaintiffs to prove no probable cause leave police officers exposed to liability to
an unnecessary degree, making it too easy for arrestees to fabricate claims of retaliation.
Neither approach is likely to resolve the current circuit split. The intermediate rule this Note
suggests, by contrast, can be applied fairly to the overwhelming majority of retaliatory arrest
claims, and may help the circuits to address the splits that have characterized First Amend-
ment retaliation law.
00257
[FN1]. Greene v. Barber, 310 F.3d 889, 892-93 (6th Cir. 2002).
[FN2]. Id.
[FN3]. Id.
[FN4]. Id.
[FN5]. Id.
[FN6]. Id.
[FN7]. Id.
[FN8]. Id.
[FN9]. Id.
[FN10]. Id.
[FN11]. Id.
[FN12]. Specifically, this step requires plaintiffs to show that (1) they were engaged in con-
stitutionally protected activity, (2) the defendants' actions caused them to suffer an injury that
would chill a person of ordinary firmness from continuing to engage in that activity. Keenan
v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002).
[FN13]. Id.
[FN14]. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977).
[FN15]. Id.
[FN16]. See infra Part I.B.
[FN17]. See, e.g., Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995) (stating that prisoner
must establish that but for the retaliatory motive the complained of incident--such as the fil-
ing of disciplinary reports as in the case at bar--would not have occurred); Goff v. Burton, 7
F.3d 734, 737 (8th Cir. 1993) (stating that in retaliation case brought by prisoner, plaintiff
must prove that retaliation was the actual motivating factor for the transfer).
[FN18]. 547 U.S. 250 (2006).
[FN19]. See, e.g., Phillips v. Irvin, 222 F. App'x 928, 929 (11th Cir. 2007) (denying retali-
ation claim where police officer had arguable probable cause to arrest plaintiff for dis-
orderly conduct).
[FN20]. The Sixth Circuit found that a respectable argument could be made that Barber had
probable cause to make the arrest. Greene v. Barber, 310 F.3d 889, 895 (6th Cir. 2002).
00258
[FN21]. See Colin P. Watson, Note, Limiting a Constitutional Tort Without Probable Cause:
First Amendment Retaliatory Arrest After Hartman, 107 Mich. L. Rev. 111, 123 (2008)
(summarizing argument that no-probable-cause rule is inconsistent with Mt. Healthy).
[FN22]. See, e.g., Curley v. Vill. of Suffern, 268 F.3d 65, 72-73 (2d Cir. 2001) (alleging that
officers arrested plaintiff in retaliation for statements criticizing mayor during election cam-
paign).
[FN23]. See id. at 69 (describing plaintiff's arrest for assault).
[FN24]. See Watson, supra note 21, at 115-16 (collecting cases).
[FN25]. This Note identifies five current or past circuit splits. Only two have been resolved.
See infra notes 71-72, 84-87, 89-90, 102-103, 138-139 and accompanying text.
[FN26]. See generally Ann Bartow, When Bias Is Bipartisan: Teaching About the Democratic
Process in an Intellectual Property Law Republic, 52 St. Louis U. L.J. 715, 725 (2008)
(discussing problems with circuit splits).
[FN27]. See, e.g., Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995) (creating categorical
rule for retaliation cases brought by prisoners).
[FN28]. See Hartman v. Moore, 547 U.S. 250, 252 (2006) ([T]he First Amendment prohibits
government officials from subjecting an individual to retaliatory actions, including criminal
prosecutions, for speaking out.); Crawford-El v. Britton, 523 U.S. 574, 592 (1998) ([T]he
First Amendment bars retaliation for protected speech.).
[FN29]. See Crawford-El, 523 U.S. at 588 n.10 (The reason why such retaliation offends the
Constitution is that it threatens to inhibit exercise of the protected right.); cf. Pickering v. Bd.
of Educ., 391 U.S. 563, 574 (1968) (noting that threat of discharge from employment, while
carrying different impact than criminal sanctions, is nonetheless a potent means of inhibiting
speech). John Milton wrote that subjecting the authors of works found mischievous and li-
belous to punishment by the fire and the executioner will be the timeliest and the most ef-
fectuall remedy that mans prevention can use. John Milton, Areopagitica 64 (Folcroft Press,
Inc. 1969) (1644).
[FN30]. A prior restraint is a governmental restriction on speech or publication before its ac-
tual expression. Black's Law Dictionary 1232 (8th ed. 2004). Retaliation thus differs from a
prior restraint in that the speech in question has already occurred. The Supreme Court has
drawn a solidly grounded distinction between prior restraints and subsequent punish-
ments. Alexander v. United States, 509 U.S. 544, 550 (1993). This is justified, in part, by the
notion that a system of prior restraint is in many ways more inhibiting than a system of sub-
sequent punishment: It is likely to bring under government scrutiny a far wider range of ex-
pression; it shuts off communication before it takes place... [and it] allows less opportunity for
public appraisal and criticism. Thomas I. Emerson, The System of Freedom of Expression
506 (1970). Some authors have critiqued this assumption. See, e.g., William T. Mayton, To-
ward a Theory of First Amendment Process: Injunctions of Speech, Subsequent Punishment,
00259
and the Costs of the Prior Restraint Doctrine, 67 Cornell L. Rev. 245, 246 (1982) ([The] pref-
erence for subsequent punishment over injunctive relief diminishes the exercise of free
speech.).
[FN31]. See Mayton, supra note 30, at 265 (arguing that prior restraint and subsequent punish-
ment function alike in a technical sense by using threat of punishment and litigation costs
to instill compliance).
[FN32]. See Crawford-El, 523 U.S. at 592 ([T]he general rule has long been clearly estab-
lished ... [that] the First Amendment bars retaliation for protected speech ....). Since the right
is clearly established, qualified immunity does not shield a defendant from a claim of retaliat-
ory arrest. See infra notes 216-219 and accompanying text.
[FN33]. See, e.g., North Carolina v. Pearce, 395 U.S. 711, 725 n.20 (1969) (stating that in
claim for retaliation in criminal sentencing, existence of a retaliatory motivation would... be
extremely difficult to prove).
[FN34]. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977).
[FN35]. Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002). Some circuits phrase the test
somewhat differently. See Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th Cir. 2005)
(requiring plaintiff to show defendant's retaliatory conduct adversely affected the protected
speech and that there is a causal connection between the retaliatory actions and the adverse
effect on speech); Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001) (requiring
plaintiff to prove that this adverse action was taken at least in part because of the exercise of
the protected conduct). These distinctions are largely a matter of phrasing, and the Fifth Cir-
cuit's phrasing of the test most closely tracks the generally accepted standard. See Smith, 250
F.3d at 1037 (explaining that to meet taken at least in part standard, plaintiff must be able
to prove that the exercise of the protected right was a substantial or motivating factor in the
defendant's alleged retaliatory conduct).
[FN36]. Mt. Healthy, 429 U.S. at 287.
[FN37]. See, e.g., Greene v. Barber, 310 F.3d 889, 892 (6th Cir. 2002) (calling police officer
obscene name); Provost v. City of Newburgh, 262 F.3d 146, 151-52 (2d Cir. 2001) (same);
Posr v. Court Officer Shield No. 207, 180 F.3d 409, 415 (2d Cir. 1999) (telling police officer
[o]ne day you're gonna get yours).
[FN38]. See, e.g., Greene, 310 F.3d at 895-97 (presenting fighting words defense); Pine
Ridge Recycling, Inc. v. Butts County, 855 F. Supp. 1264, 1275 (M.D. Ga. 1994) (same); El-
brader v. Blevins, 757 F. Supp. 1174, 1182 (D. Kan. 1991) (arguing that plaintiff's speech was
unprotected).
[FN39]. See Sandul v. Larion, 119 F.3d 1250, 1255 (6th Cir. 1997) (citing Texas v. Johnson,
491 U.S. 397, 408-09 (1989)) (stating that fighting words doctrine has become very lim-
ited).
00260
[FN40]. See City of Houston v. Hill, 482 U.S. 451, 462 (1986) (noting limited application of
fighting words exception when words are addressed to police officers); Dawn Christine
Egan, Case Note, Fighting Words Doctrine: Are Police Officers Held to a Higher Standard,
or per Bailey v. State, Do We Expect No More from our Law Enforcement Officers than We
Do from the Average Arkansan?, 52 Ark. L. Rev. 591, 597 (1999) (arguing that language dir-
ected at officer must be egregious to qualify as fighting words).
[FN41]. For examples of successful fighting words defenses, see Davis v. Twp. of Pauls-
boro, 421 F. Supp. 2d 835, 849 (D.N.J. 2006) (finding no protected speech where plaintiff
yelled about how he was going to mess somebody up); McCormick v. City of Lawrence,
325 F. Supp. 2d 1191, 1201 (D. Kan. 2004) (dismissing retaliatory arrest claim after finding
that repeated personal insults constituted fighting words).
[FN42]. See, e.g., Barnes v. Wright, 449 F.3d 709, 717-18 (6th Cir. 2006) (holding that foul
language and ranting did not rise to level of fighting words); Provost, 262 F.3d at 159-60
(holding that obscene and aggressive language was not fighting words); Posr, 180 F.3d at
415-16 (holding that stating [o]ne day you're gonna get yours could have carried several
plausible meanings that would not involve a threat of violence). In state courts, the fighting
words exception may be given a broader scope. See Burton Caine, The Trouble with
Fighting Words: Chaplinsky v. New Hampshire Is a Threat to First Amendment Values and
Should Be Overruled, 88 Marq. L. Rev. 441, 445 (2004) (arguing that state courts have
stretched the fighting words doctrine beyond all recognition, primarily to protect the police
from criticism, with all of the inherent dangers that such an approach presents); Stephen W.
Gard, Fighting Words as Free Speech, 58 Wash. U. L.Q. 531, 565-69 (1980) (arguing that in
state courts fighting words doctrine is invoked almost uniformly in circumstances in which
its application is wholly inappropriate).
[FN43]. In the employment context, where the number of potential injuries, and hence the
number of potential claims, is far greater, the injury requirement plays a larger role in screen-
ing minor claims. See Keenan v. Tejeda, 290 F.3d 252, 258 & n.4 (5th Cir. 2005) (noting in-
jury requirement weeds out minor instances of retaliation). But even in that area, the Supreme
Court has indicated that a slight injury can support a retaliation claim. See Rutan v. Republic-
an Party of Ill., 497 U.S. 62, 75 n.8 (1990) (stating in dicta that even an act of retaliation as
trivial as failing to hold a birthday party for a public employee is actionable if intended to
punish the employee for her speech (internal quotation marks omitted)).
[FN44]. See, e.g., Hansen v. Williamson, 440 F. Supp. 2d 663, 677-78 (E.D. Mich. 2006)
(stating arrest would likely deter person of ordinary firmness). Indeed, a credible threat of ar-
rest is enough to create standing for a First Amendment challenge. See Steffel v. Thompson,
415 U.S. 452, 459 (1974) (holding plaintiff need not expose self to arrest to challenge statute).
[FN45]. Curley v. Vill. of Suffern, 268 F.3d 65, 73 (2d Cir. 2001) (upholding summary judg-
ment for defendant where plaintiff continued to engage in protected speech after arrest).
[FN46]. See cases cited supra note 35.
[FN47]. Estate of Morris v. Dapolito, 297 F. Supp. 2d 680, 694 (S.D.N.Y. 2004); see also
00261
Washington v. County of Rockland, 373 F.3d 310, 320 (2d Cir. 2004) (applying objective
test).
[FN48]. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977).
[FN49]. Id. at 274. The facts of Mt. Healthy did not exactly set the stage for a lax standard of
causation. The plaintiff publicly criticized the school board over the radio, something he ad-
mitted to be wrongful. Brief for Respondent at 5, Mt. Healthy, 429 U.S. 274 (No. 75-1278).
He had previously been reprimanded for obscene and confrontational language. Id. at 7. Yet
while his actions did create cause for the termination, they were not personally antagonistic
toward the school board members, who were apparently unaware of the specific content of the
broadcast. Id. at 5. These facts may well have colored the Court's decision that a borderline
or marginal candidate should not be able to prevent his employer from assessing his per-
formance record and reaching a decision not to rehire on the basis of that record, simply be-
cause the protected conduct makes the employer more certain of the correctness of its de-
cision. Mt. Healthy, 429 U.S. at 286.
[FN50]. Examining the proffered reasons for the firing, the district court found that the school
board was faced with a situation in which there did exist in fact reason... independent of any
First Amendment rights or exercise thereof, to not extend tenure. Mt. Healthy, 429 U.S. at
285 (quoting Petition for Writ of Certiorari at 12a, Mt. Healthy, 429 U.S. 274 (No. 75-1278)).
Concluding that the radio broadcast did play a substantial part in the decision to fire the
teacher, the district court held that even in the face of other permissible grounds the decision
may not stand. Id. at 284. The court of appeals affirmed. Id. at 283.
[FN51]. The plaintiff also alleged violations of procedural due process, a claim easily dis-
posed of after Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972), a case in-
volving strikingly similar facts.
[FN52]. Mt. Healthy, 429 U.S. at 287 (internal quotation marks omitted). In a footnote, the
Court indicated that the phrase motivating factor was drawn from the racial discrimination
case of Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S.
252, 270-71 (1977), which employed an identical burden-shifting framework. Mt. Healthy,
429 U.S. at 287 n.2.
[FN54]. Id. at 285.
[FN55]. The substantial factor test is a variant of the but-for test that governs most cause-
in-fact issues in the common law of torts, differing only in its allocation of the burden of
proof. Michael Wells, Three Arguments Against Mt. Healthy: Tort Theory, Constitutional
Torts, and Freedom of Speech, 51 Mercer L. Rev. 583, 584 (2000). The Court's use of the
phrase motivating factor suggests a lower burden, however, and courts have split regarding
the proper standard of proof. Compare Hughes v. Stottlemyre, 454 F.3d 791, 797 (8th Cir.
2006) (requiring plaintiff to show that retaliatory motive played a part in the adverse employ-
ment action), with Boldin v. Limestone County, 152 F. App'x 841, 845-46 (11th Cir. 2005).
00262
[FN56]. Gierlinger v. Gleason, 160 F.3d 858, 868 (2d Cir. 1998); see also Price Waterhouse v.
Hopkins, 490 U.S. 228, 259 (1989) (White, J., concurring) (stating plaintiff is not required to
prove that the illegitimate factor was the only, principal, or true reason for petitioner's ac-
tion), superseded by statute, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1074.
[FN57]. Bowen v. Watkins, 669 F.2d 979, 984 (5th Cir. 1982).
[FN58]. See Spiegla v. Hull, 371 F.3d 928, 941-42 (7th Cir. 2004) (collecting cases). Only the
Second Circuit requires plaintiffs to show that the adverse action would not have been taken
absent [their] protected speech. Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999). Even in
the Second Circuit, a test of but-for causation is not always applied. Compare Gilligan v.
Town of Moreau, 234 F.3d 1261, 2000 WL 1608907 (2d Cir. Oct. 25, 2000) (unpublished ta-
ble decision) (applying but-for approach), with Cioffi v. Averill Park Cent. Sch. Dist. Bd. of
Educ., 444 F.3d 158, 162 (2d Cir. 2006) (not requiring but-for causation).
[FN59]. See Spiegla, 371 F.3d at 941 (stating that this approach requires the plaintiff to carry
so much of the burden that nothing remains to shift to the defendant to prove); Martin J.
Katz, The Fundamental Incoherence of Title VII: Making Sense of Causation in Disparate
Treatment Law, 94 Geo. L.J. 489, 503 (2006) (stating that motivating factor test was unam-
biguously designed to be less restrictive than the but for test).
[FN60]. See Allen v. Iranon, 283 F.3d 1070, 1074-75 (9th Cir. 2002) (collecting cases). The
Eighth Circuit departs from this rule, using the Mt. Healthy framework only if the plaintiff's
prima facie case is built on direct evidence. See Graning v. Sherburne County, 172 F.3d 611,
615 n.3 (8th Cir. 1999) (stating that Mt. Healthy analysis applies only when plaintiff provides
evidence that directly reflects improper motive).
[FN61]. See Meyer v. Bd. of County Comm'rs, 482 F.3d 1232, 1244 (10th Cir. 2007) (noting
that direct evidence of retaliatory motive is rarely available, and courts must consider reason-
able inferences that may be drawn from available evidence).
[FN62]. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); see also
Michael S. Wolly, What Hath Mt. Healthy Wrought?, 41 Ohio St. L.J. 385, 393-94 (1980)
(describing Mt. Healthy's emphasis on proof that defendant would have reached same decision
as unequivocal).
[FN64]. See, e.g., Webster v. Dep't of the Army, 911 F.2d 679, 697-98 (Fed. Cir. 1990)
(rejecting argument that defendant can meet Mt. Healthy burden by showing that hypothetical
supervisor would have taken same action); Fujiwara v. Clark, 703 F.2d 357, 361 (9th Cir.
1983) (The mere existence of other grounds for firing does not suffice. What is necessary is
that the school officials show that those grounds would have caused them to take the same ac-
tion in the absence of the protected conduct.).
[FN65]. See, e.g., Webster, 911 F.2d at 681-85 (producing evidence that terminated employee
was insubordinate and disrespectful).
00263
[FN66]. Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410, 416 (1979) (quoting Ayers v. W.
Line Consol. Sch. Dist., 555 F.2d 1309, 1315 (5th Cir. 1977)).
[FN67]. Julian Cyril Zebot, Note, Awakening a Sleeping Dog: An Examination of the Confu-
sion in Ascertaining Purposeful Discrimination Against Interstate Commerce, 86 Minn. L.
Rev. 1063, 1067 (2002); see also Texas v. Lesage, 528 U.S. 18, 21 (1999) (per curiam) (Our
previous decisions on this point have typically involved alleged retaliation for protected First
Amendment activity rather than racial discrimination, but that distinction is immaterial.);
Price Waterhouse v. Hopkins, 490 U.S. 228, 248-50 (1989) (applying Mt. Healthy to employ-
ment discrimination cases), superseded by statute, Civil Rights Act of 1991, Pub. L. No.
102-166, 105 Stat. 1071; Wright Line, 251 N.L.R.B. 1083, 1083 (1980), enforced on other
grounds, 662 F.2d 899 (1st Cir. 1981) (applying Mt. Healthy to cases of discharge in retali-
ation for union activity).
[FN68]. See Lesage, 528 U.S. at 20-21 (overturning lower court for failing to apply Mt.
Healthy's but-for causation rule).
[FN69]. See Hartman v. Moore, 547 U.S. 250, 261 (2006) (requiring plaintiffs to demonstrate
prosecutor brought action without probable cause to state claim for retaliatory prosecution);
McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352, 362-63 (1995) (allowing defendant
to escape liability in part if, hypothetically, they would have fired plaintiff had they known of
plaintiff's wrongdoing before claim was filed).
[FN70]. See, e.g., Sandin v. Conner, 515 U.S. 472, 483-84 (1995) (applying special atypical
and significant hardship standard to due process claim by prisoner); Peter L. Strauss et al.,
Gellhorn & Byse's Administrative Law 828-32 (10th ed. 2003) (suggesting that Court might
apply a special due process doctrine for prison cases); Susan N. Herman, Slashing and Burn-
ing Prisoners' Rights: Congress and the Supreme Court in Dialogue, 77 Or. L. Rev. 1229,
1252 (1998) (arguing that in Sandin the Supreme Court took dramatic measures to impose a
special burden on prisoners litigating due process claims).
[FN71]. See Rauser v. Horn, 241 F.3d 330, 333-34 (3d Cir. 2001) (adopting Mt. Healthy bur-
den-shifting framework); Thaddeus-X v. Blatter, 175 F.3d 378, 399 (6th Cir. 1999) (same);
Babcock v. White, 102 F.3d 267, 275 (7th Cir. 1996) (same); Graham v. Henderson, 89 F.3d
75, 80 (2d Cir. 1996) (same).
[FN72]. See McDonald v. Hall, 610 F.2d 16, 18 (1st Cir. 1979) (noting that plaintiff will face
substantial burden to prove actual motivating factor for transfer was retaliatory); sources cited
supra note 17.
[FN73]. See McDonald, 610 F.2d at 18 (Plaintiff must prove that he would not have been
transferred but for the alleged reason.).
[FN74]. See Vance v. Barrett, 345 F.3d 1083, 1093 (9th Cir. 2003) (citing Mt. Healthy but
stating that prison administrators cannot be held liable unless retaliatory action did not ad-
vance legitimate goals of the correctional institution or was not tailored narrowly enough to
achieve such goals (quoting Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995))); Orebaugh
00264
v. Caspari, 910 F.2d 526, 528 (8th Cir. 1990) ([N]o claim can be stated when the alleged re-
taliation arose from discipline imparted for acts that a prisoner was not entitled to perform.).
[FN75]. See Vance, 345 F.3d at 1093 (stressing need to grant deference and flexibility to pris-
on officials).
[FN76]. Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995).
[FN77]. 515 U.S. 472 (1995). For a discussion of Sandin, see sources cited supra note 70.
[FN78]. See Pratt, 65 F.3d at 807 (noting that courts should evaluate retaliation claims in
light of these general concerns expressed in Sandin); Thomas v. Walton, 461 F. Supp. 2d
786, 795 (S.D. Ill. 2006) (noting that courts should resolve retaliation cases in light of the
general tenor of Sandin).
[FN79]. See James F. Pfander, Sovereign Immunity and the Right to Petition: Toward a First
Amendment Right to Pursue Judicial Claims Against the Government, 91 Nw. U. L. Rev. 899
passim (1997) (detailing First Amendment right to seek judicial redress).
[FN80]. See, e.g., Farrow v. West, 320 F.3d 1235, 1248 (11th Cir. 2003) (retaliating against
prisoner for filing lawsuits or grievances is unlawful).
[FN81]. See, e.g., Smith v. Garretto, 147 F.3d 91, 94-95 (2d Cir. 1998) (stating that govern-
ment's retaliatory initiation of lawsuits violates First Amendment).
[FN82]. The Second Circuit has found this concern to be persuasive, reasoning that straight-
forward application of the Mt. Healthy standard would mean that the filing of counterclaims
by a governmental entity would subject that entity to strict liability. Greenwich Citizens
Comm., Inc. v. Counties of Warren, 77 F.3d 26, 30-31 (2d Cir. 1996). This may be somewhat
hyperbolic. A court could avoid a strict liability standard by asking whether the government
would have filed the lawsuit for a purpose other than punishing the plaintiff. The government
could meet this burden by showing a legitimate, nonretaliatory reason for the counterclaim,
such as a desire to win monetary damages.
[FN83]. See BE & K Constr. Co. v. NLRB, 536 U.S. 516, 528-37 (2002) (discussing First
Amendment problems in regulating lawsuits filed in retaliation for union activities); Bill John-
son's Rests., Inc. v. NLRB, 461 U.S. 731, 741-43 (1983) (same); Darveau v. Detecon, Inc.,
515 F.3d 334, 341 (4th Cir. 2008) (citing BE & K for principle that only those lawsuits that
are retaliatory in intent and baseless in fact or law do not implicate First Amendment and fed-
eralism concerns).
[FN84]. Greenwich Citizens Comm., Inc., 77 F.3d at 30-31; see also Darveau, 515 F.3d at 341
(requiring proof that defendant acted with retaliatory motive).
[FN85]. See Venable v. Keever, 263 F.3d 162, 2001 WL 803565, at *2 (5th Cir. June 12,
2001) (unpublished table decision) (dismissing claim that counterclaim was act of First
Amendment retaliation as frivolous).
00265
[FN86]. See Harper v. Realmark Corp., No. 4:04-CV00040, 2004 WL 1795392, at *5 (S.D.
Ind. July 29, 2004) (permitting retaliation claim where counterclaim was allegedly frivolous);
Rosania v. Taco Bell of Am., Inc., 303 F. Supp. 2d 878, 886-87 (N.D. Ohio 2004) (retaliatory
counterclaim must be objectively baseless).
[FN87]. It would arguably violate the First Amendment to apply an unmodified Mt. Healthy
test. See supra note 83 and accompanying text.
[FN88]. See Wright Line, 251 N.L.R.B. 1083, 1091 (1980), enforced on other grounds, 662
F.2d 899 (1st Cir. 1981) (applying Mt. Healthy causation standard to discrimination based on
labor activities). In NLRB v. Transportation Management Corp., the Supreme Court upheld
this standard. 462 U.S. 393, 397 (1983); see also NLRB v. Brooks Cameras, Inc., 691 F.2d
912, 915 (9th Cir. 1982) (applying Wright Line test); Borel Rest. Corp. v. NLRB, 676 F.2d
190, 192 (6th Cir. 1982) (same); Leona Green, Mixed Motives and After-Acquired Evidence:
Second Cousins Benefit from 20/20 Hindsight, 49 Ark. L. Rev. 211, 235-36 (1996)
(describing NLRB's reliance on Mt. Healthy for labor discrimination cases).
[FN89]. See Wallace v. Dunn Constr. Co., 968 F.2d 1174, 1179 (11th Cir. 1992) (arguing that
permitting after-acquired evidence to defeat recovery would be inconsistent with Mt.
Healthy), aff'd in part, rev'd in part, 62 F.3d 374 (11th Cir. 1995); James Newman, Note, Thou
Shalt Not Lie to Your Employer: Employment Discrimination and the Affirmative Defense of
After Acquired Evidence, 30 Gonz. L. Rev. 365, 392-409 (1994-1995) (critiquing use of
after-acquired evidence).
[FN90]. See Summers v. State Farm Mut. Auto Ins. Co., 864 F.2d 700, 708 (10th Cir. 1988)
(The present case is akin to the hypothetical wherein a company doctor is fired because of his
age, race, religion, and sex and the company... thereafter discovers that the discharged em-
ployee was not a doctor.... [T]he masquerading doctor would be entitled to no relief....); see
also Milligan-Jensen v. Mich. Tech. Univ., 975 F.2d 302, 305 (6th Cir. 1992) (denying relief
to employee who failed to disclose felony conviction); Washington v. Lake County, 969 F.2d
250, 253-56 (7th Cir. 1992) (same). But see McKennon v. Nashville Banner Publ'g Co., 513
U.S. 352 (1995) (overruling Summers, Milligan-Jensen, and Washington).
[FN91]. See Paglio v. Chagrin Valley Hunt Club Corp., 966 F.2d 1453, 1992 WL 144674 (6th
Cir. June 25, 1992) (unpublished table decision) (denying relief to employee who embezzled
company funds). But see McKennon, 513 U.S. 352 (overruling Paglio).
[FN92]. See McKennon v. Nashville Banner Publ'g. Co., 9 F.3d 539, 541-43 (6th Cir. 1993)
(denying relief to employee who copied confidential files), rev'd, 513 U.S. 352; Powers v.
Chi. Transit Auth., 890 F.2d 1355, 1360 (7th Cir. 1989) (denying relief to attorney who viol-
ated ethical rules). But see McKennon, 513 U.S. 352 (overruling Powers).
[FN93]. Washington, 969 F.2d at 253 (quoting Smith v. General Scanning, Inc., 876 F.2d
1315, 1319 n.2 (7th Cir. 1989)).
[FN94]. 513 U.S. at 362-63.
00266
[FN95]. Id. The Court also held that a court could deviate from this remedy based on equitable
considerations. Id.
[FN96]. While it is true that McKennon came before the Court on the express assumption
that an unlawful motive was the sole basis for the firing, id. at 359, it is not entirely clear that
the Court should have tossed Mt. Healthy aside. Under Mt. Healthy, the employer should be
required to prove that they would have terminated the employee for a lawful reason if, hypo-
thetically, they had known of the employee's misconduct at the time. The employee did not
dispute this point in McKennon, but employees have raised the issue in other cases. See, e.g.,
O'Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 761-63 (9th Cir. 1996) (arguing
that employer would not have terminated employee even if it had known of misconduct).
[FN97]. See supra Part I.B.2.
[FN98]. As a general rule, police officers are neither required nor expected to make arrests
whenever they have probable cause to do so. See, e.g., Atwater v. City of Lago Vista, 532
U.S. 318, 354 (2001) (stating that where probable cause exists, an officer is accordingly au-
thorized (not required, but authorized) to make a custodial arrest without balancing costs and
benefits or determining whether or not... arrest was in some sense necessary); Barbara K.
Finesmith, Police Response to Battered Women: A Critique and Proposals for Reform, 14
Seton Hall L. Rev. 74, 75 (1983) (noting that many jurisdictions encourage nonarrest or medi-
ation in cases of domestic violence).
[FN99]. Watson, supra note 21, at 123.
[FN100]. See infra Part II.C.
[FN101]. 547 U.S. 250, 256-57 (2006).
[FN102]. See Wood v. Kesler, 323 F.3d 872, 883 (11th Cir. 2003) (ruling that probable cause
defeats retaliatory prosecution claim); Keenan v. Tejeda, 290 F.3d 252, 260 (5th Cir. 2002)
(same); Mozzochi v. Borden, 959 F.2d 1174, 1179-80 (2d Cir. 1992) (same).
[FN103]. See Moore v. Hartman, 388 F.3d 871, 878 (D.C. Cir. 2004) (permitting retaliatory
prosecution claim without regard to probable cause), rev'd 547 U.S. 250; Poole v. County of
Otero, 271 F.3d 955, 961 (10th Cir. 2001) (same); Haynesworth v. Miller, 820 F.2d 1245,
1257 (D.C. Cir. 1987) (same). But see Hartman, 547 U.S. 250 (2006) (overruling Poole and
Haynesworth).
[FN104]. 547 U.S. at 265-66.
[FN105]. Brief for Respondent at 3, Hartman, 547 U.S. 250 (No. 04-1495).
[FN106]. Id. at 3-4. The use of single-line scanners, which can only sort mail when the sender
uses a nine digit zip code, was found to be very inefficient. See S.J. Diamond, Boondoggle of
Nine-Digit Zip Won't Go Away, L.A. Times, June 10, 1988, at D1.
[FN107]. Hartman, 547 U.S. at 250. The Postal Service also alleged that the plaintiff may
00267
have played an improper role in the selection of the Postmaster General.
[FN108]. Id. at 253-54.
[FN109]. Id. at 254 (quoting United States v. Recognition Equip. Inc., 725 F. Supp. 587, 596
(D.D.C. 1989)).
[FN110]. Id. at 262; see also Imbler v. Pachman, 424 U.S. 409, 431 (1976) (holding prosec-
utor immune for role in presenting and prosecuting case). A prosecutor may be held liable for
actions taken in an administrative or investigative role. See, e.g., Burns v. Reed, 500 U.S. 478,
493 (1991) (declining to extend immunity to prosecutor who advised police in investigation of
criminal case). In Hartman, the plaintiff initially attempted to pursue a claim against the pro-
secutor in his investigative capacity. 1 Joint Appendix at 45, Hartman, 547 U.S. 250 (No.
04-1495). Despite evidence that the prosecutor had pursued the investigation because he
wanted to attract the attention of a law firm looking for a tough trial attorney, the plaintiff did
not pursue this claim on appeal. Hartman, 547 U.S. at 262 n.8, 264. For a critique of prosec-
utorial immunity, see generally Douglas J. McNamara, Buckley, Imbler, and Stare Decisis:
The Present Predicament of Prosecutorial Immunity and an End to Its Absolutist Means, 59
Alb. L. Rev. 1135 (1996).
[FN111]. Hartman, 547 U.S. at 254.
[FN112]. Id. at 255.
[FN113]. The decision was 5-2. Justice Ginsburg filed a dissenting opinion, which Justice
Breyer joined. See id. at 266-67 (Ginsburg, J., dissenting). Chief Justice Roberts and Justice
Alito did not participate in the decision. Id. at 251 (majority opinion).
[FN114]. Id. at 258.
[FN115]. The Court acknowledged that probable cause does not guarantee that inducement
[by the retaliatory official] was not the but-for fact in a prosecutor's decision. Id. at 265.
[FN116]. A recent decision in the Eighth Circuit, Kilpatrick v. King, suggests that Hartman
requires the plaintiff to show that the retaliatory motive was a but-for cause of the harm.
499 F.3d 759, 767 (8th Cir. 2007). While the Supreme Court did hold that causation is under-
stood to be but-for causation, it nowhere stated that the burden is on the plaintiff to establish
but-for causation as part of the prima facie case, and it strongly suggested that the burden is
instead on the defendant to demonstrate that the animus was not a but-for cause. Hartman, 547
U.S. at 260.
[FN117]. Hartman, 547 U.S. at 259.
[FN118]. Id.
[FN119]. See supra note 110.
[FN120]. Hartman, 547 U.S. at 261-62.
00268
[FN121]. Id. at 261.
[FN122]. Id.
[FN123]. Id. at 265.
[FN124]. Id. at 264. In dissent, Justice Ginsburg argued that the rarity of alternative evidence
did not warrant structuring a cause of action, that precludes relief when such evidence
does arise. Id. at 267 (Ginsburg, J., dissenting) (citation omitted).
[FN125]. Id. at 264 n.10 (majority opinion).
[FN126]. Id. at 263.
[FN128]. See supra Part I.B.
[FN129]. Hartman, 547 U.S. at 265-66. On remand from Hartman, the district court granted
the government's motion to dismiss the claim on the grounds that Moore's indictment conclus-
ively established probable cause--ending a controversy that began twenty-five years earlier.
See Moore v. Hartman, 569 F. Supp. 2d 133, 141 (D.D.C. 2008) (dismissing plaintiff's claim).
[FN130]. Compare Carepartners, LLC v. Lashway, 545 F.3d 867, 877 n.7 (9th Cir. 2008)
(Hartman does not apply to this case because the Court made a clear distinction between re-
taliatory-prosecution actions to which the additional pleading and proof requirements apply,
and ordinary retaliation actions to which the requirements do not apply (i.e., where there is
no independent prosecutorial action).), with Barnes v. Wright, 449 F.3d 709, 720 (6th Cir.
2006) (However, in its analysis, Hartman appears to acknowledge that its rule sweeps
broadly....).
[FN131]. See Vill. of Euclid v. Ambler Realty Co., 272 U.S. 365, 397 (1926) (stating that for
constitutional issues, the Supreme Court has preferred to follow the method of a gradual ap-
proach to the general by a systematically guarded application and extension of constitutional
principles to particular cases as they arise, rather than by out of hand attempts to establish
general rules to which future cases must be fitted). This is not to say that the Court strictly
follows this rule, or that it does not announce broad rules while nominally deciding the issue
narrowly. As Professor Sunstein notes, the official story of Anglo-American adjudication is
a minimalist one, though the courts' actual practice is more complex, embodying, roughly
speaking, a rebuttable presumption in favor of minimalism. Cass R. Sunstein, The Supreme
Court, 1995 Term---Foreword: Leaving Things Undecided, 110 Harv. L. Rev. 4, 33 (1996).
[FN132]. See Hartman, 547 U.S. at 259-65 (discussing presumption of prosecutorial regularity
and complex causation as two ways in which retaliatory prosecution differs from ordinary re-
taliation claim).
[FN133]. See Skoog v. County of Clackamas, 469 F.3d 1221, 1233-35 (9th Cir. 2006)
(reading Hartman to mean that differences between retaliatory prosecution claims and other
00269
retaliation claims justified and necessitated the additional requirement in retaliatory prosecu-
tion claims); Gullick v. Ott, 517 F. Supp. 2d 1063, 1071-72 (W.D. Wis. 2007) (declining to
extend Hartman to retaliatory arrest claim).
[FN134]. See Crawford-El v. Britton, 523 U.S. 574, 584-85 (1998) (stating that official's
state of mind is easy to allege and hard to disprove in context of retaliation claim against
prison official (internal quotation marks omitted)); North Carolina v. Pearce, 395 U.S. 711,
725 n.20 (1969) (stating that in claim for retaliation in criminal sentencing, existence of a re-
taliatory motivation would... be extremely difficult to prove).
[FN135]. The Court certainly knows how to use limiting language when it intends to do so.
See, e.g., Ashcroft v. ACLU, 535 U.S. 564, 585 (2002) (stating that scope of our decision
today is quite limited); Bush v. Gore, 531 U.S. 98, 109 (2000) (per curiam) (stating that
Court's consideration is limited to the present circumstances).
[FN136]. See Osborne v. Grussing, 477 F.3d 1002, 1006 (8th Cir. 2007) (reading Hartman to
require specifically tailored pleading standards); Barnes v. Wright, 449 F.3d 709, 720 (6th
Cir. 2006) ([I]n its analysis, Hartman appears to acknowledge that its rule sweeps broadly;
the Court noted that causation in retaliatory-prosecution cases is usually more complex than
it is in other retaliation cases. (quoting Hartman, 547 U.S. at 261)).
[FN137]. See infra Part III.
[FN138]. See Benigni v. Smith, 121 F. App'x 164, 165-66 (8th Cir. 2005) (dismissing retali-
ation claim where officer had arguable probable cause for arrest); Keenan v. Tejeda, 290
F.3d 252, 261-62 (5th Cir. 2002) (suggesting that officers would be exonerated from retali-
ation claim if probable cause existed for arrest); Redd v. City of Enterprise, 140 F.3d 1378,
1383 (11th Cir. 1998) (dismissing retaliation claim where officer had arguable probable
cause for arrest); Singer v. Fulton County Sheriff, 63 F.3d 110, 120 (2d Cir. 1995)
(dismissing suit if the officer either had probable cause or... [had] an objectively reasonable
belief that he had probable cause).
[FN139]. See Greene v. Barber, 310 F.3d 889, 895 (6th Cir. 2002) (holding that existence of
probable cause was not determinative of First Amendment claim); DeLoach v. Bevers, 922
F.2d 618, 620 (10th Cir. 1990) (allowing retaliation claim to proceed despite presence of
probable cause).
[FN140]. See Benigni, 121 F. App'x at 165 (citing Foster v. Metro. Airports Comm'n, 914
F.2d 1076, 1081-82 (8th Cir. 1990) (excessive force)); Redd, 140 F.3d at 1383 (citing United
States v. Rubio, 727 F.2d 786, 791 (9th Cir. 1984) (unlawful search)); Singer, 63 F.3d 110 at
120 (citing Magnotti v. Kuntz, 918 F.2d 364 (2d Cir. 1990) (false arrest)). Keenan is an ex-
ception, relying instead on Fifth Circuit precedent on malicious prosecution. See Keenan, 290
F.3d at 260 (citing Johnson v. La. Dep't of Agric., 18 F.3d 318 (5th Cir. 1994)).
[FN141]. See, e.g., Foster, 914 F.2d at 1079 (noting that unlawful arrest claim turns on prob-
able cause).
00270
[FN142]. Redd, 140 F.3d at 1383.
[FN143]. To illustrate the brevity of this analysis, Benigni's complete discussion of First
Amendment retaliation is as follows: Our holding that Smith has qualified immunity for the
alleged unlawful arrest disposes of Begnini's [sic] argument that Smith arrested him in retali-
ation for the exercise of his First Amendment rights. 121 F. App'x at 166 (citing Foster, 914
F.2d at 1080).
[FN144]. See, e.g., Whren v. United States, 517 U.S. 806, 813 (1996) (stating that plaintiffs
may challenge otherwise lawful search or seizure through Fourteenth Amendment Equal Pro-
tection Clause).
[FN145]. See also Watson, supra note 21, at 126-28 (critiquing pre-Hartman rationale for no-
probable-cause rule).
[FN146]. Phillips v. Irvin, 222 F. App'x 928, 929 (11th Cir. 2007) (applying no-prob-
able-cause rule without reference to Hartman); Williams v. City of Carl Junction, 480 F.3d
871, 876 (8th Cir. 2007) (holding that Hartman is broad enough to apply to retaliatory arrest
cases).
[FN147]. District courts in the Second Circuit continue to apply the no-probable-cause rule.
See, e.g., Genia v. N.Y. State Troopers, No. 03-CV-0870, 2007 WL 869594, at *24 (E.D.N.Y.
Mar. 20, 2007) (stating that probable cause defeats retaliatory arrest claim).
[FN148]. See Greene v. Barber, 310 F.3d 889, 895 (6th Cir. 2002) (declaring that existence of
probable cause is not determinative of First Amendment question).
[FN149]. See Barnes v. Wright, 449 F.3d 709, 720 (6th Cir. 2006) (concluding that because
defendants had probable cause to seek an indictment and to arrest the plaintiff, retaliatory
arrest claim failed as a matter of law).
[FN150]. See Leonard v. Robinson, 477 F.3d 347, 355 (6th Cir. 2007) (suggesting that Hart-
man might overturn Greene, but declining to reach issue because facts demonstrated absence
of probable cause). The majority in Leonard simply ignored the holding in Barnes, though a
dissenting judge argued that the claim was foreclosed by that holding. See id. at 367 (Sutton,
J., dissenting in part).
[FN151]. See Skoog v. County of Clackamas, 469 F.3d 1221, 1234 (9th Cir. 2006) (finding
Hartman to be distinguishable from retaliatory arrest claim).
[FN152]. A district court opinion in the Tenth Circuit did not require a showing of no prob-
able cause, though curiously it did so without citing either Hartman or Tenth Circuit preced-
ent. See Garcia v. Jaramillo, No. CIV-05-1212, 2006 WL 4079681, at *11 (D.N.M. Nov. 27,
2006) (applying rule on basis of Sixth Circuit precedent).
[FN153]. District courts in the Seventh Circuit have split on the issue. Compare Gullick v.
Ott, 517 F. Supp. 2d 1063, 1071-72 (W.D. Wis. 2007) (discussing Hartman and choosing not
to require showing of no probable cause), with Baldauf v. Davidson, No. 1:04-cv-1571, 2007
00271
WL 2156065, at *2-*6 (S.D. Ind. Jul. 24, 2007) (discussing same, but reaching opposite con-
clusion), and Webb v. City of Joliet, No. 03 C 4436, 2006 WL 3692405, at *3-*4 (N.D. Ill.
Dec. 11, 2006) (same). The First Circuit has declined to require a showing of probable cause,
at least in certain circumstances. See Hrichak v. Kennebec County Sheriff, No. 06-59-B-W,
2007 WL 1229404, at *5-*7 (D. Me. Apr. 24, 2007) (holding that ruling applies to arresting
officers involved in a spur-of-the-moment, warrant-less arrest). The Third Circuit follows the
no-probable-cause rule. See Morales v. Taveras, No. 05-4032, 2007 WL 172392, at *7-*11
(E.D. Pa. Jan. 18, 2007) (concluding that plaintiff's rights were not violated because officer
had probable cause); Gallis v. Borough of Dickson City, No. 3:05 CV 551, 2006 WL
2850633, at *4-*5 (M.D. Pa. Oct. 3, 2006) (denying summary judgment pending determina-
tion of whether officers had probable cause); Pomykacz v. Borough of W. Wildwood, 438 F.
Supp. 2d 504, 513 (D.N.J. 2006) (denying motion for summary judgment where reasonable
factfinder could find officer was without probable cause).
[FN154]. See supra Part II.B.
[FN155]. The majority of circuits consistently require a plaintiff to plead and prove the ab-
sence of probable cause. See supra notes 146-147 and accompanying text. The Ninth Circuit
never requires a plaintiff to plead and prove the absence of probable cause. See supra note 151
and accompanying text.
[FN156]. See supra notes 117-128 and accompanying text.
[FN158]. See, e.g., Greene v. Barber, 310 F.3d 889, 895 (6th Cir. 2002) (The law is well es-
tablished that [a]n act taken in retaliation for the exercise of a constitutionally protected right
is actionable under 1983 even if the act, when taken for a different reason, would have been
proper. (alteration in original) (internal quotation marks omitted)); Gullick, 517 F. Supp. 2d
at 1069 (explaining that no-probable-cause requirement is troubling because it would permit
unethical officers to target their enemies or critics with a litany of citations for petty violations
that would be ignored if committed by anyone else).
[FN159]. See, e.g., Keenan v. Tejeda, 290 F.3d 252, 261-62 (5th Cir. 2002) (arguing that First
Amendment rights should yield to needs of law enforcement); Morales v. Taveras, No.
05-4032, 2007 WL 172392, at *15 (E.D. Pa. Jan. 18, 2007) (arguing that probable-cause
pleading requirement is justified because of the ease of stating a retaliation claim and high
price [society may pay] if officers do not take action when they should do so (internal quota-
tion marks omitted)).
[FN162]. 449 F.3d 709, 712 (6th Cir. 2006).
[FN163]. See supra note 150 and accompanying text.
00272
[FN164]. This Note identifies three current and two past circuit splits. See supra note 25.
[FN167]. Hartman v. Moore, 547 U.S. 250, 263 (2006).
[FN168]. See infra Part III.A.1.
[FN169]. See infra Part III.A.2.
[FN171]. Hartman, 547 U.S. at 259.
[FN172]. In Hartman, the defendants induced a prosecutor to bring charges against the
plaintiff. See supra Part II.A.1.
[FN173]. The plaintiff in Hartman faced the difficult burden of showing that the defendants,
acting out of retaliatory animus, had taken actions to influence the prosecutor, and that as a
result the prosecutor had filed charges he would not otherwise have filed. This evidentiary
hurdle played an important role in the Hartman decision. See supra notes 117-121 and accom-
panying text.
[FN174]. Hartman, 547 U.S. at 260.
[FN175]. For an example of the facts of a retaliatory arrest case, see supra notes 1-10 and ac-
companying text.
[FN176]. See, e.g., Williams v. City of Carl Junction, 480 F.3d 871, 876 (8th Cir. 2006)
(alleging that officers issued citations to plaintiff, at prompting of city officials, in retaliation
for criticism of city government); Curley v. Vill. of Suffern, 268 F.3d 65, 72-73 (2d Cir. 2001)
(alleging that officers arrested plaintiff in retaliation for statements criticizing mayor during
election campaign); Hansen v. Williamson, 440 F. Supp. 2d 663, 677-78 (E.D. Mich. 2006)
(alleging that arrest was made for publication of newspapers critical of mayor); Pomykacz v.
Borough of W. Wildwood, 438 F. Supp. 2d 504, 512-13 (D.N.J. 2006) (alleging that officers
arrested plaintiff for criticism of mayor and police).
[FN177]. See, e.g., Barnes v. Wright, 449 F.3d 709, 712 (6th Cir. 2006) (describing allegation
that officers tried to obtain warrant from county attorney). The presence of the grand jury in
Barnes might explain the Sixth Circuit's hesitation to apply the holding of that case to sub-
sequent retaliatory arrest cases. See supra notes 148-150 and accompanying text.
[FN178]. To paraphrase Hartman, this subcategory of cases does not involve retaliatory arrest,
but rather retaliatory inducement to arrest. Cf. Hartman, 547 U.S. at 262 (describing plaintiffs'
claim as one for retaliatory inducement to prosecute).
00273
[FN180]. See, e.g., Hansen, 440 F. Supp. 2d at 666 (describing government official's threaten-
ing to arrest plaintiff, and stating, I'll show you how much authority I have, before calling
police).
[FN181]. Moore v. Hartman, 388 F.3d 871, 881, 884 (D.C. Cir. 2004). This evidence included
several Postal Service documents that listed the plaintiff's speech as a rationale for pressing
prosecution; letters sent directly from the Postal Service to the U.S. Attorney's Office pressur-
ing them to prosecute a case that senior prosecutors viewed as questionable, entirely cir-
cumstantial, complicated, and likely to consume significant resources; and an admission
from the prosecutor that he pursued the case not for its merits, but because he wanted to at-
tract the interest of a law firm looking for a tough trial attorney. Id. at 881-85; see also Hart-
man, 547 U.S. at 258-89 & n.6 (noting plaintiff's compelling evidence). Nor is Hartman
unique. Fewer than two dozen retaliatory prosecution claims have come before the courts of
appeals in the past twenty-five years, Hartman, 547 U.S. at 264 & n.10, but several of these
cases involved clear evidence of a causal link. See, e.g., Poole v. County of Otero, 271 F.3d
955, 958 (10th Cir. 2001) (presenting evidence that prosecutor withdrew careless driving
charge and charged plaintiff with reckless driving and resisting arrest shortly after plaintiff's
attorney contacted police about civil suit against them); Haynesworth v. Miller, 820 F.2d
1245, 1249-51 (D.C. Cir. 1987) (alleging that prosecutor expressly offered to drop disorderly
conduct charge in exchange for plaintiff not filing civil suit against police officers).
[FN182]. Hartman, 547 U.S. at 263 (discussing longstanding presumption of regularity ac-
corded to prosecutorial decisionmaking); United States v. Armstrong, 517 U.S. 456, 464
(1996); see also supra note 110 and accompanying text.
[FN183]. Heckler v. Chaney, 470 U.S. 821, 832, 838 (1985) (setting forth presumption that
agency enforcement actions are unreviewable by analogy to prosecutorial decisionmaking).
[FN184]. See Wayte v. United States, 470 U.S. 598, 607 (1985) (stating that prosecutorial de-
cisions, which involve [s]uch factors as the strength of the case, the prosecution's general de-
terrence value, the Government's enforcement priorities, and the case's relationship to the
Government's overall enforcement plan[,] are not readily susceptible to the kind of analysis
the courts are competent to undertake).
[FN185]. In selective prosecution claims, for example, the plaintiff must show clear evid-
ence to disprove the presumption that the prosecutor has acted lawfully. Armstrong, 517 U.S.
at 463-65. Together with the other hurdles that a plaintiff faces in this area, this heightened
standard of proof disables most selective prosecution claims from succeeding, which they al-
most never do. Steven Alan Reiss, Prosecutorial Intent in Constitutional Criminal Procedure,
135 U. Pa. L. Rev. 1365, 1373 (1987).
[FN186]. Hartman was a suit not against the prosecutor, but against Postal Service officials
who allegedly pressured the prosecutor to file suit. See supra notes 110-111 and accompany-
ing text.
[FN187]. See Banks v. Dretke, 540 U.S. 668, 696 (2004) (Ordinarily, we presume that pub-
lic officials have properly discharged their official duties. (quoting Bracy v. Gramley, 520
00274
U.S. 889, 909 (1997))); U.S. v. Hellman, 556 F.2d 442, 446 n.1 (9th Cir. 1977) (Sneed, J.,
concurring) (Absent proof of a substantial departure from official procedures, a presumption
of regularity attaches to police action which allows the court to presume that the police in its
actions has discharged its official duty and complied with any relevant regulations and pro-
cedures.).
[FN188]. See Atwater v. City of Lago Vista, 532 U.S. 318, 345-54 (2001) (outlining problems
with judicial review of arrest decisions).
[FN189]. At least one court has found this argument to be convincing. See Saleh v. City of
New York, No. 06 Civ. 1007, 2007 WL 4437167, at *8 (S.D.N.Y. Dec. 17, 2007) (The reas-
on that the absence of probable cause is required for claims of retaliatory arrest and prosecu-
tion, but not for other retaliation claims, is that the presumption of prosecutorial regularity at-
taches to arrests and prosecutions, but not necessarily to other police conduct.).
[FN190]. See Hartman v. Moore, 547 U.S. 250, 263 (2006) (discussing need to bridge gap
between nonprosecuting agent's motive and prosecutor's action and to address presumption of
regularity).
[FN191]. A plaintiff could no longer sue public officials for retaliation in the exercise of their
official duties. This would leave only two avenues to state a retaliation claim. First, the
plaintiff could sue a private party for inducing a public official to take retaliatory action. See
Dennis v. Sparks, 449 U.S. 24, 27-29 (1980) (noting that private persons, if jointly engaged
with state officials in the challenged action, can be state actors for purposes of constitutional
or statutory claim). Second, the plaintiff could sue a public official for retaliation that oc-
curred outside the scope of their official duties. See Saleh, 2007 WL 4437167, at *8 (finding
that reporting plaintiff to immigration officials was outside scope of duty of police officers).
[FN192]. Delaware v. Prouse, 440 U.S. 648 (1979), is an illustrative example. In Prouse,
Justice Rehnquist wrote in dissent that [f]or constitutional purposes, the action of an indi-
vidual law enforcement officer is the action of the State itself,... and state acts are accompan-
ied by a presumption of validity until shown otherwise. Id. at 667 (Rehnquist, J., dissenting).
In theory, it should not have been necessary to indulge in this fiction of state action--the ac-
tions of an individual police officer already benefit from a presumption of validity. That
Justice Rehnquist found it necessary to do so, and that the majority opinion made no mention
of any presumption of validity, underscores the infrequency with which courts grant police of-
ficers a presumption of regularity.
[FN193]. See, e.g., Payton v. New York, 445 U.S. 573, 586-87 (1980) (holding searches and
seizures inside a home, without a warrant, are presumptively unreasonable, but seizure of
property in plain view is presumptively reasonable, assuming there is probable cause to be-
lieve property is connected to criminal activity).
[FN194]. See Walcyzk v. Rio, 496 F.3d 139, 155-56 (2d Cir. 2007) (Ordinarily, an arrest or
search pursuant to a warrant issued by a neutral magistrate is presumed reasonable because
such warrants may issue only upon a showing of probable cause.); United States v. Long-
mire, 761 F.2d 411, 417 (7th Cir. 1985) (noting that where police act pursuant to a warrant,
00275
arrest is presumably legal).
[FN195]. See United States v. Watson, 423 U.S. 411, 423 (1976) (suggesting that warrantless
arrests may be less readily upheld than arrest supported by warrants). This principle is reflec-
ted in the general federal rule on burdens of proof: Where the police act pursuant to a warrant,
the defendant bears the burden of proving illegality, but where the police act without a war-
rant, the prosecution must show that the arrest was legal. See 5 Wayne R. LaFave, Search and
Seizure 11.2, at 41 (3d ed. 1996).
[FN196]. Cf. Johnson v. United States, 333 U.S. 10, 14 (1948) (stating that purpose of enfor-
cing warrant requirement is to ensure that judgments are made by a neutral and detached ma-
gistrate instead of being judged by the officer engaged in the often competitive enterprise of
ferreting out crime).
[FN197]. See Bordeaux v. Lynch, 958 F. Supp. 77, 83 (N.D.N.Y. 1997) (A grand jury's in-
dictment establishe[s], at the very least, a presumption of probable cause. (quoting Wood-
ard v. Hardenfelder, 845 F. Supp. 960, 967 (E.D.N.Y. 1994))); supra note 194.
[FN199]. See supra notes 182-185.
[FN200]. See, e.g., United States v. George, 883 F.2d 1407, 1411 (9th Cir. 1989) ([T]he po-
lice bear a heavy burden when attempting to demonstrate an urgent need that might justify
warrantless searches or arrests. (quoting Welsh v. Wisconsin, 466 U.S. 740, 749-50 (1984)
)).
[FN201]. Excepting, of course, claims where some independent intervening actor has broken
the chain of causation. See supra Part III.A.1. The pleading standard developed in Hartman
was built on the notion that a special sort of allegation is needed both to bridge the gap
between the nonprosecuting government agent's motive and the prosecutor's action, and to ad-
dress the presumption of prosecutorial regularity. Hartman v. Moore, 547 U.S. 250, 263
(2006).
[FN203]. See supra Part II.A.2.
[FN204]. Hartman, 547 U.S. at 265.
[FN205]. If the police officer would not have made the arrest in the absence of plaintiff's pro-
tected speech, imposing liability on the officer places no burden on legitimate law enforce-
ment purposes. And if the officer would have made the arrest even absent the protected
speech, Mt. Healthy clearly holds that the plaintiff should not be made better off by the of-
ficer's illegitimate motive. See supra note 54 and accompanying text. The risk is that a court
might confuse the two scenarios, and either discourage police officers from arresting dis-
respectful suspects or leave arrestees in worse positions than they would have been in, absent
retaliatory motive.
00276
[FN206]. Maryland v. Wilson, 519 U.S. 408, 422 (1997) (Stevens, J., dissenting); see also
United States v. Leon, 468 U.S. 897, 957-58 (1984) (Brennan, J., dissenting) (The clear in-
centive that operated in the past to establish probable cause... has now been so completely
vitiated that the police need only show that it was not entirely unreasonable under the cir-
cumstances of a particular case for them to believe that the warrant they were issued was val-
id. (citations omitted)); Thomas Y. Davies, Denying a Right by Disregarding Doctrine: How
Illinois v. Rodriguez Demeans Consent, Trivializes Fourth Amendment Reasonableness, and
Exaggerates the Excusability of Police Error, 59 Tenn. L. Rev. 1, 52-53, 57 (1991) (arguing
that reasonableness standard is an invitation to reviewing courts to treat a police intrusion as
reasonable if any explanation for the police conduct can be given). Given his skepticism
about probable cause, it is somewhat surprising that Justice Stevens sided with the majority in
Hartman. See supra note 113.
[FN207]. See Ronald J. Bacigal, Making the Right Gamble: The Odds on Probable Cause, 74
Miss. L.J. 279, 307 (2004) (arguing that reasonableness standard reduces Fourth Amendment
protections to prohibition against irrational police actions).
[FN208]. Draper v. United States, 358 U.S. 307, 313 (1959) (quoting Carroll v. United States,
267 U.S. 132, 162 (1925)).
[FN209]. Texas v. Brown, 460 U.S. 730, 742 (1983); see also Brinegar v. United States, 338
U.S. 160, 175 (1949) (holding that probable cause means less than evidence which would
justify condemnation or conviction [but] more than bare suspicion (quoting Locke v. United
States, 11 U.S. (7 Cranch) 339, 348 (1813))). Professor Grano argues that this rule is justified
because if the police can narrow the list of suspects to a small group, we may reasonably ex-
pect--indeed, require--each suspect to sacrifice some liberty or privacy in order to unmask the
offender. Joseph D. Grano, Probable Cause and Common Sense: A Reply to the Critics of
Illinois v. Gates, 17 U. Mich. J.L. Reform 465, 496-97 (1984). For a critique of this argument,
see Bacigal, supra note 207, at 319-20 (arguing that harm to innocent suspects outweighs be-
nefit of catching the guilty).
[FN210]. Illinois v. Gates, 462 U.S. 213, 231 (1983) (describing probable cause as flexible
standard, built around factual and practical considerations of everyday life on which reason-
able and prudent men, not legal technicians, act (internal quotation marks omitted) (quoting
Brinegar, 338 U.S. at 175)).
[FN211]. See id. at 238 n.11 (stating that there are so many variables in the probable-cause
equation that one determination will seldom be a useful precedent for another); Wayne R.
LaFave, Case-by-Case Adjudication Versus Standardized Procedures: The Robinson Di-
lemma, 1974 Sup. Ct. Rev. 127, 141 (Fourth Amendment doctrine... is primarily intended to
regulate the police in their day-to-day activities and thus ought to be expressed in terms that
are readily applicable by the police in the context of the law enforcement activities in which
they are necessarily engaged. (footnotes omitted)).
[FN212]. See Brinegar, 338 U.S. at 176 (stating that probable cause strikes balance between
permitting effective law enforcement and protecting citizens from officers' whim or
00277
caprice); John W. Hall, 1 Search and Seizure 100 (3d ed. 2000) (arguing that historical pur-
pose of Fourth Amendment was to guarantee that police intrusions were justified and not
based on mere suspicion or whim).
[FN213]. Probable cause is based on objective facts, not on an officer's good faith. See United
States v. Ross, 456 U.S. 798, 808 (1982).
[FN214]. Brinegar, 338 U.S. at 175.
[FN215]. Maryland v. Wilson, 519 U.S. 408, 422 (1997) (Stevens, J., dissenting).
[FN216]. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
[FN217]. Anderson v. Creighton, 483 U.S. 635, 640 (1987).
[FN218]. Crawford-El v. Britton, 523 U.S. 574, 592 (1998) (naming right to be free of retali-
ation for protected speech as right that is clearly established).
[FN219]. Malley v. Briggs, 475 U.S. 335, 341 (1986).
[FN221]. For judicial opinions recognizing this discretion, see, e.g., Atwater v. City of Lago
Vista, 532 U.S. 318, 350 (2001) (holding police may exercise judgment in choosing between
the discretionary leniency of a summons in place of a clearly lawful arrest, and there is no
legal basis to challenge this decision); John v. City of El Monte, 515 F.3d 936, 940 (9th Cir.
2007) ([An] officer's subjective intention in exercising his discretion to arrest is immaterial
in judging whether his actions were reasonable for Fourth Amendment purposes.).
[FN222]. See Joseph Goldstein, Police Discretion Not to Invoke the Criminal Process: Low-
Visibility Decisions in the Administration of Justice, 69 Yale L.J. 543, 560-62 (1960) (noting
that resource constraints force police to establish priorities of enforcement).
[FN223]. Allowing a victim to play a role in deciding whether or not the offender will be ar-
rested can empower the victim and may reduce the incidence of future crime. See Linda G.
Mills, Killing Her Softly: Intimate Abuse and the Violence of State Intervention, 113 Harv. L.
Rev. 550, 565-70 (1999) (arguing that mandatory arrest statutes disempower victims of do-
mestic violence and lead to increased abuse).
[FN224]. The criminal justice system relies heavily on criminal informants. See Ian Wein-
stein, Regulating the Market for Snitches, 47 Buff. L. Rev. 563, 564 (1999) (arguing that cur-
rent use of informant information is excessive).
[FN225]. See Wayne R. LaFave, Am. Bar Found., Arrest: The Decision to Take a Suspect into
Custody passim (1965) (discussing various factors that bear on decision to make arrest).
[FN226]. 1 ABA Standards for Criminal Justice 1-4.5, cmt. at 1-124 (2d ed. 1980).
[FN227]. See, e.g., Cal. Gov't Code 26601 (West 2007) ([S]heriff shall arrest and take be-
00278
fore the nearest magistrate for examination all persons who attempt to commit or who have
committed a public offense.); Me. Rev. Stat. Ann. tit. 15, 704 (2007) (Every sheriff,
deputy sheriff, constable, city or deputy marshal, or police officer shall arrest and detain per-
sons found violating any law of the State or any legal ordinance or bylaw of a town....). For a
historical discussion of full-enforcement statutes, see Gregory Howard Williams, Police Rule-
making Revisited: Some New Thoughts on an Old Problem, Law & Contemp. Probs., Autumn
1984, at 123, 133-44.
[FN228]. See, e.g., Fla. Stat. 947.22(3) (2007) (If a law enforcement officer has probable
cause to believe that a parolee has violated the terms and conditions of his or her parole, the
officer shall arrest and take into custody the parolee....).
[FN229]. See, e.g., Ariz. Rev. Stat. 13-3601(B) (LexisNexis 2007) (stating that in cases of
domestic violence involving physical injury, [a] peace officer shall arrest a person, with or
without a warrant, if the officer has probable cause to believe that the offense has been com-
mitted); Minn. Stat. 518B.01, subdiv. 14(e) (Supp. 2008) (A peace officer shall arrest
without a warrant and take into custody a person whom the peace officer has probable cause
to believe has violated [a domestic protection order].). For a discussion of mandatory arrest
policies for domestic violence offenses, see Barbara Fedders, Note, Lobbying for Mandatory-Ar-
rest Policies: Race, Class, and the Politics of the Battered Women's Movement, 23 N.Y.U.
Rev. L. & Soc. Change 281, 287-96 (1997).
[FN230]. 545 U.S. 748, 759-61 (2005). The statute provided that a peace officer shall arrest,
or, if an arrest would be impractical under the circumstances, seek a warrant for the arrest of
a person suspected of violating a restraining order. Colo. Rev. Stat. 18-6-803.5(3) (1999)
(emphasis added). One lawmaker described the effect of the bill as follows: [T]he entire
criminal justice system must act in a consistent manner .... [P]olice must make probable cause
arrests. Gonzales v. City of Castle Rock, 366 F.3d 1093, 1107-08 (10th Cir. 2004) (quoting
Hearing on H.B. 125 Before the Colo. H. Judiciary Comm., Feb. 15, 1994), rev'd on other
grounds, Castle Rock, 545 U.S. 748.
[FN231]. Castle Rock, 545 U.S. at 760. This is in accord with the traditional approach to man-
datory arrest statutes. The American Bar Association states that for a number of reasons, in-
cluding their legislative history, insufficient resources, and sheer physical impossibility, it has
been recognized that such statutes cannot be interpreted literally. See 1 ABA Standards for
Criminal Justice, supra note 226, at 1-4.5, cmt. at 1-125. Most cases are in accord with this
principle. See, e.g., Florence v. Town of Plainfield, 909 A.2d 587, 591 (Conn. Super. Ct.
2006) (listing discretionary judgments that police may make despite mandatory arrest statute);
Cockerham-Ellerbee v. Town of Jonesville, 626 S.E.2d 685, 688 (N.C. Ct. App. 2006) (stating
literal reading of mandatory arrest statute would be unreasonable). Some courts, however,
break from this trend and hold that mandatory arrest statutes give rise to a duty to arrest. See,
e.g., Matthews v. Pickett County, 996 S.W.2d 162, 164 (Tenn. 1999) (stating police officers
had duty to arrest if there was reasonable cause to believe suspect had violated protective or-
der).
[FN232]. James Q. Wilson, Varieties of Police Behavior 31 (1968); see also Martin v. Mal-
00279
hoyt, 830 F.2d 237, 268 (D.C. Cir. 1987) ([E]veryday experience suggests that officers do
(and should) limit themselves to a warning in many instances of relatively technical viola-
tions.); Nicole Stelle Garnett, Ordering (and Order in) the City, 57 Stan. L. Rev. 1, 7 (2004)
(noting that in disorderly conduct situations, arrests were not the primary means used by po-
lice officers to keep the peace).
[FN233]. Egon Bittner, The Police on Skid-Row: A Study of Peace Keeping, 32 Am. Soc.
Rev. 699, 710 (1967); see also Brandt J. Goldstein, Panhandlers at Yale: A Case Study in the
Limits of Law, 27 Ind. L. Rev. 295, 337, 337-41, 350 (1993) (finding police generally refrain
from using arrests when other means for controlling panhandler activity are available); Debra
Livingston, Police Discretion and the Quality of Life in Public Places: Courts, Communities,
and the New Policing, 97 Colum. L. Rev. 551, 589 (1997) (noting arrest can actually interfere
with officer's primary goal of maintaining order because it takes officer off beat for a time).
The American Bar Association endorses this approach, stating that a law enforcement officer
having grounds for making an arrest should take the accused into custody or, already having
done so, detain him further only when such action is required by the need to carry out legitim-
ate functions. Am. Bar Ass'n, Project on Standards of Criminal Justice: Standards Relating to
Pretrial Release 2.1, at 31 (1980).
[FN234]. See Bittner, supra note 233, at 710 ([C]ompliance with the law is merely the out-
ward appearance of an intervention that is actually based on altogether different considera-
tions.). Indeed, for better or for worse, one of the functions of ordinances prohibiting of-
fenses such as loitering or vagrancy is to allow police officers to detain and investigate indi-
viduals whom they might not otherwise be able to detain. See Sanford H. Kadish, The Crisis
of Overcriminalization, in Blame and Punishment: Essays in the Criminal Law 21, 30-31
(1987) (arguing that public order offenses function as delegations of discretion to the police
to act in ways which formally we decline to extend to them because it would be inconsistent
with certain fundamental principles with respect to the administration of criminal justice).
[FN235]. See, e.g., Greene v. Barber, 310 F.3d 889, 893 (6th Cir. 2002) (explaining that
plaintiff was acquitted after jury trial); Ellis v. City of New York, 243 F.R.D. 109, 110
(S.D.N.Y. 2007) (noting that criminal charges against plaintiff had been dismissed).
[FN236]. Leonard v. Robinson, 477 F.3d 347 (6th Cir. 2007), provides an excellent example.
In Leonard, the plaintiff stood up at a town meeting, made a brief speech that included the
words God damn, and calmly sat back down, only to be arrested for disorderly conduct and
obscene language. Id. at 352. The plaintiff's wife had recently sued the township chief of po-
lice. Id. at 351. For other examples of arrests for minor infractions, see Bennett v. Hendrix,
423 F.3d 1247, 1249 (11th Cir. 2005) (alleging that officer attempted to arrest plaintiff on
trumped-up environmental charges); McCormick v. City of Lawrence, 325 F. Supp. 2d
1191, 1198 (D. Kan. 2004) (plaintiff arrested for obstruction of legal duty and interfering with
duties of police officer after shouting at officer while officer was checking another individu-
al's driver's license).
[FN237]. Of course, evidence of the absence of probable cause is a different matter entirely,
and there is no inconsistency in arguing that the absence of probable cause is a powerful form
00280
of evidence that should be required to overcome the evidentiary hurdle of complex causation.
[FN238]. As discussed above, police officers routinely observe misdemeanor offenses. See
supra notes 232-234 and accompanying text. Felony offenses are rarer, and thus police of-
ficers must identify some unusual conduct that gave rise to their suspicion of a felony offense.
Moreover, an arrest for a felony will generally involve pretrial detention and the threat of
lengthy imprisonment, and may require a greater showing of probable cause than would a cita-
tion or brief arrest for a misdemeanor. See Berger v. New York, 388 U.S. 41, 69 (1967)
(Stewart, J., concurring) (Only the most precise and rigorous standard of probable cause
should justify an intrusion of this sort.). On the other hand, courts may also be inclined to
grant police officers greater leeway in arresting suspects for serious crimes, due to concerns
about safety. See Llanguno v. Mingey, 763 F.2d 1560, 1564-66 (7th Cir. 1985) (holding po-
lice were allowed to seize plaintiffs and search house due to emergency situation). But see
County of Riverside v. McLaughlin, 500 U.S. 44 (1991) (overruling Llanguno on other
grounds). But on the whole, it is easier to suspect a bystander of loitering than of murder.
[FN239]. See supra notes 232-234 and accompanying text. As evidence of this proposition,
consider that when New York City implemented a mandatory arrest policy for domestic viol-
ence incidents, misdemeanor domestic violence arrests rose by 114%, but felony domestic vi-
olence arrests rose by only 33%. Emily J. Sack, Battered Women and the State: The Struggle
for the Future of Domestic Violence Policy, 2004 Wis. L. Rev. 1657, 1672.
[FN240]. See Curley v. Vill. of Suffern, 268 F.3d 65, 69 (2d Cir. 2001) (plaintiff arrested for
assault); Baldauf v. Davidson, No. 1:04-CV-1571-JDT-TAB, 2006 WL 3743819, at *8 (S.D.
Ind. Dec. 18, 2006) (plaintiff arrested for battering police officer), vacated in part, 2007 WL
1202911 (S.D. Ind. Apr. 23, 2007). Lest one think that such serious offenses can never in-
volve but-for retaliatory causation, the battery in Baldauf occurred when the plaintiff pushed
the officer's finger out of her face during a verbal confrontation. The plaintiff had previously
filed a complaint against the officer, and she repeatedly tried to end the argument peacefully.
Ironically, she was arrested at the police station after she showed up to file a complaint
against the officer, who did not initially choose to make the arrest. 2006 WL 3743819, at *7.
[FN241]. See supra notes 238-240.
[FN242]. The Supreme Court has indicated that courts should generally rely on tools such as
summary judgment, rather than heightened pleading standards, to screen out meritless cases
against public officials. See infra notes 289-291 and accompanying text.
[FN244]. See Alexis v. McDonald's Rests. of Mass., Inc., 67 F.3d 341, 346 (1st Cir. 1995)
(describing officer's threat that [y]ou better shut up your... mouth before I arrest you too);
Baldauf, 2006 WL 3743819, at *6 (describing officer stating do you know I can arrest you
for assault and then stating that if plaintiff left the scene, no arrest would be made); King v.
Ambs, No. 04-74867, 2006 WL 800751, at *2 (E.D. Mich. Mar. 28, 2006) (quoting officer as
stating [o]ne more word and I will arrest you); cf. Torries v. Hebert, 111 F. Supp. 2d 806,
812 (W.D. La. 2000) (discussing allegation that officer, after arresting plaintiffs for contribut-
00281
ing to delinquency of minor for playing rap music, threatened to arrest them again if they
played music in the future).
[FN245]. See Holland v. City of Portland, 102 F.3d 6, 10 (1st Cir. 1996) (considering
plaintiff's allegation that after plaintiff refused to answer questions about robbery, officer
stated well, then we can get him for not having a license or something or other); Complaint
at 7-8, Bridge v. City of New York, No. 07 CV 2102, 2007 WL 1368487 (S.D.N.Y. Mar. 12,
2007) (alleging that officer stated [t]hat's it. [Your son]'s under arrest, and arrested plaintiff
and her son after plaintiff refused to stop speaking to person on telephone). This sort of evid-
ence is often found in cases where a state or local government official induces the police to
make a retaliatory arrest. See Hansen v. Williamson, 440 F. Supp. 2d 663, 666 (E.D. Mich.
2006) (describing situation where plaintiff refused to stop delivering papers to city hall and
mayor stated I'll show you how much authority I have and called police).
[FN246]. 111 F. Supp. 2d 806.
[FN247]. Id. at 810-12.
[FN248]. Id. at 811-12.
[FN249]. Id. at 812.
[FN250]. Id. The letter stated, in part, that the music that is being played in this establish-
ment is not what we in ... this community want our minor children to be hearing. Id.
[FN251]. Id.
[FN252]. Of course, it is entirely proper to arrest a plaintiff if the speech in question is unpro-
tected and constitutes a criminal offense. The plaintiff must first show that the speech in ques-
tion was protected. See supra notes 37-42 and accompanying text. The defendant's conduct in
Torries was objectionable because the gangster rap was protected speech. See 111 F. Supp.
2d at 817-22.
[FN253]. 423 F.3d 1247, 1248-49 (11th Cir. 2005).
[FN254]. One plaintiff was allegedly told that he would end up going to jail unless he op-
posed the referendum. Brief of Appellees Danny M. Bennett and Danny L. Reid at 8, Bennett,
423 F.3d 1247 (No. 02-11031-GG). One police officer was told that his job would be to head
up a Strike Force that was going to investigate 50-75 residents of Forsyth County who
might be opposed to Sheriff Hendrix's reelection. Id. at 11.
[FN255]. Id. at 13.
[FN256]. Button v. Harden, 814 F.2d 382, 383 (7th Cir. 1987).
[FN257]. See, e.g., Hinnenkamp v. City of St. Cloud, 178 F. App'x 620, 620 (8th Cir. 2006)
(per curiam) (noting plaintiff's allegation that officers arrested her in retaliation for filing civil
rights suit); Franklin v. City of Chi. Police Dep't, 175 F. App'x 740, 741 (7th Cir. 2005)
00282
(discussing plaintiff's allegation that officers arrested her in retaliation for filing false arrest
claim).
[FN259]. Direct evidence is a statement or threat revealing that the arrest was motivated by
the plaintiff's speech. See supra notes 244-252 and accompanying text.
[FN260]. Some cases suggest that retaliatory arrest actions will allow clever plaintiffs to es-
cape liability by deliberately engaging in provocative speech immediately before the arrest.
See, e.g., Rollerson v. Gonzalez, No. G-06-CV-246, 2007 WL 1729643, at *8 (S.D. Tex. June
13, 2007) (stating that plaintiff cannot escape arrest or confrontation simply by engaging in
protected speech once officers arrive on the scene). Since a police officer can escape liability
by showing that an arrest would have occurred in the absence of the protected speech, this
should not be a problem. See supra Part I.B.2. In any case, it is unlikely that even the most
creative suspects would think to use an obscure cause of action such as retaliatory arrest in
such a manner, particularly since doing so would risk antagonizing an officer who might oth-
erwise be inclined to let the plaintiff go free.
[FN261]. No. 3:06cv70/RV/EMT, 2006 WL 3780716 (N.D. Fla. Dec. 20, 2006).
[FN262]. Id. at *1. The plaintiffs ultimately lost their case for failure to show that they were
prohibited from preaching because (rather ironically) they made a sworn statement in anoth-
er case stating that they continued to preach in Escambia. Id. at *3-*4.
[FN263]. Amended Complaint and Prayer for Permanent Injunctive Relief Declaratory Judg-
ment and Damages at 21, Bethel, No. 3:06CV70/RV/EMT, 2006 WL 3780716 (stating that of-
ficers have not harassed others in Escambia County who engage in similarly situated First
Amendment protected activities on the public right-of-ways, including furniture stores, car
washes, and government fundraising organizations).
[FN264]. See Washington v. Davis, 426 U.S. 229, 242 (1976) ( Disproportionate impact
...[s]tanding alone... does not trigger the rule that racial classifications are to be subjected to
the strictest scrutiny and are justifiable only by the weightiest of considerations. (citation
omitted)). For a discussion of the relationship between the Mt. Healthy framework and racial
discrimination cases, see supra note 52.
[FN265]. While it is not sufficient to prove discriminatory intent, evidence of discriminatory
impact is very important to such claims--indeed, it is often required to state a claim. See
United States v. Armstrong, 517 U.S. 456, 465 (1996) (holding that in selective prosecution
claim, plaintiff must prove that prosecutorial policy had a discriminatory effect and that it
was motivated by a discriminatory purpose. (quoting Wayte v. United States, 470 U.S. 598,
608 (1985))); Marshall v. Columbia Lea Reg'l Hosp., 345 F.3d 1157, 1167-71 (10th Cir. 2003)
(holding that plaintiff challenging racially discriminatory arrest must show discriminatory
purpose and effect); Chavez v. Ill. State Police, 251 F.3d 612, 635-36 (7th Cir. 2001) (holding
that in challenging racially discriminatory traffic stops, plaintiff must prove discriminatory ef-
fect and purpose (citing Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264-66
00283
(1977))).
[FN266]. See Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997) (holding
that [c]lose timing between an employee's protected activity and an adverse action against
him may provide evidence for prima facie case).
[FN267]. See Morales v. Taveras, No. 05-4032, 2007 WL 172392, at *13-*15 (E.D. Pa. Jan.
18, 2007) (stating that probable cause is needed to prevent easy resort to retaliation claims
based on temporal proximity).
[FN268]. See Sershen v. Cholish, No. 3:07-CV-1011, 2007 WL 3146357, at *8 (M.D. Pa. Oct.
26, 2007) (ruling that timing was suggestive of retaliatory motive where officer stated that
was enough and arrested plaintiff immediately after she argued about trespass charges); cf.
Leonard v. Robinson, No. 03-72199, 2005 WL 5352521, at *11 (E.D. Mich. May 4, 2005)
(denying relief because plaintiff's protected speech occurred after officer began to detain
plaintiff), rev'd on other grounds, 477 F.3d 347 (6th Cir 2007).
[FN270]. See supra Part III.A.
[FN271]. Brown v. Middaugh, 41 F. Supp. 2d 172, 191 (N.D.N.Y. 1999).
[FN272]. See Watson, supra note 21, at 130 ([C]ourts can be aggressive in entering summary
judgment based on qualified immunity to protect well-meaning defendant officers from har-
assing litigation and help courts to avoid the prospect of resource-sapping trials.).
[FN273]. See Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 686 (4th Cir. 2000)
(Determining whether a plaintiff's First Amendment rights were adversely affected by retali-
atory conduct is a fact intensive inquiry that focuses on the status of the speaker, the status of
the retaliator, the relationship between the speaker and the retaliator, and the nature of the re-
taliatory acts.).
[FN274]. See Watson, supra note 21, at 129 (In the last quarter-century, litigants have
squarely presented only twenty-nine actions for retaliatory arrest to federal courts of ap-
peals.).
[FN275]. Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995).
[FN276]. Keenan v. Tejeda, 290 F.3d 252, 261-62 (5th Cir. 2002).
[FN277]. See supra Part I.B.2.
[FN278]. See Duran v. City of Douglas, 904 F.2d 1372, 1378 (9th Cir. 1990) ([G]overnment
officials in general, and police officers in particular, may not exercise their authority for per-
sonal motives, particularly in response to real or perceived slights to their dignity. Surely any-
one who takes an oath of office knows--or should know--that much.).
00284
[FN279]. For a discussion of qualified immunity, see supra notes 216-219 and accompanying
text.
[FN280]. See Crawford-El v. Britton, 523 U.S. 574, 598-600 (1998) (advocating use of such
pretrial screening mechanisms).
[FN282]. Cf. United States v. Rubio, 727 F.2d 786, 791 (9th Cir. 2004) (When activity pro-
tected by the First Amendment becomes the subject of a criminal investigation, the protections
afforded by the Fourth Amendment come into play.).
[FN283]. Everyone violates some aspect of the traffic code in some way during any short
drive. David A. Harris, The Reality of Racial Disparity in Criminal Justice: The Significance
of Data Collection, Law & Contemp. Probs., Summer 2003, at 71, 95.
[FN284]. United States v. Weiland, 420 F.3d 1062, 1079 n.16 (9th Cir. 2005).
[FN286]. Complex causation cases are a different issue because these cases are governed by
the Supreme Court's intervening decision in Hartman v. Moore. See supra Part III.A.
[FN287]. See supra Parts II.A-B.
[FN289]. For a discussion of qualified immunity, see supra notes 216-219 and accompanying
text.
[FN290]. Crawford-El v. Britton, 523 U.S. 574, 589-91 (1998). In Crawford-El, the Court re-
viewed a D.C. Circuit rule requiring clear and convincing evidence of improper motive for
claims against public officials, a rule touted as a way to reduce the social cost of subjecting
these officials to discovery and trial. Id. at 580-86.
[FN291]. Id. at 593.
[FN292]. See supra Part III.A.
[FN294]. See supra Part III.B.
[FN295]. Addington v. Texas, 441 U.S. 418, 425 (1979) (quoting Tippett v. Maryland, 436
F.2d 1153, 1166 (4th Cir. 1971) (Sobelof, J., concurring in part and dissenting in part)).
END OF DOCUMENT
00285
Michigan Law Review
October, 2008
Notes
*111 LIMITING A CONSTITUTIONAL TORT WITHOUT PROBABLE CAUSE: FIRST AMEND-
MENT RETALIATORY ARREST AFTER HARTMAN
Colin P. Watson [FNa1]
Copyright (c) 2008 Michigan Law Review Association; Colin P. Watson
Federal law provides a cause of action for individuals who are the target of adverse state
action taken in retaliation for their exercise of First Amendment rights. Because these constitu-
tional torts are easy to allege and hard to disprove, they raise difficult questions concerning
the proper balance between allowing meaningful access to the courts and protecting government
agents from frivolous and vexatious litigation. In its recent decision in Hartman v. Moore, the
U.S. Supreme Court tipped the scales in favor of the state in one subset of First Amendment re-
taliation actions by holding that plaintiffs in actions for retaliatory prosecution must plead and
prove a lack of probable cause for pressing the underlying charge as an element of their claim.
This Note argues that a careful reading of Hartman demonstrates that, despite the recent hold-
ings and dicta of several courts, Hartman neither requires nor supports a rule that the presence
of probable cause for effectuating the underlying arrest precludes a claim for First Amendment
retaliatory arrest (the no-probable-cause rule). This Note also seeks to demonstrate that pre-
Hartman cases applying the no-probable-cause rule in actions for retaliatory arrest are bad law.
After freeing courts from the constraints of Hartman and pre-Hartman circuit precedent, this
Note argues that both legal arguments and policy considerations counsel against application of
the no-probable-cause rule in actions for retaliatory arrest.
Table of Contents
Introduction 112
I. Hartman: Inapplicable in the Ar-
rest Context
116
A. Hartman Depends on the Pres-
ence of Objective Probable Cause Evid-
ence and the Causal Gap
117
1. The Facts 117
107 MILR 111 Page 1
107 Mich. L. Rev. 111
00286
2. The Result Depends on the
Availability of Objective, Probative
Probable Cause Evidence
118
3. The Result Depends on the
Causal Gap that Makes Proving Lack
of Probable Cause Necessary
119
B. Hartman Does Not Control Be-
cause the Causal Gap Does Not Char-
acterize the Arrest Action
121
II. No Persuasive Legal Argument
Exists for Imposing the No-Prob-
able-Cause Rule in Arrest Actions
123
A. The Presence of Probable Cause
Does Not Prevent Plaintiffs from Prov-
ing the Causation Element
123
B. Cases Applying the No-
Probable-Cause Rule Pre-Hartman Are
Unpersuasive
126
III. Proponents Have Not Articu-
lated a Persuasive Policy Rationale for
Applying the Rule in Arrest Actions
128
A. Courts Can Manage Arrest Ac-
tions Without Making the Claim More
Difficult to Plead and Prove
129
B. Courts Should Not Fear a Surge
in Retaliatory-Arrest Actions
130
Conclusion 132
*112 Introduction
John Q. Activist is a well-known, if not notorious, government critic in the city of Hutchins. John
earns income as a freelance food critic but spends much of his time writing, publishing, and distribut-
ing a weekly newsletter identifying and decrying the wasteful government spending of Hutchins's tax
107 MILR 111 Page 2
107 Mich. L. Rev. 111
00287
dollars. Of late, John has been particularly critical of the Hutchins Police Department's purchase of
costly consulting services from Homeland Security Inc. John has claimed in print that the city did not
bid the consulting contract competitively because of a romantic relationship between Police Chief
Berkeley and Homeland's vice president of community relations. Both Hutchins and Chief Berkeley
have denied the allegation.
Several weeks ago, while John was driving home from a long evening of editing at his downtown
office, a Hutchins police officer pulled him over for failing to fully stop at a stop sign. John was
clearly tired--his eyes were bloodshot and he was unable to give the exact hour or date. John ex-
plained to the officer that he had been up all night at his office attempting to meet a publishing dead-
line. The officer was finishing providing John with a warning regarding the dangers of driving while
fatigued--preparing to let John leave without a ticket--when he noticed a stack of John's Hutchins Ac-
countability Weekly newsletters piled on the passenger seat. The officer immediately recognized
John as a local agitator and his demeanor shifted. The officer said John looked like he had been
drinking and smelled a bit *113 odd--maybe like alcohol. The officer asked John to get out of the car
and, as he placed him under arrest for suspicion of drunk driving in violation of Hutchins law, re-
marked that I hope this doesn't affect your ability to get that dishonest rag of yours to all your so-
cialist friends in time for your next meeting.
John, freed from jail after ten long hours and no charges, was intimidated. Believing himself the
victim of an arrest made solely to punish him for his irreverent reporting and to deter him from criti-
cizing Hutchins officials in the future, John filed suit in federal district court. He cited the arresting
officer's shift in demeanor and threatening reference to his work to support his contention that his ar-
rest was unconstitutional retaliation for his exercise of his First Amendment right to publish carefully
researched stories critical of his local government. During pretrial proceedings, the defendant officer
claimed the arrest was fully constitutional because he had probable cause to believe that John had
been drinking--the bleary eyes and incoherence, he asserts, are hallmarks of an intoxicated driver.
The federal judge, crediting the officer's finding of probable cause, declined to inquire into the of-
ficer's actual reason for arresting John and dismissed the complaint. John is free, but reluctant to pub-
lish his weekly under what he perceives to be the threat of continued government harassment.
Courts agree that the First Amendment [FN1] protects individuals from retaliatory action motiv-
ated by the exercise of certain constitutional rights. [FN2] As the Tenth Circuit recently stated,
[a]lthough retaliation is not expressly discussed in the First Amendment, it may be actionable inas-
much as governmental retaliation tends to chill citizens' exercise of their constitutional rights.
[FN3]
Victims of state or federal retaliatory action may seek redress under section 1983 of the Civil
Rights Act [FN4] or Bivens v. Six Unknown Named Agents *114 of Federal Bureau of Narcotics.
[FN5] Plaintiffs seeking to recover for allegedly unconstitutional retaliation must plead and prove (1)
the existence of a right protected by the First Amendment; (2) that the exercise of that right was a
substantial motivating factor in the decision to take the adverse action; and (3) that the adverse action
chilled the exercise of the protected right. [FN6] Further, to prove the prima facie case, a plaintiff
must demonstrate that his exercise of a First-Amendment-protected right was the but-for cause of
the adverse action. [FN7] Conduct merely shaded by constitutionally impermissible motive does not
rise to the level of a constitutional violation. [FN8] Consequently, a defendant may avoid liability if
107 MILR 111 Page 3
107 Mich. L. Rev. 111
00288
he can persuade the fact finder that he would have taken the challenged action notwithstanding any
personal animus engendered by First Amendment conduct. [FN9]
A minority of jurists do reject the idea that section 1983 of the Civil Rights Act provides a tort
cause of action for intent-based constitutional torts, but this rejection is limited. Critics of the major-
ity view maintain that section 1983, as enacted, was meant only to provide a cause of action for dam-
ages against state agents acting pursuant to a duly enacted, but unconstitutional, state statute. [FN10]
Notwithstanding their disagreement about the precise nature of the Civil Rights Act enacted by Con-
gress, these jurists do not actively seek to abrogate current section 1983 jurisprudence, but instead
support making intent-based constitutional torts more difficult to plead and prove. [FN11]
Courts agree less on the proper adjudicatory framework for resolving the subset of retaliation
claims concerned with allegedly unconstitutional arrest. [FN12] Until recently, federal courts of ap-
peals disagreed as to whether the *115 presence of probable cause for effectuating the arrest that is
the subject of a First Amendment retaliation action ought to preclude a plaintiff's recovery. [FN13]
The Second and Eleventh Circuits held that as a matter of law a police officer is not liable for uncon-
stitutional retaliation in an action by an arrestee where probable cause supported the underlying ar-
rest. [FN14] These two circuits adhere to a no-probable-cause rule that places an additional burden
on plaintiffs. [FN15] Reaching the opposite conclusion, the Sixth Circuit held that the existence of
probable cause does not preclude a plaintiff's constitutional claim. [FN16] While the existence of
probable cause has probative value in an action for retaliatory arrest, the Sixth Circuit reasoned, it by
no means determines the action. [FN17]
A recent decision by the U.S. Supreme Court drastically altered the First Amendment retaliation
landscape and complicated the role that probable cause plays in the analysis of claims for retaliatory
arrest. In its 2006 decision in Hartman, the Court resolved a different circuit disagreement and made
the absence of probable cause for pressing the underlying charge an element of a claim for First
Amendment retaliatory prosecution. [FN18] In the eighteen months since the Court decided Hartman,
courts addressing all manner of First Amendment retaliation actions have relied on Hartman in im-
posing the no-probable-cause rule in various, non-prosecution settings. [FN19] After Hartman the
*116 Sixth Circuit determined that its earlier cases rejecting a no-probable-cause rule in the retaliat-
ory-arrest action were no longer good law. [FN20]
Though a clearly defined circuit disagreement no longer exists, [FN21] the debate continues.
Some federal courts of appeals have yet to rule on whether probable cause precludes an action for re-
taliatory arrest, and so the debate continues. Several state and federal district courts in jurisdictions
whose highest court has not yet ruled on the no-probable-cause rule's application to actions for retali-
atory arrest have declined to read Hartman to apply to situations alleging anything other than retaliat-
ory prosecution, including actions for retaliatory arrest. [FN22]
This Note considers whether the Supreme Court's recent decision in Hartman supports a rule that
the presence of probable cause for effectuating an arrest should preclude a First Amendment retaliat-
ory-arrest action and concludes that it does not. It argues that courts, unconstrained by Hartman,
should decline to adopt the no-probable-cause rule in the arrest context. Part I analyzes the opinion in
Hartman and argues that it does not support a no-probable-cause rule in the arrest context because its
holding is limited to actions alleging retaliatory prosecution. Part II advocates rejecting the no-
107 MILR 111 Page 4
107 Mich. L. Rev. 111
00289
probable-cause rule in the arrest context and argues that the existence of probable cause does not de-
termine the key issue in an action for retaliatory arrest: causation. Part II then challenges the thin leg-
al reasoning supporting the no-probable-cause rule pre-Hartman. It asserts that the Second and Elev-
enth Circuits, the rule's early adopters, implemented the rule through the application of impertinent
case law or adherence to questionable precedent and failed to articulate an argument for deviating
from the straightforward application of the claim's elements. Part III asserts that proponents of the
no-probable-cause rule have yet to offer a persuasive policy argument in favor of imposing the rule in
retaliatory-arrest actions.
I. Hartman: Inapplicable in the Arrest Context
Part I argues that the Supreme Court's recent decision in Hartman--requiring plaintiffs in First
Amendment retaliatory-prosecution actions to plead and prove the absence of probable cause for
pressing the underlying charge--does not dictate imposition of the no-probable-cause rule in non-
prosecution contexts. Section I.A describes the Hartman litigation, parses *117 the opinion, and iden-
tifies the two necessary considerations on which the Court's holding depends. Section I.B concludes
that because Hartman's holding is dependent on the presence of an unusual causal gap--arising where
the presence of an intervening actor complicates the link between the defendant's animus and the al-
legedly retaliatory action--and because retaliatory-arrest actions are not characterized by this gap,
Hartman's holding does not constrain lower courts in adjudicating actions for retaliatory arrest.
A. Hartman Depends on the Presence of Objective Probable Cause Evidence and the Causal Gap
Parsing Hartman is necessary to understanding the contours of its holding and its possible applic-
ation in the retaliatory-arrest context. If the principles underlying Hartman apply in the arrest setting,
then the newly formed circuit consensus is valid. If, however, Hartman's holding does not translate,
courts should look anew at the issue of whether the presence of probable cause should preclude an ac-
tion for retaliatory arrest. Section I.A.1 sets out the circumstance that gave rise to litigation in Hart-
man, providing readers with concrete facts that will enable a clearer understanding of retaliation ac-
tions generally and the Hartman litigation and opinion specifically. Section I.A.2 argues that Hartman
depends on the fact that retaliatory-prosecution actions reliably present objective and probative prob-
able cause evidence that speaks to the issue of causation. Section I.A.3 argues that Hartman's holding
further depends on the existence of a causal gap that renders proving the link between constitution-
ally protected conduct and adverse state action more difficult in the retaliatory-prosecution action
than in the normal retaliation action, and makes evidence of the absence of probable cause practically
necessary to prove an impermissible motive.
1. The Facts
Plaintiff William G. Moore, Jr. was the chief executive officer of REI, a manufacturer of multil-
ine optical character readers for use in interpreting multiple lines of printed text. [FN23] Moore suc-
cessfully lobbied against a U.S. Postal Service plan to adopt a single-line text system that would have
harmed his business, but then ultimately failed to procure a government contract for which his firm
was competing. [FN24] After losing the contract, Moore made several public statements critical of
the Postal Service. [FN25] A short time later, federal agents investigated and then charged Moore and
107 MILR 111 Page 5
107 Mich. L. Rev. 111
00290
several others in connection with alleged kickbacks and improper conduct in the selection of a new
postmaster general. [FN26] The U.S. District Court for the District of *118 Columbia eventually dis-
missed the government's charges after finding a complete lack of direct evidence. [FN27]
Moore then initiated suit against five postal inspectors alleging that he was prosecuted in retali-
ation for his comments critical of the U.S. Postal Service, comments protected by the First Amend-
ment. [FN28] The U.S. District Court for the District of Columbia denied the defendant inspectors'
motion for summary judgment and the Court of Appeals for the District of Columbia affirmed.
[FN29] The inspectors subsequently moved for summary judgment based on qualified immunity, ar-
guing that probable cause supported the prosecution, but the district court denied the motion and the
D.C. Circuit affirmed. [FN30] The Supreme Court granted certiorari in order to resolve a circuit dis-
agreement as to whether probable cause for pressing the underlying charge should, as a matter of law,
defeat the claim for retaliatory prosecution. [FN31] The sole issue on appeal was whether the exist-
ence of probable cause precludes a claim for retaliatory prosecution. [FN32]
2. The Result Depends on the Availability of Objective, Probative Probable Cause Evidence
The Supreme Court in Hartman found that actions for retaliatory prosecution provided an oppor-
tunity to impose an objective standard on an intent-based constitutional tort that is otherwise difficult
to adjudicate. Because First Amendment retaliation actions center on the defendant's subjective in-
tent, [FN33] these claims, including those for retaliatory prosecution, present real adjudicatory diffi-
culties. [FN34] Defending against and adjudicating an action for First Amendment retaliation is prob-
lematic because retaliatory motive is easy to allege and hard to disprove. [FN35] An arrestee can,
with little difficulty, file a complaint alleging that his arrest was the result of unconstitutional retali-
ation. A defendant officer can do little to prove definitively that he effectuated the arrest for permiss-
ible reasons, and a successful defense of the action depends largely on whether the fact finder be-
lieves the officer's version of the arrest over the plaintiff's. The defendant investigators in *119 Hart-
man invoked these difficulties to support their request for the protection of a no-probable-cause rule.
[FN36]
The action for retaliatory prosecution is different. Unlike many other actions alleging First
Amendment retaliation, [FN37] actions for retaliatory prosecution are consistently characterized by a
dispute over one central fact: the presence or absence of probable cause for pressing the underlying
charge. The Court recognized that the significance of probable cause or the lack of it looms large,
being a potential feature of every case, with obvious evidentiary value. [FN38] This probable cause
evidence is objective and speaks directly to the issue of whether or not the prosecution of the under-
lying charge was the result of unconstitutional retaliation. [FN39]
The Supreme Court justified its adoption of the objective no-probable-cause rule in part by ar-
guing that lower courts could implement a rule making special use of probable cause evidence in the
retaliatory-prosecution context with relative ease. Valuable probable cause evidence is always avail-
able [FN40] and [t]he issue [of probable cause] is . . . likely to be raised by some party at some
point [FN41] in the retaliatory-prosecution context. Where the parties to the litigation will already
have access to the evidence, and are likely already planning on devoting time and resources to disput-
ing that evidence, courts can implement the rule without increasing the burden on either the litigants
or the courts. [FN42]
107 MILR 111 Page 6
107 Mich. L. Rev. 111
00291
3. The Result Depends on the Causal Gap that Makes Proving Lack of Probable Cause Neces-
sary
Actions for retaliatory prosecution are characterized by a causal gap that makes demonstrating the
link between the defendant's animus and the alleged retaliation unusually complicated, and makes the
presence of evidence that can bridge this gap all but necessary to prove retaliation. In the *120 nor-
mal action alleging unconstitutional retaliation, a plaintiff makes the straightforward claim that an in-
dividual government officer undertook some adverse action as a result of personal animus en-
gendered by the plaintiff's exercise of First Amendment rights. [FN43] The plaintiff can usually
prove the link between the actor's animus and the retaliatory action with little complication. [FN44]
In the action for retaliatory prosecution, however, the link between animus and retaliatory action
is more complex. [FN45] Because a prosecutor enjoys absolute immunity from suit related to prosec-
utorial decisions, [FN46] the plaintiff in a retaliatory-prosecution suit must normally sue investigat-
ors, police officers, or other government officials involved in the broader prosecution. [FN47] Con-
sequently, plaintiffs must not only demonstrate animus on the part of the defendant officer or invest-
igator but also that the defendant successfully induced the presumptively disinterested prosecutor to
press charges that he would not otherwise have pressed. [FN48] A disconnect then exists--termed the
causal gap--between the alleged animus of the defendant(s) and the adverse action. [FN49]
This break in the chain of causation makes the already valuable evidence of a lack of probable
cause uniquely necessary and provides the ultimate rationale for the Court's adoption of the no-
probable-cause rule in Hartman. The Court unambiguously stated that [i]t is, instead, the need to
prove a chain of causation from animus to injury, with details specific to retaliatory-prosecution
cases, that provides the strongest justification for the no-probable-cause requirement. [FN50] The
causal gap makes it practically necessary to show that no probable cause existed in order to rebut the
strong presumption that the intervening prosecutor acted independently and without unconstitutional
bias. As the court explained, [s]ome sort of allegation, then, is needed both to bridge the gap
between the nonprosecuting government agent's motive and the prosecutor's action, and to address
the presumption of prosecutorial regularity. [FN51] Absent a showing that no probable*121 cause
existed for pressing the underlying charge, in the Court's opinion, the presence of an intervening, pre-
sumptively disinterested, prosecutor is enough to defeat the claim. [FN52] If, however, the plaintiff
can bridge the causal gap by demonstrating the absence of probable cause, he will give the claim of
retaliation . . . some vitality [FN53] and sufficiently justify the adjudication of his tort action.
B. Hartman Does Not Control Because the Causal Gap Does Not Characterize the Arrest Action
Hartman does not control in the retaliatory-arrest context because of the two necessary considera-
tions upon which the Hartman holding depends; [FN54] only the centrality and availability of object-
ive, probative probable cause evidence characterizes the action for retaliatory arrest. [FN55] The Su-
preme Court explicitly stated that absent the causal gap found in the action for retaliatory prosecu-
tion, the adoption of the no-probable-cause rule would have been inappropriate: [the centrality and
availability of objective probable cause evidence] alone does not mean, of course, that a . . . plaintiff
should be required to plead and prove no probable cause. [FN56] In the normal action for retaliatory
arrest there is no causal gap: the plaintiff alleges that the animus of one identified defendant police
107 MILR 111 Page 7
107 Mich. L. Rev. 111
00292
officer caused that officer to arrest him when he otherwise would not have done so. [FN57]
Evidence of a lack of probable cause is relevant, but insufficient to warrant application of a no-
probable-cause rule. True, a demonstrable absence of probable cause in the arrest context strongly
suggests the presence of an unconstitutional motive, and undoubtedly strengthens the plaintiff's
claim. Conceding the point, a federal district court in Wisconsin recently observed that the absence
of probable cause is strong evidence that the officer's true *122 motive for the arrest was an illegal
one. [FN58] But as the same court ultimately held, absent a causal gap that requires bridging, prov-
ing the absence of probable cause is not necessary, and, by Hartman's reasoning, a rule mandating
that plaintiffs prove its absence is unjustified. [FN59]
Some courts have focused on dicta in Hartman to suggest that its holding sweeps broadly, apply-
ing in actions in which no gap renders the probable cause evidence all but necessary, but courts
should reject this argument. The Sixth Circuit has argued that Hartman appears to acknowledge that
its rule sweeps broadly. [FN60] In Hartman, the Supreme Court did concede that not all actions for
retaliatory prosecution present complicated causation issues, admitting that the requisite causation is
usually more complex than it is in other retaliation cases. [FN61] Accordingly, the Court appeared
to accept that its no-probable-cause rule would unfairly burden plaintiffs in some actions in which
proving the absence of probable cause was not necessary to bridge the causal gap. [FN62] The Court
appeared willing to accept that its holding . . . would come at a cost [FN63] and that in some ex-
ceptional retaliatory-prosecution actions where the intervening prosecutor was himself not disinter-
ested--either because he had his own animus or was sufficiently influenced by the defendants-
-plaintiffs would be unnecessarily burdened. [FN64]
Courts should not read this language to apply Hartman broadly. The Court, however, clearly
noted that these exceptional actions would be rare and consequently poor guides in structuring [the]
cause of action. [FN65] To suggest,*123 then, that this language justifies the imposition of the no-
probable-cause rule in a class of actions in which the overwhelming majority of plaintiffs would be
burdened without the practical necessity engendered by the causal gap perverts this judicial com-
promise. [FN66]
II. No Persuasive Legal Argument Exists for Imposing the No-Probable-Cause Rule in Arrest Actions
This Part argues that the presence of probable cause is not determinative in retaliatory-arrest ac-
tions and that pre-Hartman courts applying the no-probable-cause rule did so without providing pre-
cedential support or a novel, compelling legal rationale for their holdings. Section II.A argues that the
presence of probable cause in the retaliatory-arrest context does nothing more than provide one pos-
sible permissible justification for undertaking the challenged arrest. Section II.A then asserts that the
application of an established constitutional principle--that an act taken in retaliation for the exercise
of First Amendment rights is actionable even if the act would have been proper when taken for a dif-
ferent reason--demonstrates that the presence of probable cause does not determine, as a matter of
law, the causation issue in a retaliatory-arrest action. Section II.B identifies the seminal no-
probable-cause rule cases in the Eleventh and Second Circuits--the two federal courts of appeals that
applied the rule pre-Hartman--and argues that courts should reject them for relying on impertinent
case law and failing to articulate novel, compelling legal grounds on which to base their holdings.
107 MILR 111 Page 8
107 Mich. L. Rev. 111
00293
A. The Presence of Probable Cause Does Not Prevent Plaintiffs from Proving the Causation Element
The presence of probable cause does not determine the action for retaliatory arrest because it
simply provides one possible justification for the challenged arrest, and under established Supreme
Court precedent, the presence of an alternate, non-retaliatory justification for the challenged action
does not, as a matter of law, defeat a retaliation claim. A First Amendment challenge to an arrest, un-
like, for instance, a Fourth Amendment [FN67] challenge, does not rest on an allegation that the ar-
rest was unsupported by probable *124 cause. [FN68] The First Amendment guarantees freedom
from interference with, inter alia, speech, assembly, and religious rights. [FN69]
In the arrest context, then, the First Amendment does not proscribe arrests unsupported by prob-
able cause, but prevents the government from stifling rights in a way that it could not through legisla-
tion or regulation. [FN70] The First Amendment thus concerns itself with impermissible intent in an
effort to prevent the government from achieving a kind of constitutional end around that would allow
it to circumvent the First Amendment's restrictions. [FN71] So if the arresting officer's desire to re-
taliate was the actual cause of the arrest, the arrest will be actionable under the First Amendment.
[FN72] The presence of probable cause does not conclusively determine actual intent--it provides but
one possible explanation for the occurrence of the arrest. Consequently, a plaintiff in a retaliation
challenge to an arrest can logically maintain that his arrest was the actual result of impermissible re-
taliation even where the arrest was supported by judicially validated probable cause.
Under established Supreme Court precedent, in an action for retaliatory arrest, the existence of
one possible permissible justification for an allegedly retaliatory arrest does not, as a matter of law,
render it impossible to prove that the arrest was, in fact, unconstitutional. In the First Amendment re-
taliation context, the Supreme Court has held that state action taken for a constitutionally impermiss-
ible reason is actionable even if it would have been proper when taken for a different, fully legal reas-
on:
[We have] made clear that even though a person has no right to a valuable governmental
benefit and even though the government may deny him the benefit for any number of reasons,
there are some reasons upon which *125 the government may not rely. It may not deny a benefit
to a person on a basis that infringes his constitutionally protected interests--especially, his in-
terest in freedom of speech. [FN73]
The federal courts of appeals have fully embraced this holding in their First Amendment retali-
ation jurisprudence. [FN74] The Sixth Circuit expressed this general acceptance when it held that
[t]he law is well established that [a]n act taken in retaliation for the exercise of a constitutionally
protected right is actionable under 1983 even if the act, when taken for a different reason, would
have been proper. [FN75]
Importantly, the Supreme Court has not retreated from this holding: its imposition of the no-
probable-cause rule notwithstanding, the Supreme Court reaffirmed this holding in Hartman. [FN76]
In the arrest context, then, the fact that a defendant officer had valid grounds for arresting a plaintiff,
independent of any impermissible speech-related animus, does not mean that the officer did not arrest
for an unconstitutional retaliatory reason. [FN77] Consequently, the existence of probable cause for
effectuating the underlying arrest should not, as a matter of law, negate the causation element of the
claim. [FN78] Crucially, the presence of probable cause does not mean that retaliatory motive was
107 MILR 111 Page 9
107 Mich. L. Rev. 111
00294
not the but-for cause of the arrest. Though the presence or absence of probable cause speaks *126
directly to the defendant officer's motivation in arresting the plaintiff, [FN79] it should not ultimately
determine the issue of causation. [FN80]
B. Cases Applying the No-Probable-Cause Rule Pre-Hartman Are Unpersuasive
The federal courts of appeals cases applying the no-probable-cause rule before the Supreme
Court's decision in Hartman were wrongly decided. Courts should reject the Eleventh Circuit's adop-
tion of the no-probable-cause rule because it relied on a decision that did not address a claim for re-
taliation, and consequently did not address the issue of impermissible intent that is central to all re-
taliation actions. In Redd v. City of Enterprise, the Eleventh Circuit granted summary judgment in fa-
vor of defendant police officers based on qualified immunity in an action alleging First Amendment
retaliatory arrest. [FN81] It held that the officers, in arresting protestors with probable cause to be-
lieve they were in violation of a local disorderly conduct statute, did not violate plaintiffs' clearly es-
tablished First Amendment rights. [FN82]
For the proposition that the officers did not violate any established speech rights, the Redd court
relied on Zurcher v. Stanford Daily, [FN83] but Zurcher did not involve the issue central to retali-
ation actions: retaliatory animus. In Zurcher, police officers executed a warrant at the offices of the
Stanford University newspaper seeking to obtain photographs and other documentary evidence that
the officers believed would help them identify *127 individuals who they suspected had violated laws
during a protest. [FN84] Several students at the newspaper filed suit under 1983 [FN85] alleging vi-
olation of their First and Fourth Amendment rights. [FN86] The students challenged the execution of
the warrant, arguing that only a subpoena duces tecum [FN87] could properly ensure the protection of
vital First Amendment rights when the government wished to execute a search warrant. [FN88] Cru-
cially, the Zurcher plaintiffs made no allegation that the defendant officers sought or executed the
warrant in an effort to punish the newspaper or its employees for the exercise of protected rights.
Without such an allegation of unconstitutional motive, one simply cannot read Zurcher to support
the imposition of the no-probable-cause rule in retaliatory-arrest actions. Improper motivation is the
defining characteristic of an action for retaliatory arrest and one cannot ignore this in adjudicating the
dispute. [FN89] In this setting, holding that a properly motivated search supported by probable cause
does not violate First Amendment rights is both uncontroversial and wholly silent on the crucial is-
sues in a retaliatory-arrest action. Readers of Redd and its progeny should demand more before cred-
iting the Eleventh Circuit's application of the no-probable-cause rule.
Courts should also reject the Second Circuit's pre-Hartman rule holding that the existence of
probable cause precludes an action for retaliatory arrest. The seminal case, Mozzochi v. Borden,
[FN90] has two significant weaknesses. First, the Mozzochi court summarily refused to inquire into
the defendant officer's motivation for arresting the plaintiff in an action for retaliatory arrest. Mozzo-
chi held that because there was probable cause in this case to believe that [plaintiff] violated the har-
assment statute, we will not examine the defendants' motives in reporting [plaintiff's] actions to the
police for prosecution. [FN91] Courts should question Mozzochi's refusal, without providing any
justification, to consider the defendant's intent in an intent-based constitutional tort. [FN92]
*128 Second, a subsequent Second Circuit decision seriously undermined Mozzochi's central
107 MILR 111 Page 10
107 Mich. L. Rev. 111
00295
holding. In Blue v. Koren, the Second Circuit called Mozzochi into doubt for its suggestion that
plaintiffs cannot maintain retaliatory-arrest actions where the underlying arrest is supported by prob-
able cause: Mozzochi [is] troubling in that [it] appear[s] to negate the existence of a retaliation claim
involving arrests. If probable cause provides qualified immunity from a retaliation claim, then such a
claim can be asserted only in cases in which a false arrest claim can also be made. [FN93] Courts
adjudicating retaliatory-arrest claims should not rely on this weakened opinion.
III. Proponents Have Not Articulated a Persuasive Policy Rationale for Applying the Rule in Arrest
Actions
Neither existing legal doctrine [FN94] nor controlling precedent [FN95] recommend imposing the
no-probable-cause rule in actions for retaliatory arrest, and no court or scholar has yet articulated a
sufficiently persuasive policy argument in favor of applying the rule to retaliatory-arrest claims.
[FN96] This Part argues that, though intent-based constitutional torts present adjudicatory diffi-
culties, [FN97] proponents of the no-probable-cause rule currently overstate the worries underlying
their principle arguments for the imposition of the rule. Section III.A argues that the litigation statist-
ics demonstrate that the volume of retaliatory-arrest actions is relatively unremarkable, and should
mute concerns over a need to reduce the number of such actions by making the claim more difficult
to plead and prove. Section III.A further argues that the current volume of retaliatory-arrest litigation
will not impair the quality of policing because officers can work free from worries about being haled
into court knowing that judges can enter summary judgment based on qualified immunity to protect
well-meaning defendants from the burdens of protracted litigation. Section III.B argues that courts
and government agents need not fear a surge in retaliatory-arrest actions once courts fully reject the
no-probable-cause rule in the arrest context, emphasizing the role that qualified immunity can play in
protecting officers from spurious allegations and freeing dockets of frivolous litigation.
*129 A. Courts Can Manage Arrest Actions Without Making the Claim More Difficult to Plead and
Prove
Retaliatory-arrest actions are not so prevalent or difficult to adjudicate that they unduly burden
the nation's courts and inhibit defendant officers' ability to effectively police. Proponents of the no-
probable-cause rule have urged courts to make intent-based constitutional torts more difficult to plead
and prove because the actions are clogging courts' dockets and unduly burdening defendant govern-
ment agents, impairing their ability to effectively police. [FN98]
The litigation statistics, however, do not reveal a volume of retaliatory-arrest actions worthy of
concern. In the last quarter-century, litigants have squarely presented only twenty-nine actions for re-
taliatory arrest to federal courts of appeals. [FN99] The Supreme Court, arguing in Hartman that the
number of retaliatory-prosecution actions was wholly reasonable and not unduly burdening govern-
ment defendants or adjudicating courts, used an identical metric and identified a similar incidence of
such actions. [FN100] The Court found that the number of retaliatory-prosecution claims was insuffi-
cient cause for concern and argued that there is not much leverage in the fear that without a filter to
screen out claims [defendant] federal prosecutors and federal courts will be unduly put upon by the
volume of litigation. [FN101]
107 Mich. L. Rev. 111
00296
Judges can control the courts' dockets and protect government agents from those retaliatory-arrest
claims that are filed by utilizing several procedural tools, including summary judgment based on
qualified immunity. As the Supreme Court argued in Crawford-El, trial courts adjudicating intent-
based constitutional torts can lessen the litigation burden on defendants by employing several proced-
ural tools: courts can require plaintiffs to provide sufficiently particularized pleadings, aggressively
manage discovery, and use summary judgment as the ultimate screen to weed out truly insubstantial
lawsuits. [FN102]
*130 Most importantly, courts can be aggressive in entering summary judgment based on quali-
fied immunity to protect well-meaning defendant officers from harassing litigation and help courts to
avoid the prospect of resource-sapping trials. Qualified immunity protects a defendant government
agent from liability if he or she could have reasonably believed his or her conduct to be lawful in
light of clearly established law and the information [that the defendant] possessed. [FN103] Quali-
fied immunity is so defendant-friendly that the Eighth Circuit has observed that [t]he qualified im-
munity standard gives ample room for mistaken judgments by protecting all but the plainly incompet-
ent or those who knowingly violate the law. [FN104] Consequently, well-meaning officers who do
not knowingly violate the law can effectively execute their duties without fearing that they are one
arrest away from facing debilitating litigation. Perhaps most importantly for those who worry that a
claim for retaliatory arrest is a validated ticket to trial, courts decide the issue of qualified immunity
pretrial as a matter of law because [t]he entitlement is an immunity from suit rather than a mere de-
fense to liability. [FN105]
B. Courts Should Not Fear a Surge in Retaliatory-Arrest Actions
In light of the central characteristics of the First Amendment retaliation action and the protections
offered by qualified immunity, proponents of the no-probable-cause rule should not worry that, once
the rule is fully and publicly rejected, arrestees will refashion non-First Amendment challenges as
First Amendment challenges, causing a surge in retaliatory-arrest actions. A federal district court in
Indiana, in imposing the no-probable-cause rule, articulated the fear that enterprising plaintiffs would
transform constitutional*131 challenges to arrests that are defeated by probable cause [FN106] into
First Amendment challenges in the face of more plaintiff-friendly claim elements: [failing to adopt
the rule] would allow numerous plaintiffs to bring Fourth Amendment claims that would otherwise be
dismissed by relabeling them as First Amendment retaliation claims. [FN107]
This argument overlooks the fact that not all arrests that plaintiffs might challenge implicate First
Amendment concerns. [FN108] As part of a claim for retaliatory arrest, a plaintiff must allege the ex-
ercise of a protected right and the centrality of that right in the decision to arrest. [FN109] The Su-
preme Court has made clear that [w]hen intent is an element of a constitutional violation . . . the
primary focus is not on any possible animus directed at the plaintiff; rather, it is more specific, such
as . . . to deter public comment on a specific issue of public importance. [FN110] Although plaintiffs
are free in practice to plead facts not in existence, a plaintiff's ability to fabricate does not warrant
changing the elements of an established constitutional tort. [FN111]
Because the extent to which the plaintiff's conduct is clearly protected by the First Amendment is
central to determining the reasonableness of the defendant's conduct, defendant officers are ad-
107 Mich. L. Rev. 111
00297
equately protected from the creative pleading of plaintiffs seeking to apply the retaliatory-arrest claim
elements to arrests that do not implicate First Amendment concerns. For a government agent to be
held liable for violating an individual's constitutional rights, the Supreme Court has held that [t]he
contours of the right must be sufficiently clear that a reasonable official would understand that what
he is doing violates that right. [FN112]
Plaintiffs disingenuously pleading that their arrests implicated First Amendment concerns would
have trouble meeting this standard because they would have to creatively redefine unprotected con-
duct to bring it within *132 the protection of the First Amendment. Consequently, even if a court
were to ultimately find the plaintiff's creatively defined right was protected by the First Amendment,
the officer would be entitled to summary judgment based on qualified immunity because he could not
reasonably have known such conduct was constitutionally protected. The more spurious the retaliat-
ory-arrest claim, the more likely the defendant officer will be able to avail himself of the protections
offered by qualified immunity by arguing that the creatively pleaded First Amendment right is not
clearly established.
Conclusion
The First Amendment protects rights at the very heart of the American democratic experiment
[FN113] and these rights are deserving of the most zealous protection. Neither Hartman, nor the judi-
cially defined elements of the claim, nor the pre-Hartman decisions of the Second and Eleventh Cir-
cuits, should compel courts to find the presence of probable cause preclusive in an action for retaliat-
ory arrest. A strong desire to screen spurious claims from the courts and to protect government agents
from vexatious litigation also does not favor imposition of the no-probable-cause rule. Indeed, courts
rejecting the no-probable-cause rule are not only capable of handling First Amendment retaliation
claims--individually and in the aggregate--but are advancing important constitutional values.
[FNa1]. J.D. candidate, May 2009. I would like to thank my Note Editor, Margaret Barry, and the rest
of the Volume 106 Notes Office, especially Brittany Parling, Benedict Schweigert, and Leigh
Wasserstrom, for helping this Note through the publication process. I would also like to thank Kath-
ryn Drenning for her contribution during the read process. Finally, I would like to thank Eric White
for helpful comments on an early draft.
[FN1]. U.S. Const. amend. I (Congress shall make no law ... abridging the freedom of speech, or of
the press, or the right of the people peaceably to assemble, and to petition the Government for a re-
dress of grievances.).
[FN2]. See, e.g., Norwell v. City of Cincinnati, 414 U.S. 14 (1973); Evans v. Fogarty, 241 F. App'x
542 (10th Cir. 2007); Duran v. City of Douglas, 904 F.2d 1372, 1378 (9th Cir. 1990) ([A]ny action
to punish or deter [First-Amendment-protected] speech--such as stopping or hassling the speaker-- is
categorically prohibited by the Constitution.); Michael Avery et al., Police Misconduct: Law and
Litigation 2:28, at 134 (3d ed. 2007) (Law enforcement activities designed to retaliate against per-
sons for criticizing government officials, or filing lawsuits against them, violate the First Amend-
ment.).
107 Mich. L. Rev. 111
00298
[FN3]. Evans, 241 F. App'x at 550 (quoting Perez v. Ellington 421 F.3d 1128, 1131 (10th Cir. 2005)).
[FN4]. 42 U.S.C. 1983 (2000). Section 1983 of the Civil Rights Act grants citizens a civil cause of
action for damages against constitutional violations committed by individuals acting in their capacity
as agents of a state. Christopher J. Pettit, The Evolution of Government Liability Under Section 1983,
24 St. Mary's L.J. 145, 146-47 (1992). To the consternation of many jurists and academics (and no
doubt targeted state actors), section 1983 has increasingly become a source of litigation. E.g., Susan-
ah M. Mead, Evolution of the Species of Tort Liability Created by 42 U.S.C. 1983: Can Constitu-
tional Tort Be Saved From Extinction?, 55 Fordham L. Rev. 1, 10-13 (1986).
[FN5]. 403 U.S. 388 (1971). Bivens provides individuals the same damages remedy against federal
government agents that is available against agents of the individual states under section1983. See,
e.g., Hartman v. Moore, 547 U.S. 250, 254 n.2 (2006) ([A] Bivens action is the federal analog to
suits brought against state officials under ... 42 U.S.C. 1983.).
[FN6]. E.g., Ctr. for Bio-Ethical Reform, Inc. v. City of Springboro, 477 F.3d 807, 821 (6th Cir.
2007) (outlining the test applied across circuits in First Amendment retaliation claims).
[FN7]. E.g., Hartman, 547 U.S. at 256 ([W]e have held that retaliation is subject to recovery as the
but-for cause of official action offending the Constitution.); Mt. Healthy City Sch. Dist. Bd. of
Educ. v. Doyle, 429 U.S. 274, 285-86 (1977); Ctr. for Bio-Ethical Reform, 477 F.3d at 823.
[FN8]. See Hartman, 547 U.S. at 256.
[FN9]. Ctr. for Bio-Ethical Reform, 477 F.3d at 823.
[FN10]. See, e.g., Monroe v. Pape, 365 U.S. 167, 202-59 (1961) (Frankfurter, J., dissenting) (arguing
against reading the Civil Rights Act to provide a cause of action against government agents not acting
pursuant to a duly enacted statute).
[FN11]. E.g., Crawford-El v. Britton, 523 U.S. 574, 611-12 (1998) (Scalia, J., dissenting) (expressing
displeasure with the current state of section 1983 jurisprudence but advocating the adoption of a qual-
ified immunity rule that would only make prosecuting such actions more difficult).
[FN12]. Arrest is just one form of state action that can give rise to an action for First Amendment re-
taliation. The impermissible retaliation can take many forms. See Hartman, 547 U.S. 250 (criminal
prosecution); Crawford-El, 523 U.S. 574 (intentional misdirection of prisoner's personal effects);
Harlow v. Fitzgerald, 457 U.S. 800 (1982) (termination of employment); Mt. Healthy, 429 U.S. 274
(same); Williams v. City of Carl Junction, 480 F.3d 871 (8th Cir. 2007) (municipal citation); Skoog
v. County of Clackamas, 469 F.3d 1221 (9th Cir. 2006) (search and seizure); Bloch v. Ribar, 156
F.3d 673 (6th Cir. 1998) (disclosure of sensitive personal information regarding plaintiff's rape);
Musso v. Hourigan, 836 F.2d 736 (2d Cir. 1988) (denial of opportunity to speak at public meeting).
[FN13]. Baldauf v. Davidson (Baldauf I), No. 1:04-cv-1571-JDT-TAB, 2007 WL 1202911, at *5-6
(S.D. Ind. Apr. 23, 2007) (discussing the existence and nature of the disagreement), modified, 2007
WL 2156065 (S.D. Ind. July 24, 2007).
[FN14]. See, e.g., Dahl v. Holley, 312 F.3d 1228 (11th Cir. 2002); Curley v. Vill. of Suffern, 268
107 Mich. L. Rev. 111
00299
F.3d 65 (2d Cir. 2001); Redd v. City of Enterprise, 140 F.3d 1378 (11th Cir. 1998); Singer v. Fulton
County Sheriff, 63 F.3d 110 (2d Cir. 1995); Mozzochi v. Borden, 959 F.2d 1174 (2d Cir. 1992);
Ybarra v. City of Miami, No. 02-20972-CIV, 2003 WL 25564426 (S.D. Fla. Aug. 12, 2003).
[FN15]. The Supreme Court has adopted this terminology in addressing the issue in the context of ac-
tions alleging retaliatory prosecution. Hartman, 547 U.S. at 258-59.
[FN16]. Greene v. Barber, 310 F.3d 889 (6th Cir. 2002). The Ninth Circuit, while adjudicating a re-
taliation claim, asserted that the Tenth Circuit is in agreement with the Sixth Circuit. Skoog, 469 F.3d
at 1232 n.31 (citing DeLoach v. Bevers, 922 F.2d 618, 620 (10th Cir. 1990)). However, a review of
the case law reveals that the Tenth Circuit's position is less than clear. See DeLoach, 922 F.2d at 620
n.2 (The firmness of [defendant's] conviction about [plaintiff's] guilt [with regard to the underlying
crime] is not relevant to, and does not justify ... retaliatory action against [plaintiff].), cert. denied,
502 U.S. 814 (1991). Crucially, this Tenth Circuit case does not clearly address the role that objective
probable cause for effectuating the arrest ought to play in the legal calculus.
[FN17]. Greene, 310 F.3d at 895, 896-97.
[FN18]. Hartman, 547 U.S. at 265-66. Retaliatory-prosecution actions are simply actions brought to
challenge the constitutionality of a prosecutor's decision to file and pursue criminal or civil charges.
Prior to Hartman, actions for retaliatory prosecution were litigated in the same manner as any other
First Amendment retaliation action. See supra text accompanying notes 6-9.
[FN19]. Williams v. City of Carl Junction, 480 F.3d 871, 876 (8th Cir. 2007) (We agree ... that the
Supreme Court's holding in Hartman is broad enough to apply even where intervening actions by a
prosecutor are not present, and we conclude that the Hartman rule applies in this [action alleging re-
taliatory citation].); Barnes v. Wright, 449 F.3d 709, 720 (6th Cir. 2006) ([I]n its analysis, Hartman
appears to acknowledge that its rule sweeps broadly ....); Baldauf v. Davidson (Baldauf II), No.
1:04-cv-1571-JDT-TAB, 2007 WL 2156065 (S.D. Ind. July 24, 2007) (reading Hartman to require
plaintiff in a retaliatory-arrest action to plead and prove the lack of probable cause); Hansen v. Willi-
amson, 440 F. Supp. 2d 663, 676 (E.D. Mich. 2006).
[FN20]. See Hansen, 440 F. Supp. 2d at 676 (purporting to recognize the abrogation of the primary
Sixth Circuit case refusing to find the presence of probable cause determinative).
[FN21]. The elimination of the circuit disagreement is complete to the extent that the Tenth Circuit
did not clearly hold that the presence of probable cause is not dispositive in an action for retaliatory
arrest. See supra note 16.
[FN22]. Skoog v. County of Clackamas, 469 F.3d 1221, 1234 (9th Cir. 2006) (reading Hartman nar-
rowly and refusing to apply its holding in an action for retaliatory search and seizure); Gullick v. Ott,
517 F. Supp. 2d 1063, 1070-72 (W.D. Wis. 2007) (analyzing and refusing to apply Hartman in an ac-
tion for retaliatory arrest); Grassilli v. Barr, 48 Cal. Rptr. 3d 715, 731-33 (Cal. Ct. App. 2006)
(same).
[FN23]. Hartman, 547 U.S. at 252.
107 Mich. L. Rev. 111
00300
[FN24]. Id. at 252-53.
[FN25]. Id. at 253.
[FN26]. Id.
[FN27]. Id. at 254 (quoting United States v. Recognition Equip. Inc., 725 F. Supp. 587, 596 (D.D.C.
1989)).
[FN28]. Hartman, 547 U.S. at 254.
[FN29]. Moore v. United States, 213 F.3d 705 (D.C. Cir. 2000).
[FN30]. Moore v. Hartman, 388 F.3d 871 (D.C. Cir. 2004), rev'd, 547 U.S. 250.
[FN31]. Hartman, 547 U.S. at 255-56.
[FN32]. Id. at 256-57.
[FN33]. See infra note 71 and accompanying text.
[FN34]. Bloch v. Ribar, 156 F.3d 673, 682 (6th Cir. 1998) ([C]laims involving proof of a
[defendant's] intent seldom lend themselves to summary disposition.) (alteration in original)
(quoting Curtis v. Story, No. 87-5988, 1988 WL 125361, at *3 (6th Cir. Nov. 25, 1988)).
[FN35]. Crawford-El v. Britton, 523 U.S. 574, 585 (1998) (quoting Crawford-El v. Britton, 93 F.3d
813, 821 (D.C. Cir. 1996) (en banc)).
[FN36]. See Hartman, 547 U.S. at 257 (The [defendant] inspectors argue [that a] plaintiff can afflict
a public officer with disruption and expense by alleging nothing more, in practical terms, than action
with a retaliatory animus, a subjective condition too easy to claim and too hard to defend against.).
[FN37]. In, for instance, an action for retaliatory termination of employment, there is no objective
standard outlining the instances in which termination is appropriate. Id. at 258.
[FN38]. Id. at 265.
[FN39]. Proving the absence of probable cause for pressing the underlying claim does much to help
the plaintiff prove that his exercise of First Amendment rights was the but-for cause of his prosecu-
tion. See Gullick v. Ott, 517 F. Supp. 2d 1063, 1070 (W.D. Wis. 2007) (highlighting the probative
value of probable cause evidence in assessing whether adverse state action was the result of unconsti-
tutional retaliation).
[FN40]. Hartman, 547 U.S. at 261 ([In the prosecution context] there will always be a distinct body
of highly valuable circumstantial evidence available and apt to prove or disprove retaliatory causa-
tion, namely evidence showing whether there was or was not probable cause to bring the criminal
charge.).
[FN41]. Id. at 265.
107 Mich. L. Rev. 111
00301
[FN42]. Id. (Our sense is that the very significance of probable cause means that a requirement to
plead and prove its absence will usually be cost free by any incremental reckoning.).
[FN43]. Id.
[FN44]. See id. at 261. This is not to say, however, that persuading a fact finder that the desire to re-
taliate was the but-for cause of the adverse action is easy.
[FN45]. Id. at 259 ([T]he need to demonstrate causation in the retaliatory-prosecution context
presents an additional difficulty that can be understood by comparing the requisite causation in ordin-
ary retaliation claims ... with causation in [retaliatory-prosecution claims].).
[FN46]. Imbler v. Pachtman, 424 U.S. 409, 431 (1976).
[FN47]. Hartman, 547 U.S. at 261-62 ([An] action for retaliatory prosecution will not be brought
against the prosecutor, who is absolutely immune from liability for the decision to prosecute. Instead
the defendant will be a nonprosecutor, an official, like an inspector ....) (citation omitted).
[FN48]. Id. at 262. The Ninth Circuit, relying on language from Hartman, has noted that a retaliatory-
prosecution action is really for successful retaliatory inducement to prosecute. Skoog v. County
of Clackamas, 469 F.3d 1221, 1234 (9th Cir. 2006) (quoting Hartman, 547 U.S. at 262).
[FN49]. Hartman, 547 U.S. at 264.
[FN50]. Id. at 259.
[FN51]. Id. at 263.
[FN52]. See id. ([T]his presumption that a prosecutor has legitimate grounds for the action he takes
is one we do not lightly discard, given our position that judicial intrusion into executive discretion of
such high order should be minimal.).
[FN53]. Id. at 265.
[FN54]. See supra Sections I.A.2-3.
[FN55]. Gullick v. Ott, 517 F. Supp. 2d 1063, 1072 (W.D. Wis. 2007) ([I]f an officer had probable
cause for making an arrest, that tends to undermine an allegation that the arrest was fabricated, just as
the absence of probable cause is strong evidence that the officer's true motive for the arrest was an il-
legal one.).
[FN56]. Hartman, 547 U.S. at 261; see Gullick, 517 F. Supp. 2d at 1070 (The Court [inHartman]
saw [the causal gap] as dispositive ....).
[FN57]. Gullick, 517 F. Supp. 2d at 1071 ([C]oncerns raised by ... a more complex chain of causa-
tion ... are not implicated when no prosecutor is involved in the claim and when the named defendant
is directly responsible for the plaintiff's alleged injuries, as in this case [for retaliatory arrest].);
Baldauf v. Davidson (Baldauf II), No. 1:04-cv-1571-JDT-TAB, 2007 WL 2156065, at *2 (S.D. Ind.
July 24, 2007) (At first glance, no such complex causation problems are present when a person
107 Mich. L. Rev. 111
00302
brings a retaliatory arrest claim that focuses entirely on an officer's bodily seizure of a plaintiff
through the power of arrest.); cf. Skoog v. County of Clackamas, 469 F.3d 1221, 1234 (9th Cir.
2006) (holding that the seizure of certain personal effects in retaliation for the exercise of First
Amendment rights did not involve multi-layered causation).
[FN58]. Gullick, 517 F. Supp. 2d at 1072.
[FN59]. Id. at 1070-71 (refusing to require a plaintiff in an action for retaliatory arrest to plead and
prove the absence of probable cause). The Sixth Circuit has missed Hartman's reliance on the causal
gap. See Barnes v. Wright, 449 F.3d 709, 719 (6th Cir. 2006) (The [Hartman] Court offered two
main rationales for its holding: the issue of probable cause will likely be relevant in any retaliatory-
prosecution case and the requisite causation between the defendant's retaliatory animus and the
plaintiff's injury is usually more complex than it is in other retaliation cases. (citations omitted)
(internal quotation marks omitted)). Unfortunately, this bifurcation of Hartman has been ratified by
several other federal district courts. Baldauf II, 2007 WL 2156065 at *3 (In Barnes, the Sixth Circuit
noted that the Supreme Court offered two reasons for embracing a no-probable-cause requirement ....
[T]his court finds the Sixth Circuit's reasoning persuasive for several reasons.); Williams v. City of
Carl Junction, 480 F.3d 871, 876 (8th Cir. 2007) (We agree with the Sixth Circuit that the Supreme
Court's holding in Hartman is broad enough to apply even where intervening actions by a prosecutor
are not present, and we conclude that the Hartman rule applies in this [action for retaliatory cita-
tion].). But see Gullick, 517 F. Supp. 2d at 1072 (But Barnes is not persuasive because the court
stated only that the Hartman rule sweeps broadly without explaining why.).
[FN60]. Barnes, 449 F.3d at 720; see also Baldauf II, 2007 WL 2156065 at *3 (approving of the
Barnes analysis); Williams, 480 F.3d at 876 (same).
[FN61]. Hartman, 547 U.S. at 261 (emphasis added).
[FN62]. Baldauf II, 2007 WL 2156065 at *4.
[FN63]. Id.
[FN64]. Hartman, 547 U.S. at 264 (A prosecutor's disclosure of retaliatory thinking on his part, for
example, would be of great significance in addressing the presumption and closing the gap. So would
evidence that a prosecutor was nothing but a rubber stamp for his investigative staff or the police.).
[FN65]. Id.
[FN66]. Nearly any arrest can, with little effort, meet the relatively low standard that it be suppor-
ted by probable cause. Sadiq Reza, Privacy and the Criminal Arrestee or Suspect: In Search of a
Right, in Need of a Rule, 64 Md. L. Rev. 755, 796-97 (2005) (noting that the probable cause standard
is easy to satisfy while arguing that a requirement that the identity of an arrestee be protected until a
judge has determined that probable cause exists would protect important constitutional rights).
[FN67]. U.S. Const. amend. IV (The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause ....).
107 Mich. L. Rev. 111
00303
[FN68]. The Fourth Amendment protects individuals from unreasonable searches and seizures, in-
cluding arrests, which are merely bodily seizures. Payton v. New York, 445 U.S. 573, 585 (1980)
(The simple language of the [Fourth] Amendment applies equally to seizures of persons and to
seizures of property.). Where probable cause to arrest exists, an officer is constitutionally em-
powered to make an arrest that is not otherwise illegal. See Atwater v. City of Lago Vista, 532 U.S.
318, 354 (2001) (There is no dispute that [defendant] had probable cause to believe that [plaintiff]
had committed a crime .... [Defendant] was accordingly authorized (not required, but authorized) to
make a custodial arrest without balancing costs and benefits or determining whether or not
[plaintiff's] arrest was in some sense necessary.). A Fourth Amendment challenge to an arrest asserts
that the arrest was unsupported by the constitutionally required probable cause, and is unconcerned
with retaliatory motive. E.g., Joseph v. Rowlen, 402 F.2d 367, 370 (7th Cir. 1968); see also Whren v.
United States, 517 U.S. 806, 813 (1996) (We think [our] cases foreclose any argument that the con-
stitutional reasonableness of traffic stops depends on the actual motivations of the individual officers
involved.... Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analys-
is.). A Fourth Amendment challenge thus cannot succeed where the arresting officer had probable
cause for effectuating the arrest. E.g., Singer v. Fulton County Sheriff, 63 F.3d 110, 118-19 (2d Cir.
1995) (There can be no federal civil rights claim for false arrest where the arresting officer had
probable cause.).
[FN69]. U.S. Const. amend. I.
[FN70]. See Perry v. Sindermann, 408 U.S. 593, 597 (1972) ([First Amendment retaliation] allow[s]
the government to produce a result which [it] could not command directly.) (third alteration in ori-
ginal) (quoting Speiser v. Randall, 357 U.S. 513, 526 (1958)).
[FN71]. E.g. Crawford-El v. Britton, 523 U.S. 574, 612 (1998) (Scalia, J., dissenting) (characterizing
retaliation actions as intent-based constitutional torts).
[FN72]. See cases cited supra note 7.
[FN73]. Perry, 408 U.S. at 597.
[FN74]. Greene v. Barber, 310 F.3d 889, 895 (6th Cir. 2002); DeLoach v. Bevers, 922 F.2d 618, 620
(10th Cir. 1990); Losch v. Borough of Parkesburg, 736 F.2d 903, 907-08 (3d Cir. 1984); Buise v.
Hudkins, 584 F.2d 223, 230 (7th Cir. 1978) (citing and applying Perry in a First Amendment retali-
ation action).
[FN75]. Greene, 310 F.3d at 895 (second alteration in original) (quoting Bloch v. Ribar, 156 F.3d
673, 681-82 (6th Cir. 1998)).
[FN76]. Hartman v. Moore, 547 U.S. 250, 256 (2006) (Some official actions adverse to such a
speaker might well be unexceptionable if taken on other grounds, but when nonretaliatory grounds
are in fact insufficient to provoke the adverse consequences, we have held that retaliation is subject to
recovery as the but-for cause of official action ....).
[FN77]. Greene, 310 F.3d at 895 ([H]owever, the existence of probable cause is not determinative of
the constitutional question if, as alleged here, the plaintiff was arrested in retaliation for his having
107 Mich. L. Rev. 111
00304
engaged in constitutionally protected speech.); Gullick v. Ott, 517 F. Supp. 2d 1063, 1069 (W.D.
Wis. 2007). Because of the unique and awesome powers possessed by police officers, this rule might
have even more valuable in the arrest context than in other retaliation contexts. Id. ([T]he con-
sequences of [rejecting the doctrine] are troubling because it would permit unethical officers to target
their enemies or critics with a litany of citations for petty violations that would be ignored if commit-
ted by anyone else.).
[FN79]. Though there is no indication that police officers always or even often arrest individuals who
have given them probable cause to do so, one can assume that probable cause tends to support an of-
ficer's assertion that he arrested for constitutionally benign reasons. The Gullick court agreed with
this proposition:
This is not to say that the existence or absence of probable cause is an unimportant fact to
consider in an assessment [of] whether an arrest ... was conducted for retaliatory reasons.... [I]f an of-
ficer had probable cause for making an arrest, that tends to undermine an allegation that the arrest
was fabricated.
Gullick, 517 F. Supp. 2d at 1072.
[FN80]. Id. ([The presence of probable cause] does not change the ultimate question, which is
whether the defendant would have taken the same act in the absence of the plaintiff's protected con-
duct.).
[FN81]. 140 F.3d 1378, 1384 (11th Cir. 1998). Importantly, Redd is not an isolated incidence of judi-
cial folly, but is the seminal Eleventh Circuit no-probable-cause rule case and has been cited by sev-
eral courts for the proposition that the existence of probable cause precludes an action for retaliatory
arrest. Dahl v. Holley, 312 F.3d 1228, 1236 (11th Cir. 2002); Ybarra v. City of Miami, No.
02-20972-CIV, 2003 WL 25564426, at *19 (S.D. Fla. Aug. 12, 2003).
[FN82]. Redd, 140 F.3d at 1383-84. Granting qualified immunity is perhaps error on the court's
part. Since it held that no constitutional right was violated, the court did not actually grant qualified
immunity, a device used to protect state actors who through reasonable mistake violate protected
rights. This mistake is not uncommon, and the Supreme Court has been careful to remind lower
courts not to confuse the pleading requirements in a retaliation action with the separate (though
closely related) issue of qualified immunity. See Crawford-El v. Britton, 523 U.S. 574, 588-89 (1998)
.
[FN83]. 436 U.S. 547 (1978).
[FN84]. Zurcher, 436 U.S. at 550-51.
[FN85]. 42 U.S.C. 1983 (2000).
[FN86]. Zurcher, 436 U.S. at 552.
[FN87]. See generally 98 C.J.S. Witnesses 21 (2007). A subpoena duces tecum is a subpoena used
to procure the production of books and records. Id.
107 Mich. L. Rev. 111
00305
[FN88]. Zurcher, 436 U.S. at 560.
[FN89]. See supra note 71 and accompanying text; see also Crawford-El v. Britton, 523 U.S. 574,
588 (1998) (It is equally clear that an essential element of some constitutional claims is a charge that
the defendant's conduct was improperly motivated.); Gullick v. Ott, 517 F. Supp. 2d 1063, 1069
(W.D. Wis. 2007) ([T]he [Seventh Circuit] court of appeals has made it clear that motive matters.).
[FN90]. 959 F.2d 1174 (2d Cir. 1992). In two separate opinions the Second Circuit relied on Mozzo-
chi in imposing some variation of the no-probable-cause rule in adjudicating retaliatory-arrest claims.
Curley v. Vill. of Suffern, 268 F.3d 65, 73 (2d Cir. 2001); Singer v. Fulton County Sheriff, 63 F.3d
110, 120 (2d Cir. 1995).
[FN91]. Mozzochi, 959 F.2d at 1179-80.
[FN92]. See supra note 71 and accompanying text (discussing why motive matters).
[FN93]. Blue v. Koren, 72 F.3d 1075, 1083 n.5 (2d Cir. 1995). The court went on to suggest an al-
ternate, less troubling, justification for the troubling holding: a similarly troubling case stressed the
lack of particularized evidence of a retaliatory motive in finding that qualified immunity existed.
There was a similar lack of evidence in Mozzochi, where the arrest was in response to a threatening
communication. Id.
[FN94]. See supra Part II.
[FN95]. See supra Part I.
[FN96]. Some jurists assert that intent-based torts should not be actionable under the Civil Rights
Act. See supra notes 10-11 and accompanying text. This argument, though perhaps correct as a his-
torical matter or as a matter of statutory interpretation, raises issues outside the scope of this Note.
[FN98]. E.g., Baldauf v. Davidson (Baldauf II), No. 1:04-cv-1571-JDT-TAB, 2007 WL 2156065, at
*4 (S.D. Ind. July 24, 2007); see Hartman v. Moore, 547 U.S. 250, 259 (2006) (rejecting plaintiffs'
policy arguments).
[FN99]. This number was ascertained by performing the following search on Westlaw's CTA data-
base: retaliat! /s first amendment /s arrest. The search covered the twenty-five years from 1982
to 2007. As of October 10, 2007, a total of sixty-two cases appear, but in only twenty-nine were the
merits of a claim for retaliatory arrest actually at issue on appeal.
[FN100]. Hartman, 547 U.S. at 258-59 (Over the past 25 years fewer than two dozen damages ac-
tions for retaliatory prosecution ... have come squarely before the Federal Courts of Appeals....).
[FN101]. Id. at 258.
[FN102]. Crawford-El v. Britton, 523 U.S. 574, 600 (1998); see id. at 597-602 (discussing why
courts are capable of managing the difficulties associated with intent-based constitutional torts). Two
107 Mich. L. Rev. 111
00306
federal district courts recently proved capable of handling intent-based constitutional torts in the
manner the Supreme Court suggested. See Lyman v. City of Albany, No. 1:06-CV-1109 (LEK/DRH),
2008 WL 563378, at *2 (N.D.N.Y. March 3, 2008) (Plaintiff's claim of retaliation does not rise
above the purely speculative level required to survive Defendants' Motion to dismiss.); Eno Farms
Coop. Ass'n v. Corp. for Indep. Living, No. 3:06cv1983(AHN), 2007 WL 3308016, at *10 (D. Conn.
Nov. 5, 2007) ([B]ecause the causal link supporting [the] claim is not self-evident, [and] the
plaintiffs have an obligation [which they have not fulfilled] to amplify the claim with factual allega-
tions rendering it plausible... the first amended complaint fails to state a claim of First Amendment
retaliation.).
[FN103]. Smithson v. Aldrich, 235 F.3d 1058, 1061 (8th Cir. 2000) (alteration in original) (quoting
Anderson v. Creighton, 483 U.S. 635, 641 (1987)). See generally Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982) ( [G]overnment officials performing discretionary functions, generally are shielded from
liability for civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.). It is important to note that
qualified immunity analysis presupposes that a constitutional violation has occurred. See Dahl v.
Holley, 312 F.3d 1228, 1233 (11th Cir. 2002) (In considering whether the officers are entitled to
qualified immunity on [plaintiff's] 1983 claims, we must first determine whether the facts ... estab-
lish a constitutional violation.); Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998) (Before we can
consider whether [defendant] is entitled to qualified immunity ... we must first examine whether the
[plaintiffs] have properly alleged a cause of action.).
[FN104]. Smithson, 235 F.3d at 1061 (quoting Hunter v. Bryant, 502 U.S. 224, 229 (1991) (per curi-
am)) (internal quotation marks omitted).
[FN105]. Hunter, 502 U.S. at 227 (alteration in original) (quoting Mitchell v. Forsyth, 472, U.S. 511,
526 (1985)); see also id. ([W]e repeatedly have stressed the importance of resolving immunity ques-
tions at the earliest possible stage in litigation.); Harlow, 457 U.S. at 818 (On summary judgment,
the judge appropriately may determine, not only the currently applicable law, but whether that law
was clearly established at the time an action occurred.... Until this threshold immunity question is re-
solved, discovery should not be allowed. (footnote omitted)).
[FN106]. A Fourth Amendment challenge to an arrest is one such action that is defeated by the pres-
ence of probable cause. See supra note 68.
[FN107]. Baldauf v. Davidson, No. 1:04-cv-1571-JDT-TAB, 2007 WL 2156065, at *4 (S.D. Ind. July
24, 2007); see also Crawford-El, 523 U.S. at 604-05 (Rehnquist, C.J., dissenting). Rehnquist argued:
Such a rule would also allow plaintiffs to strip defendants of [qualified immunity] protec-
tions by a simple act of pleading--any minimally competent attorney (or pro se litigant) can convert
any adverse decision into a motive-based tort, and thereby subject government officials to some
measure of intrusion into their subjective worlds.
Id. at 605.
[FN108]. Some arrests, for instance, implicate only the individual's interest in being free from unreas-
onable search and seizure. See supra note 68.
107 Mich. L. Rev. 111
00307
[FN110]. Crawford-El, 523 U.S. at 592; see supra note 6 and accompanying text.
[FN111]. Ideally, disciplinary consequences, such as sanctions available under Rule 11 of the Federal
Rules of Civil Procedure would sufficiently deter the filing of spurious claims. Fed. R. Civ. P. 11; see
also CTC Imps. & Exps. v. Nigerian Petroleum Corp., 739 F. Supp. 966, 969 (E.D. Pa. 1990) (The
purpose of Rule 11 ... is to discourage pleadings which are frivolous, legally unreasonable, or without
factual foundation.).
[FN112]. Anderson v. Creighton, 483 U.S. 635, 640 (1987); see also Dickerson v. McClellan, 101
F.3d 1151, 1158 (6th Cir. 1996).
[FN113]. See City of Houston v. Hill, 482 U.S. 451, 462-63 (1987) (The freedom of individuals
verbally to oppose or challenge police action without thereby risking arrest is one of the principal
characteristics by which we distinguish a free nation from a police state.); McCurdy v. Montgomery
County, 240 F.3d 512, 520 (6th Cir. 2001) (Since the day the ink dried on the Bill of Rights, [t]he
right of an American citizen to criticize public officials and policies ... is the central meaning of the
First Amendment. (alterations in original) (quoting Glasson v. City of Louisville, 518 F.2d 899,
904) (1975) (internal quotation marks omitted)); cf. Franklin D. Roosevelt, Annual Message to Con-
gress (January 6, 1941), in The Yale Book of Quotations 646, 646 (Fred R. Shapiro ed., 2006) (In
the future days, which we seek to make secure, we look forward to a world founded upon four essen-
tial human freedoms. The first is freedom of speech and expression--everywhere in the world.).
107 Mich. L. Rev. 111
END OF DOCUMENT
107 Mich. L. Rev. 111
00308
Police Misconduct: Law and Litigation
Database updated October 2011
Michael Avery, David Rudovsky, Karen Blum
Chapter
2. Actionable Conduct Under the Federal Civil Rights Acts
References
2:28. Denial of First Amendment rights
West's Key Number Digest
West's Key Number Digest, Civil Rights 1088(1)
Treatises and Practice Aids
Civil Actions Against State and Local Government 7:74, 7:75 (2d ed.)
Actions by the police which interfere with the free exercise of speech, press, and associ-
ation or which interfere with religious liberties guaranteed by the First Amendment, are sub-
ject to suit under 1983.[1]
Law enforcement activities designed to retaliate against persons for criticizing government
officials, or filing lawsuits against them, violate the First Amendment. This is true whether the
action is an immediate arrest,[2] a later prosecution,[3] or other adverse action.[4] In City of
Houston v. Hill,[5] the Court held unconstitutional a statute which made it an offense to "in
any manner oppose, molest, abuse or interrupt" a police officer in the execution of his duty.[6]
To establish a First Amendment violation, a plaintiff must show that he was engaged in
protected speech, that the defendant's retaliatory conduct adversely affected protected speech
and that there was a causal connection between the retaliatory actions and the adverse effect
on speech. The Courts of Appeals have applied an objective test to determine whether speech
was adversely affected. As the Eleventh Circuit recently stated in Bennett v. Hendrix,[7] "A
plaintiff suffers adverse action if the defendant's allegedly retaliatory conduct would likely de-
ter a person of ordinary firmness from the exercise of First Amendment rights."
In Glasson v. City of Louisville,[8] the court analyzed a typical police violation of First
Amendment rightsthe arrest of a protestor:
In this case, Miss Glasson was in a place where she had a right to be, at a time that was ap-
propriate, and was conducting herself peacefully and lawfully. She, like many other per-
sons, had taken the opportunity to express her ideas to the Presidentfrom a place desig-
nated by the state for onlookers and in a manner often used by persons who do not have
POLICEMISC 2:28 Page 1
Police Misconduct: Law and Litigation 2:28
00309
access to the print or broadcast media.
To permit police officers to prohibit the expression of ideas which they believe to be "detri-
mental" or "injurious" to the President of the United States or to punish for incitement or
breach of the peace the peaceful communication of such messages because other persons
are provoked and seek to take violent action against the speaker would subvert the First
Amendment, and would incorporate into that constitutional guarantee a "heckler's veto"
which would empower an audience to cut off the expression of a speaker with whom it
disagreed. The state may not rely on community hostility and threats of violence to justify
censorship.
Liability has been imposed in similar cases.[9] Where police interfere with speech activit-
ies on public property, it may be necessary to determine whether the location involved was a
public forum, whether the government is imposing a reasonable time, place and manner re-
striction on speech, and whether ample alternative channels of communication have been left
open.[10]
In Dellums v. Powell,[11] the court emphasized the significance of First Amendment
rights in holding that a cause of action against federal officers existed directly under the Con-
stitution for damages for violation of these rights:
Basically, what is at stake here is loss of an opportunity to express to Congress one's dis-
satisfaction with the laws and policies of the United States. Staged demonstrations, cap-
able of attracting national or regional attention in the press and broadcast mediaare for
better or worse a major vehicle by which those who wish to express dissent can create a
forum in which their views may be brought to the attention of a mass audience and, in
turn, to the attention of a national legislature. It is facile to suggest that no damage is done
when a demonstration is broken up by unlawful arrests simply because one could write an
individual letter to a congressman or because the demonstration might be held at another
day or time. Few letters to congressmen command a national or regional audience. And of-
ten it is the staging and theatricsif you will, the time, place, and manner of the demon-
strationwhich express the passion and emotion with which a point of view is held. The
demonstration, the picket line, and the myriad other forms of protest which abound in our
society each offer peculiarly important opportunities in which speakers may at once per-
suade, accuse, and seek sympathy or political support, all in a manner likely to be noticed.
Governmental surveillance of political groups and organizations presents distinct police
misconduct issues under the First Amendment. In the wake of disclosures of FBI surveillance,
harassment and attempted destruction of political organizations and political activists, numer-
ous suits challenged governmental surveillance on a national and local level.[12] Mere sur-
veillance of public political activity by nonintrusive means and the cataloguing of the inform-
ation obtained may not state a cause of action, Laird v. Tatum, supra,[13] but where the police
use illegal surveillance or disruption techniques, e.g., wiretapping without court order, theft of
documents, acts of provocation by agents, etc., the First and Fourth Amendments are implic-
00310
ated.[14] In Angola v. Civiletti,[15] for example, the court sustained a complaint alleginga
First Amendment violation where the plaintiff was harassed and coerced by FBI agents with
the intent to force her to cooperate with a federal investigation. Moreover, the police cannot
disseminate the information obtained by surveillance beyond other government officials with
a need to know, particularly where such dissemination is for the purpose of deterring or pre-
venting one's exercise of constitutional rights.[16]
A somewhat different First Amendment claim is presented by allegations that the police
have interfered with plaintiff's access to court. Filing lawsuits is a method of petitioning the
government for redress of grievances and is protected by the First Amendment.[17] When
public officials conceal facts about misconduct it may render hollow the right to seek redress,
and such interference with the right of access to the courts may be actionable.[18] In Chris-
topher v. Harbury,[19] the Supreme Court held that to state a claim for access to courts based
on an underlying cause of action that was lost or compromised as a result of government mis-
conduct, the plaintiff must meet two requirements. First, the underlying cause of action must
be described precisely enough that the court can determine whether it is "nonfrivolous."
Second, the plaintiff must identify a remedy that may be awarded as recompense for the lost
claim that is not otherwise available in some suit that may yet be brought.[20] The Court
noted that in cases where the underlying claim had been tried or settled for an inadequate
amount, given official deception, the plaintiff would be making a claim for relief on the access
claim that she could not otherwise obtain and would have a legitimate cause of action.[21]
The Court also noted, apparently with approval, that the D.C. Circuit below, contrary to other
circuits, had not imposed a requirement that the plaintiff actually have filed the underlying
claim, reasoning that this "would foreclose access claims in the most heinous cases where a
cover-up was so pervasive that any timely attempt to litigate would have seemed futile."[22]
Prior to Harbury, a number of courts had held that there was no cause of action where the
plaintiff could not demonstrate that he had lost the opportunity to file the underlying suit.[23]
Recent cases have considered whether civilians have a First Amendment right to videotape
and/or audiotape, overtly or surreptitiously, the actions of police officers.[24] Given the ubi-
quity of recording devices, this is an area where one may expect continued development of the
law.
[FN1] See, e.g., Hague v. Committee for Indus. Organization, 307 U.S. 496, 59 S. Ct.
954, 83 L. Ed. 1423, 4 L.R.R.M. (BNA) 501, 1 Lab. Cas. (CCH) P 17048 (1939)
(injunctive relief); Amnesty Intern., USA v. Battle, 559 F.3d 1170 (11th Cir. 2009)
(plaintiffs' First Amendment rights were violated where police created a cordon around
their demonstration and did not allow others, including media, access to it, and preven-
ted Amnesty demonstrators from leaving area to pass out literature); Fogel v. Collins,
531 F.3d 824 (9th Cir. 2008) (plaintiff was arrested based on statements written on his
van, including I AM A FUCKING SUICIDE BOMBER COMMUNIST TERROR-
IST; court holds statements were political hyperbole and not threats, arrest violated
plaintiff's First Amendment rights, but officers were protected by qualified immunity
because previous case law would not have put them on notice that this language was
00311
protected by First Amendment); Purtell v. Mason, 527 F.3d 615 (7th Cir. 2008), cert.
denied, 129 S. Ct. 411, 172 L. Ed. 2d 288 (2008) (resident placed tombstones on his
front yard insulting neighbors by name and referring to their fictional deaths; officer
who ordered resident to remove them upon pain of arrest violated First Amendment
because tombstones did not amount to fighting words because they merely inflicted
emotional injury but did not provoke an immediate breach of peace; but officer was
entitled to qualified immunity because he could reasonably have been mistaken about
post-Chaplinsky developments in the law); York v. City of Las Cruces, 523 F.3d 1205
(10th Cir. 2008) (law was clearly established that loudly saying bitch in parking lot,
where comment was not directed to anyone in particular and plaintiff was several park-
ing spaces away from driver to whom the word made reference, did not constitute dis-
orderly conduct); Tabbaa v. Chertoff, 509 F.3d 89 (2d Cir. 2007) (detaining, interrog-
ating, fingerprinting, photographing and searching Muslim U.S. citizens upon return
from Islamic conference in Canada placed a burden on associational rights sufficient to
implicate First Amendment protections, where others who had not attended conference
were not subject to such measures, even though some Muslims expressed a willingness
to attend future conference, but means adopted constituted least restrictive means to
achieve government's compelling interest in protecting nation from terrorism where
government had information that individuals associated with terrorism would be at
conference, even though it had no individualized suspicion that plaintiffs were engaged
in terrorist activity); Wickersham v. City of Columbia, 481 F.3d 591 (8th Cir. 2007)
(affirming injunction against non-profit corporation deemed to be state actor in action
based on acts by city police who prevented plaintiffs from distributing anti-war flyers
at air show); Center for Bio-Ethical Reform, Inc. v. City of Springboro, 477 F.3d 807
(6th Cir. 2007), cert. dismissed, 129 S. Ct. 31, 171 L. Ed. 2d 935 (2008) (detention of
anti-abortion protestors for driving billboard trucks with graphic abortion images
would violate their First Amendment rights); Jones v. Parmley, 465 F.3d 46, 58 (2d
Cir. 2006) (rejecting officers' claim of qualified immunity on protestors' First Amend-
ment claims based on police dispersal of demonstrators; Neither energetic, even rauc-
ous, protesters who annoy or anger audiences, nor demonstrations that slow traffic or
inconvenience pedestrians, justify police stopping or interrupting a public protest.);
Bourgeois v. Peters, 387 F.3d 1303 (11th Cir. 2004) (mass suspicionless, warrantless
metal detector search of protestors before they entered demonstration site would viol-
ate their First and Fourth Amendment rights; injunction issued); Cooper v. Dillon, 403
F.3d 1208, 33 Media L. Rep. (BNA) 1577 (11th Cir. 2005) (holding statute unconstitu-
tional that criminalized publication of information regarding internal affairs investiga-
tion).
[FN2] Kennedy v. City of Villa Hills, Ky., 635 F.3d 210, 216 (6th Cir. 2011) (no prob-
able cause for retaliatory prosecution of plaintiff who called officer a son of a bitch
and a fat slob; because the First Amendment requires that police officers tolerate
coarse criticism, the Constitution prohibits states from criminalizing conduct that dis-
turbs solely police officers); Mesa v. Prejean, 543 F.3d 264, 273 (5th Cir. 2008)
(Trained officers must exercise restraint when confronted with a citizen's anger over
police action.; however, probable cause is an objective standard and if there was prob-
00312
able cause for plaintiff's arrest, any argument that her speech was the motivation for
her arrest must fail.); King v. Ambs, 519 F.3d 607 (6th Cir. 2008) (in questionable
opinion and over thoughtful dissent, court concludes officer did not violate First
Amendment rights of plaintiff arrested for obstructing officer in performance of his
duty, based on plaintiff's repeated statements to third party being questioned by officer
that he did not have to speak to officer); Skop v. City of Atlanta, GA, 485 F.3d 1130
(11th Cir. 2007) (officer had no probable cause, or even arguable probable cause, for
arresting woman on charge of obstructing police officer in lawful performance of his
duties, where she merely asked him to move his cruiser so she could enter her drive-
way); Leonard v. Robinson, 477 F.3d 347, 2007 FED App. 0051P (6th Cir. 2007)
(plaintiff set forth prima facie case of retaliatory arrest based on claim he was arrested
for saying God damn at a public meeting); Davis v. Williams, 451 F.3d 759, 767
(11th Cir. 2006) (Neither an owner's simple inquiry as to why officers are present on
his property nor a person's attempt to bring a dangerous situation to the officer's atten-
tion can be construed as obstruction of justice or disorderly conduct. Nor can a citizen
be precluded by the threat of arrest from asking to speak to an officer's superior or
from asking for an officer's badge number. Those inquiries likewise do not constitute
obstruction of justice or disorderly conduct.); Johnson v. Campbell, 332 F.3d 199 (3d
Cir. 2003) (fact that subject of Terry stop muttered "son of a bitch" during the en-
counter did not give officer probable cause to arrest him for disorderly conduct);
Greene v. Barber, 310 F.3d 889, 2002 FED App. 0389P (6th Cir. 2002) (although there
may have been probable cause to arrest plaintiff for causing a disturbance, it would vi-
olate clearly established law for officer to arrest him in retaliation for plaintiff calling
officer an "asshole" and "stupid"); McCurdy v. Montgomery County, Ohio, 240 F.3d
512, 2001 FED App. 0044P (6th Cir. 2001) (arrestee had clearly established right to
verbally challenge officer's surveillance of him as he conversed with friends in car in
residential neighborhood at 5 a.m.); Posr v. Court Officer Shield No. 207, 180 F.3d
409 (2d Cir. 1999) (plaintiff's remark to officer, "one day you're gonna get yours," was
protected by First Amendment; court notes that "'fighting words' doctrine is probably
'narrower [in] application in cases involving words addressed to a police officer, be-
cause a properly trained officer may reasonably be expected to exercise a higher de-
gree of restraint than the average citizen,'" citing City of Houston, Tex. v. Hill, 482
U.S. 451, 462, 107 S. Ct. 2502, 96 L. Ed. 2d 398 (1987)); Gulliford v. Pierce County,
136 F.3d 1345, 40 Fed. R. Serv. 3d 255 (9th Cir. 1998) (plaintiff entitled to new trial
where jury instruction did not make clear that crime of obstructing public servant re-
quires more than verbal protest against police action); Spiller v. City of Texas City,
Police Dept., 130 F.3d 162 (5th Cir. 1997) (officer not entitled to qualified immunity
for arrest of motorist who told him to "move his damn truck"); Knox v. Southwest Air-
lines, 124 F.3d 1103, 38 Fed. R. Serv. 3d 344 (9th Cir. 1997) (plaintiff entitled to trial
on claim he was arrested in retaliation for demand that police identify themselves);
Sandul v. Larion, 119 F.3d 1250, 1997 FED App. 0222P (6th Cir. 1997) (rejected on
other grounds by, Mirpuri v. ACT Mfg., Inc., 212 F.3d 624, 46 Fed. R. Serv. 3d 900
(1st Cir. 2000)) (person passing in truck who shouted "f you" to abortion protesters
was engaged in protected speech, not within "fighting words" exception); Mackinney
v. Nielsen, 69 F.3d 1002, 1007 (9th Cir. 1995) (arrestee was entitled to protest officer's
00313
command that he stop writing on sidewalk with chalk, court recognizes clearly estab-
lished "right verbally to challenge the police"); Buffkins v. City of Omaha, Douglas
County, Neb., 922 F.2d 465 (8th Cir. 1990) (plaintiff called officer "an asshole" after
he detained her and searched her belongings as a drug suspect, court holds arrest illeg-
al as a matter of law).
[FN3] Where plaintiff alleges that he was prosecuted in retaliation for First Amend-
ment activities, he must plead and prove an absence of probable cause for the prosecu-
tion as an element of the retaliation claim. Hartman v. Moore, 547 U.S. 250, 126 S. Ct.
1695, 164 L. Ed. 2d 441 (2006). See 2:16. Beck v. City of Upland, 527 F.3d 853, 862
(9th Cir. 2008) (with respect to First Amendment retaliatory prosecution claims, previ-
ous cases describing factors that could rebut presumption of independent judgment by
prosecutor are overruled in light of Hartman, plaintiff need only show retaliatory
motive on part of official urging prosecution and absence of probable cause to rebut
presumption of regularity and overcome defense of independent intervening cause;
with respect to Fourth Amendment claims, court notes that Hartman may be inconsist-
ent with previous law but does not overrule the latter in this case because plaintiff
overcame presumption of independent judgment by prosecutor under previous case
law); Harris v. Bornhorst, 513 F.3d 503, 519 (6th Cir. 2008), cert. denied, 128 S. Ct.
2938, 171 L. Ed. 2d 865 (2008) (court reverses dismissal of claim that prosecutor, al-
legedly in retaliation for civil suit filed against her by plaintiff, told Marine Corps she
still suspected juvenile plaintiff of murder and there were no other suspects, despite re-
versal of plaintiff's conviction on grounds that confession was involuntary; court finds
that plaintiff's filing and maintenance of suit did not undermine First Amendment
claim, First, the issue is whether a person of ordinary firmness would be deterred, not
whether [the plaintiff] himself actually was deterred Second, if subsequently chal-
lenging [the state action] ipso facto demonstrated that the challenged action was not
sufficiently adverse to undermine constitutional rights, no case alleging retaliation for
exercising First Amendment rights could ever be brought.); Becker v. Kroll, 494 F.3d
904, 926 (10th Cir. 2007) (recognizing cause of action for retaliatory prosecution
against official who influences bringing of prosecution by withholding exculpatory
evidence from prosecutor in retaliation for plaintiff's exercise of First Amendment
rights); Poole v. County of Otero, 271 F.3d 955 (10th Cir. 2001) (abrogated on other
grounds by, Hartman v. Moore, 547 U.S. 250, 126 S. Ct. 1695, 164 L. Ed. 2d 441
(2006)) (officers added more serious criminal charges after receiving letter from
plaintiff's attorney requesting them to preserve evidence of plaintiff's motorcycle acci-
dent following high speed chase by officers).
[FN4] Bridges v. Gilbert, 557 F.3d 541 (7th Cir. 2009) (prisoner had valid claim for
harassment in retaliation for filing affidavit to support wrongful death action by de-
ceased inmate's mother; prisoner's speech can be protected even where it does not in-
volve matter of public concern); Meyer v. Board of County Com'rs of Harper County,
Okla., 482 F.3d 1232 (10th Cir. 2007) (plaintiff properly alleged retaliation where she
claimed deputies lied about whether she was violent in order to have her committed to
mental hospital to discourage her from filing criminal complaint against her former
00314
boyfriend, activity protected by First Amendment); Skoog v. County of Clackamas,
469 F.3d 1221 (9th Cir. 2006) (search in retaliation for First Amendment activity viol-
ated plaintiff's constitutional rights despite probable cause for the search, but officers
entitled to qualified immunity because right was not clearly established); Bennett v.
Hendrix, 423 F.3d 1247 (11th Cir. 2005) (officers were not entitled to qualified im-
munity for First Amendment violation where they took down license numbers of cars
at forum in support of referendum that would have diminished sheriff's powers, and in
retaliation for their support of referendum, surveilled plaintiffs' homes and businesses,
set up roadblocks near their homes, stopped their cars without reason and issued false
traffic citations, accessed government databases to obtain confidential information on
plaintiffs, attempted to obtain a warrant for their arrest on trumped-up environmental
charges, and mailed flyers to 35,000 homes in Forsyth County calling the plaintiffs the
"real criminals," members of a "chain gang," and "the same type of criminals that ter-
rorize Forsyth County"); Rossignol v. Voorhaar, 316 F.3d 516, 31 Media L. Rep.
(BNA) 1417 (4th Cir. 2003) (off-duty and plain clothes officers violated plaintiff's
rights when they bought out the stock of his newspaper, which contained articles critic-
al of sheriff and other officials, at vending locations throughout county the day before
the election); Blackburn v. City of Marshall, 42 F.3d 925, 10 I.E.R. Cas. (BNA) 385
(5th Cir. 1995) (owner of towing service stated First Amendment cause of action for
retaliatory denial of right to use police radio frequency after complaining to chief of
police regarding bidding procedures); Freeman v. Blair, 862 F.2d 1330 (8th Cir. 1988)
(revocation of campground's license in retaliation for complaints about illegal
searches). But see Zherka v. Amicone, 634 F.3d 642, 39 Media L. Rep. (BNA) 1716
(2d Cir. 2011) (claim of defamation per se under New York law, without showing ac-
tual damage to business or reputation, was insufficient basis for First Amendment re-
taliation claim which requires proof of actual harm or chilling of speech).
[FN5] City of Houston, Tex. v. Hill, 482 U.S. 451, 107 S. Ct. 2502, 96 L. Ed. 2d 398
(1987).
[FN6] See McDermott v. Royal, 613 F.3d 1192 (8th Cir. 2010) (Springfield, Mo. or-
dinance prohibiting obstruction held constitutional because interpreted to cover only
physical acts and fighting words), and cases cited therein. See also Chaker v. Crogan,
428 F.3d 1215, 33 Media L. Rep. (BNA) 2569 (9th Cir. 2005) (state statute criminaliz-
ing filing of knowingly false complaint of police misconduct, but not false statements
in support of police, violated First Amendment ban against viewpoint discrimination).
[FN7] Bennett v. Hendrix, 423 F.3d 1247, 1254 (11th Cir. 2005) (surveying cases from
all circuits to find that objective test is the norm). A small minority of opinions appear
to require an actual chill. See, e.g., Curley v. Village of Suffern, 268 F.3d 65, 73 (2d
Cir. 2001).
[FN8] Glasson v. City of Louisville, 518 F.2d 899, 90506 (6th Cir. 1975).
[FN9] Vodak v. City of Chicago, 639 F.3d 738, 745-746 (7th Cir. 2011) (before the
police could start arresting peaceable demonstrators for defying their orders they had
00315
to communicate the orders to the demonstratorspolice must give notice of revocation
of permission to demonstrate before they can begin arresting demonstrators); Bari-
beau v. City of Minneapolis, 596 F.3d 465 (8th Cir. 2010) (violated Fourth Amend-
ment to arrest protestors against mindless consumerism in zombie costumes for dis-
orderly conduct under statute that was facially overbroad unless narrowed to proscribe
only "fighting words" in order to protect expressive conduct); Keating v. City of
Miami, 598 F.3d 753, 765 (11th Cir. 2010) (supervisors violated protestors' clearly es-
tablished First Amendment rights by directing subordinate officers to use less than leg-
al weapons to disperse crowd of peaceful demonstrators and by failing to stop subor-
dinate officers from doing so); Buck v. City of Albuquerque, 549 F.3d 1269 (10th Cir.
2008) (court holds, inter alia, where police closed streets to traffic there was no prob-
able cause to arrest protestors for parading without a permit; brief chanting of non-
abusive, non-profane slogan does not amount to disorderly conduct; shouting shame
at officers does not constitute abuse of, or resisting, officers); Fogarty v. Gallegos, 523
F.3d 1147 (10th Cir. 2008) (taking facts in light most favorable to plaintiff, including
evidence that protestors were peaceful and witness who stated it was police response
not drumming that was inciting the crowd, police did not have probable cause to arrest
him for disorderly conduct for drumming during anti-war protest; law requires prob-
able cause that plaintiff in particular violated the law, not merely that he was a parti-
cipant in an antiwar protest where some individuals may have broken the law); Lytle
v. Doyle, 326 F.3d 463 (4th Cir. 2003) (statute prohibiting loitering on bridges was un-
constitutionally vague as applied to protestors, because not clear that loitering would
include protesting); Collins v. Jordan, 110 F.3d 1363 (9th Cir. 1996) (defendants not
entitled to qualified immunity for banning all public demonstrations the day following
violence in the wake of a verdict in a highly publicized criminal trial; mayor not en-
titled to qualified immunity for holding protesters in jail for 55 hours to prevent them
from engaging in further protests); Johnson v. Bax, 63 F.3d 154 (2d Cir. 1995)
(protestor carrying sign addressed to President Clinton stated cause of action when he
was arrested for refusing to move to "anti-Clinton" area designated by police, as op-
posed to "pro-Clinton" location); Cannon v. City and County of Denver, 998 F.2d 867
(10th Cir. 1993) (officer was not entitled to qualified immunity for arresting protester
carrying sign labeling abortion clinic as "the killing place," officer could not reason-
ably have concluded the sign constituted "fighting words"). But see Grider v. Ab-
ramson, 180 F.3d 739, 1999 FED App. 0223P (6th Cir. 1999) (upholding security
measures which restricted speech at Ku Klux Klan rally and counter-rally by Klan op-
ponents); Ryan v. County of DuPage, 45 F.3d 1090 (7th Cir. 1995) (plaintiff stated no
First Amendment claim based on arrest for violating valid rule against wearing a mask
in a courthouse).
[FN10] See Zalaski v. City of Bridgeport Police Dept., 613 F.3d 336 (2d Cir. 2010)
(remanding for more detailed analysis of public forum issues); Ovadal v. City of
Madison, Wis., 469 F.3d 625 (7th Cir. 2006) (decision to remove protestors from high-
way overpass was not caused by content of their message); Faustin v. City and County
of Denver, Colo., 423 F.3d 1192 (10th Cir. 2005) (sustaining against overbreadth and
vagueness challenge a policy prohibiting all expressive conduct on highway overpasses
00316
that was visible to traffic below and potentially disruptive to that traffic on the under-
pass); Citizens for Peace in Space v. City of Colorado Springs, 477 F.3d 1212 (10th
Cir. 2007) (holding that city's security plan was content neutral time, place and manner
restriction on speech, plan was narrowly tailored and alternate channel of communica-
tion existed); A.C.L.U. of Nevada v. City of Las Vegas, 466 F.3d 784 (9th Cir. 2006)
(finding solicitation ordinance to be content-based and not narrowly tailored, holding
that erection of tables in public forum was protected by First Amendment and tabling
ordinance violated Equal Protection Clause); Klein v. San Diego County, 463 F.3d
1029 (9th Cir. 2006) (upholding residential picketing ordinance as valid time, place
and manner restriction on speech, rejecting claims it was unconstitutionally overbroad
and vague); Gathright v. City of Portland, Or., 439 F.3d 573 (9th Cir. 2006) (city
policy, expressed in ordinance, was unconstitutional where it enforced demands of per-
mittees to eject from otherwise public events others with whose messages permittees
disagreed; policy did not constitute a valid time, place or manner restriction on speech;
case was distinguished from Hurley v. Irish-American Gay, Lesbian and Bisexual
Group of Boston, 515 U.S. 557, 115 S. Ct. 2338, 132 L. Ed. 2d 487 (1995), because
policy was not narrowly tailored to protect integrity of permittees' message and thus
their free speech rightspersons protesting permittees' message could not be mistaken
as part of the permittees' message); Menotti v. City of Seattle, 409 F.3d 1113 (9th Cir.
2005) (emergency order prohibiting access to downtown area during international trade
conference was facially valid time, place and manner restriction on speech, but materi-
al issue of fact precluded summary judgment on question of whether police implemen-
ted order in unconstitutional manner by excluding only anti-WTO protestors from the
area); Brown v. California Dept. of Transp., 321 F.3d 1217 (9th Cir. 2003) (highway
overpass fence was a designated public forum; plaintiffs entitled to preliminary injunc-
tion against regulation requiring permits for expressive signs or banners other than
American flag); Brister v. Faulkner, 214 F.3d 675, 145 Ed. Law Rep. 154, 28 Media L.
Rep. (BNA) 1912 (5th Cir. 2000) (university property adjacent to and indistinguishable
from public sidewalk was a public forum; if protestors interfered with entry to build-
ing, reasonable time, place and manner restrictions were appropriate).
[FN11] Dellums v. Powell, 566 F.2d 167, 195, 24 Fed. R. Serv. 2d 20 (D.C. Cir. 1977).
[FN12] See, e.g., Socialist Workers Party v. Attorney General of U. S., 419 U.S. 1314,
95 S. Ct. 425, 42 L. Ed. 2d 627 (1974); Laird v. Tatum, 408 U.S. 1, 92 S. Ct. 2318, 33
L. Ed. 2d 154 (1972); Clark v. Library of Congress, 750 F.2d 89 (D.C. Cir. 1984);
Paton v. La Prade, 524 F.2d 862, 21 Fed. R. Serv. 2d 359 (3d Cir. 1975); Philadelphia
Yearly Meeting of Religious Soc. of Friends v. Tate, 519 F.2d 1335 (3d Cir. 1975);
Fifth Ave. Peace Parade Committee v. Gray, 480 F.2d 326 (2d Cir. 1973); Alliance to
End Repression v. Rochford, 407 F. Supp. 115 (N.D. Ill. 1975); Alliance to End Re-
pression v. City of Chicago, 742 F.2d 1007 (7th Cir. 1984) (efforts to enjoin portion of
new FBI guidelines pursuant to consent decree unsuccessful); Alliance to End Repres-
sion v. City of Chicago, 627 F. Supp. 1044 (N.D. Ill. 1985) (damages awarded to
plaintiffs as compensation for chill of First Amendment rights); Berlin Democratic
Club v. Rumsfeld, 410 F. Supp. 144 (D.D.C. 1976); Handschu v. Special Services Di-
00317
vision, 349 F. Supp. 766 (S.D. N.Y. 1972); Donner, The Age of Surveillance (1980).
See 15:4.
[FN13] In Gordon v. Warren Consol. Bd. of Educ., 706 F.2d 778, 11 Ed. Law Rep. 141
(6th Cir. 1983), the court held that placing an undercover narcotics agent in high
school classrooms did not violate the First Amendment rights of teachers and students,
even though the classes were chosen because of the subject matter and the liberal repu-
tations of the teachers.
[FN14] See, e.g., Riggs v. City of Albuquerque, 916 F.2d 582 (10th Cir. 1990); Ghandi
v. Police Dept. of City of Detroit, 747 F.2d 338, 40 Fed. R. Serv. 2d 363 (6th Cir.
1984); Handschu v. Special Services Division, 349 F. Supp. 766 (S.D. N.Y. 1972); Al-
liance to End Repression v. Rochford, 407 F. Supp. 115 (N.D. Ill. 1975).
[FN15] Angola v. Civiletti, 666 F.2d 1 (2d Cir. 1981).
[FN16] See Philadelphia Yearly Meeting of Religious Soc. of Friends v. Tate, 519
F.2d 1335 (3d Cir. 1975).
[FN17] Bill Johnson's Restaurants, Inc. v. N.L.R.B., 461 U.S. 731, 741, 103 S. Ct.
2161, 76 L. Ed. 2d 277, 113 L.R.R.M. (BNA) 2647, 97 Lab. Cas. (CCH) P 10130
(1983). With respect to the rights of prisoners to institutional conditions which permit
them meaningful access to courts, see Lewis v. Casey, 518 U.S. 343, 116 S. Ct. 2174,
135 L. Ed. 2d 606 (1996).
[FN18] Bell v. City of Milwaukee, 746 F.2d 1205, 1261, 16 Fed. R. Evid. Serv. 279
(7th Cir. 1984) (overruled on other grounds by, Russ v. Watts, 414 F.3d 783 (7th Cir.
2005)); Ryland v. Shapiro, 708 F.2d 967 (5th Cir. 1983). See cases cited on conspir-
acies to engage in cover-ups in 2:38.
[FN19] Christopher v. Harbury, 536 U.S. 403, 122 S. Ct. 2179, 153 L. Ed. 2d 413
(2002) (reviewing claim that government officials had lied to plaintiff about their
knowledge of her husband's whereabouts and condition, while he was being tortured
and finally murdered by Guatemalan military officers allegedly paid by the C.I.A.).
[FN20] The Court held that the plaintiff had failed to meet these requirements in Har-
bury. The underlying action would have been a suit for intentional infliction of emo-
tional distress with a request for injunctive relief, namely securing the release of the
plaintiff's husband. Because he had been murdered, the injunctive relief was no long
feasible and the damages were still available in other claims the plaintiff was making.
[FN21] Harbury, 122 S. Ct. at 2190, n. 22.
[FN22] Harbury, 122 S. Ct. at 2187, n. 14.
[FN23] See Ali v. District of Columbia, 278 F.3d 1 (D.C. Cir. 2002) (plaintiff must
show that claim has been lost or rejected or is currently being prevented); Delew v.
Wagner, 143 F.3d 1219 (9th Cir. 1998) (where it could not yet be determined whether
00318
police cover-up of driver's intoxication rendered accident victim's court remedies inef-
fective, federal action should be dismissed without prejudice); Swekel v. City of River
Rouge, 119 F.3d 1259, 1997 FED App. 0223P (6th Cir. 1997) (plaintiff's failure to
make attempt to gain access to courts was fatal to claim that police had covered up
identity of driver in accident); Vasquez v. Hernandez, 60 F.3d 325 (7th Cir. 1995)
(where facts were disclosed within six months, plaintiffs did not suffer a constitutional
injury from attempted cover-up); Foster v. City of Lake Jackson, 28 F.3d 425 (5th Cir.
1994) (officials alleged to have concealed facts during discovery protected by qualified
immunity; clearly established right as of 19851988 limited to right to file suit, not to
proceed free of discovery abuses).
[FN24] See Kreimer, Pervasive Image Capture and the First Amendment: Memory,
Discourse, and the Right to Record, 159 U. Pa L. Rev. 335 (2011); Kelly v. Borough of
Carlisle, 622 F.3d 248, 38 Media L. Rep. (BNA) 2473 (3d Cir. 2010) (concluding there
is insufficient case law establishing a right to videotape police officers during a traffic
stop to put a reasonably competent officer on 'fair notice' that seizing a camera or ar-
resting an individual for videotaping police during the stop would violate the First
Amendment); Smith v. City of Cumming, 212 F.3d 1332, 1333, 28 Media L. Rep.
(BNA) 1959 (11th Cir. 2000) (recognizing a First Amendment right, subject to reason-
able time, manner and place restrictions, to photograph or videotape police conduct).
Westlaw. 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
POLICEMISC 2:28
END OF DOCUMENT
00319
Chapter
3. Absolute and Qualified Immunity Defenses
References
3:16. Application of the doctrine to specific constitutional claimsFirst Amendment
claims
Civil Actions Against State and Local Government 11:37, 11:45 (2d ed.)
Yagman, Police Misconduct and Civil Rights: Federal Jury Practice and Instructions
10-22 (2d ed.)
Steinglass, Section 1983 Litigation in State Courts 15:7 to 15:11
Bodensteiner and Levinson, State and Local Government Civil Rights Liability 1A:10
Trial Strategy
Proof of Qualified Immunity Defense in 42 U.S.C.A. 1983 or Bivens Actions Against
Law Enforcement Officers, 59 Am. Jur. Proof of Facts 3d 291
Law Reviews and Other Periodicals
Blum, Section 1983: Qualified Immunity, 785 Practising Law Institute Litigation and Ad-
ministrative Practice Course Handbook Series 9 (October, 2008)
Cases decided under the First Amendment have produced a wide divergence of opinion on
the appropriate standard for reviewing immunity claims. The courts have categorically rejec-
ted qualified immunity where the defendants violated First Amendment rights and attempted
to argue that the manner in which the rights were violated (i.e., their specific conduct) had not
previously been clearly proscribed.[1]
00320
However, in cases where the defendants are charged with balancing competing interests
under the applicable constitutional standard, some courts have provided immunity.[2] Thus, in
cases concerning an official's right to discharge or discipline employees for speech on a matter
of public concern, the First Amendment balances the employee's right to free speech against
the government's right to an efficient and productive workplace.[3] Recently, however, the
Supreme Court has rendered a decision that portends a significant restriction on the protected
speech of public employees. In Garcetti v. Ceballos, [4] a District Attorney allegedly retali-
ated against a prosecutor for a memo the prosecutor wrote in the course of his job, raising
concerns about the possibility that a deputy sheriff lied in an affidavit used to secure a search
warrant in a pending criminal case. In a split decision, the Court held "that when public em-
ployees make statements pursuant to their official duties, the employees are not speaking as
citizens for First Amendment purposes, and the Constitution does not insulate their commu-
nications from employer discipline."[5] Neither the fact that he expressed his views "inside
the office," rather than publicly, nor the fact that the subject matter of the memo was work-
related, was dispositive. The controlling factor, according to the Court, was that the memo
was written in the course of his official duties. [6]
In a number of cases, defendants have prevailed on the claim that they acted "reasonably"
in taking action against the employee, even though the court ultimately decided that a First
Amendment violation had occurred.[7] In Melton v. Oklahoma City,[8] the court rejected this
standard and upheld a verdict for a police officer who was dismissed for testifying for a crim-
inal defendant.[9]
Other courts have recognized that retaliatory discipline or discharges are clearly estab-
lished constitutional violations, and that since these cases present factual questions concerning
the reasons for the discharge, they are often not susceptible to pretrial determination on quali-
fied immunity grounds.[10] In Hartman v. Moore,[11] the Supreme Court granted certiorari to
resolve a split in the Circuits and held that a plaintiff in a retaliatory-prosecution action must
plead and show the absence of probable cause for pressing the underlying criminal charges.[
12]
[FN1] See, e.g., Glik v. Cunniffe, 2011 WL 3769092, *7 (1st Cir. 2011) (citizen's right
to film officers making an arrest in a public space is a basic, vital, and well-es-
tablished liberty safeguarded by the First Amendment.); Morgan v. Swanson, 627
F.3d 170, 176 n.8, 177-82, 263 Ed. Law Rep. 22 (5th Cir. 2010), reh'g en banc granted,
628 F.3d 705 (5th Cir. 2010) (Defendants had fair warning that the suppression of
student-to-student distribution of literature on the basis of religious viewpoint is un-
lawful under the First Amendment with respect to elementary school students.);
Holzemer v. City of Memphis, 621 F.3d 512, 528 (6th Cir. 2010) ([A] reasonable city
official would have known that the Constitution prohibits retaliation for a citizen's ex-
ercise of his First Amendment right to Free Speech, whether that speech takes written,
oral, or another form.); Mink v. Knox, 613 F.3d 995 (10th Cir. 2010) ("[I]t was
clearly established in this circuit that speech, such as parody and rhetorical hyperbole,
which cannot reasonably be taken as stating actual fact, enjoys the full protection of
00321
the First Amendment and therefore cannot constitute the crime of criminal libel for
purposes of a probable cause determination."); Keating v. City of Miami, 598 F.3d
753, 765, 766 (11th Cir. 2010) (denying qualified immunity to supervisors who "direc-
ted their subordinate officers to use less-than-lethal weapons to disperse a crowd at a
large public demonstration and consequently failed to stop such conduct."); Eng v.
Cooley, 552 F.3d 1062, 1076, 28 I.E.R. Cas. (BNA) 1139 (9th Cir. 2009), cert. denied,
130 S. Ct. 1047, 30 I.E.R. Cas. (BNA) 224 (2010) (clearly established that government
may not retaliate against public employee for speech spoken by employee's lawyer on
employee's behalf); Beck v. City of Upland, 527 F.3d 853, 871 (9th Cir. 2008)
(arresting someone in retaliation for their exercise of free speech rights was violative
of clearly established law); Koger v. Bryan, 523 F.3d 789, 802, 70 Fed. R. Serv. 3d
532 (7th Cir. 2008) (rights protected by RLUIPA, and violated by the prison officials
were clearly established); Inouye v. Kemna, 504 F.3d 705, 714 (9th Cir. 2007) (as
amended) (The vastly overwhelming weight of authority on the precise question in
this case held at the time of [defendant's] actions that coercing participation in pro-
grams of this kind is unconstitutional By 2001, two circuit courts, at least three dis-
trict courts, and two state supreme courts had all considered whether prisoners or pa-
rolees could be forced to attend religion-based treatment programs. Their unanimous
conclusion was that such coercion was unconstitutional.); Logsdon v. Hains, 492 F.3d
334, 346 (6th Cir. 2007), cert. denied, 129 S. Ct. 35, 172 L. Ed. 2d 19 (2008) (The
contours of the First Amendment public forum doctrine are sufficiently clear. Here,
Defendants ostensibly arrested Plaintiff for violating Ohio's criminal trespass law.
However, if instead, as Plaintiff appears to allege, Defendants arrested him because of
the content of his speech, then Defendants acted in violation of the First Amendment in
ways that should have been clear to a reasonable officer.); Lovelace v. Lee, 472 F.3d
174, 199 (4th Cir. 2006) ([U]nder both the First Amendment and any straightforward
interpretation of RLUIPA, the unlawfulness of intentional and unjustified deprivations
of Ramadan meals was apparent at the time of the incident.); Jones v. Parmley, 465
F.3d 46, 57 (2d Cir. 2006) (In the protest context, the Supreme Court has already well
articulated the contours of the right and made clear that the police may not interfere
with demonstrations unless there is a clear and present danger of riot, imminent viol-
ence, interference with traffic or other immediate threat to public safety.); Bennett v.
Hendrix, 423 F.3d 1247, 1256 (11th Cir. 2005) (no qualified immunity where "defend-
ants were on notice and had 'fair warning' that retaliating against the plaintiffs for their
support of the 1998 referendum would violate the plaintiffs' constitutional rights. . . .");
Huminski v. Corsones, 396 F.3d 53, 92, (2d Cir. 2005) (as amended on rehearing)
(notices of trespass creating a "First-Amendment-Free Zone" for plaintiff alone in and
around Rutland courts violated clearly established First Amendment right of free ex-
pression); Collins v. Ainsworth, 382 F.3d 529, 544, (5th Cir. 2004) (no sheriff could
reasonably believe that use of driver's license checkpoints aimed at stopping Concert
from taking place were legal and would entitle him to qualified immunity); Dean v.
Byerley, 354 F.3d 540, 558, 2004 FED App. 0008P (6th Cir. 2004) (right to engage in
peaceful targeted residential picketing, free from retaliation, was clearly established);
Wilson v. Kittoe, 337 F.3d 392, 403 (4th Cir. 2003) (clearly established that police of-
ficer may not arrest a third party for criticizing officer's conduct and refusing to leave
00322
the scene of an arrest); McCurdy v. Montgomery County, Ohio, 240 F.3d 512, 2001
FED App. 0044P (6th Cir. 2001) (clearly established that plaintiff had constitutional
right to challenge verbally officer's surveillance; district court erred in granting quali-
fied immunity on the retaliation claim); Burnham v. Ianni, 119 F.3d 668, 675, 677, 120
Ed. Law Rep. 124 (8th Cir. 1997) (en banc) ("Because this case involves Ianni's sup-
pression of plaintiffs' protected speech, plaintiffs have (at least for purposes of sum-
mary adjudication) sufficiently established a violation of a constitutional right.
Here, of course, we have long established, binding precedent totally supportive of
plaintiff's claims. The Supreme Court and this court have both clearly and directly
spoken on the subject on numerous occasions and in years long prior to the 1992 cen-
sorship by Ianni. Accordingly, Chancellor Ianni's 'not clearly established' claim must
be rejected."); Cannon v. City and County of Denver, 998 F.2d 867 (10th Cir. 1993)
(officer was not entitled to qualified immunity for arresting protester carrying sign la-
beling abortion clinic as "the killing place;" officer could not reasonably have con-
cluded the sign constituted "fighting words"); Grady v. El Paso Community College,
979 F.2d 1111, 79 Ed. Law Rep. 37 (5th Cir. 1992) (defendants should have known
that speech criticizing Persian Gulf War was protected).
See also Eberhardt v. O'Malley, 17 F.3d 1023, 9 I.E.R. Cas. (BNA) 423, 22 Media L.
Rep. (BNA) 1377, 64 Empl. Prac. Dec. (CCH) P 42906 (7th Cir. 1994), where the
court concluded:
If the complaint is taken at face value, the defendants punished the plaintiff for writing
a novel, without having any legitimate reason for such punishment. This is such an ele-
mentary violation of the First Amendment that the absence of a reported case with similar
facts demonstrates nothing more than widespread compliance with well-recognized consti-
tutional principles.
17 F.3d at 1028.
Compare Gilles v. Davis, 427 F.3d 197, 206 (3d Cir. 2005) (officer entitled to quali-
fied immunity "because it would not have been clear to a reasonable officer that
[Plaintiff] did not engage in disorderly conduct.") and Gold v. City of Miami, 121 F.3d
1442, 1446 (11th Cir. 1997) ("Given that what constitutes legally proscribed disorderly
conduct is subject to great subjective interpretation of specific facts we are con-
strained to conclude that a reasonable officer in the same circumstances and possessing
the same knowledge as the officers in this case could have reasonably believed that
probable cause existed to arrest Gold for disorderly conduct. The evidence, viewed in
the light most favorable to Gold, reflects that Gold twice used profanities in a loud
voice, in a public place, and in the presence of others. At the time, no cases clearly es-
tablished that those actions did not constitute legally proscribed disorderly conduct.")
with Sandul v. Larion, 119 F.3d 1250, 1255, 1997 FED App. 0222P (6th Cir. 1997)
(rejected on other grounds by, Mirpuri v. ACT Mfg., Inc., 212 F.3d 624, 46 Fed. R.
Serv. 3d 900 (1st Cir. 2000)) ("In 1990 when Sandul was arrested for his use of the 'f-
word,' it was clearly established that speech is entitled to First Amendment protection
with the exception of fighting words."). See also Gold v. City of Miami, 138 F.3d 886,
888 (11th Cir. 1998) (Barkett, J., dissenting from denial of rehearing en banc):
00323
Under Lanier's fair warning standard, the police officers are not entitled to qualified im-
munity in this case. First, at the time of Gold's arrest, the Supreme Court had specifically
held that speech critical of police officers is constitutionally protected. Second, as the pan-
el opinion recognizes, the Florida Supreme Court had specifically reversed, as violative of
the First Amendment, disorderly conduct convictions of defendants who had not only used
expletives, but also made threatening comments to police officersconduct far more egre-
gious than Gold's. Finally, every other circuit that has addressed the issue of qualified im-
munity in a situation similar to that present here has had no trouble concluding that a po-
lice officer is not entitled to qualified immunity in these circumstances.
[FN2] See, e.g., Diaz-Bigio v. Santini, 32 I.E.R. Cas. (BNA) 719, 2011 WL 2557003,
*7 (1st Cir. 2011) (Under a long line of cases from this circuit granting qualified im-
munity, the defendants are entitled to summary judgment because the outcome of the
Pickering balancing of interests in this case was not so clear as to put all reasonable of-
ficials on notice that firing Daz-Bigio would violate the law.); Doninger v. Niehoff,
642 F.3d 334, 350, 351, 356 (2d Cir. 2011), petition for cert. filed (U.S. July 25, 2011)
(given the circumstances of this case, it was not clearly established that student had
any First Amendment right not to be prohibited from running for Senior Class Secret-
ary because of offensive off-campus blog post; nor was it clearly established that pro-
hibiting the wearing of t-shirts [Vote for Avery] to student assembly was unlawful
where reasonable official could have believed there was a potential for substantial dis-
ruption); Leverington v. City of Colorado Springs, 643 F.3d 719, 732-33, 32 I.E.R.
Cas. (BNA) 260 (10th Cir. 2011) (not clearly established that plaintiff's statement to
officer did not constitute a 'true threat' unprotected by the First Amendment.); Weise
v. Casper, 593 F.3d 1163, 1167, 1170 (10th Cir. 2010), cert. denied, 131 S. Ct. 7
(2010) (qualified immunity granted on second prong of analysis where court concluded
"no specific authority instructs this court (let alone a reasonable public official) how to
treat the ejection of a silent attendee from an official speech based on the attendee's
protected expression outside the speech area."); Cross v. Mokwa, 547 F.3d 890, 897
(8th Cir. 2008) (not clearly established that officer could be liable on prior restraint
theory for making arrests supported by probable cause that occupants of condemned
buildings were there illegally); Center for Bio-Ethical Reform, Inc. v. Los Angeles
County Sheriff Dept., 533 F.3d 780, 794 (9th Cir. 2008), cert. denied, 129 S. Ct. 903,
173 L. Ed. 2d 108, 240 Ed. Law Rep. 17 (2009) ([T]here is some question whether
the heckler's veto consideration applies where the target audience consists of children.
As far as we have been able to determine, there is no case law holding either that it
does or that it does not. In these circumstances, we cannot conclude that the law was
sufficiently clear that a reasonable officer would know that it was unlawful to request
the Plaintiffs to cease driving their truck around the area.); Fogel v. Collins, 531 F.3d
824, 834 (9th Cir. 2008) ([I]n May 2004, when the officers acted, there was no repor-
ted case in which a person in the post-September 11 environment satirically pro-
claimed himself or herself to be a terrorist in possession of weapons of mass destruc-
tion. We do not, by our invocation of September 11, 2001, suggest that the First
Amendment provides less protection than before September 11. Rather, we recognize
00324
that what might previously have been understood as relatively harmless talk might, in
the immediate aftermath of September 11, have been understood to constitute a real
threat.); King v. Ambs, 519 F.3d 607, 615 (6th Cir. 2008) (reasonable officer would
not have known that enforcement of obstruction ordinance in the context of this case
violated the First Amendment); Porter v. Bowen, 496 F.3d 1009, 1027 (9th Cir. 2007)
(reasonable official would not have understood that threatening the owners of vote-
swapping Web sites with prosecution constituted a violation of the First Amend-
ment.); Zieper v. Metzinger, 474 F.3d 60, 68, 35 Media L. Rep. (BNA) 1331 (2d Cir.
2007) (Here, our pre-existing law would not have made apparent to a reasonable of-
ficer that defendants' actions crossed the line between an attempt[ ] to convince and
[an] attempt[ ] to coerce because the cases in which we have held that individuals'
First Amendment rights were violated involved conduct more likely to be perceived as
threatening than that here.); Hosty v. Carter, 412 F.3d 731, 739, 199 Ed. Law Rep. 91,
33 Media L. Rep. (BNA) 1897 (7th Cir. 2005) (qualified immunity where reasonable
person in Dean's position would not have known that "demand for review before the
University would pay the [student publication's] printing bills violated the first amend-
ment."); Porter v. Ascension Parish School Bd., 393 F.3d 608, 620, 194 Ed. Law Rep.
497 (5th Cir. 2004) (qualified immunity for school official who recommended expul-
sion of student for off-campus student drawings, brought on campus by student's
younger brother and considered to be threatening, although court determined drawings
did not constitute on-campus speech and did not intentionally communicate a threat);
Galvin v. Hay, 374 F.3d 739 (9th Cir. 2004) (not clearly established that "conditioning
a march permit on a promise to abide by the law when there was a history of organized
civil disobedience by the same group along the same route is an insufficiently tailored
manner restriction"); S.G. ex rel. A.G. v. Sayreville Bd. of Educ., 333 F.3d 417, 423,
178 Ed. Law Rep. 36 (3d Cir. 2003) (no clearly established law indicated that school's
prohibition of speech threatening violence and use of firearms was unconstitutional);
Duamutef v. Hollins, 297 F.3d 108 (2d Cir. 2002) ("[N]o rational jury could find that
defendants' decision to institute a temporary mail watch was not reasonably related to
legitimate penological interests. There was no violation of plaintiff's First Amendment
rights and, in any event, defendants are entitled to qualified immunity."); Denno v.
School Bd. of Volusia County, Fla., 218 F.3d 1267, 1275, 145 Ed. Law Rep. 942 (11th
Cir. 2000) ("The balancing analysis under the Fraser standard would be analogous to
that discussed by this court in a case involving a public employer's discharge of an em-
ployee because of the employee's comments to the press on matters of public concern.
Similarly, we cannot conclude that a Fraser balancing of the circumstances in the
instant case would lead to the inevitable conclusion that the individual defendants here
violated the First Amendment rights of the students. We cannot conclude that the pro-
hibition of the displays of the Confederate flag in this case are 'so obviously wrong, in
the light of pre-existing law, that only a plainly incompetent officer or one who was
knowingly violating the law would have done such a thing.'"); Devereaux v. Perez, 218
F.3d 1045, 1055 (9th Cir. 2000), on reh'g en banc, 263 F.3d 1070 (9th Cir. 2001) ("The
need to subject this abstract substantive constitutional right to a balancing test which
weighs the interest of a parent against the interests of the child and the state makes the
qualified immunity defense difficult to overcome, especially in light of the requirement
00325
that the substantive constitutional right be 'clearly established' at the time of the al-
leged violation."). See also Lederman v. U.S., 291 F.3d 36, 39 (D.C. Cir. 2002)
(finding that the sidewalk at the foot of the House and Senate steps was a public forum
and that no part of the ban on leafleting and other demonstration activities was nar-
rowly tailored to further a significant governmental purpose, court declared ban uncon-
stitutional, but granted qualified immunity to Capitol Police because they "violated no
clearly established legal rules in arresting Appellant for leafleting in violation of the
ban").
But see Evans-Marshall v. Board of Educ. of Tipp City Exempted Village School
Dist., 428 F.3d 223, 232, 203 Ed. Law Rep. 88, 23 I.E.R. Cas. (BNA) 1153, 151 Lab.
Cas. (CCH) P 60101, 2005 FED App. 0432P (6th Cir. 2005) (no qualified immunity
where teacher "was terminated due to a public outcry engendered by the assignment of
protected material that had been approved by the Board."); Holloman ex rel. Holloman
v. Harland, 370 F.3d 1252, 1278, 188 Ed. Law Rep. 620 (11th Cir. 2004) ("Tinker-
Burnside standard was clearly established and sufficiently specific as to give the de-
fendants 'fair warning' that student had constitutional right to put his fist in air during
recitation of Pledge of Allegiance); Mihos v. Swift, 358 F.3d 91, 110, 20 I.E.R. Cas.
(BNA) 1680, 149 Lab. Cas. (CCH) P 59843 (1st Cir. 2004) ("No reasonable public of-
ficial could have failed to realize that a member of a public instrumentality cannot be
terminated. . . for voting on matters of public concern within his authority"); Love-
Lane v. Martin, 355 F.3d 766, 784, 184 Ed. Law Rep. 133, 93 Fair Empl. Prac. Cas.
(BNA) 282, 20 I.E.R. Cas. (BNA) 1409 (4th Cir. 2004) (interests to be balanced under
Pickering weigh so heavily in Love-Lane's favor that her right to speak about race dis-
crimination in a public school was clearly established); Mansoor v. Trank, 319 F.3d
133, 140, 19 I.E.R. Cas. (BNA) 996, 148 Lab. Cas. (CCH) P 59723 (4th Cir. 2003) (no
qualified immunity where defendants conceded they had no interest in restricting
clearly protected speech); Coady v. Steil, 187 F.3d 727, 734, 15 I.E.R. Cas. (BNA)
712, 139 Lab. Cas. (CCH) P 58731 (7th Cir. 1999) ("[B]ecause Connick-Pickering bal-
ancing always involves factspecific balancing, if plaintiffs had to point to a case on all
fours with their own, defendants would nearly always be entitled to qualified im-
munity. However, we have rejected that argument."); Gilbrook v. City of Westminster,
177 F.3d 839, 870, 15 I.E.R. Cas. (BNA) 200, 15 I.E.R. Cas. (BNA) 554, 52 Fed. R.
Evid. Serv. 363 (9th Cir. 1999), as amended on denial of reh'g, (July 15, 1999) ("Pick-
ering balance so clearly weighs in favor of [plaintiff] that it was patently unreasonable
for defendants to conclude that the First Amendment did not protect his speech."); Har-
ris v. Victoria Independent School Dist., 168 F.3d 216, 224, 132 Ed. Law Rep. 662, 14
I.E.R. Cas. (BNA) 1550 (5th Cir. 1999) ("The Defendants are not insulated from their
unconstitutional conduct merely because a balancing test is involved in our analysis.
While employee speech cases are a likely vehicle for varied fact scenarios, the law is
clearly established that a 'mix of public and private speech' may be constitutionally
protected.").
[FN3] See Pickering v. Board of Ed. of Tp. High School Dist. 205, Will County,
Illinois, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811, 1 I.E.R. Cas. (BNA) 8 (1968).
00326
See also Oladeinde v. City of Birmingham, 230 F.3d 1275, 1290, 1293, 144 Lab. Cas.
(CCH) P 59316 (11th Cir. 2000) ("In a law enforcement agency, there is a heightened
need for order, loyalty, morale and harmony, which affords a police department more
latitude in responding to the speech of its officers than other government employers
We conclude that the plaintiffs' speech was not protected because their interest in
speaking out was outweighed by the BPD's interests in maintaining order, loyalty,
morale, and harmony.").
[FN4] Garcetti v. Ceballos, 547 U.S. 410, 126 S. Ct. 1951, 164 L. Ed. 2d 689, 24
I.E.R. Cas. (BNA) 737, 87 Empl. Prac. Dec. (CCH) P 42353, 152 Lab. Cas. (CCH) P
60203 (2006). The Supreme Court granted certiorari on the question of whether "a
public employee's purely job-related speech, expressed strictly pursuant to the duties of
employment, [should] be cloaked with First Amendment protection simply because it
touches on a matter of public concern, or should First Amendment protection also re-
quire the speech to be engaged in 'as a citizen', in accordance with this Court's holdings
in Pickering v. Board of Ed. of Tp. High School Dist. 205, Will County, Illinois, 391
U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811, 1 I.E.R. Cas. (BNA) 8 (1968) and Connick
v. Myers, 461 U.S. 138, 103 S. Ct. 1684, 75 L. Ed. 2d 708, 1 I.E.R. Cas. (BNA) 178
(1983).
[FN5] Garcetti, 126 S. Ct. at 1960. The Court specifically did not decide "whether the
analysis we conduct today would apply in the same manner to a case involving speech
related to scholarship or teaching." 126 S. Ct. at 1962. Compare Adams v. Trustees of
the University of N.C.-Wilmington, 640 F.3d 550, 564, 267 Ed. Law Rep. 501, 111
Fair Empl. Prac. Cas. (BNA) 1665, 32 I.E.R. Cas. (BNA) 1 (4th Cir. 2011) (Applying
Garcetti to the academic work of a public university faculty member under the facts of
this case could place beyond the reach of First Amendment protection many forms of
public speech or service a professor engaged in during his employment. That would
not appear to be what Garcetti intended, nor is it consistent with our long-standing re-
cognition that no individual loses his ability to speak as a private citizen by virtue of
public employment. In light of the above factors, we will not apply Garcetti to the cir-
cumstances of this case.) and Evans-Marshall v. Board of Educ. of Tipp City Exemp-
ted Village School Dist., 624 F.3d 332, 342, 343, 261 Ed. Law Rep. 904, 31 I.E.R.
Cas. (BNA) 481, 160 Lab. Cas. (CCH) P 10317 (6th Cir. 2010), cert. denied, 32 I.E.R.
Cas. (BNA) 704, 2011 WL 1576895 (U.S. 2011) (In concluding that the First Amend-
ment does not protect primary and secondary school teachers' in-class curricular
speech, we have considerable company. [collecting cases] The common thread through
all of these cases is that, when it comes to in-class curricular speech at the primary or
secondary school level, no other court of appeals has held that such speech is protected
by the First Amendment.).
[FN6] Garcetti, 126 S. Ct. at 1959, 1960. For post-Garcetti cases, see, e.g., Hernandez
v. Cook County Sheriff's Office, 634 F.3d 906, 915, 916, 31 I.E.R. Cas. (BNA) 1681
(7th Cir. 2011) ([P]laintiffs were acting as public employees when they complained
about unsafe conditions at the jail[,] and thus had no First Amendment protection
from retaliation); Anemone v. Metropolitan Transp. Authority, 629 F.3d 97, 117, 31
00327
I.E.R. Cas. (BNA) 1167, 94 Empl. Prac. Dec. (CCH) P 44102 (2d Cir. 2011) (contacts
of Director of Security of New York Metropolitan Transportation Authority with DA's
office were clearly official, part and parcel of his duties and did not constitute pro-
tected speech); Bonn v. City of Omaha, 623 F.3d 587, 593, 110 Fair Empl. Prac. Cas.
(BNA) 929, 31 I.E.R. Cas. (BNA) 592, 93 Empl. Prac. Dec. (CCH) P 44010 (8th Cir.
2010) (Public safety auditor for city was not speaking as a citizen when she made com-
ments to the media regarding her report on traffic stops, and thus, the First Amendment
did not protect such speech; auditor acted in response to media inquiries about report
she published as part of her work, media identified her as a public official rather than
private citizen, and auditor's job duties included speaking to media about her work);
Chamberlin v. Town of Stoughton, 601 F.3d 25, 35, 30 I.E.R. Cas. (BNA) 1177 (1st
Cir. 2010) ("As two senior officers in the police department, it was within the scope of
both plaintiffs' duties to cooperate with the district attorney and the special prosecutor
in investigating alleged criminal activity within the police department."); Foley v.
Town of Randolph, 598 F.3d 1, 10, 30 I.E.R. Cas. (BNA) 718 (1st Cir. 2010) (Board
did not violate Fire Chief's free speech right "when they concluded that it was inappro-
priate for [Chief] to address budgetary and staffing issues" in context of speaking to
media at scene of fatal fire); Weintraub v. Board of Educ. of City School Dist. of City
of New York, 593 F.3d 196, 203, 253 Ed. Law Rep. 17, 30 I.E.R. Cas. (BNA) 353, 187
L.R.R.M. (BNA) 3217, 93 Empl. Prac. Dec. (CCH) P 43802, 159 Lab. Cas. (CCH) P
60938 (2d Cir. 2010), petition for cert. filed, 79 U.S.L.W. 3102 (U.S. Aug. 11, 2010)
(joining Ninth, Tenth, and Eleventh Circuits and concluding that "under the First
Amendment, speech can be 'pursuant to' a public employee's official job duties even
though it is not required by, or included in, the employee's job description, or in re-
sponse to a request by the employer."); Bivens v. Trent, 591 F.3d 555, 560, 30 I.E.R.
Cas. (BNA) 250, 93 Empl. Prac. Dec. (CCH) P 43814, 159 Lab. Cas. (CCH) P 60937
(7th Cir. 2010) ("It is undisputed that Bivens was responsible for the safe operation of
the firing range and consequently that he had a responsibility, as part of his job duties,
to report his concerns about environmental lead contamination. Thus, under Garcetti, it
is clear that the complaints about lead contamination that Bivens made directly up the
chain of command to his supervisors are not protected by the First Amendment.");
Fairley v. Andrews, 578 F.3d 518, 522, 29 I.E.R. Cas. (BNA) 1050 (7th Cir. 2009),
cert. denied, 130 S. Ct. 3320, 30 I.E.R. Cas. (BNA) 1248 (2010) (county jail guards'
reports about alleged inmate abuse at jail perpetrated by other guards was not protected
speech under the First Amendment); Huppert v. City of Pittsburg, 574 F.3d 696, 29
I.E.R. Cas. (BNA) 911 (9th Cir. 2009) (disagreeing with Third Circuit's decision in Re-
illy and concluding that officer's testimony before grand jury was not protected by First
Amendment); Houskins v. Sheahan, 549 F.3d 480, 91 Empl. Prac. Dec. (CCH) P
43393 (7th Cir. 2008) (county corrections department's social worker's internal com-
plaint to department's internal affairs division, alleging that she had been assaulted by
corrections officer in parking lot, was speech made pursuant to social worker's official
duties); Kline v. Valentic, 283 Fed. Appx. 913 (3d Cir. 2008) (complaints of police of-
ficer up the chain of command about false statements made during an investigation in-
to his own conduct as a police officer did not constitute protected speech); Callahan v.
Fermon, 526 F.3d 1040, 1045, 27 I.E.R. Cas. (BNA) 1144, 91, 91 Empl. Prac. Dec.
00328
(CCH) P 43198 (7th Cir. 2008), cert. denied, 129 S. Ct. 2734, 174 L. Ed. 2d 247, 29
I.E.R. Cas. (BNA) 256 (2009) (complaints made by lieutenant in Illinois State Police
to Department of Internal Investigation about misconduct of police captain and com-
mander, not protected under First Amendment); Vose v. Kliment, 506 F.3d 565, 26
60512 (7th Cir. 2007), cert. denied, 128 S. Ct. 2500, 171 L. Ed. 2d 785, 27 I.E.R. Cas.
(BNA) 1120 (2008) (police officer's reports to his supervisors about suspected miscon-
duct by other officers were not protected speech); Foraker v. Chaffinch, 501 F.3d 231,
26 I.E.R. Cas. (BNA) 863, 155 Lab. Cas. (CCH) P 60496 (3d Cir. 2007) (state troop-
ers' complaints up the chain of command and to State Auditor regarding problems at
firing range were not protected by First Amendment because their statements fell with-
in the scope of their duties as troopers); Morales v. Jones, 494 F.3d 590, 26 I.E.R. Cas.
(BNA) 555, 154 Lab. Cas. (CCH) P 60454 (7th Cir. 2007), cert. denied, 552 U.S.
1099, 128 S. Ct. 905, 169 L. Ed. 2d 729, 26 I.E.R. Cas. (BNA) 1792 (2008) and cert.
denied, 128 S. Ct. 931, 169 L. Ed. 2d 729, 26 I.E.R. Cas. (BNA) 1792 (2008) (police
officer's speech informing another officer and an ADA about allegations made by pur-
ported witness that the police chief and deputy chief had previously harbored an indi-
vidual the officers had just arrested, while that individual was wanted on felony war-
rants, was made pursuant to the officer's official duties, and thus, was not protected
speech under the First Amendment); Green v. Barrett, 226 Fed. Appx. 883 (11th Cir.
2007) (prison guard who reported possible breach of prison security to assistant super-
intendent as part of her official responsibilities as guard to keep prison secure did not
engage in protected citizen speech; Chief jailer's testimony at hearing to determine
whether county jail was safe place for convicted murder to be housed, that jail was un-
safe in that many of cell locks were not functioning and that may inmates had regularly
let themselves out of cells at night, was not protected speech under First Amendment);
Sigsworth v. City of Aurora, Ill., 487 F.3d 506, 89 Empl. Prac. Dec. (CCH) P 42867
(7th Cir. 2007) (Police detective's report to his supervisors, that he believed that mem-
bers of his drug investigation task force broke the law by tipping off suspects regarding
arrest warrants was speech made pursuant to his official duties as a detective and was
not protected.); Spiegla v. Hull, 481 F.3d 961, 25 I.E.R. Cas. (BNA) 1508, 89, 89 Em-
pl. Prac. Dec. (CCH) P 42770, 154 Lab. Cas. (CCH) P 60383 (7th Cir. 2007) (guard re-
ported possible breach of prison security as part of her official responsibilities to keep
prison secure, and thus did not engage in citizen speech that was protected from First
Amendment retaliation); Bradley v. James, 479 F.3d 536, 217 Ed. Law Rep. 31, 25
60373 (8th Cir. 2007) (Allegations of state university police force officer, that police
chief was intoxicated and disrupted the investigation of an incident in a student dormit-
ory, were made pursuant to officer's official and professional duties and was not en-
titled to First Amendment protection); Haynes v. City of Circleville, Ohio, 474 F.3d
357, 25 I.E.R. Cas. (BNA) 1050, 90 Empl. Prac. Dec. (CCH) P 42978, 2007 FED App.
0037P (6th Cir. 2007) (officer's speech complaining about training cutbacks in canine
unit was not protected); Mills v. City of Evansville, Ind., 452 F.3d 646, 24 I.E.R. Cas.
(BNA) 1293, 88 Empl. Prac. Dec. (CCH) P 42423, 152 Lab. Cas. (CCH) P 60219 (7th
Cir. 2006) (police sergeant, who criticized a plan to reduce the number of officers un-
00329
der her command at a meeting with her superiors, spoke as an employee and not as a
citizen, and thus, speech was not protected).
But see Jackler v. Byrne, 2011 WL 2937279, *6, *14, *16 (2d Cir. 2011) (on prong
one of qualified immunity, holding officer's claim that he was retaliated against for his
refusal to obey supervisors' instructions to retract truthful report relating to another of-
ficer's use of excessive force and file a false report was not controlled by Garcetti and
was within the scope of First Amendment protection; on prong two, leaving qualified
immunity question for resolution by district court after issues of fact resolved by jury,
but noting that [a]ny uncertainty [in circuit's prior clearly established law] intro-
duced by Garcetti and Weintraub, which were not decided until after defendants' re-
taliation against [plaintiff] would not entitle defendants to qualified immunity be-
cause the availability of that defense depends on whether the unlawfulness of their
conduct was apparent in light of pre-existing law.); Watkins v. Kasper, 599 F.3d
791, 796 (7th Cir. 2010) (holding "that the public concern test developed in the public
employment context has no application to prisoners' First Amendment claims, even in
the case of speech by a prisoner-employee."); Rangra v. Brown, 566 F.3d 515, 523,
524, 28 I.E.R. Cas. (BNA) 1807, 37 Media L. Rep. (BNA) 1724 (5th Cir. 2009), reh'g
en banc granted, 576 F.3d 531 (5th Cir. 2009) and on reh'g en banc, 584 F.3d 206 (5th
Cir. 2009) (Garcetti does not affect speech of elected government officials); Reilly v.
City of Atlantic City, 532 F.3d 216, 230233, 27 I.E.R. Cas. (BNA) 1511 (3d Cir.
2008), cert. denied, 129 S. Ct. 1316, 173 L. Ed. 2d 585, 28 I.E.R. Cas. (BNA) 1344
(2009) (trial testimony arising out of employee's official responsibilities is protected
under First Amendment); Shingara v. Skiles, 274 Fed. Appx. 164 (3d Cir. 2008)
(testimony of civilian employee of Pennsylvania State Police in criminal proceeding
regarding deficiencies in radar equipment was protected, but not letter complaining to
superiors about supervisor's conduct); Freitag v. California Dept. of Corrections, 289
Fed. Appx. 146 (9th Cir. 2008) (letter written by correctional officer to Director of
CDCR on personal stationary, outside of working hours, complaining of supervisors'
failure to take any action against sexual misconduct of prisoners that created a hostile
working environment, was protected speech). See also Beckinger v. Township of
Elizabeth, 2011 WL 2559446, *4 (3d Cir. 2011) (not published) (Reilly does not
stand for the proposition that a law enforcement officer has a First Amendment right to
attend voluntarily a parking ticket adjudication hearing in derogation of direct orders to
the contrary.).
There appears to be some disagreement as to whether what constitutes speech pursuant
to an employee's official duties is a question of law to be decided by the judge or a
question of fact to be submitted to a jury. Compare Williams v. Riley, 392 Fed. Appx.
237 (5th Cir. 2010) (in retaliation suit brought by prison officials claiming they were
fired for reporting sergeant's misconduct, court held that prior Court of Appeals de-
cision concluding that whether officers' report was made pursuant to their official du-
ties was a question of fact was the law of the case); Robinson v. York, 566 F.3d 817,
823, 28 I.E.R. Cas. (BNA) 1802, 157 Lab. Cas. (CCH) P 60799 (9th Cir. 2009), cert.
denied, 130 S. Ct. 1047, 30 I.E.R. Cas. (BNA) 224 (2010) (scope of job duties is a
00330
question of fact) and Posey v. Lake Pend Oreille School Dist. No. 84, 546 F.3d 1121,
1123, 238 Ed. Law Rep. 537, 28 I.E.R. Cas. (BNA) 385, 156 Lab. Cas. (CCH) P 60685
(9th Cir. 2008) (noting and discussing circuit split on this question and agreeing with
the Third, Seventh, and Eighth Circuits that after Garcetti the inquiry into the protec-
ted status of speech presents a mixed question of fact and law, and specifically that the
question of the scope and content of a plaintiff's job responsibilities is a question of
fact) with Fox v. Traverse City Area Public Schools Bd. of Educ., 605 F.3d 345, 350,
351, 257 Ed. Law Rep. 23, 30 I.E.R. Cas. (BNA) 1264, 93 Empl. Prac. Dec. (CCH) P
43902 (6th Cir. 2010), cert. denied, 131 S. Ct. 643 (2010) (noting division among cir-
cuits on the question, collecting cases, and concluding that "we have consistently de-
scribed the question of whether, in a First Amendment retaliation action, a public em-
ployee's speech is protected as one of law, not one of both fact and law.") and Hesse v.
Town of Jackson, Wyo., 541 F.3d 1240, 1249, 28 I.E.R. Cas. (BNA) 307, 156 Lab.
Cas. (CCH) P 60675 (10th Cir. 2008) (Whether a public employee's statement was
made pursuant to his official duties is a question of law.).
[FN7] See, e.g., McKee v. Hart, 436 F.3d 165, 173, 23 I.E.R. Cas. (BNA) 1527, 152
Lab. Cas. (CCH) P 60134 (3d Cir. 2006) (qualified immunity where there was "dearth
of precedent of sufficient specificity (and factual similarity to this case) regarding a
public employee's First Amendment right to be free from retaliatory harassment by his
or her employer at the time of [Defendant's] conduct."); Wagner v. City Of Holyoke,
Massachusetts, 404 F.3d 504, 509, 22 I.E.R. Cas. (BNA) 1290, 151 Lab. Cas. (CCH) P
59991 (1st Cir. 2005) (Plaintiff's "broad range of complaints (some consisting of un-
protected and antagonistic speech), coupled with his disregard of confidentiality proto-
cols and his disobedience in following the department's chain of command, would have
permitted a reasonable superior officer to believe that he was entitled to discipline
Wagner regardless of the content of his speech, consistent with the protections of the
first amendment. Even if this reasoning were mistaken, it would not have been egre-
giously so and, accordingly, qualified immunity is available."); Dirrane v. Brookline
Police Dept., 315 F.3d 65, 70, (1st Cir. 2002) (although "allegations have the structure
of a classic cover-up in which the whistleblower suffered an adverse change in em-
ployment 'because' of his speech on a public issue[,] where there is a lack of preced-
ent, this is not a case in which a reasonable officer must have known that he was acting
unconstitutionally" [footnote omitted]); Meyers v. City of Cincinnati, 979 F.2d 1154
(6th Cir. 1992); Egger v. Phillips, 710 F.2d 292 (7th Cir. 1983) (en banc). See also
Walker v. Elbert, 75 F.3d 592, 59899, 106 Ed. Law Rep. 1043 (10th Cir. 1996)
(although dress code that absolutely prohibited employees from wearing slogans at
work was found to violate First Amendment, court upheld jury's conclusion that reas-
onable official in defendant's position would not have known of the relevant legal
standards). See also Vega v. Miller, 273 F.3d 460, 468, 159 Ed. Law Rep. 500, 18
59466 (2d Cir. 2001) (without deciding whether termination of plaintiff's employment
was unconstitutional, court granted qualified immunity because "Defendants could
reasonably believe that in disciplining Vega for not exercising professional judgment
to terminate the episode, they were not violating his clearly established First Amend-
00331
ment academic freedom rights").
[FN8] Melton v. City of Oklahoma City, 879 F.2d 706, R.I.C.O. Bus. Disp. Guide
(CCH) P 7256 (10th Cir. 1989), on reh'g, 928 F.2d 920 (10th Cir. 1991).
[FN9] See also Kinney v. Weaver, 367 F.3d 337, 371, 372, 21 I.E.R. Cas. (BNA) 313
(5th Cir. 2004) (en banc) (no qualified immunity for police officials who retaliated
against instructors at police academy who had testified for plaintiff in an excessive
force case against a police officer whom they had not trained and a department that had
never enrolled its officers in their training academy); Branton v. City of Dallas, 272
F.3d 730, 744, 746, 18 I.E.R. Cas. (BNA) 144, 145 Lab. Cas. (CCH) P 59472 (5th Cir.
2001) ("[A] reasonably objective public official, identically situated in Chief Click's
position, would have known that adverse employment action against an employee for
her speech concerning false testimony by a fellow officer would violate a clearly estab-
lished constitutional right."); Cooper v. Smith, 89 F.3d 761, 11 I.E.R. Cas. (BNA)
1703 (11th Cir. 1996) (finding it clearly established that it was a violation of plaintiff's
First Amendment rights to refuse to renew his commission based on his cooperation
withlaw enforcement investigation); Pro v. Donatucci, 81 F.3d 1283, 129192, 11
I.E.R. Cas. (BNA) 1063 (3d Cir. 1996) (employee's right to respond to subpoena
without fear of retaliation was clearly established); Williams v. Com. of Ky., 24 F.3d
1526, 29 Fed. R. Serv. 3d 264, 1994 FED App. 0174P (6th Cir. 1994) (where employ-
ee spoke on matter of great public concern and impact on efficiency of office was min-
imal, no immunity); Branton v. City of Dallas, 272 F.3d 730, 744, 746, 18 I.E.R. Cas.
(BNA) 144, 145 Lab. Cas. (CCH) P 59472 (5th Cir. 2001) ("[A] reasonably objective
public official, identically situated in Chief Click's position, would have known that
adverse employment action against an employee for her speech concerning false testi-
mony by a fellow officer would violate a clearly established constitutional right."); Re-
idenbach v. U.S.D. No. 437, 912 F. Supp. 1445, 1455, 106 Ed. Law Rep. 1107 (D.
Kan. 1996) ("[T]he law is well-settled that statements concerning the safety of school
children touch on a matter of public concern").
[FN10] See, e.g., Shrum v. City of Coweta, Okla., 449 F.3d 1132, 1145, 98 Fair Empl.
Prac. Cas. (BNA) 499, 24 I.E.R. Cas. (BNA) 993, 88 Empl. Prac. Dec. (CCH) P 42412,
152 Lab. Cas. (CCH) P 60205 (10th Cir. 2006) ("Chief Palmer does not dispute that it
was clearly established that non-neutral state action imposing a substantial burden on
the exercise of religion violates the First Amendment. If Officer Shrum's factual alleg-
ations are correctthat he was singled out precisely because of Chief Palmer's know-
ledge of his religious commitmentthen Chief Palmer's claim of qualified immunity
must fail. Only if the finder of fact ultimately concludes, as a matter of fact, that Chief
Palmer had a neutral basis for his personnel actions, does he have a defense. This is
thus a case where the claim of qualified immunity collapses into the merits. The dis-
trict court was correct to hold that it should proceed to trial on the free exercise
claim."); Morris v. Powell, 449 F.3d 682, 686 (5th Cir. 2006) (no doubt that transfer to
more dangerous prison as penalty for exercise of constitutional rights would deter in-
mate from future exercise of those rights); Locurto v. Safir, 264 F.3d 154, 164, 170, 17
I.E.R. Cas. (BNA) 1569, 145 Lab. Cas. (CCH) P 59476 (2d Cir. 2001) (dismissing in-
00332
terlocutory appeal for lack of appellate jurisdiction where district court denied quali-
fied immunity based on genuine issue of material fact as to unlawful intent, "a neces-
sary element of plaintiffs' properly framed First Amendment retaliation claim.");
Walker v. Schwalbe, 112 F.3d 1127, 1132, 12 I.E.R. Cas. (BNA) 1507 (11th Cir. 1997)
("Defendants argue that denial of qualified immunity here would be equivalent to the
court's holding that once an employee has engaged in First Amendment speech he may
no longer be punished for valid reasons. This argument misses the point. An employee
may still be punished for valid reasons. However, when the employee can establish a
genuine issue of material fact that the true reason for the punishment was actually the
speech, then the case must go to trial."). See also Bennis v. Gable, 823 F.2d 723, 2
I.E.R. Cas. (BNA) 1325 (3d Cir. 1987). But see McCullough v. Wyandanch Union
Free School Dist., 187 F.3d 272, 280, 137 Ed. Law Rep. 505, 15 I.E.R. Cas. (BNA)
587, 139 Lab. Cas. (CCH) P 58723 (2d Cir. 1999) ("Where there is a 'total absence of
evidence of retaliation,' there is no basis on which to conclude that the defendant seek-
ing qualified immunity violated clearly established law."); Rodriguez v. Phillips, 66
F.3d 470, 479 (2d Cir. 1995) (where there was no clearly established right to approach
and speak to corrections officer, "even if [officer's] actions were in retaliation for that
exchange, the corrections officer still was entitled to qualified immunity.").
[FN11] Hartman v. Moore, 547 U.S. 250, 126 S. Ct. 1695, 164 L. Ed. 2d 441 (2006).
[FN12] Hartman, 126 S. Ct. at 1701-07. See also Beck v. City of Upland, 527 F.3d
853, 865 (9th Cir. 2008) ([I]n any constitutional tort case, including Fourth Amend-
ment-based cases, in which a prosecutor has instigated a prosecution, it is necessary, if
not sufficient, that a plaintiff seeking to sue non-prosecutorial officials alleged to be
responsible post-complaint for the arrest or prosecution show the absence of probable
cause.); Leonard v. Robinson, 477 F.3d 347, 355, 356, 2007 FED App. 0051P (6th
Cir. 2007) (Although there are differences between wrongful arrest and malicious
prosecution, there is an obvious similarity in that the significance of probable
cause or the lack of it looms large, . Hartman, therefore, calls into question our
cases holding that probable cause is not determinative of the [First Amendment] con-
stitutional question.); Barnes v. Wright, 449 F.3d 709, 718-20, 36 Envtl. L. Rep.
20100, 2006 FED App. 0187P (6th Cir. 2006) ("Regardless of the reasoning, it is clear
that the Hartman rule modifies our holdings in McCurdy and Greene and applies in
this case. As discussed above with regard to Barnes's malicious-prosecution claim, the
defendants had probable cause to seek an indictment and to arrest Barnes on each of
the criminal charges in this case. Barnes's First Amendment retaliation claim accord-
ingly fails as a matter of law, and we reverse the district court's denial of qualified im-
munity to the officers on this issue."). But see Moore v. Hartman, 2011 WL 2739835,
*5 n.8 (D.C. Cir. 2011) (noting split in circuits but taking no position as to requirement
of no-probable-cause showing for First Amendment retaliatory arrest cases; holding in
First Amendment inducement-to-prosecute case, absence of probable cause is not an
element of the right allegedly violated but goes only to establishing causation, and thus
has no bearing on whether a defendant has violated a clearly established constitu-
tional right [] of which a reasonable person would have known.); Kennedy v. City of
00333
Villa Hills, Ky., 635 F.3d 210, 219 (6th Cir. 2011) (right to be free from retaliatory ar-
rest after insulting an officer was clearly established); Howards v. McLaughlin, 634
F.3d 1131, 1147 (10th Cir. 2011) (In the wake of Hartman, our sister circuits contin-
ue to be split over whether Hartman applies to retaliatory arrests, that is, whether a
plaintiff in that retaliation context must show that the defendants lacked probable cause
for the arrest. [collecting cases] . We decline to extend Hartman's 'no-prob-
able-cause' requirement to this retaliatory arrest case.); Skoog v. County of Clacka-
mas, 469 F.3d 1221, 1229, (9th Cir. 2006) (distinguishing claim of retaliatory seizure
from retaliatory prosecution and concluding plaintiff need not plead absence of prob-
able cause to state claim for retaliatory seizure of his camera; recognizing right of indi-
vidual to be free from police action motivated by retaliatory animus but for which
there was probable casue[,] but granting qualified immunity because the law was not
clearly established); Hrichak v. Kennebec County Sheriff, 2007 WL 1170778 (D. Me.
2007), opinion amended and superseded, 2007 WL 1229404 (D. Me. 2007), decision
aff'd, 2007 WL 1501084 (D. Me. 2007), order amended and superseded, 2007 WL
1610178 (D. Me. 2007) (There is a Circuit split on the question of whether or not,
what is now the Hartman rule, of pleading and proving the absence of probable cause
applies to retaliatory arrests. [citing cases] I am simply not convinced that the rationale
of Hartman applies to a claim such as Hrichak's against the arresting officers involved
in a spur-of-the-moment, warrantless arrest.).
POLICEMISC 3:16
END OF DOCUMENT
00334
Chapter
2. Actionable Conduct Under the Federal Civil Rights Acts
References
2:16. Retaliatory prosecution
Steinglass, Section 1983 Litigation in State Courts 3:9
Bodensteiner and Levinson, State and Local Government Civil Rights Liability 1:11
Law Reviews and Other Periodicals
Watson, Limiting a Constitutional Tort Without Probable Cause: First Amendment Retali-
atory Arrest After Hartman, 107 Mich. L. Rev. 111 (October, 2008)
Retaliatory prosecutions may be subject to remedy under 1983. In order to establish a
prima facie case of First Amendment retaliation, a plaintiff must demonstrate that (1) the
plaintiff's conduct was constitutionally protected; and (2) the plaintiff's conduct was a "sub-
stantial factor" or "motivating factor" in the defendant's challenged actions.[1] Where an of-
ficer attempts to punish a person for the exercise of First Amendment rights by filing a crim-
inal charge against him, there is a potential cause of action under the Fourth and First Amend-
ments.[2]
In Hartman v. Moore,[3] the Supreme Court held that a plaintiff in a retaliatory prosecu-
tion claim must plead and prove the absence of probable cause for the prosecution in order to
have a cause of action. Justice Souter's opinion for the Court argued that it is difficult to prove
that retaliatory animus caused a criminal charge to be brought, because the charge is actually
filed by a prosecutor, not the officer who is alleged to be engaged in retaliation. The absence
of any probable cause may help prove the link between the retaliatory animus of the officer
and the filing of the charge by the prosecutor, and so the Court held it is a required element of
a prima facie case. Justice Souter reached this conclusion even though he acknowledged that
the presence or absence of probable cause is actually not dispositive of whether a prosecution
00335
was initiated for the purpose of retaliation. He reasoned that since probable cause will be rel-
evant to proof of causation in most cases, the law should make it a requirement in all cases.[4]
The decision will make it very difficult for protestors who are prosecuted only because the
authorities do not like their message to bring civil rights actions to vindicate their First
Amendment rights, if they were arguably violating some minor law during the protest. The
ruling may well bar their claims, even if the law in question was seldom enforced and would
not have been enforced against protestors whose message was acceptable to the authorities.
The Supreme Court has not ruled on whether the absence of probable cause is an element
of a wrongful arrest claim. An argument can be made that where multi-level causation is not a
factor, it is not necessary to prove an absence of probable cause to demonstrate a retaliatory
motive by an officer. The lower federal courts are split on whether a claim for retaliatory ar-
rest requires an absence of probable cause.[5]
[FN1] Abrams v. Walker, 307 F.3d 650, 654 (7th Cir. 2002) (abrogated on other
grounds by, Spiegla v. Hull, 371 F.3d 928, 21 I.E.R. Cas. (BNA) 577, 150 Lab. Cas.
(CCH) P 59878 (7th Cir. 2004)), citing Mt. Healthy City School Dist. Bd. of Educ. v.
Doyle, 429 U.S. 274, 287, 97 S. Ct. 568, 50 L. Ed. 2d 471, 1 I.E.R. Cas. (BNA) 76
(1977).
[FN2] See cases cited in 2:28.
[FN3] Hartman v. Moore, 547 U.S. 250, 126 S. Ct. 1695, 164 L. Ed. 2d 441 (2006).
[FN4] See, Rehberg v. Paulk, 611 F.3d 828 (11th Cir. 2010), cert granted on other
grounds, 131 S. Ct. 1678, 179 L. Ed. 2d 645 (2011) (plaintiff properly pleaded retaliat-
ory prosecution claim by alleging retaliatory motive and no probable cause; court notes
question of whether there is a constitutional claim for retaliatory investigation, but
grants qualified immunity because no such claim was clearly established); Beck v. City
of Upland, 527 F.3d 853, 862 (9th Cir. 2008) (with respect to First Amendment retali-
atory prosecution claims, previous case law describing factors that could rebut pre-
sumption of independent judgment by prosecutor are overruled in light of Hartman,
plaintiff need only show retaliatory motive on part of official urging prosecution and
absence of probable cause to rebut presumption of regularity and overcome defense of
independent intervening cause; with respect to Fourth Amendment claims, court notes
that Hartman may be inconsistent with previous law but does not overrule the latter in
this case because plaintiff overcame presumption of independent judgment by prosec-
utor under previous case law); Williams v. City of Carl Junction, Missouri, 480 F.3d
871 (8th Cir. 2007) (no showing of lack of probable cause for challenged traffic cita-
tions alleged to be retaliatory); Barnes v. Wright, 449 F.3d 709, 36 Envtl. L. Rep.
20100, 2006 FED App. 0187P (6th Cir. 2006) (applying Hartman).
[FN5] See Howards v. McLaughlin, 634 F.3d 1131 (10th Cir. 2011), petition for cert.
filed (U.S. Aug. 25, 2011) (declining to extend Hartman's absence of probable cause
00336
requirement to a wrongful arrest claim), and cases and authorities cited therein.
POLICEMISC 2:16
END OF DOCUMENT
00337
Home
Fighting Speeding and Other Traffic
Tickets
(Created 6/27/06; last updated 8/23/11)
Introduction
First of all, let me say right up front that I am not an attorney, and thus could not give
you legal advice even if I wanted to. It is recommended that you consult a competent
attorney before any court appearance. This page is intended as a resource that citizens
and attorneys alike may use to find sample motions, get ideas for strategies to fight traffic
and vehicular equipment tickets, and generally fight back against a system that has
become self-serving and abusive to its citizens. This site is not an authoritative source,
but rather a growing respository of approaches, strategies and motion documents with
empirical results. Your own state/county/city could have different laws, and will
definitely have different judges and motion forms as compared with those discussed
here. Keep this in mind; it is one reason why it's a good idea to retain competent legal
counsel before trying to fight your own traffic tickets. Likewise, be aware that if you use
this web site to advise another party, this may be considered the authorized practice of
law. In any case, the author of this web site shall have neither liability nor responsibility
to any party for any loss or damage caused or alleged to be caused by the use of the
information provided herein. Let me reiterate that, by providing this information, I am
not engaged in rendering legal services.
Why This Page?
Fighting Speeding and Other Traffic Tickets http://www.freeexistence.org/tickets.html
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When I was 16, I fought a ticket in New York using the principles laid out in a "How to
Get Out of Speeding Tickets" article that appeared in a 1980's edition of the online
magazine Phrack. The strategies failed miserably, and I lost. I later learned that the
small town Claverack, New York court (led by a Justice Gibbon, the "Gibbon" part being
far more representative of the man than the "Justice" part) had abused its discretion in a
number of areas, including the judge writing in a corrected name, vehicle color, speed,
and license plate number on the ticket at the time of trial! All were initially incorrect;
years later, an attorney advised me the best strategy would have been to ignore the
summons that was mailed to me, since my name did not equal the misspelled name on
the summons, and my car was not the one described in the ticket; oh well, live and
learn). Anyhow, this site is an attempt to provide tried strategies along with their
outcomes. If there is a formulaic way to get out of any ticket, I have not found it, and I
suspect anyone who says they have is trying to sell you something. There is no magic
phrase that, when uttered to a traffic judge, will get you out of any traffic ticket. Each
state has its own loopholes and technicalities that may be taken advantage of, and it will
take some work to identify these. The strength of your case is up to you, and will
depend on how much work you put into it (although this is not to say that you cannot
win with a weak case that you did not have much time to prepare!) I am merely
providing the tools and assistance so that you may work more effectively, whether you
only have a couple of hours to spare fighting a ticket, or have many days to devote to the
effort. All I ask from visitors is that if they use the information here to successfully get
out of a traffic ticket, email me and let me know of your success. Likewise, if you filed
your own motion with good results, send me a copy with your name/address/case
number blanked out. This site will grow with member support, and hopefully we will all
learn how to more effectively fight traffic tickets. Information on this site is catered to
United States jurisdictions, but may have some relevance to other countries with legal
systems based on common law.
Note that many of my examples here relate to Colorado. I chose this state because its
state troopers are particularly abusive with regard to issuing massive numbers of speeding
tickets, and because Colorado court rules are very unfriendly to motorists making it one
of the most challenging places to fight a speeding ticket. If you can beat a speeding ticket
in Colorado, fighting an identical ticket in a state like New York is a breeze.
Be Proactive
The best way to get out of a traffic ticket is not to get it in the first place. If you get
pulled over, be courteous to the police officer. He might be pulling you over because
he's looking for a missing kid or because a vehicle similar to yours was just involved in a
hit-and-run accident, and he is using a trivial infraction (e.g., driving 8 mph over the
speed limit, too much window tint, etc.) Be nice and he may let you go once he sees
2 of 35 3/7/2012 10:11 AM
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you're not who he is looking for. Be antagonistic in the same scenario, and he might
decide to write you a ticket for that same trivial infraction. Of course, some cops do pull
people over and write tickets for driving 8 mph over. Unfortunately, it's hard to
differentiate the good guys from the jackasses until they actually hand you a ticket, so
until that point, remain friendly and courteous! Likewise, prior to receiving a ticket, do
not ask to see the officer's radar or laser gun reading, since this implies distrust of the
officer. And of course, don't incriminate yourself; when asked if you know why the
officer pulled you over, the correct answer is that you don't know, because in truth, you
really don't. Incorrect answers include "Because I was driving 90 in a 25?", "I'm not
sure, but please don't look in the trunk", or variants thereof. Do not apologize, and do
not mention that you didn't know what the speed limit was, because both of these types
of statements can be used against you in court later on.
If you're reading this after you were stopped, and you made an admission, be prepared to
explain it away in court. For example, if you get pulled over for going 75 in a 65 and
told the officer "I was going 70, tops!" then explain to the court that this was not an
admission of driving over 65, but rather a reflection of the fact that any speed
measurement over 70 was completely beyond your comprehension.
One dynamic that may affect traffic stops in your state is the "Click-It-Or-Ticket"
program. This program awards federal funds to local police departments in the form of
overtime pay which officers may earn by working extra hours enforcing seatbelt
laws. Unfortunately, if you live in a liberty-minded state where failure to wear a seatbelt
is not a primary offense (i.e., you can't be pulled over solely for not wearing your
seatbelt, but can be ticketed for it if pulled over for a primary offense such as speeding),
then you get an especially raw deal. Officers eager for more money will gladly take the
overtime, and proceed to pull people over for trivial infractions just so they can check for
seatbelt usage. Of course, even after they've verified that you are, in fact, wearing your
seatbelt, you'll still sit there for 15-45 minutes while they run your license and
registration. What you end up with is a feel-good federal program combining with state
policy that values individual liberty, with the perhaps unexpected result that drivers are
more likely to be pulled over for no good reason. Critics believe this program in its
current form incentivizes police harassment. At the same time, officers in such
jurisdictions who participate in this program are just as much to blame. In any case, you
may get pulled over simply as part of a seatbelt check; no point in turning an
inconvenience into a ticket by beginning the encounter with antagonism.
Also, be aware that the officer may confront you with some random, goofy stuff like
"You don't look like this picture on your license" or some comment on your vehicle and
its condition. If you look suspicious to the cop, chances are he is using these challenges
to try to get you to do something suspicious or volunteer something incriminating so he
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has probable cause (called "PC" in the law enforcement profession) to search your
vehicle. Just give terse answers until the cop stops fishing and the conversation
advances. And never consent to a search, since this can only hurt you later (watch this
video for some tips on asserting your constitutional rights during a police encounter).
The Ticket
OK, so you got a ticket, known in many jurisdictions as a "summons and
complaint". The ticket is a "charging document" in that it charges you with an
offense. It contains lots of blanks that the officer must fill in, and thus has lots of
opportunity for error. If you find such an error, you can argue that the charging
document was insufficient, thus violating your due process rights.
The first thing you should do is look the ticket over. Is any information on the ticket,
including the location of the offense, incorrect? If so, you have a great chance at getting
the case thrown out. Even if the location is correct, is it outside of the officer's
jurisdiction (e.g., a sheriff's deputy from County X gave you a ticket in County Y, or on
some types of federal land)? Along similar lines, does the court of law listed on the ticket
have territorial jurisdiction over the location (e.g., your ticket says Court of Town X,
but the offense occurred in Town Y)? These are likewise grounds for dismissal. Also
look at the law you were alleged to have violated. Is there a statute number? If not, you
have a good shot at dismissal. Visit a local law library (you'll find them at law schools
and/or your local county courthouse; many states also have their statutes online,
Findlaw.com is a great place to start looking for your state's laws) and look up the statute
to make sure the statute number/section/paragraph cited is correct. Did the citation on
the ticket exactly match a statute? If not, you can move (a.k.a. motion when used as a
verb) for dismissal. (This is useful because older cops will often cite obsolete statute
numbers out of habit, especially during off-hour shifts.) Did the officer sign the
ticket? If not, it is arguable that you were never charged. If the officer used block letters
instead of cursive in the signature, you can discover or subpoena his pay records to see if
he normally signs things in block letters. This goes to prove intent; if the officer normally
uses cursive but on your ticket simply wrote his name, you can often get the ticket
dismissed. One other point worth knowing is that many police agencies do not allow
off-duty, out-of-uniform officers to issue citations for traffic infractions (e.g., see Denver
RR-304). Generally, off-duty officers who witness serious or flagrant violations must
summon on-duty personnel to execute a stop of the violator, or must confer with an
on-duty supervisor to obtain approval prior to issuing a citation or arresting the
violator. If an off-duty cop attempts to ticket you, challenge him on this; if that doesn't
work, use it as a grounds for dismissal in court!
Errors on your ticket represent procedural issues, and are a great thing to focus on in
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court. Why? Because procedural errors in your charging document don't require a lot of
factual support (the ticket says what it says, you don't need witnesses or testimony or
cross-examination to establish the content of the ticket), and the issues are usually
relatively clear cut. Often the officer will simply admit the error, and then you're left
only to argue the legal side of things. When dealing with factual mistakes on the ticket,
it's important to remember that as a defendant in court, you need only show that you
didn't commit the specified crime at the specified time, specified place, in the specified
manner, and while driving the specified vehicle specified on the ticket. If any of those
elements were recording incorrectly on the ticket, you've got a strong case for dismissal,
or at least a verdict of Not Guilty. (Even if you committed a very similar crime several
blocks away, or the next calendar day, or in a vehicle other than the one specified, that
would be an entirely different matter, and not the specific offense you have been charged
with.)
Note that more minor mistakes, e.g., listing your car as black when it is actually dark
blue, are less helpful, but can still be of some use. See the section on cross-examination
below.
The Aftermath
If you got a ticket, don't let it ruin your day. The average traffic ticket is simply a form
of taxation of drivers which is randomly applied. If the government really didn't want
you speeding, they'd require speed governors on cars or have criminal penalties for minor
speeding infraction. In summary, your local government depends on traffic ticket
revenue, and wants you to speed so they can continue to earn revenue from you. It's that
simple. Don't take it personally, and remember that you don't need to take it lying down
either.
TRAFFIC COURT
Just What is Traffic Court?
Traffic court is a strange mix of the two wings of the justice system, that is, civil law and
criminal law. When you got your driver's license, you signed a contract with the state
wherein you agreed to abide by the state's rules in exchange for the "privilege" of driving
on its roads. Thus, when you violate that contract, say by exceeding the speed limit by
15 miles per hour, the state can come after you for a civil penalty in the form of a
monetary fine. More severe violations, like exceeding the speed limit by 50 miles per
hour, transcend your contract with the state and begin to approach doctrines of criminal
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law like reckless endangerment. Now you may be in the realm of misdemeanors or even
felonies, with fines turning into jail time.
Okay, So What Does This Mean?
Traffic courts nationwide represent what many legal critics call "Supermarket Justice",
geared more toward getting through a large volume of cases and collecting your money
than dispensing justice. The fundamental rights guaranteed to the accused in other
criminal cases fall by the wayside; good luck getting a public defender, a jury of your
peers, or even a stenographer, in traffic court unless you're there for a felony (this policy
would seem to reward felons for committing more serious vehicular
crimes!) Fortunately, traffic courts nationwide have another thing in common: these
systems all try to separate you from your money as expeditiously as possible, and in
doing so rely on the average driver's ignorance of the law. In some states, it is easy to
take advantage of this weakness; in New York, for example, you can request what is
called supporting deposition (a statement of facts surrounding the violation that the
officer must write before the court date). If the supporting deposition is not written, you
can request that the case be dismissed. Likewise, if the officer does not show up to
court, the state has no witnesses against you, and you can likewise ask the judge to
dismiss your case. (In very small towns, the judge may have a vested interest in bringing
your money the town coffers; in such a place, you must ask quite forcefully, although
keep a civil tone as you can be jailed for contempt of court if you are openly
disrespectful of the judge.) Most drivers who show up to traffic court are not aware of
their rights, or do not stand up for themselves because they are afraid of getting in even
more trouble if they put up a fight; I have seen many drivers be cowed into taking a plea
bargain instead of motioning for dismissal, or even worse, agreeing to schedule a new
court date to a time convenient for the absent officer! Remember, an officer who misses
a court appearance or does not submit required paperwork is not only wasting your time,
he is wasting the court's time; a sign of an objective traffic judge will be that he shares
your consternation with the officer in question. Also note that some states have a legal
requirement that charges be dismissed if the officer fails to appear (e.g., see Rule 10
of the Colorado Rules for Traffic Infractions, Title 15, Chapter 1, Subchapter I.124.9 of
the NYCRR in New York, etc.) If any requirement like this exists in your jurisdiction, be
sure to print out the relevant rule or statute and bring it to court so you can cite it with
confidence to the judge. If no such rule exists, tell the judge "I respectfully motion to
dismiss for lack of sufficient evidence." Be aware of your rights, especially your right to
remain silent (said silence cannot be used against you to establish guilt).
Note also that you might have friends, relatives, or a spouse who can't understand why
anyone would bother fighting a ticket. "Just pay it," they exclaim, "it's easier than
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fighting it and you'll just lose anyway!" This passive, "go along to get along" attitude is
what allows the traffic fine system to thrive in its present state. In contrast, if even half
of licensed drivers fought every traffic ticket they got, the police wouldn't bother pulling
people over for trivial crimes, because it just wouldn't be a profitable
endeavor. Remember, if the founding fathers had had such a passive "grin and bear it"
attitude, America would probably still be a British colony. By fighting a ticket, you're
merely requiring the government to live by its own book of rules (the fact that this book
of rules is quite extensive and full of technicalities which may help you is merely a
bonus).
The strategies enumerated on this page are equally applicable to urban courts with
full-time, career judges as they are to small-town courts (I literally had one case in
upstate New York where the court was in the judge's living room; his wife was the
"clerk" and held the cashbox! The mockery of justice that these courts represent have
been around for a hundred years... they are so old that FDR tried, unsuccessfully, to
abolish them when he was governor of New York!) In the second situation, you'll just
have to take a more active role in educating the judge on state law and your rights. Your
rural judge or justice probably only serves this role for 1-2 hours a week, and has a day
job which has nothing to do with the legal profession, and your pointing out a law might
be the first he has heard of it. Note that just because you've got a career judge in a big
courthouse does not mean you are guaranteed a fair trial. For example, Larimer County,
Colorado, has a large number of career judges and is based in a $26 million facility, but
its county and district courts are among the most corrupt in the state. I'll be posting
documents related some of their antics as I get them, but they include magistrates
blatantly lying to defendants, frivolous motions systematically filed by the district attorney
to prevent defendants from appealing (behavior which the judges refuse to sanction), and
a severe bias against defendants in all traffic cases.
You needn't be nervous about making a court appearance. As long as you do not lie or
insult the judge, the worst that can happen is that you have to pay the fine on your ticket,
and possibly an additional $10 or so in court costs. And given the salaries of the judge,
clerks, bailiffs, courtroom security, cop, and other court personnel, believe me, this $10
is a bargain -- by going to trial, you are easily costing more money than it stood to make
from your fine. And remember, this is the worst-case scenario, because if your case gets
dismissed, you pay neither the fine nor court costs.
One-Stage vs. Two-Stage Trials
Two types of traffic courts are prevalent in the United States. The first type uses a
one-stage trial, wherein you show up to court, enter a plea, and if that plea is "Not
Guilty", a hearing then takes place immediately after. New York has this type of a traffic
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court system. One advantage of this single-visit system is that most people who show up
are just looking for a plea bargain, and so many times the police officers who issued the
tickets will be complacent about showing up, thus giving you reason to ask for
dismissal. A disadvantage is that you do not know how good a plea deal you will be
offered until you show up to your sole hearing. So if you're not sure whether you want
to accept a plea bargain, you'll probably need to prepare your defense in advance of the
hearing in case the deal isn't worth taking. Note that in a two-stage trial, you may be
offered a first plea bargain offer upon your first appearance, and a second, more
generous plea bargain offer by the officer (who is not happy about having to be there on
his day off!) upon your final hearing. In this case, it is advantageous to plead "Not
Guilty" at your first appearance, however you want to be sure that this is the policy of the
prosecutor or issuing officer's police department before relying on it. In some
jurisidictions, may have to pay another $10 or so in court costs just for causing things to
advance to the final hearing stage even though nobody was sworn in or gave testimony.
In a two-stage jurisdiction, it is generally advantageous to gather as much evidence as you
can prior to your first appearance. For example, try to obtain speed studies (also called
traffic engineers' surveys) prior to your arraignment. If you show the assistant district
attorney evidence that the speed study was problematic, you are both demonstrating your
willingness to aggressively defend yourself, and showing the DA that there may be
problems with his case. In either case, the DA will likely want to be rid of you, and may
offer you a more attractive plea bargain than he otherwise would have. Note that in
some jurisdictions (where supermarket justice has been elevated to an art form), plea
bargains are determined solely by a table of reductions used by the court clerks. If you
are in one of these places, your sole opportunity for back-and-forth plea negotiation will
be with the officer who issued the ticket. This puts you, the defendant, in a tough
spot. You could plead not guilty and hope for a favorable plea bargain to be offered
before the trial. But if the cop doesn't like you, or doesn't understand your argument
(e.g., lacking legal training, he may not appreciate how much a given procedural error
may weaken his case), you may not ever get a viable plea offer, and thus could be left at
the last minute with no option but to go to trial.
Other states use a two-stage trial. In the first stage, you show up to the court on the date
cited on the ticket. When you show up at court, you'll be given a chance to enter a plea,
and probably be offered a plea bargain. This first court appearance is called an
arraignment (also known as a "first hearing"). In some states, you appear before a
judge for the arraignment, and thus probably ought to try and look respectable. In other
states, you simply interact with a clerk at a walk-up window, and thus needn't bother with
pleasantries like a tie or even bathing. Note that Colorado uses this type of traffic court
system, and to maximize the inconvenience to you, the ticket-fighter, Colorado rules
require a personal appearance by you or your attorney simply to enter a plea. Note that
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in most places, entering a plea can be done by mail.
Pleas and Plea-Bargaining
Aplea is defined by Black's Law Dictionary as an accused person's formal response of
"Guilty," "Not Guilty," or "No Contest" to a criminal charge. The Guilty and Not Guilty
pleas are self-explanatory. However, be aware that it is perfectly legal to plead Not
Guilty to a traffic violation that you really did commit. There is nothing wrong with
forcing the state to present its case against you!
No Contest (a.k.a. nolo contendre) is a plea which neither acknowledges nor contests
guilt. Advantages of the No Contest plea are that they may not be used against you in a
subsequent civil case (e.g., if you are accused of running a stoplight and hitting
somebody, pleading No Contest will resolve the case and allow you to be fined or
sentenced without giving the victim ammunition against you in a personal injury
case). No Contest pleas can sometimes be used to get a more lenient sentence from a
judge than would be gained after fighting a losing battle in court. Another application for
a No Contest plea is when you want to admit that you were speeding, but have a really
good excuse (e.g., medical emergency) and want to throw yourself on the mercy of the
court. To accomplish this, you would enter a plea of No Contest, and ask the judge for a
right of explanation. You would then explain the extenuating circumstances, and ask the
judge to withhold adjudication (or suspend sentence, depending on your jurisdiction) in
light of the circumstances. Note that in some states (e.g., Colorado), imminent harm
(such as a medical emergency) is an affirmative defense to speeding. In such states,
you'll probably want to plead Not Guilty, and use the affirmative defense, rather than
plead No Contest.
Plea bargaining refers to the process by which the state offers you a decreased fine,
decreased number of points, or other break in exchange for pleading guilty to a lesser
charge (e.g., a 4 point Speeding ticket may be plea bargained into a 3 point Failure to
Obey a Traffic Signal charge). In some jurisdictions, the officer who issued the ticket
offers the plea. In other jurisdictions, assistant district attorneys or their minions will
offer the plea. View plea bargain offers with a high degree of skepticism! I once had a
New York State Trooper offer to "reduce" a "Speed Unreasonable" charge into "Failure
to Obey a Traffic Signal" charge in exchange for pleading guilty. It turns out the fines
and points for the two charges were identical. Fortunately, I turned down the plea deal,
and ended up getting the case dismissed because the Trooper forgot to write a supporting
deposition (discussed above). To frost the cake of that court appearance, the judge
berated the Trooper for wasting the court's, and my, time. I drove (well actually, sped)
home feeling gratified.
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Beware of Police Intimidation Tactics! Less honest police officers (especially state
troopers) will try to deceive you in an effort to dissuade you from going to trial. Here is
a sample script I've seen New York State Troopers use on people who show up to fight
their tickets:
Trooper: (Friendly I'm-doing-you-a-favor tone) Hi, I'm Trooper Smith. Trooper Jones,
who wrote your ticket, is running late. I just spoke to him on the radio, and he won't be
getting to the court for another hour. He did authorize me to offer this plea bargain on
his behalf...
Soccer Mom: Oh... I don't have that kind of time, I have to go pick up my kids at
school. Darn, I wasn't even speeding, either. But I guess I'll just take the plea bargain,
I've already wasted enough time on this...
(Soccer Mom accepts plea; Trooper Smith turns to me) Trooper: So, you probably
heard about Trooper Jones running behind. He authorized me to make this plea deal...
Me: No thanks. I can wait an hour.
(At this point, Trooper Smith disappears to his car, allegedly to check on how Trooper
Jones is coming along. After several minutes in his cruiser, he comes back in)
Trooper: Actually, it's looking more like it's going to be two and a half hours until
Trooper Jones can get here and your hearing can start...
Me: (Cheerfully) That's fine! I've got all day.
Upstate New York Justice (who has been watching this charade all along without
interceding): Well, I don't have all day. We'll have to reschedule.
Me: Your honor, I don't have any room in my schedule for a further hearing. I'm afraid I
have to move for dismissal.
(Dismissal was granted; if Soccer Mom had seen through this technique, she too could
have had her ticket dismissed!)
The moral of the story is don't take legal advice from the cops in the courtroom. Despite
how friendly and/or helpful they may seem, they did not come to court to help
you! They are there because they chose write someone in the courtroom a ticket, and
now they want to make sure it sticks!
CLERKS (No, not the movie!)
The court clerks are your friends. If they are not, then they should be! The clerk's office
is in charge of scheduling trials, processing motions and subpoenas, etc. If you are nice
to them, they will often try to help you with scheduling flexibility, information, or
advice. Take such advice with a grain of salt, of course, because clerks are not experts
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on the law. Nevertheless, whenever a clerk informs you of a deadline or a procedure,
make notes on what you were told, by whom, and the time and date. Judges will often
be more forgiving of a procedural error on your part if you can point to misinformation
given to you by the clerk's office (I once had a motion to set aside a default judgement
granted after the statutory limit for such a motion had passed because I was able to point
to misinformation given to me by the clerk's office, and an unreturned phone call to the
same office). If you need something from the clerk, and just aren't getting any
cooperation, see if there is a Judicial Administration office to which the clerk's office is
ultimately accountable, and consider seeking assistance there.
Whenever you file any document with the clerk's office, bring an extra copy of the
document with you, and ask the clerk to stamp it. This stamped copy serves as your
proof that you filed the document. If you file a document and do not get this proof, and
the document is lost, so are your legal rights associated with that document!
PRE-TRIAL MOTIONS, AND IDENTIFYING YOUR OPPONENT
A motion is simply a request (usually written in the case of pre-trial motions, or oral if
you're already before the judge) for the court to decide on something. There are a few
important things you should know about motions. First, expect lots of back-and-forth on
any motion you file. Your traffic court judge will probably resist any but the most
customary motions you make. Unfortunately, your typical traffic court judge is more
interested in facilitating the transfer of your hard-earned money to the local government
than in justice or objectivity. In jurisdictions where the police officer who wrote the
ticket represents the prosecution (instead of, say, an assistant district attorney), your
opponent is probably the judge. The officer will likely know very little about judicial
rules, important cases, and traffic case jurisprudence. You might think this would present
a strategic advantage for you, but chances are, the judge will step in and do the cop's
legal research for him. Try making a motion of any kind, and watch as the officer stands
idly by; the judge will be left to come up with reasons why your motion should be denied
on behalf of the cop, and then will proceed to rule on the objections the cop never
made. As you might imagine, any justifications the judge comes up with on his own are
probably more compelling to him than whatever you came up with!
If your motion gets denied and you think it unfair, or think the judge missed something,
then file a Motion to Reconsider Defendant's Motion for X, where X what you
motioned for initially. If the prosecution files a motion, you argue with it by filing a
Reply to Peoples' Motion. You can argue with the prosecution's reply to your motion by
filing a Surreply to the Prosecution's Reply, a Surreply to Prosecution's Surreply, and so
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on. If you'd like to bring up a motion for the second (or tenth) time, perhaps after new
evidence or argument has been offered which strengthens the case for such a motion,
then you can Renew your motion any time up through the end of the trial (because you
can't generally make a new motion for the same thing).
Some motions must be filed pre-trial or you will lose your right to make the
motion. Check your local judicial rules to be sure, but these types of motions usually
relate to a lack of jurisdiction over you (personal jurisdiction) or the case (subject matter
jurisdiction, such as errors on the charging document (a.k.a. the ticket/summons), or
violation of your right to a speedy trial). Just to be safe, you always want to present
these types of Motions for Dismissal right up front (personal jurisdiction first, followed
by subject matter) before any testimony is offered!
Of course, you can also motion during your trial. If your issue is fairly complex and
could involve harmful precedent the judge is apt to discover if he looks deep, it may be
best to make such a motion during the trial so the judge has less time to dig around and
do research! But if it's not advantageous to catch the judge and/or prosecution off-guard,
then you might as well file the motion in advance -- you might succeed, and save
yourself a trip to court!
Sometimes, you may find yourself in a situation where the judge has ignored a pre-trial
motion you filed. This can be a tricky situation and can require some tact to resolve. In
some cases (e.g., Motions for Post-Conviction Review) there is a statutorily-specified
deadline by which a court must rule on the motion. If you don't get a response within the
specified period, you can petition the court above the one you're currently in for a writ of
mandamus. These types of motions are rarely filed, perhaps partly because they tend to
piss off the judge (as with many government employees, judges often respond poorly to
being asked to do their job; of course, by seeking mandamus, you are giving up on the
judge and appealing to, essentially, his or her boss to force action). As such, they are
generally used only as a last resort. For an exemplary Petition for a Writ of Mandamus
which resulted in an immediate and favorable ruling, click here. :Note that the standard
for issuance of such a Writ is high; the judge must have a legal duty that has been
neglected.
In a case where there is no statutory time limit for having your motion ruled upon, the
best approach may be a very friendly and polite call to the court clerk's office. Often, the
judge has simply forgotten about the motion, and having a court clerk approach them to
ask when a ruling might be expected will result in that ruling being issued in very short
order!
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DISCOVERY
Your Right to Discovery
As with any court case, pre-trial discovery can be a powerful tool in fighting a
ticket. Discovery is defined by Black's Law Dictionary as "compulsory disclosure, at a
party's request, of information that relates to the litigation". Generally speaking, pre-trial
discovery is intended to give you access to the government's evidence against you. This
access is necessary for you to prepare your defense. Practically speaking, a motion for
discovery is used to gain access to pieces of evidence which may be used to find
weaknesses in the opponent's case. Most states are obligated to comply with any
reasonable discovery requests you make. Note, however, that there are some exceptions
to this. For example, Colorado goes the extra mile in denying basic legal rights to
motorists with Rule 8 of the Colorado Rules for Traffic Infractions, which disallows
discovery prior to your hearing. But you have no actual right to examine the evidence
against you before deciding how to plead! In such a case, you can go to the police
agency that issued the ticket and try to request the documents. Do so well in advance of
your hearing! Some jurisdictions will not allow you access to original documents, and
you will have to wait for a government employee to find and copy the requested
evidence. You may have to pay for these copies, which is unfortunate since you will be
paying for document copies before you even know if the document helps your case. In
some particularly abusive jurisdictions (e.g., Larimer County, Colorado) you can be
charged $7.50 for something as simple as a one-page photocopy of the officer's copy of
your ticket! Not only does this system help to dissuade people from standing up for their
rights by denying them immediate or direct access to relevant documents in the case
against them, but it also makes a tidy profit for the county sheriff even if you win your
case. If course, if you're pretty sure you want to go to trial, and are comfortable
examining lots of evidence quickly, you could file a subpoena duces tecum which, while
not really pre-trial, force the officer to bring all the records you request with him to court
for your examination (see below). Be aware that some law enforcement agencies have
rules requiring officers who receive subpoenas to make a court appearance (e.g., see
Denver RR-502). It is often unclear how much enforcement of these rules
exists. However, if you live in a place where officers frequently blow off court
appearances for traffic infractions, this may affect your decision to file a subpoena.
To further confuse things, Rule 216 of Colorado Municipal Court Rules of Procedure
does allow for discovery. What does this mean? Essentially, if your Colorado ticket was
written within city limits, you have a right to conduct pre-trial discovery, but if the ticket
was issued within unincorporated county land, you cannot. Determine what discovery
rights are available in your locality before you spend time on any discovery requests. If
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you are unable to make this determination, then at the very least submit your discovery
motion as early as possible so you are not surprised at the last minute by a lack of access
to evidence.
Note that it is illegal to file a motion for discovery for large numbers of documents purely
to inconvenience your opponent. Our goal here is simply to find out all the facts relevant
to our case. You're going to have to miss work or sacrifice some family time to fight this
ticket, and may have to pay a fine, so don't feel bad about standing up for your
rights. The fact that a lengthy discovery request could cost the government more money
than they stand to collect from you if found guilty of the traffic violation is not a
legitimate reason for filing a discovery motion; rather, it is simply an added bonus. Note
that whenever you file a motion, whether it be for discovery or anything else, always
bring a second copy to the clerk's office and have the clerk time-stamp the
copy. Without this time-stamped copy, you have no proof your motion was ever filed
should the clerk lose it!
Each section of traffic code has its own associated factual and evidentiary
elements. These elements might be something for which you should file a motion for
discovery (e.g., battery replacement records for a tint meter unit), or simply something
you should look up (e.g., state standards relating to paint and reflector types used to
signify a no-passing zone; at least one California passing-in-a-no-passing-zone ticket has
been defeated due to improperly spaced reflectors on the center line!)
What to Discover
With just about any type of ticket, it is worth filing a motion for discovery ofall the
following:
The officer's notes (the officer's copy of the ticket often has a space for he or she to
make notes relating to the incident; these notes will not appear on your copy)
Log book of the officer for the day of the violation (how long was the officer
working that day? was he fatigued after a long shift? did he just finish giving
another ticket across town, and thus was rushed or could not possibly have gotten to
your location in the given time?)
A detailed map of the enforcement jurisdiction of the police department that issued
the ticket - if it turns out the officer was outside of his jurisdiction when your ticket
was issued, then your day just got a lot better
The citation issuance policies in effect for the police department on the date of your
alleged violation
Demographics of people stopped, and of people cited by the officer during the past
six or twelve months, including, but not limited to, race, ethnicity, age, gender, and
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the type of car being driven by the person stopped
The officer's physical test results regarding vision test data
All other relevant evidence regarding the officer's ability to make sound judgments,
or any accusation of misconduct
All other relevant evidence regarding the summons and complaint
What to Discover: Speeding
With a speeding ticket, it might be worthwhile to add some or all of the following to your
motion for discovery:
Radar/laser device make, model, serial number, options, and age
The radar/laser device operator manual and specifications
Radar/laser device calibration certificates and calibration log sheets for the year
before the violation (and months following if available)
All other maintenance and repair history of the radar/laser device
Failure and error rates of the radar/laser device
The officer's certificate of competency
Records relating to the training received by the officer regarding the use of the
radar/laser device including including dates, location, and instructor name and
address
The training materials used by the officer when training on the radar/laser device
Date that the officer first used the radar/laser device
The speedometer deviation records for the vehicle the officer was driving since
officers commonly use their own speedometer to verify the confirm the accuracy of
the radar/laser device reading
Information relating to the educational background of the officer to determine
whether he possessed the requisite skill necessary to properly make detailed
measurements based solely upon visual observation; this visual observation is
commonly used to verify the accuracy a speed measurement device result
Some more general information is also of interest, such as departmental, local, state
policies pertaining to radar/laser speed measurement device use
Radar only: FCC Public Safety Radio Services license (this license is typically good
for a few years; alternatively, if the unit is unlicensed, it was being operated
unlawfully). Note that at least web site I have come across indicates that, under Part
90 of FCC rules, a police agency with an FCC license for a communication system
does not need a separate license for a radar unit. I have not yet verified this.
Radar only: Radar guns are calibrated using tuning forks, which themselves must
be calibrated. So you should add calibration records and log sheets associated with
the tuning fork(s) used to calibrate the radar detector that clocked you. In some
states, case law dictates that the fork must have been initially calibrated before
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introduced into service, and also calibrated less than a year before or after it was
used to calibrate the radar detector (see, e.g., People v. Walker, 610 P.2d 496
(Colo.1980), and People v. McIntyre, 719 P.2d 727 (Colo.1986)). Moving mode
radar (that is, radar capable of taking measurements from a moving police vehicle)
requires more than one fork, so keep this in mind when making your discovery
motion or writing up your subpoena duces tecum (see below section on subpoenas).
Click here to download a sample discovery motion that was used by one reader to fight a
speeding ticket in Colorado. I selected this one because it's the most thorough example
I've come across.
What to Discover: Window tinting
With a window tinting ticket, it might be worthwhile to add some or all of the following
to your motion for discovery:
Manufacturer and model of the tint meter device used by the officer in conjunction
with the ticket
Date of purchase of the tint meter device
All maintenance records regarding the tint meter device
Date that the officer first used the tint meter device
The instruction manual provided with the tint meter device
The training manual provided with the tint meter device
Records relating to the training received by the officer regarding the use of the tint
meter device including including dates, location, and instructor name and address
Information relating to the educational background of the officer to determine
whether he possessed the requisite skill necessary to properly make detailed
measurements based solely upon visual observation
Calibration test results for the tint meter device during the six months prior to the
date of the violation, and months following if available
Battery replacement records for the tint meter unit
All other maintenance history of the tint meter device
Failure and error rates of the tint meter device
Click here to download a sample discovery motion that was used to fight a window tint
ticket in Mountain View, Colorado. It's a pretty good example of just about every piece
of information that could help you in court.
To file your discovery motion, you'll need to give it to the clerk at whichever court is
listed on your ticket/summons. If you don't have your case number (generally not
printed on traffic tickets), you can get it from the clerk and write it in at the time of
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filing. Remember, always bring an extra copy of any court filing and get it stamped
by the clerk to prove it was filed in case it later "disappears" from the court's files.
Discovery: The Prosecutor's Response
The "People" (also known as the assistant or deputy prosecutor) will generally respond to
your motion for discovery and employ two strategies to limit your pre-trial access to
information. The first is objection: the prosecutor will often argue that one or more of
your requested items is "irrelevant" and/or "unduly burdensome". You'll generally want
to file a counter-response which argues that the information you've requested is
absolutely relevant to some important set of issues or facts, and you'll want to cite those
issues/facts. Likewise, argue against "unduly burdensome" objections by arguing that the
"probative value" (the value of the evidence to prove something) far outweights the
burden to "the People".
The other strategy the prosecutor will use is to not actually object, but to agree to do
something which doesn't actually provide you with pre-trial access to the evidence against
you. For example, you'll file a motion for discovery of records relating to the officer's
training on a given speed measurement device, and the prosecutor will respond with
something like "No objection. Officer will testify to these matters as part of the People's
prima facie case." Don't stand for this; the purpose of pre-trial discovery is to have
access to the evidence against you before the trial. The idea that the officer's testimony
after the trial has begun somehow satisfies your discovery request is absurd. If the judge
sides with the prosecutor, insisting that the requested data can only be transmitted via a
narrative from the ticketing officer, then demand the right to depose the officer before
the trial so you can know the evidence against you that will be presented in trial. During
deposition, ask the officer questions just like you would during a cross-examination. Mix
up the question ordering, and non-consecutively repeat inquiries using different phrasing
to encourage contradictions or other slip-ups. And remember: every minute the officer is
sitting in that room answering your questions, he's not out giving tickets, and thus the
government is losing additional ticket revenue as a consequence of the prosecutor's lack
of cooperation. (Note that the previous comment does not apply to cross-examination,
since there, the judge and possibly a jury are observing, and if it appears you're wasting
their time with meaningless or barely-relevant questions, they can and will punish you!)
No Right to Discovery?
As noted above, some particularly draconian jurisdictions (e.g., non-municipal courts in
Colorado) forbid pre-trial discovery. If you live in one of these places, all is not
lost! The Freedom of Information Act (FOIA) and its state-level equivalents are often
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tremendously useful when fighting the government in any court case. In many states,
filing an FOIA request may be more fruitful than filing a motion for
discovery. Why? With discovery, the opposition can refuse to furnish evidence by
arguing that it is irrelevant, unduly burdensome to produce, or other such
reasons. Perhaps even worse, the government can agree to the request but then furnish
only a small, irrelevant subset of evidence you request. Either way, you've got to fight to
convince the judge to grant you access to the evidence. In contrast, government agencies
usually do not have these "outs" when responding to FOIA requests. You'll want to
check your state's FOIA laws, but some states give FOIA requesters an amazing amount
of latitude when requesting government documents. For example, in California, the
courts have established that "idle curiosity" is sufficient grounds for any citizen to make a
request under the California Public Records Act (CPRA). Further, if a government
agency turns down your request and you successfully sue to force compliance, the
agency must reimburse your legal expenses! The CPRA is not unique in the latitude that
it grants its citizens; check your state's FOIA-equivalent and you may be surprised to find
out just how much power you have to access government records.
The easiest way to file an FOIA request is using this automatic request generator on the
RFCP site. Simply select your state (or use the federal form if you are fighting a ticket
from a National Park or other federal jurisdiction), fill in the form, and paste in the
evidence you wish to see (see the exemplary discovery request items, above, for some
suggestions). Remember that an FOIA request is technically not connected to your trial;
as such, do not mention "discovery" in your request or it will just cause confusion. Also,
file your FOIA request as early as possible since the police agency may, by law, take a
considerable amount of time to get back to you -- check your local FOIA law to learn
more about the possible timeline -- and the court may be unwilling to grant you a
continuance while you wait for the FOIA request to be processed.
Worst case, if your local FOIA laws are limited in scope (see the RCFP Open
Government Guide for state-by-state FOIA rights and restrictions), you can subpoena the
officer who issued your ticket and make him bring the evidence you seek with him on
your court date! This has some obvious disadvantages over pre-trial discovery, namely
that A) you won't get to see the evidence until your trial, B) the officer may be more
likely to show up to court since you subpoenaed him, making a dismissal for failure to
show up less likely, and C) you will probably have to pay for the officer to be served
with your subpoena.
The reason for C) above is that, while process serving requirements vary from
jurisdiction to jurisdiction, one common denominator is that the person who serves the
document must be an adult who does not stand to gain regardless of how the trial
goes. So barring additional restrictions in your jurisdiction, you can have a friend serve
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the officer with your subpoena, but you (or a family member) could not. Note that many
sheriff's departments offer service of documents for a nominal fee (usually around $10),
and that State Troopers are not affiliated with the sheriff and thus can served in this way!
Requesting that the officer bring evidence with him requires a special kind of subpoena
known as a subpoena duces tecum (duces tecum means, literally, "bring with
you"). Here is a sample subpoena duces tecum that one reader used to fight a ticket in
Larimer County, Colorado. It has a different format than a discovery motion, but the list
of documents being requrested is essentially the same. Check with your court clerk to
make sure, but generally you'll need to make two copies of your subpoena. One gets
stamped by the court and served to the officer, while the other is kept on file by the
court.
In many jurisdictions, the courts have defined a subpoena duces tecum as " an order to
produce documents or to show cause why they need not be produced." If the cop in
your case shows up without the evidence you subpoenad, insist that he make a showing
why they need not be produced!
THE TRIAL
The trial (sometimes called the "final hearing") is where all your preparation comes
together. Here is where technicalities will be exploited, or failing that, you will cross-
examine the cop who issued your ticket. Now, the question often arises as to where you
draw the line when making arguments. For example, it's quite conceivable that you'll
want to make an impassioned plea about your due process rights being tramped as a
result of an incorrect license plate digit on the citation. But arguing for a trial-
by-combat* is probably over the top. The standard that is taught to future litigators in
most American law schools is that of the "straight-faced argument". More formally, the
attorney has a duty to make any and all arguments on behalf of his client, only
withholding such an argument if it is so patently absurd that he cannot present it to the
court with a straight face. I think that is a great standard to use in traffic court; your
medical, insurance, and consumer product bills are all higher as a result of this rule being
taken to the extreme in tort cases, so you might as well use it to your advantage in this
one case.
* Arguing for trial-by-combat, while certain to fail, does have a legal basis in some
jurisdictions. For example, when Colorado became a state in 1876, it adopted the British
common law as it stood in the year 1607 (see C.R.S. 2-4-211). However, trial-
by-combat was not eliminated from British common law until the 19th century, and since
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it was never "repealed by legislative authority" as CRS 2-4-211 requires, technically you
still have the right to challenge the prosecutor to an all-day quarterstaff smackdown
wherein the last man standing wins his case. Remind you of Thunderdome? (Note: if
you make this argument, please email me a full account and I'll post it here. I may try it
myself next time I get pulled over by the Colorado Troopers just to watch the juducial
wheels turn, although in this day and age I fear it may be construed as a death threat.)
Important note: Read this Wikipedia section on binding vs. non-binding (a.k.a.
persuasive) precedents before you begin your legal research, and review it before your
trial. &nsp;It's important to understnd the role of each type of precedent, and
inappropriately citing a non-binding precedent is a rookie mistake which may significantly
lower the judge's opinion of your legal reasoning.
Quick tip: if you're ever asked whether you have any more questions for the judge, any
more exhibits to enter, any additional comments you'd like to make, etc., never say
"no"! That's far too absolute an answer, and may lead to the judge ending your trial
before you're done. Always respond with "not at this time" to keep your options open
later.
Standards of Proof
In many jurisdictions, the standard of proof for civil violations (e.g., lesser speeding
tickets where jail time isn't an issue) is a preponderance of the evidence. This means
that the judge need only be 51% certain of your guilt to convict you of the charge. The
right to this higher standard of evidence is another area wherein your basic rights have
been thrown to the wolves to make traffic court a more efficient and profitable endeavor
for the state. For felonies, the standard is beyond a reasonable doubt, wherein the
judge or jury must be approximately 90% certain of your guilt. Here we again see that
those traveling at feloniously high speeds are rewarded with additional rights in court!
Of course, it would be naive to think that, in a matter of your word versus that of the
police officer, that the judge will not believe the officer over the defendant. This is why
testilying is such a powerful and widely-abused practice. This is also why bringing in
police records, your own photographs, affadvits from friendly witnesses, and printouts of
statutes is so crucial as such documents often have an inherent credibility that you, as a
nervous first-time defendant stammering before the podium, will not.
But I Didn't Know the Speed Limit/Didn't Intend to Speed!
Saying one of the above phrases to the judge is probably the most common error I have
seen defendants make. Why is it a mistake? Well, first, it doesn't help you at
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all! Speeding is generally a strict liability offense. This means that you may be found
guilty of it regardless of whether the offense was intentional, and regardless of whether
you committed the offense knowingly! Second, bringing this up in court (or in front of
the officer when you get pulled over) is a very bad idea because it implies guilt. It can
obviously be challenging to confidently present a defense that you were not speeding,
when at the time you were pulled over, you weren't even aware of the speed limit.
The police will tell you that "ignorance of the law is no excuse." However, this isn't
completely true. Ignorance by itself won't get you out of a ticket, but but many state
DOTs (Departments of Transportation) and the Manual on Uniform Traffic Control
Devices (adopted by many jurisdictions) require a speed limit sign matching certain
specifications to be present when, say, the speed limit is reduced for a section of
roadway. As a result, if the signage is improper or completely missing, you can argue
that the reduced speed zone did not meet the notice requirement of the regulation and is
thus not legitimate. The same signage requirement may exist for whatever you are
accused of, be it speeding, loud mufflers, or having your dog off its leash.
Coming soon: Dirty tactics by judges, including:
1. Presenting a weaker, strawman version of your argument during his ruling and
attributing it to you, so it's then easier for the judge to shoot holes in. Often
accompanied by "Quiet, I'm ruling" if you try to correct him. Tough situation, but one
approach is to interrupt as soon as the judge will let you with "Your honor, with all due
respect, that's not the argument I was making today."
2. Magistrates who will block your objections and procedural motions with a weak
explanation that this is an informal trial, but who then turn around and invoke formality
whenever it suits them, generally to stifle you, the defendant.
One important note: Always assume that the judge has access to your driving record,
and has reviewed it prior to your hearing. It goes without saying (but I'm saying it
anyway) that you should be completely truthful if asked about it.
Another important note: If the clerk allows you to pick the time of day for an
appearance, recent research suggests that judges are most likely to rule on behalf of
defendants first thing in the morning (just after breakfast), or immediately after lunch.
Cross-Examination
Once your hearing starts, the officer who wrote you the ticket will give a standardized
spiel about how he observed you speeding, passing illegally, or whatever. By
"standardized spiel" I mean just that; the cop will look at the checkboxes on the back of
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your ticket (containing such information as traffic volume, road conditions, weather, etc.)
and your information on the front, and give a scripted (and usually at least somewhat
inaccurate) narrative of what happened. After this narrative, you will get a chance to
question the officer.
Police officers who dedicate much of their time to writing tickets have a lot of standard
scripts they use, and a lot of times those scripts reveal just how divorced from reality they
really are. For example, a couple of months back I had a State Trooper in an unmarked
car tell me "I was concerned when you passed me going 78 [in a 75 zone], but when you
then accelerated to 81 I decided to pull you over." Now honestly, did seeing somebody
going 78 in a 75 (3 miles per hour, or 4 percent over the speed limit) actually cause him
concern? Maybe he is a fruitcake and the answer is yes, but more likely, this is just a
standardized line he uses on everybody, and he simply fills in your numbers as he says
it. When the officer starts using standardized descriptive language like this on the stand,
you can often use it to attack his credibility as a witness. So if you heard anything
inaccurate or improbable during this narrative, be sure and ask some questions about it.
For example, in a speeding case, the officer nearly always says "I observed (your car
description here) going approximately (your clocked speed here) miles per hour, and then
confirmed that speed with my radar unit." They will say this even if they were traveling
the opposite direction as you, it was at midnight with a new moon, and it was
snowing. But in reality, it's nearly impossible to estimate the speed of an oncoming car at
night, since all you've got to judge it by are how fast the headlights are converging. And
whether you're driving the speed limit, or twenty percent over, that rate of convergence is
going to be pretty similar. So if you hear something like this, drill down into it. Ask
questions about what exactly the officer saw that led to his estimation. In the above
example, you'd get him to admit that all he could really see was your headlights and not
much of the surrounding terrain. Wrap it up with an "Officer, are you telling this court
[the officer can lie to you all he wants, but lying to the court is perjury, thus the choice of
grammar here] that you can tell whether a car is going [your accused speed], versus [the
speed limit], simply based on how fast the headlights are converging?" If he sticks to his
story, then ask some even more detailed questions, e.g., "How fast to the headlights on
an oncoming car converge at x mph? How about y mph? How about z mph?"
Likewise, ask questions about details the cop did not write down (you'll know what was,
and was not, written down after you get a copy of the front and back of the officer's
copy of the ticket from the court clerk). If the cop only wrote down a vague description
of where he stopped you (e.g., on x road between y road and z road, as opposed to 20
feet forward of mile marker 162 on Highway 6), then drill down into this by asking a
couple of specific questions about your orientation relative to certain landmarks in the
area. The checkboxes on the back of the ticket may simply say that traffic volume was
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"medium". In this case, ask about the car immediately ahead of you, or next to
you. What color was it? How far away from your vehicle was it? What speed did you
estimate that vehicle was going? (Chances are the cop won't remember, and you can
perhaps then build a case that this other vehicle is what the radar unit locked onto, and
not yours.) This is also where you want to bring up minor descriptive errors on the
ticket, such as saying your car is dark green instead of dark blue. This type of error can
be used to create doubt as to the officer's observational capacity, and/or to conditions at
the time (such as darkness) that would make observations difficult even by a professional
trained to make them. Alternatively, if there a car near you that was the same color as
the one incorrectly stated on your ticket, perhaps the officer confused the two vehicles at
some point during apprehension?
Obviously, everybody in the courtroom knows that the cop doesn't remember your
specific traffic stop because it happened months ago and was probably just one of
hundreds. And yet highlighting inadequacies in the officer's recollection will still tend to
create a perception of unreliability of the witness. Just a reminder that this is why it's a
bad idea to do anything memorable during your traffic stop, like go on a tirade about
how you're just an honest tax-payer trying to get to work, or complain that it seems like
you get a ticket on this road every other week. Comments like these will be written on
the back of the officer's copy of your ticket, and used to refresh his memory prior to
cross-examination!
If you're asking the cop to confirm something that's obviously a bit of a stretch, it may
help to preface your question with "Reminding you that you are under oath, officer,".
I highly recommend you check out The Ten Commandments of Cross-Examination. It's
got some great examples and cross-examination strategies.
Rules of Evidence
Depending on how formal traffic court is in your jurisdiction, you (and the prosecution)
may be bound by the Rules of Evidence. These rules dictate how and when evidence is
admissible, how witnesses may be questioned, and so on. Personally, I'd rather argue in
a court run by a judge and bound by the Rules of Evidence than before a magistrate in
an informal hearing. Why? More rules = more potential for technicalities that may help
you.
Additionally, the Rules of Evidence are mandatory for effectively cross-examining a
witness. For example, you can use the rules to demand that the officer you are cross-
examining limits himself to a response of "Yes" or "No" when answering one of your
questions. If your traffic court is presided over by a magistrate, expect a more informal
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trial where the magistrate may take a more active role as a fact-finder. Note that in a
hearing before a magistrate, the Rules of Evidence may be less strictly adhered to. A
magistrate will often allow a witness to give explanatory qualificationsin when answering
your yes-or-no questions, which can really undermines your control of the witness if
you're not prepared for this eventuality.
Note that most states have adopted rules of evidence which are almost identical to the
Federal Rules of Evidence. Even if your jurisdiction's traffic court doesn't strictly adhere
to these rules, you should still familiarize yourself with them. Some concepts, like
hearsay, admissibility of evidence, and whether a witness is qualified to make
technical or legal arguments can serve you well even in the most informal of
courts. For example, if key evidence against you is inadmissible, or if an officer tries to
present a verbal account of the contents of a record (hearsay) when the actual records
could simply be produced, or if the officer attempts to wax nostalgic about vicissitudes of
Doppler radar despite having received only minimal training on the subject (not an expert
witness), even the most informal courts will generally sustain your objection.
Judicial Notice
In case this comes up in court: judicial notice is when the court takes a well-established
and well-documented fact for granted, thus removing that fact from contention in the
courtroom. For example, if I argue that Main Street runs north/south, but the
prosecution argues that it runs east/west, and the judge knows this is a matter of common
knowledge, he can take judicial notice of the fact that it runs north/south and thus
prevent the parties from wasting any more time debating the topic. Sometimes, the
prosecution will ask a judge to take judicial notice of the fact that radar is an accurate
way to measure vehicular speed. If this comes up, be sure and argue for a more limited
version of the notice, e.g., "Under proper operational circumstances, radar can be an
effective way to measure vehicular speed." Obviously, you would then proceed to argue
that these operational circumstances (often as defined in the manual of the radar unit)
were not met in your case.
Closing Arguments
In your closing argument, you should summarize all the facts and legal points that help
your case. Since new flaws in the prosecution's case may arise during cross-examination
of the officer, it's wise to reserve some space in the portion of your notes devoted to your
closing statement so that you can add these new items and avoid forgetting them in the
heat of the hearing.
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Some ticket-fighting references suggest that, if the cop is the one who presents the case
against you (and not a district attorney), that you should object if the cop attempts to give
a closing argument. The grounds for this objection would be that the cop is not an
attorney and thus would be engaging in the unauthorized practice of law by giving a
closing argument. This argument does have some legal merit. After all, you can
represent yourself because you are a defendant in a criminal proceeding. But the cop
isn't representing himself, he is representing another (The People of your jurisdiction),
and you can't represent another party unless you are a member of the bar.
However, depending on your judge and jurisdiction (and whether you're dealing with a
magistrate in an informal setting), this may just piss the judge off. I say this for a couple
of reasons. First, because I have often seen judges offer cops the opportunity to make a
closing argument; were you to then object, you'd be implying that the judge suggested
one of the parties do something improper. This is fine if you have something significant
to gain, but I have never seen a police officer give a compelling closing
argument. Besides which, there won't be a jury to hear it, so there is much less chance
of the outcome being swayed by an emotion- or drama-packed summary. Finally, many
jurisdictions are set up such that the district attorney never shows up and the trooper,
deputy, or whomever is customarily allowed to make a closing argument, and objecting
to this custom may just look like last-minute desperation to the judge.
Before the end of the case, and certainly before making your closing argument, always
move for summary judgment! The importance of doing so cannot be overstated. You
can move (a.k.a. motion) for summary judgment at any point in the trial (you can even
do so before the trial, wherein your motion would take the form of sort of a preview of
the legal issues you plan to bring up in trial), and you can do so repeatedly. In asking for
summary judgment, you should make as compelling an argument to the judge as possible
that, applying the law to the undisputed facts of your case, you are entitled to win (this is
the legal standard the judge must use to deny or grant your motion). For example, if
there is some legal technicality that applies to your case which renders all other issues
moot (e.g., you have been charged with something that was not technically illegal
according to the letter of the law), you would briefly summarize the situation, and state
that because of how the relevant law(s) apply to your case, you respectfully move for
summary judgment. If you've got several legal issues that favor you, then summarize all
of them. It's far better to make a motion for summary judgment based on too big a list of
reasons than too few, for reasons I'll explain. Remember, though, that summary
judgment is for issues wherein the facts are undisputed: if a legal issue hinges upon a fact
that you and the prosecution do not agree on, then it is not a good candidate for a
summary judgment motion.
If your motion is granted, you'll win and your case will be dismissed. This would be a
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desirable outcome, but you should move for summary judgment even if you foresee
no chance of it being granted by your judge. Why? Because the fact that you made a
motion for summary judgment and were denied gives you a "hook" into the judge's
decision which you can later appeal. You say you don't have any immediate plans to
appeal? Motion for summary judgment anyway! It's important to leave your options
open so that if you realize the day after your trial that the judge made a glaring mistake,
you've got something to appeal. (This is far more common than you'd think; once the
stress and adrenaline of your trial fade, and you've "slept on it", you may very well wake
up the next morning with a strong case for appeal already in mind.
If you take away any fact about trials away from this web page, let it be this: if you didn't
move for summary judgment on the grounds of a given issue, you will have little or no
grounds for appeal based on that issue, and any future appeal will probably be dismissed
without ever being considered no matter how fundamental or glaringly erroneous the
judge's failure to deal with the issue. Put another way, if you don't force the judge to
explicitly render an opinion on your strongest legal issue(s), then you'll make it very
difficult for an appelate court to separate out or otherwise divine what the judge's
thinking and conclusions were on that issue. Courts of appeals are not in the business at
guessing at trial court judge's motivations, let alone overturning cases on such a basis. By
moving for summary judgment, you separate out a purely legal aspect of your case in
such a way that the appellate court can do de novo review; in contrast, if the appellate
court can only look at the ultimate verdict with all your factual issues rolled in, you'll face
a much more stringent standard of review.
Some Miscellaneous Motions
Some miscellaneous sample motions are presented below in no particular order. These
illustrate not only how to ask the court to punish the opposition for deceptive or bad-faith
behavior (or ask a higher court to force a lower court judge to do his job), but also show
how to renew any type of motion that has been ignored, and how to request
reconsideration of any type of motion that has been denied.
Example: Motion for Sanctions
Overview: The deputy district attorney in this case filed a motion to dismiss an appeal
based on false facts and legal characterization. This motion asks the court to apply
sanctions (called "Rule 11 sanctions" in some jurisdictions) against the prosecutor.
Comments: Judges are often reluctant to call out prosecutors when they misbehave due
to the simple fact that the prosecutor is a repeat player. Next week, that same prosecutor
will be before the judge again on some other matter, whereas the average traffic ticket
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defendant is not a regular in the judge's courtroom. A Motion for Sanctions is a great
way to remind the judge that a district attorney is going over the line, and make both
parties aware that you know your rights and aren't going to take this kind of crap. For
extra style points, find yourself some of those Valentine's Day "Love" stamps at the post
office, and use them for postage on the copy of the Motion for Sanctions that you mail
to the prosecutor. If it's the wrong time of year to find heart-themed stamps, Looney
Toons stamps can also send a message, as does Mickey Mouse.
Example: Renewal of Motion for Sanctions
Overview: As often happens, the judge ignored the motion for sanctions without ruling
on it. This motion renews the earlier motion for sanctions.
Comments: Few things are quite so frustrating as when a judge completely ignores a
filed motion. Perhaps the most diplomatic approach is to contact that judge's clerk and
ask him/her about the status of the motion; often times, the motion will soon find its way
onto the judge's desk and get ruled on. But when that doesn't work, a motion which
renews the original request is the way to go.
Example: Motion to Reconsider Denial of Sanctions
Overview: Since the appeal had already proceeded to the next level in the judicial
system, the judge evidently felt that there was no need to sanction the deputy district
attorney for her frivolous motion and its false arguments. As a result, the judge ruled
that the court no longer had jurisdiction to sanction the DA. This motion argues that
such is not the case.
Comments: When you a judge rules against your motion, you can always file a motion
to reconsider the denial of the original motion.
APPEALS AND POST-CONVICTION REVIEW
All court cases seem to be subject to what litigators call the "80-20 Rule". The 80-20
Rule says that 80% of the time you've got a slam-dunk case, you will win, but
conversely, you will inexplicably lose that same slam-dunk case 20% of the
time. Likewise, if you've got a case with no hope of winning, 80% of the time you will
lose that case as predicted, but 20% of the time you'll win the case against all odds.
If you've lost a case and are not happy with the outcome, you've got two legal options:
appealing the ruling to a higher court, and/or filing a motion with the traffic court for
post-conviction review of your case.
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This section has become large enough that it has been broken out into a separate page
entitled The Free Existence Guide to Appealing Traffic Court Decisions.
MISCELLANEOUS
What If I Don't Show Up To My Trial?
(Failure to show up to a scheduled court appearance is generally a bad idea. I'm only
covering it here because lots of people seem to have this question.) If you miss your
hearing (either preliminary, or final) for whatever reason, a default judgment of "Guilty"
will be entered against you. A judgment of the non-plea-bargain charge, points and fine
will likewise be entered against you. Generally, you will also have your license
suspended because you weren't there to pay the resulting fine (although you'll typically
receive a letter warning you about the default judgment, and giving you thirty days or so
to pay the fine). Depending on your jurisdiction and the nature of your infraction, you
may also have a bench warrant issued by the court for your arrest (a consequence of the
contempt of court resulting from your failure to show up). With a bench warrant, the
police will not seek you out and arrest you (unless the charge underlying your case is
particularly serious, or unless they truly have nothing better to do). However, if you
happen to run into any police officers (e.g., because you called the police to your house
for some reason, or because you get pulled over for a broken taillight), the officer may
legally arrest you. If you've got a bench warrant out for your arrest, try to resolve the
root cause as soon as possible, and drive cautiously in the mean time. Also be aware that
missing a court date will generally result in a forfeiture of bail money, if any, and if you
are subsequently arrested you will be held without bail!
The Non-Resident Violators Compact: What Is It, and Why Do I
Care?
The Non-Resident Violators Compact (NRVC) was formed several decades ago by the
northeastern states and allows states to assist each other in enforcing traffic laws (perhaps
more accurately, it allows states to assist each other with increasing revenues). When an
out-of-state driver violates certain driving laws of a member state and fails to appear for
trial or pay the fine imposed for the violation, the state may send a non-compliance
notice to the driver's home state motor vehicle agency. The driver can subsequently lose
his license for a violation in an entirely different state! Currently, all states are NRVC
members except Alaska, California, Michigan, Montana, and Wisconsin.
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Note that under NRVC, the jurisdiction that issued the ticket cannot not transmit a report
on any violation if the date of transmission is more than six months after the date on
which the traffic citation was issued. What does this mean? Well, if you get a ticket in
another state, and manage to keep that ticket pending in the courts of said state until six
months have passed, you may be able to ignore the ticket without worrying about your
license being adversely affected back home. You will want to avoid driving in the state
where you got the ticket, however, since you will likely be arrested if pulled over there
again. Not a desirable situation for most people, but you should be aware of your
options nonetheless.
Be aware that Connecticut and Arkansas have already joined the Driver's License
Agreement (DLA), a more comprehensive version of the NRVC. The DLA is much
more far-reaching, and allows court orders from other states to follow drivers back to
their home state (often with absurd results). Likewise, moving violations from foreign
countries can make their way onto your driving record back home. There has been some
support for joining DLA from some of the other states, but the AAMVA (the mastermind
behind the DLA) will not reveal which ones.
Coming soon: A discussion of international driving permits (which aren't actually a
driver's license), foreign driver's licenses, and whether you can use the latter to dodge
points.
Strategy: What if I'm Not a Lawyer?
Warning: this section will probably come across as me telling you how to "work the
system". But if you're not a lawyer, it's important to try to turn your status as a
non-legal-professional into an advantage, or at least to mitigate its negative effects. If
you are a lawyer, skip this part, as it may make you barf.
Not being a lawyer hurts you, but can have some positive aspects as well if you adjust
your strategy accordingly. First, the good. You can often get lots of help from clerks
and judges (this assumes your judge isn't just trying to rake in revenue for his
town). Also, judges will usually be more willing to forgive procedural errors (e.g.,
making a mistake on a form or a motion, or missing a deadline for filing
something). Now, the bad. Judges will be far more skeptical of any legal arguments you
make as a non-lawyer. Why? Because lawyers are "officers of the court" and thus have
certain obligations that don't directly apply to you. For example, a lawyer has a duty to
cite negative legal authority. He can't only mention a 1977 case that helps him, when he
knows the case was overruled by another case in 1981. Likewise, a lawyer must make
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arguments in good faith (e.g., he can't file a motion purely to delay the proceedings in a
case). If a lawyer does these things, he is subject to sanctions as laid out by the bar in his
state. You, as a non-lawyer, are immune to these sanctions. The main power the judge
has over you is contempt of court. What does this mean? It means you should
absolutely avoid bad faith arguments (I would define this as arguments you are 100
percent sure have no legal merit; it we're only talking 99 percent sure, then go ahead and
make them!) Like I said, you get the benefit of the doubt on a lot of stuff. It's harder for
you to do legal research, so maybe that's why you didn't list an important negative
authority in the motion you just filed.
Ever see the Saturday Night Live skit Unfrozen Caveman Lawyer? When confronted
with legal complexity that hurt his case, our hero would say something like "I am but a
caveman, and I do not understand your ways. But one thing I do understand is
(whatever fundamental point he was trying to assert)." This is the card you want to be
ready to play at any point that you need a little flexibility in a procedural rule, or need a
procedural error forgiven. Let's say you're standing before a judge and have to enter a
plea, and you've only got one real argument to rely on but you don't want to go to trial
and then find out the judge isn't receptive to it. You might say something like "I'm sorry,
your honor, I'm not a lawyer and I've never done this before, but I had a question about
(your main argument). In light of that, should I even have gotten this ticket?" What this
often does is get the judge to reveal a little about how heavily he would weight that kind
of argument before you decide whether you want to go to trial. If he shoots it down right
away, then you can take the plea bargain and save yourself some points on your license
without going to trial before an unreceptive judge. If he indicates that your point would
certainly be something that would be taken into consideration, then maybe it's worth
going to trial. Just about everywhere, you have the right to talk to a judge or magistrate
before entering a plea or accepting a plea bargain. If this option isn't offered to you, then
ask for it!
Now let's say you missed a court appearance, a filing deadline, or filed a motion on the
wrong form. You get a notice in the mail advising you of a default judgement, dismissal
of an appeal, or rejection of the errant motion. Fortunately, Unfrozen Caveman
Lawyer works by mail, too! Type up a motion asking for forgiveness. Cite the
constitution, and remind them that you're not a lawyer. The phrase "All I want is my
constitutionally-guaranteed day in court" is a good one. Once you've got the motion (to
set aside a default judgment, to reconsider dismissal or denial, or whatever) exactly the
way you want it, grab a blank motion form and neatly hand-write in the content you just
typed up. Nothing screams "lack of legal sophistication" like filing a hand-written motion
in a trial!
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Coming soon: Speed studies, an exemplary outline, and how the rules of evidence can
work for/against you...
Also coming soon: Appeals, including exemplary appeal forms and an appeal brief
Note regarding school zones: I know more than one person who has been ticketed for
speeding in a school zone on a holiday, because the speed zone sign was still
flashing. However, it is important to note that many states make the lower speed limit
contingent upon the conditions requiring the lower limit, and not upon the sign
flashing. E.g., Colorado drivers see CRSA 42-4-1102, which relates to speed zones and
state requirements for them.
Links of Interest
August 2011: Red light cameras on their way out?
The campaign to eliminate red light cameras in Los Angeles has gained serious traction
and is already having an effect; the Police Commission has decided not to renew the
contract on red light cameras there (see: this video).
April 2011: Governments Balancing Budgets on Drivers' Backs
Corrupt local governments have begun balancing their budgets on the backs of drivers as
states across the US triple speeding fines and add ridiculous surcharges to moving
violations. The City of Los Angeles now makes $1.5 million a year from cameras at a
single intersection in the San Fernando Valley. Perhaps unsurprisingly, the hit count on
this page has gone through the roof in recent months!
August 2010: New court rulings on red light cameras
Between my own lack of personal experience fighting a red light camera ticket, and the
fact that none of you have submitted filings from red light cases (remember, even filings
that didn't work are helpful!), I don't have much written on this topic. However, a recent
US Supreme Court ruling on a Massachusetts case requires that scientists be made
available to testify in court cases about lab evidence they prepare before the government
can assess criminal penalties. Unfortunately, in 21 out of the 23 states that use red light
cameras, running a red light (like a parking ticket) leads to civil, and not criminal
penalties. But for those living in California (and one other state I have yet to identify),
this ruling has important implications. Already, California courts have tossed out entire
groups of red light camera cases based on this due process issue.
September 2007: Speed legally in Sunriver, Oregon
Reason Magazine reports on an interesting experiment in private road ownership. This
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followup article also provides some coverage.
August 2007: Police Arrest a Man for Taping a Traffic Stop
Pennsylvania police recently arrested Brian D. Kelly for simply videotaping his own
traffic stop. Police officers will customarily videotape you during any traffic stop, but in
some states, those same officers will throw you in jail if you try to create your own
tape. If you expect an abuse of authority, and do decide to record your encounter, check
your local laws first; you may be legally obligated to make the officer aware that you are
recording, which may make him less likely to say career-limiting (or at least, ticket-
defeating) things.
October 2006: The Kangaroo Courts of New York State
Last month, The New York Times did a 3-part story on the corrupt and out-of-control
"town and village courts" of upstate New York:
Part 1
Part 2
Part 3
Not registered with the New York Times, and don't want to be? Yeah, me neither. Visit
Bug-Me-Not for a free log-in you can use to view the stories.
June 2006: More Washington drivers are fighting tickets - and winning
(Washington has absurdly expensive traffic fines, so this trend does not surprise me!)
Click here
Frequently Asked Questions
I missed my court date/didn't find out about it until after it went down. What now?
Call the clerk to check the status of your case. There's always a small chance that it got
rescheduled at the last minute to the judge eating some bad clams, and there is no sense
assuming the worst. If your hearing did indeed take place without you or anyone
representing you present, chances are a "Default Judgment" was entered against
you. Basically, it's like forfeiting a sports game; you didn't show up, so you lost.
If this is the case, your best option is probably to file a Motion to Set Aside Default
Judgment explaining that your failure to show up was unavoidable and unintentional, and
asking the court very nicely to give you a chance to have your constitutionally-guaranteed
chance to defend yourself. The suggestions for Motions for Extension of Time on the
Traffic Case Appeal Guide are definitely relevant for the Motion to Set Aside, including
the one about going old-school and hand-writing your motion.
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What about DUI offenses?
It's been asked a lot, so I wrote up a quick explanation of why I don't cover DUI and
DWI defenses on this page along with a bit of advice for those falsely accused.
Is it true that you can be "too intelligent" to be hired as a police officer?
Yes. Obviously, each municipality will have its own rules, but some police departments
will not hire people who score too high on an intelligence test. It may sound crazy, but
the courts have affirmed this practice. A Connecticut man named Robert Jordan brought
suit against the New London Police Department for discrimination because he was
excluded for having an IQ of approximately 125. Sadly, the 2nd U.S. Circuit Court of
Appeals ruled that since all applicants with an IQ of 125 are similarly excluded, Mr.
Jordan was not discriminated against. Given the recent eminent domain abuses in New
London, perhaps this IQ cap applies to all government employees in that city.
Is it legal to flash your headlights to warn other drivers about a speed trap?
I haven't researched the issue thoroughly, but I have come across several state cases
where headlight flashing was held to be free speech protected by the 1st
amendment. While it's hard to imagine how encouraging others to obey the law could be
illegal, I believe this is the case in the United Kingdom (not sure about Canada, though).
Is it legal for me to videotape or otherwise record my traffic stop?
Due to the rapid growth of police power in many parts of the US, the answer is not the
unqualified "yes" one might expect. Presently, the situation varies by jursidiction. As of
2010, at least some states (e.g., Ohio) regard recording your traffic stop, even if it is in a
public place, as a Class I felony punishable by 4 - 15 years in prison. (See this article
and this one for more specific information on some recent and still-pending cases in
various states.) Since judicial common sense has been abandoned in so many of
America's courtrooms, the best solution is for the states to pass laws explicitly legalizing
videotaping any government employees' actions in any public place to safeguard against
apathetic judges and corrupt police agencies. However, given the power of police unions
and their lobbyists, getting such laws passed may be challenging.
Are we becoming a police state?
I wrote a brief essay on the psychological and economic trends of traffic enforcement to
memorialize some of what I have learned from conversations with citizens and law
enforcement officers.
Do I have to obey those yellow speed limit signs on curves/exit ramps?
In most jurisdictions, and persuant to the Manual on Uniform Traffic Control Devices,
these yellow signs are only advisory in nature, and thus merely exceeding the yellow
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posted limit is not, by itself, illegal.
What if a city cop tries to pull me over outside of city limits or other jurisdictional
boundary?
Be very careful about making jurisdictional assumptions, no matter how logical they may
seem! In many jurisdictions, officers are cross-deputized so they can operate in adjacent
jurisdictions. For example, in Colorado, the Fort Collins City Police are also deputized
in Larimer County, so they can technically ticket or arrest you outside city limits! Even
more absurdly, this is also true of the Colorado State University Police; instead of merely
having jurisdiction on their .9 square mile campus, they've got jurisdiction across the
2600+ square miles that comprise Larimer County!
The police are chasing me but I'm really close to a state (or other jurisdictional)
border! Am I required to stop?
This probably isn't the best time for you to be surfing the web. Focus on the road,
man! But seriously, exercise extreme caution. Many states (e.g., see Illinois 725 ILCS
5/107-4, Delaware Tit. 11 1932, Washington RCW 10.93.120, and other "fresh
pursuit" statutes) grant jurisdiction to officers from other jurisdictions (including other
states!) involved in "fresh pursuit" (defined as the immediate pursuit of a person who is
endeavoring to avoid arrest). The pursuing officer thus has the same authority to arrest
and hold the motorist in custody as a local officer would have if the offense was
committed inside the new jurisdiction! If the state you're hurtling towards lacks such a
statute, the common law "fresh pursuit" exception is typically limited to felonies. Does
the felony of evading arrest count? Quite possibly, so if there is evidence you are
attempting to escape or flee the jurisdiction to avoid arrest (e.g., cop has been clearly
following you with his strobe lights on for awhile), the lack of a fresh pursuit statute may
not help much. But what if you blow past a speed trap half a mile from the border, and
are in another state before the officer manages to catch up to you? You might be able to
make a jurisdictional argument for continuing merrily on your way.
Is there anything else I should know about police evasion?
Know the pursuit policies of your local police agencies! Officers in some agencies may
not be allowed to pursue you for anything short of a violent felony. Note that I definitely
do not recommend that you evade the police. In fact, I hope you won't take my
disclosure of the facts that the Ford Crown Victoria Police Interceptor, America's most
ubiquitous police cruiser, was speed limited to 137 mph until 1998, and is currently
speed limited to 129 mph, as motivation to make sure the next vehicle you purchase can
comfortably exceed those limits. The Ford Motor Company seems to closely guard these
statistics, and a fear of encouraging scofflaws to be successful in such endeavors is
probably the reason! In the same spirit, I hope you won't use this handy guide to spotting
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unmarked police cars to avoid tickets.
Email the Author
The author of this page can be reached at webmaster-at-freeexistence.org. Replace "-at-"
with "@" in the "To:" line.
Note that all downloadable documents have had the defendant names, dates, and other
identifying facts changed to protect the contributors from any potential retaliation.
Reminder: All content on this site is automatically copyrighted by virtue of the Berne
Convention for the Protection of Literary and Artistic Works.
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Detail page for J OHN TARTER
Name JOHN TARTER
Position Sergeant
Reno
Notice TheCity of Reno failed to report thecost of employeehealth carebenefits. Only thecost of retirement benefits is included within the
"Benefits" category for this jurisdiction.
Year 2009
Base Pay $103,993.78
Overtime and
Callback Collected
$2,714.50
Total Pay $118,315.72
Benefits Accumulated $38,477.70
Total Pay & Benefits $156,793.42
State Government: Salaries, CAFRS, Main Contracts Page, StateFinancial Documents
Education: CCSD Warrants, NSHE Budgets
Politicians: 2010 Transparency Survey, Congressional Disbursements
Connect: Facebook, Twitter
About Us: Contact Us, FAQ, Disclaimer
TransparentNevadais provided by the NevadaPolicy Research Instituteas apublic service.
J OHN TARTER TransparentNevada http://www.transparentnevada.com/salaries/2009/reno/john-tarter/
1 of 1 3/7/2012 10:23 AM
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Detail page for J OHN TARTER
Name J OHN TARTER
Position 7555 Sergeant
Reno
Year 2010
Base Pay $109,225.10
Overtime and
Callback Collected
$7,733.14
Other Pay $17,535.81
Total Pay $134,494.05
Benefits Accumulated N/A
Total Pay & Benefits $174,907.34
State Government: Salaries, CAFRS, Main Contracts Page, StateFinancial Documents
Education: CCSD Warrants, NSHE Budgets
Politicians: 2010 Transparency Survey, Congressional Disbursements
Connect: Facebook, Twitter
About Us: Contact Us, FAQ, Disclaimer
TransparentNevada is provided by theNevada Policy Research Instituteas apublic service.
J OHN TARTER TransparentNevada http://www.transparentnevada.com/salaries/2010/reno/john-tarter/
1 of 1 3/7/2012 10:22 AM
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COMES NOW. Defendant, ZIlh Coughlin. by and through himself and fles the wvc1:1Ic
documen on his own behalf I a not messin' with 7S. To be 75 meant one had t be 100 times
be er t one's fellow maJe attoreys seeking admission to the Nevada Bar at the time. I w
fortnate enough t work aound Kaen D. Dennison, Esq. forevery, very short time, so I know wh
incredible talent and fortitude those frst 0possess. http://nsla.nevadaculture.orglindex.php?
option"com_content&task-view&id-744&Itemid-418
Personally. I hate V even begin to argue against anything 7S might lean towads. However,
"my back is to the wall, I gota brawl", so I do that When I obvioulsy have to, which is not clear to
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me at thi0 Boint. /erhaB0 1 can u0e =hat little intelligence and even le00 charm that 1 Bo00e00 to Blead
m- ca0e. 1 certainl- don>t =ant it =ith DeBut- Cit- ,ttorne- 3rma0" a0 clearl- 1 am outcla00ed
again0t her 0he =ill onl- moB uB the courtroom =ith me" that i0 o<viou0.
a0 he =a0 denied hi0 Si)th ,mendment !ight &o Coun0el Ieven i. De.endant didn>t Bre0erve thi0 .or
the record it0 onl- .air to Brovide him coun0el once thi0 Court mentioned that a Summar- ContemBt
!uling =a0 a di0tinct Bo00i<ilit- and De.endant cannot <e BreJudiced .or an- .ailure to 0o move a0 he
i0 terri.ied o. Kudge Na0h 2olme0 and it0 Ju0t not .air to e)Bect him to .unction in 2er 2onor>0
Bre0ence con0didering the enormou0 amount0 o. gravita0 0he <ring0 to the <ench... I thi0 Si)th
,mendment !ight to Coun0el i0 mentioned clearl- in the 2++$ 6imited Kuri0diction Court>0 Bench
Boo? .or Nevada Kudge0" along =ith the 2+1+ SuBBlement thereto" and =hile a ver- learned Kudge
li?e Kudge 2o=ard ma- cite to Scott v. 1llinoi0 .or 0uBBort that no 0uch right e)i0t0 =here
incarceration i0 not actuall- e..ectuated" it clearl- =a0 here" .ive da-0 =orth" comBlete =ith a L3++
<ill .or the under0igned>0 car <eing to=ed;" and .ile0 thi0 4otion &o Set ,0ide Kudge Na0h 2olme0
(e<ruar- 27th" 2+12 Summar- ContemBt 3rder and al0o to move .or a continuance =ith re0Bect to
the ne)t &rial date that =a0 mentioned =hile the under0igned =a0 in cu0tod-.
LEGAL ARGUMENT
,rger0inger v. 2amlin I4+7 5.S. 2%; e0ta<li0he0 that the right to the a00i0tance o. coun0el"
=hether retained or court aBBointed" i0 reAuired in all Bro0ecution0 =hich ma- re0ult in
imBri0onment" unle00 a comBlete (aretta canva0 ha0 <een comBleted and the reAue0t .or =aiving
coun0el i0 granted.
8hile there i0 a time and Blace" BerhaB0 .or 3rder0 .inding Summar- ContemBt under N!S
22.+3+...BerhaB0" the greate0t 0trength a Judge can demon0trate i0 the a<ilit- to 0ho= a little =ea?ne00"
to demon0trate 0omething other than ruling =ith an iron hand" to do 0omething other than cru0h an-
- 2 -
MOTION TO SET ASIDE ORDER AND NOTICE OF AEA! OF S"MMAR# CONTEMT ORDER$ a%& MOTION FOR REC"SA! OF '"D(E )O*ARD$
NOTICE OF INS"FFICIENT# OF RECORD ON AEA!
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voice o. di00ent in hi0 court room li?e 4i?e Singletar- I.ormer line<ac?er .or the Chicago Bear0 in
the 19$+>0; =ould cru0h a running <ac? going through the M, gaBN. &o 0trangle out o. litigant0 the
.reedom to Oealou0l- adovocate on their o=n or another>0 <ehal. Iin the ca0e o. licen0ed attorne-0; i0
BerhaB0 the mo0t heinou0" 0ad" and ugl- thing a Judge could do. , Judge =hom demon0trate0 an
a<ilit- to over0ee that =hich ma?e0 him le00 than com.orta<le in hi0 courtroom" that =hich he doe0
not nece00aril- agree =ith" i0 a Judge 0ecure in hi0 a<ilitie0 and a=are o. the Bremium on re0traint and
Batience called .or in order .or a Judge and court to tran0cend .rom mere de<t collector .or the Cit-
,ttorne- to imBartial ar<iter o. .act and la=. &o demon0trate other=i0e ma- create an atmo0Bhere
=here court emBlo-ee0 over0teB their <ound0 and <egin to <ull- and hara00 tho0e 0ee?ing to acce00
Ju0tice" a true violation o. the tru0t in =hich the Bu<lic endo=0 0uch Bu<lic 0ervant0.
No=" aBBarentl-" 1nterim Court ,dmini0trator Ca00andra Kac?0on i0 0ee?ing to imBart order0
uBon litigant0 carr-ing color o. la= <- emailing them =ith her interBretation o. =hat an 3rder
BurBort0 to reAuire" even =here that 3rder rule0 on matter0 <e-ond the Juri0diction o. the Kudge and
or Court ma?ing the 3rder. &hat i0 the ca0e here. 40. Kac?0on 0ent the under0igned an email on or
a<out Kanuar- 1+
th
" 2+12 that imBermi00i<l- 0ee?0 to imBo0e uBon a litigant" and an attorne-" a
re0triction that =ould violate the 14
th
,mendment>0 EAual /rotection cla00 and .urther ma?e undul-
<urden0ome uBon the under0igned the right to .ile BaBer0 =ith the !eno 4uniciBal Court. &he
under0igned 0hould not <e a00igned a di..erent 0et o. rule0 .or .iling document0 than the .ar <etter
.unded !eno Cit- ,ttorne->0 3..ice i0.
!4C! !ule 3: ,uthoriOation to !eBre0ent ,ttorne-0 reBre0enting de.endant0 0hall
BromBtl- 0erve =ritten notice o. their aBBearance =ith the Cit- ,ttorne- and .ile the
0ame =ith the Court. ,n attorne- de0iring to =ithdra= .rom a ca0e 0hall .ile a motion
=ith the court and 0erve the Cit- ,ttorne- =ith the 0ame. &he court ma- rule on the
motion or 0et a hearing. !4C! !ule %: 4otion0 <- (ac0imile ,. ,ll rule0 and
Brocedure0 that aBBl- to motion0 .iled in Ber0on at the court 0hall al0o aBBl- to motion0
.iled <- .ac0imile" e)ceBt a0 other=i0e 0Beci.ied in thi0 rule. B. ,ll Ber0on0 are eligi<le
to u0e motion'<-'.ac0imile Brocedure0. C. ,ll motion0 .iled <- .ac0imile mu0t <e
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accomBanied <- a cover 0heet =hich mu0t include the Ber0onP0 name" addre00" .a)
num<er and teleBhone num<er. D. ,ll .ac0imile motion0 .iled <- an attorne- mu0t
include the attorne->0 name" the .irmP0 name" addre00" .a) num<er and teleBhone
num<er. 1n addition" the attorne-P0 0tate <ar num<er mu0t <e con0Bicuou0l- di0Bla-ed
on the cover 0heet. E. ,ll motion0 .iled <- .ac0imile mu0t <e accomBanied <- Broo. o.
0ervice.
8here0 De.endant =ent to great length0 to demon0trate to Kudge 2o=ard and the !4C that
he i0 indigent" he" aBBarentl-" i0 not Mallo=edN to <e 0o" 0o much 0o that thi0 Court =ent again0t the
Nevada Court o. 6imited Kuri0diction Bench Boo? o. 2++$ and it0 2+1+ SuBBlement in den-ing the
under0igned the hi0 Si)th ,mendment !ight &o Coun0el" 0et .orth e)Blicitl- in 0everal location0 in
the Bench Boo? and mandator- authorit- in the 5nited State0. ,rger0inger v. 2amlin" I4+7 5.S. 2%;.
Nevada N!C/ *+I<;I3; allo=0 a Bart- to move .or relie. .rom a Judgment =hich i0 void" and
=hile motion0 made under N!C/ *+I<; are generall- reAuired to H<e made =ithin a rea0ona<le timeH
and to <e adJudicated according to the di0trict court>0 di0cretion" thi0 i0 not true in the ca0e o. a void
Judgment. Nece00aril- a motion under thi0 Bart o. the rule di..er0 mar?edl- .rom motion0 under the
other clau0e0 o. !ule *+I<;. &here i0 no Aue0tion o. di0cretion on the Bart o. the court =hen a motion
i0 made under Qthi0 Bortion o. the !uleR. Nor i0 there an- reAuirement" a0 there u0uall- i0 =hen
de.ault Judgment0 are attac?ed under !ule *+I<;" that the moving Bart- 0ho= that he ha0 a
meritoriou0 de.en0e. Either a Judgment i0 void or it i0 valid. Determining =hich it i0 ma- =ell Bre0ent
a di..icult Aue0tion" <ut =hen that Aue0tion i0 re0olved" the court mu0t act accordingl-. B- the 0ame
to?en" there i0 no time limit on an attac? on a Judgment a0 void. . . . QERven the reAuirement that the
motion <e made =ithin a Hrea0ona<le time"H =hich 0eem0 literall- to aBBl- . . . cannot <e en.orced
=ith regard to thi0 cla00 o. motion. 5nder0tanda<l-" the Bartie0 =ere not attuned to our recent Kaco<0
deci0ion during oral argument. ,ccordingl-" it =a0 determined at that time to allo= the Bartie0 to
0uBBlement their <rie.0 in order to determine =ith certaint- =hether" in .act" no de.ault had <een
entered again0t :arcia Brior to the entr- o. the de.ault Judgment. :arcia>0 0uBBlemental material
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0uBBlied additional evidence that no de.ault =a0 ever entered" including an a..idavit <- Clar? Count-
Court Cler? 6oretta Bo=man atte0ting that no 0uch .iling e)i0t0 in the ca0e .ile. !e0Bondent0 al0o
ac?no=ledged that no de.ault =a0 ever entered <ut argue in their 0uBBlemental <rie. that Kaco<0
0hould not <e aBBlied retroactivel-" noting that the de.ault Judgment at i00ue herein =a0 entered Brior
to our Kaco<0 deci0ion. &hi0 argument i0 =ithout merit. &he court in Kaco<0 determined" con0i0tent
=ith la= .rom other Juri0diction0" that the de.ault Judgment entered in Kaco<0 =a0 void. 8e
accordingl- ordered the di0trict court to grant relie. .rom the void Judgment" de0Bite the .act that the
ruling in Kaco<0 =a0" o. cour0e" Breceded <- entr- o. the de.ault Judgment again0t Kaco<0. 1. thi0 ca0e"
rather than Kaco<0" =ere <e.ore u0 a0 a ca0e o. .ir0t imBre00ion" =e =ould have reached the 0ame
conclu0ion. , void Judgment i0 void .or all BurBo0e0 and ma- not <e given li.e under a theor- <a0ed
uBon lac? o. legal Brecedent. :arcia v. 1deal SuBBl- Co." 11+ Nev. 493" $74 /.2d 7%2 INev.
%C19C1994;. &he de.ective 0ervice rendered the di0trict court>0 Ber0onal Juri0diction over :a00ett
invalid and the Judgment again0t her void. (or a Judgment to <e void" there mu0t <e a de.ect in the
court>0 authorit- to enter Judgment through either lac? o. Ber0onal Juri0diction or Juri0diction over
0u<Ject matter in the 0uit. /uBhal v. /uBhal" **9 /.2d 191 I1daho 19$3;. 1n /rice v. Dunn" 1+* Nev.
1++" 7$7 /.2d 7$% I199+;. 8e no= hold that the .iling o. a motion to 0et a0ide a void Judgment
Breviou0l- entered again0t the movant 0hall not con0titute a general aBBearance. See" e.g." Do<0on v.
Do<0on" 1+$ Nev. 34*" 349" $3+ /.2d 133*" 133$ I1992;. Nonethele00" 0ince the order =a0 void" a
Judgment <a0ed thereon =ould li?e=i0e <e void.. Nel0on v. Sierra Con0tr. CorB." 77 Nev. 334" 3*4
/.2d 4+2. 5nder N!C/ *+I<; a motion to 0et a0ide a void Judgment i0 not re0tricted to the 0i) month0>
Beriod 0Beci.ied in the rule. N!C/ %4Ia; Brovide0 that the =ord HJudgmentH a0 u0ed in the0e rule0
include0 an- order .rom =hich an aBBeal lie0. &here.ore there i0 no merit to aBBellant0> contention
that the motion to vacate the Judgment =a0 not timel- made. (o0ter v. 6e=i0" 7$ Nev. 33+" 372 /.2d
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*79 INev. *C19C19*2;. , void Judgment i0 0u<Ject to collateral attac?9 a Judgment i0 void i. the
i00uing court lac?ed Ber0onal Juri0diction or 0u<Ject matter Juri0diction9 See 49 C.K.S. Kudgment0 S
4+1" at 792 I1947 G 0uBB. 1991;9 4* ,m.Kur.2d Kudgment0 SS *21'%* I19*9 G 0uBB. 1991;.
Kudge 2o=ard0 Decem<er 1*
th
" 2+11 3rder rule0 on matter0 out0ide Kudge 2o=ard0
Juri0diction and i0 there.ore void .or lac? o. Juri0diction. (urther" it i0 imBermi00i<le .or the !4C>0
Ca00andra Kac?0on to attemBt to re=rite !4C !ule0 Iand it i0 not clear =hethe 0he i0 doing thi0 on
her o=n accord or i. 0he ha0 <een in0tructed to do 0o a0 Kudge :ardner>0 ,dmini0trative ,00i0tant or
a0 the 1nterim Court ,dmini0trator" or in 0ome other caBacit-;. (urther" it i0 inaBBroBriate .or
Kac?0on to <e coB-ing !eno Cit- ,ttorne- Iand ver- recent .ormer co=or?er o. !4C>0 Kudge
:ardner; and !o<ert /uente0 I=ho recentl- a0?ed to <e granted a 4otion to 8ithdra= .rom
reBre0enting the under0igned <ecau0e doing 0o actuall- reAuired him to do 0ome legal =or?" and that
=a0 MhardN .or him; on her corre0Bondence" =hich related to a .iling in a tra..ic citation .or =hich
4!. /uente0 ha0 a<0olutel- no connection and =here 4r. 8ong had not -et made an aBBearance.
4r. 8ong did e)Bre00 a comBlete lac? o. concern to the under0igned =hen it =a0 reBorted to him that
a !/D 3..icer" Chri0 Carter" had admitted to the under0igned that the oBBo0ing coun0el in !KC
!E#2+11'++17+$ 0ummar- eviction .rom a commercial tenanc- la= o..ice =here non Ba-ment o.
rent =a0 not alleged Iin violation o. N!S 4+.2%3>0 e)Bre00 dictate again0t 0uch action0; had Baid
mone- to !/D 3..icer Carter to arre0t the under0igned Ia <ri<e;. 4r. 8ong indicated a comBlete
lac? o. con0ternation in thi0 regard and e)Bre00ed that he intended to conduct Oero .ollo= uB =ith
re0Bect to that trou<ling <reach o. the Bu<lic tru0t" even though" a0 a !eno Cit- ,ttorne-" 4r. 8ong
li?el- ha0 a dut- to do 0o and hi0 .ailure to =ill augur 0trongl- to=ard a .inding that the !eno Cit-
,ttorne- i0 lia<le .or an- !/D mi0conduct on a negligent hiring" training" and 0uBervi0ion claim and
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that the !eno Cit- ,ttorne- i0 a=are o. and" in .act" rati.ie0 or endor0e0 0uch <ri<e ta?ing <- the !/D
.rom !ichard :. 2ill" E0A" oBBo0ing coun0el in that !KC eviction matter.
5nder .ederal la=" a0 =ell a0 the la= o. 0ome 0tate0" the mi0<ehavior that Bermit0 0ummar-
action mu0t in addition Bre0ent an imminent threat to the admini0tration o. Ju0tice9 it mu0t
immediatel- imBeril the Judge in the Ber.ormance o. hi0 or her Judicial dut- or con0titute an actual
o<0truction o. Ju0tice. 5.S. v. &urner" $12 (.2d 1%%2 I11th Cir. 19$7; Iattorne->0 Bo0ing o. 0ingle
Aue0tion to =itne00 a<out race o. certain individual0" though in clear violation o. ver<al court order"
did not 0o o<0truct Ju0tice a0 to ena<le court to re0ort to 0ummar- Brocedure .or contemBt under
(ederal !ule o. Criminal /rocedure 42I<;;9 1n re 2ollo=a-" 99% (.2d 1+$+ ID.C. Cir. 1993; Iattorne-
Bur0ued line0 o. Aue0tioning ruled out <- Judge;.8itne00>0 re.u0al to an0=er Aue0tion0 the court
order0 him to an0=er i0 contumaciou0 conduct =hich ma- 0u<Ject =itne00 to 0ummar- Buni0hment
.or criminal contemBt under Direct contemBt Ju0ti.-ing 0ummar- di0Bo0ition i0 con.ined to
e)ceBtional circum0tance0 involving act0 threatening the Judge" di0ruBting the hearing" or o<0tructing
court Broceeding0. !ule 42. 1n re Bo-den" *7% (.2d *43 I%th Cir. 19$2;. Becau0e 0ummar- contemBt
Brocedure .ill0 a need .or the immediate Benal vindication o. the dignit- o. the court" it0 aBBlication i0
con.ined to unu0ual 0ituation0 =here the court>0 in0tant action i0 nece00ar- to Brotect the Judicial
in0titution it0el.. 1n re :u0ta.0on" *19 (.2d 13%4" %$ ,.6.!. (ed. 1 I9th Cir. 19$+;" on reh>g" *%+ (.2d
1+17 I9th Cir. 19$1;.
N!S 22. +3+. Summar- Buni0hment o. contemBt committed in immediate vie= and
Bre0ence o. court9 a..idavit or 0tatement to <e .iled =hen contemBt committed out0ide
immediate vie= and Bre0ence o. court9 di0Auali.ication o. Judge:
M1. 1. a contemBt i0 committed in the immediate vie= and Bre0ence o. the court or Judge at
cham<er0" the contemBt ma- <e Buni0hed 0ummaril-. 1. the court or Judge 0ummaril- Buni0he0
a Ber0on .or a contemBt Bur0uant to thi0 0u<0ection" the court or Judge 0hall enter an order
that:
Ia; !ecite0 the .act0 con0tituting the contemBt in the immediate vie= and Bre0ence o. the court
or Judge9
I<; (ind0 the Ber0on guilt- o. the contemBt9 and
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Ic; /re0cri<e0 the Buni0hment .or the contemBt...N
1%4 ,6! 1227" Nece00it- and Su..icienc- o. 4a?ing and !ecording Su<0idiar- or Detailed
(inding0 SuBBorting ,dJudication o. Direct ContemBt.
Statute Broviding that in all ca0e0 o. contemBt ari0ing =ithout immediate vie= and Bre0ence o.
court" Judge o. court in =ho0e contemBt de.endant i0 alleged to <e" 0hall not Bre0ide at 0uch
trial over o<Jection o. de.endant" i0 con0titutional. N.C.6.1929" S $943. 4cCormic? v. Si)th
Kudicial Di0t. Court in and .or 2um<oldt Count-" 19%+" 21$ /.2d 939" *7 Nev. 31$. ContemBt
(or BurBo0e0 o. 0tatute governing 0ummar- contemBt Broceeding0 .or direct contemBt committed
in Judge>0 Bre0ence" =hich reAuire0 court to Menter an order"N =hile a trial court>0 oral
contemBt order i0 immediatel- en.orcea<le" a =ritten order including the 0tatute>0 reAuired element0
mu0t <e BromBtl- entered. 2ou0ton v. Eighth Kudicial Di0t. Court e) rel. Count- o.
Clar?" 2++*" 13% /.3d 12*9" 122 Nev. %44.
,BBroBriate remed- .or attorne- =ho had <een .ound in direct contemBt o. court in divorce
Broceeding in =hich he reBre0ented =i.e" =here contemBt order had <een .ound to <e in0u..icient
<- SuBreme Court" in that it did not contain a 0u..icient 0tatement concerning =hat conduct
=a0 held to <e contemBtuou0" =a0 to Bermit trial court to enter amended order" given that
SuBreme Court>0 oBinion addre00ed i00ue o. .ir0t imBre00ion and announced 0tandard .or content0
o. =ritten contemBt order. 2ou0ton v. Eighth Kudicial Di0t. Court e) rel. Count- o.
Clar?" 2++*" 13% /.3d 12*9" 122 Nev. %44.
Kudge 2o=ard Summar- ContemBt 3rder relie0 in Bart on Hcontinuing line0 o. inAuir- a.ter
told <- the Court not to do 0o...H ho=ever an- 0uch alleged in0tance0 o. thi0 are e)Blained a=a- <-
the .act that an- 0uch Aue0tion0 =here not Bo0ed to Brove the truth o. the matter a00erted <ut rather
.or other Bermi00i<le BurBo0e0 Iand thi0 =a0 Bointed out to the Court at trial;. (urther" .or Kudge
2o=ard to rule that it i0 not relevant =hether 8al'4art>0 ,00et /rotection team had ver<all-
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threatened the accu0ed or other=i0e indicated the- =ould retaliate again0t him .or .ilming a
documentar- related to 8al'4art>0 continual Bractice o. l-ing to cu0tomer0 a<out their !eturn /olic-
and 0electivel- en.orcing it" de0Bite it0 term0 <eing Bart o. a contract <et=een the retailer and
con0umer0" it Blain error.
, =ritten 0ummar- contemBt order" i00ued Bur0uant to 0tatute governing 0ummar- contemBt
Broceeding0 .or direct contemBt committed in Judge>0 Bre0ence" mu0t 0et .orth 0Beci.ic .act0
concerning the conduct .ound to <e contemBtuou0. 2ou0ton v. Eighth Kudicial Di0t. Court e) rel.
Count- o. Clar?" 2++*" 13% /.3d 12*9" 122 Nev. %44. Kudge 2o=ard0 3rder i0 o. the Hchec? the <o)H
variet-" on a BreBrinted .orm" 0eemingl- ta?en .rom the Bench Boo?" containing mere conclu0or- and
circular 0tatement0 a<out the BurBorted contemBt and in no =a- 0ati0.ie0 the a<ove 0tandard. 1ndeed"
Kudge 2o=ard doe0 not 0Beci.- =hat Hline0 o. inAuir-H =ere continued" nor i0 it clear ho= a Bro 0e
de.endant denied hi0 Si)th ,mendment !ight &o Coun0el could rea0ona<l- ?no= =hat i0 reAuired o.
him to comBl- =ith Kudge 2o=ard0 vague and menacing contemBt Bronoucement0 =hile al0o
Oealou0l- advocating on the de.endant>0 <ehal..
8ritten 0ummar- contemBt order .inding attorne- .or =i.e in divorce Broceeding in direct
contemBt o. court .ailed to indicate =hat Barticular comment0 <- attorne- =ere held to <e
contemBtuou0" and" thu0" order =a0 in0u..icient" under 0tatute governing 0ummar- contemBt
Broceeding0 .or direct contemBt committed in Judge>0 Bre0ence. 2ou0ton v. Eighth Kudicial Di0t.
Court e) rel. Count- o. Clar?" 2++*" 13% /.3d 12*9" 122 Nev. %44.
3ther than indicating the de.endant 0aid M8o=N" Kudge 2o=ard>0 3rder doe0 little to comBl-
=ith the a<ove 0tandard. (urther" Kudge 2o=ard ma?e0 allegation0 o. MlaughterN" ho=ever" and thi0
goe0 to the Mevident imBartialit-C4otion .or !ecu0alN" Kudge 2o=ard 0eemed to go to great length0 to
0tri?e .rom the record the .act that &homa0 (rontino" 8al'4art ,00et /rotection ,00ociate and
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=itne00 .or the Cit- o. !eno" =a0 continuall- 0mir?ing and laughing on the 0tand" Barticularl- =hile
he =a0 committing BerJur-. Kudge 2o=ard ma?e0 no 0Beci.ic indication a0 to =hat the under0igned
0uBBo0edl- laughed a<out" or at =hat time o. the Broceeding Ithe audio o. =hich i0 recorded and
Bre0erved <- the !4C>0 (or &he !ecord 0-0tem;. Even i. MlaughterN =a0 Bre0ent" it i0 not Ber 0e
contemBtuou0 and Kudge 2o=ard doe0 not ma?e clear ho= hi0 attemBt to Brohi<it 0uch allo=0 .or a
de.endant to Oealou0l- advocate on hi0 o=n <ehal." or =hether it i0 ever Bermi00i<le" or even a 0?ill.ul
trial tactic" .or a litigant to engage in MlaughterN. !eall-" =hat Kudge 2o=ard 0eem0 to =ant the mo0t
i0 .or tho0e de.endant0 that he =i0he0 to .ind guilt- to la- do=n and die a death o. 0ort0 in hi0
courtroom" and to than? the !4C .or it0 =i0e cr-Bt'?eeBing.
!egardle00" =ith re0Bect to Kudge 2o=ard>0" Decem<er 1*" 2+11 3rder" it attemBt0 to rule on
matter0 .ar <e-ond the Juri0diction accorded to Kudge 2o=ard. &he email addre00
Mrenomunirecord0Treno.govN i0 held out to the Bu<lic in a num<er o. in0tance0. See" E)hi<it 1:
Kanuar- 1+
th
" 2+12 email .rom !4C 1nterim Court ,dmini0trator Ca00andra Kac?0on =ith ,ttached
Decem<er 1*
th
" 2+11 3rder o. Kudge 2o=ard. &he 3rder read0: MDe.endant Coughlin .or=arded a
communication to Kudge 2o=ard>0 Ber0onal electronic mail account. De.endant Coughlin i0 =arned
that he mu0t cca0e and de0i0t .urthcr e'mail communication =ith Kudge 2o=ard" hi0 0tal&or another
emBlo-ee o. the !eno 4uniciBal Court.N 2o=ever" it i0 not clear at all that that email addre00 i0 a
MBer0onalN email addre00. &he email addre00 gate=a- i0 that o. one <elonging to the Cit- o. !eno"
not to a Brivate citiOen" and there.ore it can hardl- <e 0aid to <e a MBer0onalN email addre00" li?e
2otmail" or :mail addre00. 1t i0 an email addre00 Brovided to a Bu<lic 0ervant" an elected or
aBBointed o..icial" to <e u0ed in the cour0e o. o..icial <u0ine00 and held out to the Bu<lic a0 a valid
mean0 .or contacting that o..icial. 2o= an email i0 an- di..erent than a .a) i0 0omething not at all
clear. Both mean0 o. corre0Bondence convert the communication to a 0erie0 o. 1>0 and +>0 .or the
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BurBo0e o. tran0mitting date in a digital .orm. &o hold the0e mean0 o. communication are
.undamentall- di..erent" i0 a di0tinction =ithout a di..erence and ar<itar- and caBriciou0. &o reAuired
litigant0 to acceBt 0uch Bronouncement0 =here the- are not 0uBBorted <- 0ound rationale or Bolic- i0
to engage in t-rann-" 0omething .or =hich the ,merican Bu<lic ha0 never had much o. a ta0te.
&he Decem<er 1*
th
" 2+11 3rder goe0 on to hold that: M1& 1S 2E!EB7 3!DE!ED that
De.endant Coughlin 0hall not communicate via email =ith Kudge 2o=ard" hi0 0ta.. or another
emBlo-ee o. the !eno 4uniciBal Court.N (ir0t" 1t i0 not clear =hether a tran0criBtioni0t recommended
or reAuired <- the !4C i0 a M!4C emBlo-eeN. 1t i0 not clear i0 4ar0hal !oBer i0 an !4C
emBlo-ee" or an emBlo-ee o. 8a0hoe Count-" or the Cit- o. !eno. &o <e a valid 3rder 0uch that a
ContemBt 3rder ma- i00ue .rom a violation o. it reAuire0 that the 3rder <e 0u..icientl- detailed and
clear 0uch that one could <e rea0ona<l- 0aid to have an under0tanding o. =hat i0 reAuired o. him to
comBl- =ith it. &he under0igned 0ee?0 clari.ication o. the 3rder in thi0 regard. (urther" the 3rder
doe0 not contain an- language BurBorting to ma?e inaBBlica<le to the under0igned the right enJo-ed
<- all other litigant0 <e.ore the !4C" ie" that contained in !4C! %:
!4C! !ule %: 4otion0 <- (ac0imile ,. ,ll rule0 and Brocedure0 that aBBl- to
motion0 .iled in Ber0on at the court 0hall al0o aBBl- to motion0 .iled <- .ac0imile"
e)ceBt a0 other=i0e 0Beci.ied in thi0 rule. B. ,ll Ber0on0 are eligi<le to u0e motion'
<-'.ac0imile Brocedure0. C. ,ll motion0 .iled <- .ac0imile mu0t <e accomBanied <-
a cover 0heet =hich mu0t include the Ber0onP0 name" addre00" .a) num<er and
teleBhone num<er. D. ,ll .ac0imile motion0 .iled <- an attorne- mu0t include the
attorne->0 name" the .irmP0 name" addre00" .a) num<er and teleBhone num<er. 1n
addition" the attorne-P0 0tate <ar num<er mu0t <e con0Bicuou0l- di0Bla-ed on the
cover 0heet. E. ,ll motion0 .iled <- .ac0imile mu0t <e accomBanied <- Broo. o.
0ervice.
&he under0igned i0 indigent. &hat might <e hard .or a Bu<lic o..icial ma?ing L1$+"+++ a -ear
a.ter <ene.it0 to conceBtualiOe" <ut =hat it mean0 it that reAuiring him to ta?e an hour out o. hi0 =or?
da- ever- time he =ant0 to .ile 0omething =ith the !4C i0 undul- <urden0ome" Barticularl- =here
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the !eno Cit- ,ttorne- acting a0 oBBo0ing coun0el i0 not under a 0imilar directive Iand =here that
!eno Cit- ,ttorne- ma?ing =ell over L1++"+++ a.ter <ene.it0 are con0idered a0 =ell;. 1t 0eem0 the
Court under0tand0 thi0" and that i0 =h- onl- email =a0 e)Bre00l- Brohi<ited in the 3rder. (urther" the
3rder =ould 0eem to <e =i0el- curtailed to onl- matter0 relating to the ca0e in =hich i0 =a0 rendered.
7et" 40. Kac?0on>0 email 0eem0 to caBitulate and e)tend uBon Kudge 2o=ard>0 3rder <- including the
dicate that the under0igned cea0e Barta?ing in the .iling <- .ac0imile e)Bre00l- allo=ed <- !4C! %"
and .urther" !4C 1nterim Court ,dmini0trator Kac?0on 0ee?0 to add to the 3rder and e)tend it0
alread- over<road reach. 1n doing 0o" Kac?0on i0 engaging in imBermi00i<le conduct 0imilar to that
e)hi<ited earlier in thi0 matter <- Kudge 2o=ard>0 Kudicial ,00i0tant #eronica 6oBeO. 40. 6oBeO
re.u0ed to Brovide a coB- o. the Kudgement and 3rder o. Conviction in 11 C! 2217* to Coughlin
Iactuall- 0he lied to Coughlin 0a-ing 0he =ould .a) him a coB- o. it Ithough 0he never did; a.ter
<erating Coughlin .or Mlo0ing him chance to get a coB-N at the conclu0ion o. the 11C3+C11 &rial =hen
!4C 4ar0hal0 demanded the under0igned 0ign 0ome document0 Brior to having a chance to revie=
them" =hereuBon the0e 4ar0hal0 angril- too? a=a- the document0" 0mir?ing a<out ho= the- =ould
MJu0t But that -ou re.u0edN to acceBt the 0ervice thereo.. 2o=ever" uBon <eing relea0e .rom =hat ma-
=ell <e the one and onl- time IhoBe.ull- ever" Ba0t or .uture; that an attorne- in thi0 0tate" or an-
other" =a0 0ummaril- .orced to 0Bend three da-0 in incarceration i0 i0 clear .rom Jail BroBert- record0
that Coughlin =a0 not Brovided an- coB- o. an- Kudgement o. Conviction or 3rder .rom the
Novem<er 3+
th
" 2+11 &rial in the !4C. Clearl-" i. the under0igned i0 in handcu..0" it i0 not .or the
under0igned to decide =hether or not a Biece o. BaBer =ill travel =ith him to Jail and <e there =hen
he i0 relea0ed. &he !4C>0 conduct in 0u<0eAuentl- re.u0ing to Brovide or other=i0e 0erved a coB- o.
that 3rder i0 e)tremel- trou<ling and re.lect0 Boorl- uBon the !4C. &he 0ame can <e 0aid .or the
0ome e)tremel- long time it too? the !4C to Brovide the under0igned =ith an audio coB- o. the
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recording o. the &rial and the indication0 !4C .iling o..ice 0ta.. gave the under0igned at .ir0t that he
=ould not <e a..oreded an- acce00 to 0uch an recording" <ut rather" that he could Ba- 0ome e)or<inant
0ome to have one Barticular court reBorter or tran0criBtioni0t .avored <- the !4C I/am 6ongioni; to
tran0cri<e the recording0. 40. 6ongioni" =hile driving and tal?ing on the Bhone" actuall- hung uB on
the under0igned =hen hi0 an0=er0 to her attemBt0 to cro00 e)amine him =ith regard to =hen he .iled
hi0 Notice o. ,BBeal and =hen he =a0 0erved thi0 or that =ere not met =ith her aBBroval. 6ongioni
0u<0eAuentl- .ailed to return an- Bhone call0 or =ritten corre0Bondence .rom the udner0igned.
During thi0 three da- incarceration =a0 denied a 0ingle Bhone call or tier time <- Sheri..>0
DeButie0" re0ulting in much BreJudice to hi0 client>0 ca0e0" .or =hich Kudge 2o=ard indicated he =a0
M0addenedN" though he .ailed to allo= .or an- mea0ure0 to <e ta?en to avoid 0uch BreJudice occurring
to tho0e =ho vote on =hether or not he =ill <e reelected" 0hould he run oBBo0ed ne)t time" in contra0t
to hi0 la0t election; .or 0a-ing M8o=N amid0t 0a-ing M7e0" Sir"N and M7our 2onorN a<out .our
hundred time0 throughout the cour0e o. a 0i) hour trial" the denouement o. =hich =a0 aBBarentl-
imBortant enough to ?eeB uB=ard0 o. 0i) court emBlo-ee0 =or?ing until aBBro)imatel- 9 Bm at night"
receiving overtime =age0 in the Broce00 a0 a time in =hich the econom- o. !eno i0 mar?edl-
challenged and the <udget o. the !eno 4uniciBal court i0 0uch that it ha0 ta?en to la-ing o.. Court
0ta.. and cutting their Ba- Ithough elected o..icial0 are e)emBt .rom 0uch mea0ure0; in addition to
curtailing the hour0 the Court i0 oBen to the Bu<lic on (rida-0 to hal. a da-.
1t i0 in0tructive to comBare Kac?0on>0 interBretation o. the Kudge 2o=ard>0 3rder" and to
con0ider to e)tent to =hich 0he ma- <e acting in a Judicial caBacit- Iunle00 thi0 Court =ill Brovide
0ome indication o. =hether Kac?0on>0 email =a0 done at the <ehe0t o. an- o. the !4C Kudge0;.
8herea0 Kudge 2o=ard0 12C1*C11 3rder hold0: M1& 1S 2E!EB7 3!DE!ED that Defendant
Coughlin 0hall not communicate via cmail =ith Kudge 2o=ard" hi0 0ta.. or another emBlo-ee o.
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the !eno 4uniciBal CourtN" Kac?0on>0 1C1+C12 email to Coughlin e)tend0 the reach o. that 3rder"
directing Coughlin thu0: H1 have <een in.ormed that -ou continue to contact !eno 4uniciBal Court
0ta.. and attemBt to fie document0 via e'mail. &hi0 i0 in violation o. the 3rder i00ued <- Kudge
2o=ard on Decem<er 1*" 2+11" !"ic" #$o"i%it& 'ou f$om contacting !eno 4uniciBal Court 0ta..
via e'mail I0ee attached;. An' co$$e&#ondence 'ou !i&" t"e cou$t to con&ide$ and any documents
that you wish to file !it" t"e cou$t mu&t %e fied t"$ou(" t"e Reno Munici#a Cou$t Ce$)*&
Office+ ,ia U-S- mai+ me&&en(e$ &e$,ice o$ in #e$&on.N
(ir0t" Kudge 2o=ard>0 3rder indicate0 that it aBBlie0 to MDe.endant CoughlinN" not citiOen
Coughlin. &hu0" it doe0 not aBBl- to action0 ta?en <- Coughlin not =ithin the 0coBe o. hi0
aBBearance a0 MDe.endant CoughlinN =ithin that one Barticular matter 11 C! 2217*. 1. citiOen
Coughlin =ant0 to .ile 0omething related to a tra..ic citation" Kudge 2o=ard>0 Decem<er 1*" 2+11
3rder ha0 not aBBlication. (or Kac?0on to MruleN other=i0e indicate0 0he lac?0 an aBBreciation .or the
Judicial 0?ill and temBerance Kudge 2o=ard ha0 develoBed 0ince ta?ing the <ench in 199$. 8hile
0omeone =ithout Kudge 2o=ard>0 acumen and e)Berti0e ma- BurBort to rule on matter0 .ar a.ield
.rom the Juri0diction the la= ha0 ve0ted them =ith" Kudge 2o=ard =ould not" 1 <elieve" a0 he ta?e0
the tru0t the citiOen0 o. Nevada have <e0to=ed uBon him .ar to 0eriou0l- to 0o rec?le00l- e)ceed the
0coBe o. that Juri0diction. &he emBlo-ee0 o. the !4C Iincluding 4ar0hal 4entOel" #eronica 6oBeO"
and Ca00andra Kac?0on; need to 0toB em<arra00ing the !4C Kudge0" =ith the a<u0ive" overreaching
aBBroach the- ta?e to carr-ing out their dutie0 and in relating to the Bu<lic. 8hile their <ehavior ma-
<e comBletel- acceBta<le in the Brivate 0ector" the- have a hire calling in <eing Bu<lic 0ervant0
=or?ing in a court o. la=" =here the eAual and mea0ured di0Ben0ation o. Ju0tice mu0t <e delivered in
a manner that" at all time0" comBort0 =ith traditional notice0 o. due Broce00 and 0u<0tantial Ju0tice.
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&he under0igned =a0 given e)Bre00 Bermi00ion <- !4C (iling 3..icer SuBervi0or Donna
Ballard to .ile document0 <- email &hi0 =a0 reAue0ted in light o. the under0igned <elie. that .iling <-
.a) ma- unnece00aril- ta) the !4C>0 .a) machine and or line. (urther" Kudge 2o=ard0 12C1*C11
3rder onl- BurBort0 to rule on the BroBriet- o. Coughlin>0 attemBt0 to Mcommunicate via cmail =ith
Kudge 2o=ard" hi0 0ta.. or another emBlo-ee o. the !eno 4uniciBal CourtN. 1t doe0 not Ia0
Kac?0on>0 email BurBort0 to interBet that 3rder to rule; that Many documents that you wish to file !it"
t"e cou$t mu&t %e fied t"$ou(" t"e Reno Munici#a Cou$t Ce$)*& Office+ ,ia U-S- mai+
me&&en(e$ &e$,ice o$ in #e$&on.N ,n attemBt to communicate i0 di..erent .rom an attemBt to file a
document =ith the court. (urther" communicating =ith MKudge 2o=ard" hi0 0ta.. or another
emBlo-ee o. the !eno 4uniciBal CourtN i0 di..erent than communicating 0omething to or .iling
0omething =ith a general email addre00" !eno4uni!ecord0T!eno.gov" that i0 not attached
0Beci.icall- to MKudge 2o=ard" hi0 0ta.." or another emBlo-eeN Iin the =a- Kudge 2o=ard mention0
hi0 o=n email addre00 a0 hi0 MBer0onalN email addre00;" =hich i0 held out to the Bu<lic in numerou0
0etting0 a0 the =a- to contact the !eno 4uniciBal Court or Cit- o. !eno Iincluded among0t the0e i0
the method .or reAue0ting record0 .rom the Cit- o. !eno" and the !eno Cit- ,ttorne->0 3..ice" not
Ju0t the !eno 4uniciBal Court;. 1n 0o attemBting to e)tend Kudge 2o=ard>0 3rder" Kac?0on
imBermi00i<l- attemBt0 to a00ert an uneAual aBBlication o. !4C! % uBon Coughlin" a deBrivation o.
eAual Brotection and due Broce00 under the la= that could argua<l- get the !4C and Kac?0on her0el.
held Ber0onall- lia<le .or violation0 o. the under0igned>0 civil right0. 2o=ever" the Cit- o. !eno =ill
<e lia<le i. there i0 a cu0tom and Bolic- in Blace that encourage0 con0titutional violation0 and that
Bolic- i0 the 0tandard oBerating Brocedure o. the !eno 4uniciBal Court or =here the !4C had
?no=ledge o. Kac?0on>0 deBrivation o. Coughlin>0 civil right0 or other=i0e engaged in negligent
hiring" training" and 0uBervi0ion o. emBlo-ee0 0uch a Kac?0on =ith re0Bect to 0uch deBrviation0.
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6i?e=i0e" =ith the 8a0hoe Count- Sheri..>0 3..ice and the Count-. See :illette v. Delmore" 979 (.20
1342" 1347 I9th Cir.1992;.
4otivational in0Biration .or the !4C and 4entOel" 6oBeO" and Kac?0on can <e .ound in
6iBBi0 v. /eter0" 112 Nev. 1++$" 921 /.2d 124$ I199*;:
M&he Judgment a=arding .ee0 in thi0 ca0e imBo0e0 uBon t=o Ju0tice0> court0 and 0even
Ju0tice0 o. the Beace an o<ligation to Ba- to the tenant0> attorne-0 the 0um o.
L1$"*93.%+. &hi0 Judgment doe0 Bre0ent a Bro<lem =hen =e 0tart to thin? a<out ho=
the0e Bu<lic o..icial0 and t=o court0 o. la= might go a<out allocating the o<ligation o.
L1$"*93.%+. 1t =ould not aBBear that the court0 them0elve0 are 0u<Ject to e)ecution
Broce009 and" there.ore" the .ee" i. it =ere going to <e Baid" =ould have to <e Baid <-
the individual Ju0tice0" =ho =ould have to Ba-" i. the matter =ere handled .airl-"
L2"*7+.%+ each. &he Ju0tice0> Judgment o<ligation to Ba- attorne-0> .ee0 i0 <a0ed I1; on
their having .ollo=ed a Brocedural rule IKC!C/ 1+*; enacted <- thi0 court and I2; on
their having made 0everal erroneou0 Judicial deci0ion0. 8e he0itate to get into the
thorn- Bro<lem0 Bre0ented <- thi0 Judgment" Bro<lem0 relating to e)ecution uBon
Bu<lic BroBert-" relating to o..icial immunit- and Judicial immunit- and 0ome other
0imilar Bro<lem0 that attend the en.orcement o. 0uch a Judgment...N 6iBBi0 v. /eter0"
112 Nev. 1++$" 921 /.2d 124$ I199*;: M1n their action challenging Ju0tice court0>
Bractice o. den-ing aBBeal0 to di0trict court in 0ummar- eviction action0" tenant0 did
not allege that the- =ere deBrived o. .ederal right0" and there.ore the- could not claim
attorne- .ee0 under .ederal civil right0 0tatute. 42 5.S.C.,. SS 19$3" 19$$.N
De.endant ma- ultimatel- <e .orced to <e 0o alleging 0uch a deBrivation and or claim 0uch
attorne->0 .ee09 See, also, Cheung v. Eighth Kudicial Di0t. Court e) rel. Count- o. Clar?" 124 /.3d
%%+" %%2" 121 Nev. $*7" $*9 I2++%;9 Schneider v. El?o Count- Sheri..>0 DeBt." 17 (.SuBB.2d 11*2"
11*% I199$;9 :.C. 8allace" 1nc. v. Eighth Kudicial Di0t. Court o. State" e) rel. Count- o. Clar?" 2*2
/.3d 113%" 114+U" 127 Nev. ,dv. 3B. *4" *4U I2+11;.
40. Ballard actuall- agreed =ith thi0 a00e00ment and than?ed the under0igned .or the
con0ideration demon0trated. &o the e)tent Kudge 2o=ard doe0 not =i0h .or the under0igned to .ile
Ia0 oBBo0ed to Ju0t communicate; <- email Iand it0 not clear that the 3rder BurBort0 to rule on
0ituation0 out0ide o. the ca0e in =hich it =a0 made" de0Bite the imBlication>0 o. Kac?0on>0 email;" the
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under0igned =ill" o. cour0e" re0Bect.ull- comBl- =ith that dictate" e0Beciall- to the e)tent that it i0 not
e)Bre00l- Bermitted <- !4C !ule0 Ithough the di0tinction <et=een .ac0imile and email i0 not al=a-0
the cleare0t and =here .ac0imile 0eem0 to di0advantage tho0e =ithout the <udget to have a 0eBarate
Bhone line to run a .a) machine" etc.;. 2o=ever" the !ecord on ,BBeal in thi0 matter i0 de.icient in
0everal re0Bect0 and the under0igned a0?0 that it <e corrected. &o =it" Brior to 0uch time a0 the
e)Bre00 Bermi00ion to 0o .ile <- email could rea0ona<l- <e 0aid to have <een =ithdra=n" the
under0igned .ile numerou0 document0 =ith the !4C. 2o=ever" not all o. tho0e are re.lected in the
!ecord on ,BBeal (urther" in that !ecord" the M.our Bage0 Ber BageN attachment0 to the 12C13C11
.iling are illegi<le" though the under0igned .ile a comBletel- legi<le one Bage Ber Bage ver0ion via
email =ith the !4C and .eel0 that that legi<le ver0ion 0hould <e included in the !ecord on ,BBeal.
&he M.our Bage Ber BageN ver0ion =a0 .iled in hard coB- Ion toB o. the 0ame <eing .iled the night
<e.ore via email; in an a<undance o. caution given the imBortance o. the .iling Ia" BerhaB0"
Juri0dictional Notice o. ,BBeal" and 0hould the Bermi00ion to .ile <- email not <e honored" the
under0igned =ould have <een 0everel- BreJudiced....; &he under0igned .iled the M.our Bage Ber BageN
ver0ion o. the E)hi<it0 to that 12C12C11 .iling in that .orm <ecau0e he lac? the mone- to <u- the BaBer
and in? nece00ar- to Brint tho0e voluminou0 attachment0 out in the one Bage Ber Bage 0t-le that =ould
have <een Bre.era<le. E)hi<it %: ,ll email0 .rom ZachCoughlinThotmail.com to
!eno4uni!ecord0T!eno.gov .rom 1+C4C11 to Bre0ent9 citing to attached Bd. .iling0 that 0hould <e
included in the !ecord on ,BBeal" -et are not in 0ome in0tance0.
,BBeala<ilit- o. contemBt adJudication or conviction. 33 ,.6.!.3d 44$ I3riginall- Bu<li0hed in
197+;9 S 12QaR :enerall-V!ule o. aBBeala<ilit- QCumulative SuBBlementR ContemBt Broceeding0
not characteriOed a0 criminal or civil have .reAuentl- <een held or recogniOed to <e aBBeala<le in the
a<0ence o. 0tatute0 other than tho0e generall- ma?ing .inal deci0ion0 aBBeala<le.5S 1n re !-an" %3$
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(.2d 43%" 7* 2 5.S. &a) Ca0. ICC2; / 9%1$" 3$ ,.(.&.!.2d %4%2 ID.C. Cir. 197*; ,la 5hl0 v 5hl0
I19$9" ,la ,BB; %%1 So 2d 1+*% E) Barte Bo-?in I1994" ,la Civ ,BB; *%* So 2d $21 ,la0?a
:illette v Co..er I1912; 4 ,la0?a *22 IrecogniOing rule; Cal 6aBella v @ai0er (oundation 2ealth
/lan" 1nc. I1977; 72 Cal ,BB 3d 499" 13$ Cal !Btr 212 (or Cali.ornia ca0e0" 0ee S 1*" in.ra Colo 2ill
v Boatright I1994" Colo ,BB; $9+ /2d 1$+" reh den ISeB 1%" 1994; and cert gr I(e< 2+" 199%; DC 33
,.6.!.3d 44$ /age 17$ 33 ,.6.!.3d 44$ I3riginall- Bu<li0hed in 197+; (or Di0trict o. Colum<ia
ca0e0" 0ee S 3QaR" 0uBra (la State e) rel. /ear0on v Kohn0on I(la ,BB; 334 So 2d %4 (or (lorida ca0e0"
0ee S *QaR" 0uBra :a 4anning v 4NC Con0umer Di0count Co. I1994; 212 :a ,BB $24" 442 SE2d
919" 94 (ulton Count- D ! 1442 (or :eorgia ca0e0" 0ee S 1%" in.ra 1ll /eoBle e) rel. 2inc?le- v
/ir.en<rin? I1$79; 9* 1ll *$ IrecogniOing rule; E) Barte Smith I1$$*; 117 1ll *3" 7 NE *$3
IrecogniOing rule; 6e0ter v Ber?o=itO I1$$$; 12% 1ll 3+7" 17 NE 7+* IrecogniOing rule; /eoBle v
:il<ert I1917; 2$1 1ll *19" 11$ NE 19* 2ill v &homa0 B. Ke..er- Co. I192+; 292 1ll 49+" 127 NE 124
/eoBle e) rel. ,ndre=0 v 2a00a?i0 I19%%; * 1ll 2d 4*3" 129 NE2d 9 But 0ee /eoBle e) rel. :eneral
4otor0 CorB. v Bua I19*7; 37 1ll 2d 1$+" 22* NE2d *" in.ra. ,nd 0ee 1llinoi0 ca0e0 limiting revie= to
Aue0tion o. a<u0e o. di0cretion" S 13" in.ra. 8a0te 4anagement" 1nc. v 1nternational SurBlu0 6ine0
1n0. Co. I1991; 144 1ll 2d 17$" 1*1 1ll Dec 774" %79 NE2d 322 ,lmgren v !u0hW/re0<-terianWSt.
6u?e>0 4edical Ctr. I1994; 1*2 1ll 2d 2+%" 2+% 1ll Dec 147" *42 NE2d 12*4" mod and reh den INov
1%" 1994; !o<in0on v /eoBle I19+*; 129 1ll ,BB %27 @ell- v Chicago" B. G X. !. Co. I1919; 213 1ll
,BB 29* IrecogniOing rule; /eoBle e) rel. !u0ch v @irgi0 I193*; 2$7 1ll ,BB 37$" 4 NE2d $94
&egtme-er v &egtme-er I1937; 292 1ll ,BB 434" 11 NE2d *%7 IrecogniOing rule; /eoBle e) rel.
!u0ch v (erro I1942; 313 1ll ,BB 2+2" 39 NE2d 7+7 @emen- v S?orch I19%9; 22 1ll ,BB 2d 1*+" 1%9
NE2d 4$9 4a-=ood v Kac?0on I19*3; 42 1ll ,BB 2d 29" 19+ NE2d %93 @och v 4ettler I19*4; 49 1ll
,BB 2d 2%1" 199 NE2d 417 !e 3cto<er 19$% :rand Kur- I19$7" 10t Di0t; 1%4 1ll ,BB 3d 2$$" 1+7 1ll
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Dec 342" %+7 33 ,.6.!.3d 44$ /age 179 33 ,.6.!.3d 44$ I3riginall- Bu<li0hed in 197+; NE2d *"
aBB gr I1ll; 113 1ll Dec 3+4" %1% NE2d 113 and vacated on other ground0 I19$$; 124 1ll 2d 4**" 12%
1ll Dec 29%" %3+ NE2d 4%3 !e 4arriage o. !-an I19$9" 2d Di0t; 1$$ 1ll ,BB 3d *79" 13* 1ll Dec 1"
%44 NE2d 4%4 &e0tin v Dre-er 4edical Clinic I1992; 23$ 1ll ,BB 3d $$3" 179 1ll Dec %*" *+% NE2d
1+7+" aBB gr 149 1ll 2d **1" 1$3 1ll Dec $72" *12 NE2d %24 1n re 4arriage o. Dieter I199%" 10t Di0t;
271 1ll ,BB 3d 1$1" 2+7 1ll Dec $4$" *4$ NE2d 3+4 /eoBle e) rel. 2a=thorne v 2amilton" 9 1ll ,BB
3d %%1" 292 NE2d %*3 4d Drone- v Drone- I199%; 1+2 4d ,BB *72" *%1 ,2d 41% 4ich /eoBle e)
rel. /ort 2uron G :. !. Co. v Kone0 I1$7*; 33 4ich 3+3 2aine0 v 2aine0 I1$7*; 3% 4ich 13$ !e
Bi00ell I1$79; 4+ 4ich *3 IrecogniOing rule; !o00 v !o00 I1$$1; 47 4ich 1$%" 1+ N8 193 See
/eoBle v Den 5-l I1949; 323 4ich 49+" 3% N82d 4*7. But 0ee 4ichigan ca0e0 limiting revie= to
Aue0tion o. a<u0e o. di0cretion" S 13" in.ra. 4inn (or 4inne0ota ca0e0" 0ee S $QaR" 0uBra 4i00 (or
4i00i00iBBi ca0e0" 0ee S 1%" in.ra 4o (or 4i00ouri ca0e0" 0ee S 3Q<R" 0uBra Ne< Dunning v &allman
I1993; 244 Ne< 1" %+4 N82d $% N7 8atrou0 v @earne- I1$$+; 79 N7 49* IrecogniOing rule;
Strong v 8e0tern :a0 G (uel Co. I19+4; 177 N7 4++" *9 NE 721 IrecogniOing rule; @ing v ,0hle-
I19+4; 179 N7 2$1" 72 NE 1+* !e 2a-=ard I1$99; 44 ,BB Div 2*%" *+ N7S *3* IrecogniOing rule;
4oore v 4oore I191+; 141 ,BB Div %32" 12* N7S 412 !e Ba?er I1$%%; 11 2o= /r 41$
IrecogniOing rule;9 !e /erc- I1$*$; 2 Dal- %3+ IrecogniOing rule;9 !ichie v Bedell I1$$%" SuB; 22
N7 8ee? Dig %*39 (inc? v 4annering I1$$7; 4* 2un 3239 !e ,non-mou0 I1$$7; 1$ ,<< NC 21*
IrecogniOing rule;9 33 ,.6.!.3d 44$ /age 1$+ 33 ,.6.!.3d 44$ I3riginall- Bu<li0hed in 197+;
/eoBle e) rel. /o0t v :rant I1$$$; 13 N7 Civ /roc 3+%" revd on merit0 %+ 2un 243" 3 N7S 142
IrecogniOing rule;9 Boon v 4c:uc?en I1$93; *7 2un 2%1" 22 N7S 4249 !e De 6ong I1$9*; 2% Civ
/roc 3*3" 41 N7S 2+19 Siegel v Solomon I19+%" SuB ,BB &; 92 N7S 23$ IrecogniOing rule;.
4cCredie v Senior I1$34; 4 /aige 37$ But 0ee 4itchell>0 Ca0e I1$*1; 12 ,<< /r 249. ND State v.
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Zahn" 1997 ND *%" %*2 N.8.2d 737 IN.D. 1997; 3hio (or 3hio ca0e0" 0ee S 1%" in.ra /a Scranton v
/eoBle>0 Coal Co. I1922; 274 /a *3" 117 , *73 State :rand 6odge v 4orri0on I1923; 277 /a 41" 12+
, 7*9 IrecogniOing rule; !e ,ung0t I19*3; 411 /a %9%" 192 ,2d 723 IrecogniOing rule; !e 4-er0 G
Brei I1924; $3 /a SuBer 3$3 ,BBeal o. !eaB I192*; $$ /a SuBer 147 IrecogniOing rule;
Common=ealth v 4orri0e- I1942; 1%+ /a SuBer 2+2" 27 ,2d 44* De4a0i v De4a0i I1991" /a
SuBer; %97 ,2d 1+1 Common=ealth e) rel. Ziccardi v 2endric?0 I19*4; 33 /a D G C2d 419
IrecogniOing rule; But 0ee /enn0-lvania ca0e0 limiting revie= to Aue0tion o. a<u0e o. di0cretion" S 13"
in.ra. SC (or South Carolina ca0e0" 0ee S 13" in.ra 5tah Smith v @im<all I193+; 7* 5tah 3%+" 2$9 /
%$$" 7+ ,6! 1+1 IrecogniOing rule; #t But 0ee #ila0 v Burton I1$%4; 27 #t %*. !e Con0olidated
!endering Co. I19+7; $+ #t %%" ** , 79+" a..d 2+7 5S %41" %2 6 Ed 327" 2$ S Ct 17$ IaBBarentl-
recogniOing rule; Cutting v Cutting I192$; 1+1 #t 3$1" 143 , *7* IrecogniOing rule; Socon- 4o<ile
3il Co. v 4a00ena 1ron G 4etal Co. I19**; 12% #t 4+3" 217 ,2d %* #a Street v. Street" 24 #a. ,BB.
14" 4$+ S.E.2d 11$ I1997; 33 ,.6.!.3d 44$ /age 1$1 33 ,.6.!.3d 44$ I3riginall- Bu<li0hed in
197+; (or #irginia ca0e0" 0ee S 1%" in.ra , Judgment o. contemBt .or Bu<li0hing in a ne=0BaBer an
article critical o. the Judge in a Bending ca0e =a0 held revie=a<le <- =rit o. error" in /eoBle v :il<ert
I1917; 2$1 1ll *19" 11$ NE 19*. &he court 0aid that =hile the court again0t =hich the alleged
contemBtuou0 matter i0 Bu<li0hed Ba00e0 on the Aue0tion =hether or not the Bu<li0hed matter i0
actuall- contemBtuou0" -et the deci0ion o. that court i0 not conclu0ive: a =rit o. error ma- <e 0ued out
to revie= the Judgment o. the lo=er court. ,n order o. commitment .or contemBt o. court .or
re.u0ing to give a deBo0ition =a0 held to <e a .inal" aBBeala<le order" in 2ill v &homa0 B. Ke..er- Co.
I192+; 292 1ll 49+" 127 NE 124. &he court 0aid that the order o. commitment <- the 0uBerior court
=a0 a .inal Judgment in the ancillar- Broceeding that =a0 <rought to en.orce the interlocutor- order
directing the Blainti.. to aBBear and te0ti.-. 8hile the BurBo0e o. that Broceeding =a0 connected =ith
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and had it0 .oundation in the main ca0e" rea0oned the court" it =a0 a 0eBarate ca0e Bro0ecuted
indeBendentl- to en.orce a comBliance =ith the order o. the court. &he court 0aid that =hether that
order to te0ti.- =a0 interlocutor- or .inal =a0 immaterial: i. it =a0 la=.ull- made it =a0 the Blainti..>0
dut- to o<e- it" and a Judgment either that he =a0 guilt- o. contemBt or that he =a0 not =a0 a .inal
Judgment. See" ho=ever" /eoBle e) rel. :eneral 4otor0 CorB. v Bua I19*7; 37 1ll 2d 1$+" 22* NE2d
*" =here the court 0aid that =hile ordinaril- a contemBt adJudication i0 a .inal and aBBeala<le order"
thi0 rule =ould not <e .ollo=ed =here" in0tead o. the traditional .ine or imBri0onment a0 Buni0hment
.or contemBt" the de.endant held in contemBt =a0 Buni0hed <- having it0 an0=er to the amended
comBlaint 0tric?en and Judgment entered again0t it. &he contemBt =a0 adJudged .or .ailure to comBl-
=ith Bretrial di0cover- order0" and =hile the court determined that the 0tri?ing o. Bleading0 and the
entr- o. a de.ault Judgment =a0 Bermi00i<le a0 a 0anction .or the nonBroduction o. document0 under a
court rule authoriOed <- the legi0lature" the court held that thi0 could not <e u0ed to render an
interlocutor- order .inal and aBBeala<le <- the u0e o. contemBt language. &he imBo0ition o. a .ine or
imBri0onment a0 a 0anction .or contemBt i0 .inal and aBBeala<le <ecau0e it i0 an original 0Becial
Broceeding" collateral to and indeBendent o. the ca0e in =hich the contemBt ari0e0" e)Blained the
court" <ut the 0anction imBo0ed in thi0 ca0e did not directl- a..ect the outcome o. the BrinciBal action.
&here.ore the court concluded that 0ince the contemBt order" in e..ect" determined lia<ilit- =ithout a
determination o. damage0" it =a0 not -et .inal and aBBeala<le. 8hile recogniOing the right to aBBeal"
the court in /eoBle v Den 5-l I1949; 323 4ich 49+" 3% N82d 4*7" in con0idering an aBBeal .rom
one con.ined .or contemBt in re.u0ing to an0=er certain Aue0tion0 <e.ore an e)amining magi0trate"
ruled that the di0mi00al o. the BrinciBal ca0e I<ecau0e the Bro0ecution could not Broceed =ithout the
=itne00> te0timon-; a<ated the contemBt Broceeding and reAuired the di0mi00al o. the aBBeal. &he
court" ho=ever" in the order di0mi00ing the aBBeal" al0o di0mi00ed the =arrant o. commitment under
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=hich the =itne00 =a0 con.ined. , chancer- decree adJudging a corBoration to <e in contemBt o.
court .or di0o<e-ing a court order =a0 held aBBeala<le in Socon- 4o<il 3il Co. v 4a00ena 1ron G
4etal Co. I19**; 12% #t 4+3" 217 ,2d %*" on the authorit- o. an earlier ca0eQ2R that di..ered .rom the
ca0e at <ar onl- <ecau0e it originated in the Count- Court rather than the Court o. Chancer-" and that
=a0 held to <e BroBerl- tran0.erred to the SuBreme Court <- =a- o. a <ill o. e)ceBtion0. ,n' 33
,.6.!.3d 44$ /age 1$2 33 ,.6.!.3d 44$ I3riginall- Bu<li0hed in 197+; other ca0e"Q3R =hich held
that an aBBeal =ould not lie .rom the decree o. the
chancellor in matter0 o. contemBt" =a0 relied uBon to 0uBBort a motion to di0mi00 the aBBeal" <ut the
court" Bointing out that a 1941 0tatute Brovided that cau0e0 heard in chancer- Ba00 to the SuBreme
Court in the 0ame manner a0 aBBeal0 .rom Count- Court" 0aid that the e..ect o. thi0 legi0lation =a0 to
a<oli0h aBBeal0 in chancer- a0 the- Breviou0l- e)i0ted" and to 0u<0titute the 0tatute0 aBBlica<le to
o<tain revie= o. Count- Court Broceeding0. &here.ore" concluded the court" the #ila0 Ca0e Bre0ented
no o<0tacle to the Bending aBBeal. C5456,&1#E S5//6E4EN& Ca0e0: &o o<tain aBBellate
revie=" 0u<Boenaed Bart- mu0t de.- di0trict court>0 en.orcement order" <e held in contemBt" and then
aBBeal contemBt order" =hich i0 regarded a0 .inal. D-neg- 4id0tream Service0 v. &rammochem" 4%1
(.3d $9 I2d Cir. 2++*;. 8here 0ecuritie0 trading corBoration =a0 adJudged in contemBt .or .ailing to
turn over taBe recording a0 ordered <- court" court had Juri0diction to revie= contemBt order even
though imBo0ition o. 0anction0 =a0 0ta-ed and no 0anction0 =ere .ormulated Brior to entr- o. 0ta-. !e
&hree :rand Kur- Su<Boena0 I19$$" C,2 N7; $47 (2d 1+24. , di0trict court>0 ruling on an
aBBlication .or a contemBt order i0 revie=ed .or a<u0e o. di0cretion. (rontier'@emBer Con0tructor0"
1nc. v. ,merican !oc? Salt Co." 224 (. SuBB. 2d %2+ I8.D. N.7. 2++2;. /o0t'Judgment order0 o.
contemBt are =ithin an aBBellate court>0 Juri0diction a0 revie=a<le H.inal order0.H 2$ 5.S.C.,. S 1291.
Berne CorB. v. :overnment o. &he #irgin 10land0" %7+ (.3d 13+ I3d Cir. 2++9;. Court o. ,BBeal0
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had Juri0diction o. de.endant>0 aBBeal o. contemBt order" although contemBt order o. it0el. did not
con0titute a .inal order that could <e aBBealed" =here Bortion o. order that included contemBt .inding
=a0 comBlete and .inal. 4 G C CorB. v. Er=in Behr :m<2 G Co." 2$9 (ed. ,BB). 927 I*th Cir.
2++$;. 8hen the di0o<e-ed order =ould <e indeBendentl- aBBeala<le under an e)ceBtion to the .inal'
deci0ion rule" then the contemBt citation al0o ma- <e aBBeala<le. S.E.C. v. 4cNamee" 4$1 (.3d 4%1"
(ed. Sec. 6. !eB. ICC2; / 94172 I7th Cir. 2++7;. :rant or denial o. contemBt order i0 revie=ed .or
a<u0e o. di0cretion" <ut order o. contemBt i0 revie=ed more 0earchingl-. 5.S. v. &eeBle" 2$* (.3d
1+47" $9 ,.(.&.!.2d 2++2'21+2 I$th Cir. 2++2;. ContemBt adJudication i00ued in Bo0tJudgment Bha0e
o. civil action =a0 aBBeala<le =hether contemBt =a0 con0idered to <e civil or criminal" 0ince
adJudication Bo00e00ed attri<ute0 o. oBerativene00 and con0eAuence nece00ar- to aBBeala<ilit-.
Con0umer0 :a0 G 3il" 1nc. v. (armland 1ndu0trie0" 1nc." $4 (.3d 3*7" 34 (ed. !. Serv. 3d 1%%+ I1+th
Cir. 199*;. Denial o. motion .or order to 0ho= cau0e =h- Bart- 0hould not <e held in contemBt i0
.inal" aBBeala<le order. &homa0 v. Blue Cro00 and Blue Shield ,00>n" %94 (.3d $14 I11th Cir. 2+1+;.
, contemBt order i0 .inal and aBBeala<le =hen the oBBortunit- to Burge the contemBt ha0 Ba00ed and
the Bo0ition o. the Bartie0 ha0 <een a..ected <- the contemBt order. Sei?o EB0on CorB. v. NuW@ote
1ntern." 1nc." 19+ (.3d 13*+" %2 5.S./.X.2d IBN,; 1+11 I(ed. Cir. 1999;" reh>g denied" in <anc
0ugge0tion declined" I3ct. 19" 1999;. 33 ,.6.!.3d 44$ /age 1$3 33 ,.6.!.3d 44$ I3riginall-
Bu<li0hed in 197+; , contemBt order i0 a .inal" aBBeala<le order. &helman v. State" 37% ,r?. 11*" 2$9
S.8.3d 7* I2++$;. ContemBt Judgment i0 revie=a<le .inal order. C.:.S.,. S %1W33. State v. Bre0cia"
123 Conn. ,BB. 342" 1 ,.3d 114% I2+1+;. ,BBellate Court =ill rever0e a .inding o. contemBt onl- i.
the Court conclude0 the trial court a<u0ed it0 di0cretion. Do=d v. Do=d" 9* Conn. ,BB. 7%" $99 ,.2d
7* I2++*;. Even i. adJudication o. contemBt =a0 con0idered .inal Judgment" court =a0 =ithout
Juri0diction =here notice o. aBBeal =a0 .iled more than a month <e.ore 0entencing. 8e0t v 5nited
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State0 IDi0t Col ,BB; 34* ,2d %+4. 3rder o. .amil- court in matrimonial action determining cu0tod-
o. children demanding 0uBBort Ba-ment0" alloting Ber0onal BroBert- and .inding Bart- in contemBt .or
violation o. Brior order =a0 .inal and aBBeala<le" not=ith0tanding continuing Juri0diction o. .amil-
court to modi.- order. Cleveland v Cleveland I1977" 2a=aii; %%9 /2d 744. , contemBt order i0
aBBeala<le under the 0ame circum0tance0 a0 another order or Judgment entered in a civil or criminal
action. Callaghan v. Callaghan" 142 1daho 1$%" 12% /.3d 1+*1 I2++%;. 5nder rule that revie= o.
alread- i00ued contemBt order mu0t <e <- =rit o. revie= or <- aBBeal" =rit o. Brohi<ition =a0 not
BroBer remed- <- =hich to conte0t order .inding divorced =i.e in contemBt .or .ailure to grant
vi0itation right0 to divorced hu0<and. De- v Cunningham" 93 1daho *$4" 471 /2d 71. 3rdinaril-"
adJudication in contemBt Broceeding i0 .inal and aBBeala<le <ecau0e it i0 original 0Becial Broceeding"
collateral to" and indeBendent o." ca0e in =hich contemBt ari0e0" =here imBo0ition o. 0anction doe0
not directl- a..ect outcome o. BrinciBal action" even though 0uch adJudication doe0 not di0Bo0e o. all
i00ue0 in litigation. Earle0 v. Earle0" 2$7 1ll. Dec. 4++" $1% N.E.2d 12+3 I,BB. Ct. 3d Di0t. 2++4;. 1t i0
aBBroBriate .or a Bart- to reAue0t that a contemBt order <e entered again0t it 0o that Bart- ma- 0ee?
immediate aBBeal o. a trial court>0 di0cover- order. 8e<< v. 4ount Sinai 2o0B. and 4edical Center
o. Chicago" 1nc." 2$3 1ll. Dec. 1$%" $+7 N.E.2d 1+2* I,BB. Ct. 10t Di0t. 2++4;. 8hen an individual
aBBeal0 .rom a contemBt 0anction imBo0ed .or violating" or threatening to violate" a di0cover- order"
the contemBt .inding i0 .inal and aBBeala<le and Bre0ent0 to the revie=ing court the BroBriet- o. that
di0cover- order. !eda v. ,dvocate 2ealth Care" 199 1ll. 2d 47" 2*2 1ll. Dec. 394" 7*% N.E.2d 1++2
I2++2;. Kudgment o. contemBt again0t la= .irm .or violating order to =ithdra= aBBearance a.ter .irm
=a0 di0Auali.ied .rom reBre0enting de.endant con0tituted .inal and aBBeala<le Judgment and
Bre0ented to court .or revie= BroBriet- o. court>0 order" even though 0ugge0tion that la= .irm re.u0e
to =ithdra= came .rom trial Judge and underl-ing controver0- =a0 not certi.ied .or revie=. 1nde)
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(uture0 :rouB" 1nc. v Street I19$7" 10t Di0t; 1*3 1ll ,BB 3d *%4" 114 1ll Dec 73%" %1* NE2d $9+. &he
Court o. ,BBeal0 =ill rever0e a trial court>0 .inding o. contemBt onl- =here there i0 no evidence or
in.erence0 .rom the record to 0uBBort it. Deel v. Deel" 9+9 N.E.2d 1+2$ I1nd. Ct. ,BB. 2++9;.
ContemBt Judgment .or violation o. an order o. the court regarding child vi0itation =a0 .inal and
there.ore aBBeala<le. &hi<odeau) v. &hi<odeau)" 74$ So. 2d 11$+ I6a. Ct. ,BB. %th Cir. 1999;. 33
,.6.!.3d 44$ /age 1$4 33 ,.6.!.3d 44$ I3riginall- Bu<li0hed in 197+; 1nterlocutor- Judgment
.inding e)W=i.e in contemBt and ordering her to Ba- a .ine and attorne- .ee0 threatened irreBara<le
inJur-" and thu0" direct aBBeal could <e ta?en. Duc?0=orth v. Duc?0=orth" 727 So. 2d 12%4 I6a. Ct.
,BB. 4th Cir. 1999;. , Bart- .ound in contemBt ha0 a right to aBBeal .rom that deci0ion even though
the merit0 o. the litigation in =hich the contemBt order =a0 entered have not -et <een re0olved.
4orri0 v. 8alden" $%* So. 2d 7+% I4i00. Ct. ,BB. 2++3;. ,BBellate court =ill not rever0e a contemBt
citation =here the chancellor>0 .inding0 are 0uBBorted <- 0u<0tantial credi<le evidence. :ood0on v.
:ood0on" $1* So. 2d 42+ I4i00. Ct. ,BB. 2++2;. ,lthough 0eBarate i00ue0 o. main Betition and
contemBt =ere addre00ed =ithin 0ame Judgment" each Bortion o. Judgment =a0 0eBaratel- aBBeala<le.
S&6 CaBital 4anagement" 66C v. Brda" 2+7 S.8.3d *49 I4o. Ct. ,BB. E.D. 2++*;. 8hile contemBt
order0 generall- are .inal and not aBBeala<le" e)ceBtion e)i0t0 .or .amil-W la= ca0e0" in =hich aBBeal0
are Bermitted. 2eath v 2eath I199%" 4ont; 9+1 /2d %9+. ,lthough contemBtWo.Wcourt order0 i00ued
<- Di0trict Court are .inal and u0uall- unrevie=a<le e)ceBt <- =a- o. =rit o. certiorari or revie="
e)ceBtion e)i0t0 .or contemBt order0 made in di00olutionWo.Wmarriage Broceeding0. 1n re 4arriage o.
Bohar0?i I1993; 2%7 4ont 71" $47 /2d 7+9. ,n aBBellate court" revie=ing a .inal Judgment or order
in a contemBt Broceeding" revie=0 .or error0 aBBearing on the record. Dougla0 Count- e) rel.
Dougla0 Count- ,00e00or>0 3..ice v. @o=al" 27+ Ne<. 9$2" 7+$ N.8.2d **$ I2++*;. ,BBellate court"
revie=ing .inal Judgment or order in contemBt Broceeding" revie=0 .or error0 aBBearing on record.
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@lingin0mith v. 8ichmann" 2%2 Ne<. $$9" %*7 N.8.2d 172 I1997;. , contemBt order imBo0ing a
Bunitive 0anction i0 a .inal order and i0 revie=a<le on aBBeal. 4cDermott v. 4cDermott" $ Ne<. ,BB.
$*+" *+2 N.8.2d *7* I1999;. 8hether the trial court adhered to the reAui0ite Brocedure0 in a criminal
contemBt Broceeding i0 a Aue0tion o. la=" =hich i0 revie=ed de novo. 4ortgage SBeciali0t0" 1nc. v.
Dave-" 9+4 ,.2d *%2 IN.2. 2++*;. , .inding o. contemBt" com<ined =ith a 0anction .or contemBt"
.orm0 a .inal aBBeala<le order. State v. ,dam0" 1%3 3hio ,BB. 3d 134" 2++3'3hio'3+$*" 791 N.E.2d
1+4% I7th Di0t. 2arri0on Count- 2++3;. , contemBt Broceeding" even though it gro=0 out o. another
Broceeding" i0 ordinaril- regarded a0 a collateral or 0eBarate action .rom the underl-ing ca0e and i0
0eBaratel- aBBeala<le" =ith aBBellate revie= limited to the contemBt order it0el.. 6erma v. 8al'4art
Store0" 1nc." 2++* 3@ $4" 14$ /.3d $$+ I3?la. 2++*;. 3rder o. contemBt i0 .inal and aBBeala<le =hen
the order contain0 a Bre0ent .inding o. contemBt and imBo0e0 0anction0. 1n re C.8." 2++$ /, SuBer
2%4" 9*+ ,.2d 4%$ I2++$;. , contemBt order i0 aBBeala<le =here the order con0titute0 a .inal one that
imBo0e0 0anction0 uBon the o..ending Bart-. &a?o0?- v. 2enning" 2++* /, SuBer 237" 9+* ,.2d
12%% I2++*;. SuBerior Court =ill rever0e trial court>0 determination a0 to contemBt conviction onl-
=hen there ha0 <een Blain a<u0e o. di0cretion. Com. v. 2aigh" 2++% /, SuBer 139" $74 ,.2d 1174
I2++%;" reargument denied" IKune 17" 2++%;. ContemBt order Breventing neigh<or0
.rom u0ing BroBert- o=ner0> Bond =a0 immediatel- aBBeala<le9 it imBo0ed co0t o. <ond on
neigh<or0" and thi0 0anction could not <e Burged. 33 ,.6.!.3d 44$ /age 1$% 33 ,.6.!.3d 44$
I3riginall- Bu<li0hed in 197+; 8olanin v. 2a0hagen" 2++3 /, SuBer 2%$" $29 ,.2d 331 I2++3;. 1n a
ca0e o. contemBt" the trial court ma- .ind a Bart- in contemBt and that Bart- ma- aBBeal the .inding o.
contemBt" <ut the Bart- a0?ing .or the contemBt ma- not" a0 it i0 not aggrieved. Borough o. Slatington
v. Ziegler" $9+ ,.2d $ I/a. Comm=. Ct. 2++%;. Since a contemBt order i0 .inal in nature" an order
comBelling di0cover- ma- <e aBBealed onl- a.ter a trial court hold0 a Bart- in contemBt. &uc?er v.
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2onda o. South Carolina 4.g." 1nc." %$2 S.E.2d 4+% IS.C. 2++3;. &he .inding o. contemBt i0
immediatel- aBBeala<le. E) Barte Cannon" *$% S.E.2d $14 IS.C. Ct. ,BB. 2++9;. Circuit court>0
remed- or Buni0hment .or contemBt o. court i0 revie=ed under the a<u0e o. di0cretion 0tandard.
SaOama v. State e) rel. 4uilen<erg" 2++7 SD 17" 729 N.8.2d 33% IS.D. 2++7;. , trial court>0 .inding
o. contemBt i0 revie=ed .or a<u0e o. di0cretion. State e) rel. (lo=er0 v. &enne00ee &ruc?ing ,00>n
Sel. 1n0. :rouB &ru0t" 2+9 S.8.3d *+2 I&enn. Ct. ,BB. 2++*;" aBBeal denied" I3ct. 3+" 2++*;. , trial
court>0 0entence .or contemBt" li?e the e)erci0e o. it0 contemBt Bo=er" i0 revie=a<le .or a<u0e o.
di0cretion. State v. Clar?" 2++% 5& 7%" 124 /.3d 23% I5tah 2++%;. &rial court0 have di0cretion to
i00ue contemBt order0" and rever0al o. a contemBt Judgment i0 aBBroBriate onl- i. the trial court>0
di0cretion =a0 either totall- =ithheld or e)erci0ed on ground0 clearl- untena<le or unrea0ona<le. 1n re
Duc?man" $9$ ,.2d 734 I#t. 2++*;. ,n adJudication o. contemBt i0 aBBeala<le i. it i0 a .inal order or
Judgment9 i.e." the contumac-" the Bart->0 =ill.ul re0i0tance to the contemBt order" i0 e0ta<li0hed" and
the 0anction i0 a coercive one de0igned to comBel comBliance =ith the court>0 order. !,/ 2.2Ia;. 1n re
E0tate0 o. Smaldino" 212 /.3d %79 I8a0h. Ct. ,BB. Div. 1 2++9;. ,BBeal0 .rom contemBt order0 are
one'Judge aBBeal0. 8.S.,. 7%2.31I2;Ih;. 1n re 8a0hington" 2++* 81 ,BB 99" 71* N.8.2d 17* I8i0.
Ct. ,BB. 2++*;.!/D mi0conduct Ju0ti.ie0 a di0mi00al or aBBlication o. e)clu0ionar- rule in 0everal
=a-0. !/D Duralde Jo?ed and moc?ed Coughlin" menacingl- indicated he =a0 overcharging the
o..en0e a0 Hgrand larcen-H .or an older moldel 3g i/hone that clearl- =a0n>t =orth more then L*+.
5Bon in.ormation and <elie. and Duralde>0 o=n menacing 0tatement0" thi0 =a0 done <ecau0e it =ould
inconvenience and Buni0h Coughlin more given the gravit- o. the charge" damage hi0 reButation"
reAuire great <ail" and Brevent the o..en0e .rom needing to occur in the !/D 3..icer0 Bre0ent Ia
mi0demeanor cu0todial arre0t i0 onl- Bermi00i<le =ere thi0 i0 the ca0e under N!S;. (uther the D,
ha0 an intere0t in helBing out the !eno Cit- ,ttorne-" =hom ?no=0 the- li?el- ought <e 0ued .or
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numerou0 =rong.ull- arre0t recentl- in a coordinated Hgang <angH o. 0ort0 again0t Coughlin" =hom
ha0 Brett- much Ju0t =orn it uB til no=" even =here DD, 7oung i0 re.u0ing a continuance.
238 4,N7 &14ES D3ES DD, 735N: :E& &3 ,4END &2E C!141N,6 C34/6,1N&D
1N C1#16 ,C&13NS 3NE :E&S 3NE ,4ENDED BE(3!E NEED &3 SEE@ 6E,#E 3. court.
&oo man-" and there =ere a variet- o. other Brocedural de.iciencie0 here related to the incarceration
<ail" dela- in 3! relea0e" arraignmnet" etc.
Zach Coughlin" E0A. gre= uB in Nevada. 2i0 mother and .ather hail .rom Da-ton" 3hio Ihi0 .ather i0
a local .amil- Bractitioner =ho ha0 an emBha0i0 in addiction medicine and ha0 <een involved in
numerou0 intervention0 .or individual0 .airl- high uB in the Judicial <ranch o. government. &im
Coughlin" 4.D. Bla-ed .ull<ac? .or &ulane 5niver0it- and did a re0idenc- at Du?e...Coughlin>0
4other i0 4ar- Bar?er =ho ha0 =or?ed a0 a :rant Coordinator .or local non'Bro.it #er- SBecial ,rt0
o. Nevada .or man- -ear0" and =a0 .ormerl- a 0chool teacher and a graduate o. the 5niver0it- o.
4iami I3hio;;. Coughlin>0 mother divorce hi0 .ather in &e)a0 in 197$ and moved to :ardnerville"
N# =ith her ne= hu0<and. Coughlin>0 .ather .ollo=ed and the- have all <een here ever 0ince. Zach
Coughlin" E0A. attended CC 4eneall- elementar- 0chool in :ardnerville" N#" S=oBe 4iddle School
in !eno" and =a0 a National 4erit (inali0t Ia0 =a0 8C/D Koe :oodnight; and ,ll'State Ba0?et<all
Bla-er at !eno 2igh School" .ini0hing hi0 time Bla-ing a0 the 0chool>0 then all time leading 0corer.
Coughlin i0 li0ted in the National (ederation o. 2igh School>0 record <oo? .or having one o. the toB
ten highe0t 0hooting Bercentage0 .or a 0ingle 0ea0on" all time" .or tho0e =ith at lea0t 4++ attemBt0"
=ith a rate o. *%.4Y. Coughlin and hi0 !eno 2igh team lo0t the Oone .inal0 to Car0on 2igh School
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43'42 in 199%. Coughlin ha0 coached 9th grade <a0?et<all at !eno 2igh School in the Ba0t" and =a0
.ormerl- emBlo-ed at 2ale 6ane and 8a0hoe 6egal Service0 in addition to doing Biece meal =or? .or
:eo. :ile0" E0A." &om 2all" E0A. and variou0 other attorne-0. Coughlin i0 .riend0 =ith Che0ter HCoeH
S=o<e" E0A. Coughlin graduated =ith a B.S. in Biolog- .rom the 5niver0it- o. Nevada !eno and
Ba00ed the Kul- 2++1 Nevada <ar e)amination =ith the inaugural graduating cla00 o. 5N6#>0 Bo-d
School o. 6a= during the 0ummer .ollo= hi0 0econd -ear o. la= 0chool" going <ac? to 0chool to
.ini0h hi0 la0t 0eme0ter and graduate in Decem<er o. 2++1. Coughlin ha0 a hi0tor- =ith the Bolice
that ha0 <een rather tr-ing" and it =ould ta?e Auite 0ome time to go into it. 8edgie0 have <een
involved. &hreat0 to have thing0 H0hovedH uB Coughlin>0 a00 have <een involved. &ac?ling" H=hite
<o-H re<u?e0" etc." etc. Coughlin i0 a * .oot 4" 2%+ Bound .ormer ,ll'State Center in <a0?et<all and
it 0eem0 hi0 Bh-0ical characteri0tic0" com<ined =ith a t-Bicall- 1ri0h re0entment o. an- authoritie0
encroachment uBon =hat he Berceive0 to <e Hhi0 right0H can o.ten re0ult in un.ortunate
Hmi0under0tanding0H =ith la= en.orcement. ,gain" Coughlin Ba00ed the Kul- 2++1 <ar e)amination.
2e =a0 0=orn in <- Kudge Breen" =ith Coe S=o<e and @eith 6ee" E0A. loo?ing on at thi0 e)amBle o.
their 0ucce00.ul Bo=er0 o. reha<ilitation in 4arch o. 2++%. Coughlin>0 .ather called uB the then Dean
o. 5N6#" !ichard 4organ an announced Coughlin either a drun? or a drug addict or craO- or
0omething li?e that. Coughlin =a0 denied a licen0e to Bractice la= in Cali.ornia de0Bite Ba00ing that
<ar e)amination =ithout 0tud-ing .or it" on the <a0i0 o. 5N6#>0 Dean 4organ reBorting =hat
Coughlin>0 .ather 0aid to him in con.idence on the teleBhone to the State Bar o. Cali.ornia" =ho0e
6,/ Brogram0 li?e0 to have BeoBle =ho are licen0e a marriage and .amil- theraBi0t0 Bractice
medicine =ithout a licen0e =ith imBunit- =hil0t charging inordinate .ee0 .or the Brivilege o. 0uch
helB. Coughlin and hi0 .ather di0agree on =hether Dr. Coughlin>0 aBBroach to Barenting i0 o. the
4unchau0en <- /ro)- School" <ut the- remain clo0e nonethele00. Coughlin i0 and ha0 <een 0o<er .or
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man- -ear0" <ut he =hat H:od damn <idne00 that i0 o. an-<od->0 an-=a-" e..in Nann- State
mothere..er0....H. Coughlin i0 al0o licen0ed to Bractice Batent la= <e.ore the 5nited State0 /atent and
&rademar? o..ice" and" un.ortunatel- i0" in Dr. Coughlin>0 e)Bert oBinion" a..licted =ith the terminal
di0ea0e o. H<eing a mu0icianH. &hi0 i0 not the .ir0t time one o. the Coughlin elder0 ha0 <rought 0hame
uBon the Coughlin name through their deBarture .rom .idelit- to the Bill o. !ight0:
httB:CC===.da-tondail-ne=0.comCne=0Cda-ton'ne=0Cde.endant0'tried'=ithout'la=-er0'in'hu<er'
height0'court'=in'aBBeal0'%$%793.html
6E:,6 ,!:54EN&
I1+; 82E!E 1S &2E 61NE BE&8EEN , MS&3/P ,ND ,N
M,!!ES&DN
1. 1n 2a-e0 v. (lorida" 47+ 5.S. $11 I19$%; the 5.S. SuBreme Court 0aid that
although there i0 no M<right line ruleN to an0=er thi0 Aue0tion" at 0ome Boint in the
inve0tigation Bolice Brocedure0 can <ecome 0o Aualitativel- and Auantitativel- intru0ive
regarding a 0u0BectP0 .reedom o. movement and Brivac- that an Marre0tN occur0. &he
Court 0aid thi0 occur0 =hen the Bolice" =ithout /CC or a =arrant" .orci<l- reAuire a
Ber0on to go to a Bolice 0tation =here he i0 detained even <rie.l- .or inve0tigation.
2. M&here i0 no <right line rule ... there.ore =hether an arre0t ha0 occurred
deBend0 on all the circum0tance0. /ointing a =eaBon" ordering him to lie on the ground"
handcu..ing and Blacing in a Bolice vehicle .or a <rie. Beriod o. time either 0ingl- or in
com<ination doe0 not al=a-0 convert a I&err-; 0toB into an arre0t reAuiring /CC ... Bolice
need not u0e the lea0t intru0ive mean0 o. re0Bonding to an e)igent 0ituation ... a0 long a0
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their action0 are rea0ona<le.N ,llen v. Cit- o. 6o0 ,ngele0" ** (.3d 1+%2 I9th Cir. 199%;.
Same rationale in 5.S. v. &orre0' SancheO" $3 (.3d 1123 I9th Cir. 199*; and 5.S. v.
Blac?man" ** (.3d 1%72 I11th Cir. 199%;.
3. 1n 8a0hington v. 6am<ert" 9$ (.3d 11$1 I9th Cir. 199*; &=o <lac?
*2
<u0ine00men =ere 0een leaving a re0taurant <- a Bolice o..icer. &he o..icer thought the
t=o men matched the de0criBtion o. t=o armed ro<<er0 in multiBle ro<<erie0" although
the court noted that the actual 0iOe and =eight o. 8a0hington and 2ic?0 =ere 0everal
inche0 and %+ Bound0 di..erent .rom the 0u0Bect0. &he o..icer called .or a <ac?uB and
.ollo=ed the rental car to a hotel. , radio chec? 0aid the rental car =a0 not 0tolen. ,t the
garage in the hotel" the Bolice got out and one o. them Bointed a gun at the t=o men"
ordered them to But their hand0 uB and handcu..ed them" then 0earched their Ber0on0 and
the car. No =eaBon0 or contra<and =a0 .ound. &he t=o men 0ued the Bolice under 42
5.S.C. 19$3.
. &he Court held that Min determining =hether the u0e o. intru0ive techniAue0 turn0
a 0toB into an arre0t" =e e)amine the rea0ona<lene00 o. the Bolice conduct in light o. a
num<er o. .actor0" 0uch a0 1; =here the 0u0Bect i0 uncooBerative or ta?e0 action that
rai0e0 a rea0ona<le Bo00i<ilit- o. danger or .light" 2; =here the Bolice have in.ormation
that the 0u0Bect i0 currentl- armed" 3; =here the 0toB clo0el- .ollo=0 a violent crime and"
4; =here the Bolice have in.ormation that a crime that ma- involve violence i0 a<out to
occur. Some com<ination o. the0e .actor0 ma- al0o Ju0ti.- the u0e o. aggre00ive Bolice
action =ithout cau0ing an inve0tigator- 0toB to turn into an arre0t.
1n the Bre0ent ca0e the Bolice action con0tituted an arre0t =ith no
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Bro<a<le cau0e" Ial0o argua<l- no !CS to Ju0ti.- a &err- 0toB either; there<- ma?ing
the o..icer0 and Bolice deBartment lia<le .or damage0. 42 5.S.C. 19$3.
*3
(. ,!!ES&: &2E 21:2ES& 6E#E6 3( C3N&,C&
1t i0 imBortant to di0tingui0h arre0t .rom &err-'t-Be detention. I,rre0t i0 onl-
legal i. made on Bro<a<le cau0e;.
1. S&,&5&3!7 DE(1N1&13N
N!S 171.124 0a-0 -ou can arre0t .or .elon- or gro00 mi0demeanor =ith or
=ithout a =arrant" da- or night" i. Hrea0ona<le cau0eH to <elieve 0u<Ject ha0 committed a
.elon- or gro00 mi0demeanor.
2. &2E 5.S. S5/!E4E C35!& C,SE 6,8
&he 5.S. SuBreme Court 0a-0: HBro<a<le cau0eH i0 a term dealing =ith ever-da-
Bro<a<ilitie0" not legal technicalitie0. DraBer v. 5nited State0" 3%$ 5.S. 3+7I19%9;"
H=hether a man o. rea0ona<le caution =ould <elieve an o..en0e =a0 <eing or had <een
committedH '' not a Aue0tion o. the Hgood .aithH o. the o..icer <ut a need to articulate
.act0 cau0ing rea0ona<le <elie..
&he Ho<Jective te0tH i0 u0ed to determine =hether and =hen an arre0t occur0. ,
court ma- con0ider that there =a0 an arre0t even though the 0u0Bect =a0 not told H-ou are
under arre0tH. (actor0 0uch a0 0ho= o. authorit-" involuntar- re0traint or movement and
Ba00age o. time are imBortant.
Duna=a- v. Ne= 7or?" 442 5.S. 2++ I1979;" Bolice lac?ed Bro<a<le cau0e to
arre0t '' =ent to 0u0Bect>0 neigh<orP0 home and a0?ed him in a comBul0ive =a- to go to
Bolice 0tation =here he =a0 Blaced in interrogation room '' =a0n>t told he =a0 .ree to go '
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' the triB .rom the re0idence to the Bolice 0tation =a0 0everal mile0 and too? 1 hour ''
2eld '' although he =a0n>t told he =a0 under arre0t and =a0n>t <oo?ed '' thi0 =a0 0ame a0
an Harre0tH" <ecau0e the Bolice told him he needed to go to the Bolice 0tation" he
acAuie0ced" and the triB too? an hour and =ent man- mile0 .rom hi0 re0idence. 2i0
0u<0eAuent con.e00ion to a crime =a0 0uBBre00ed a0 a H.ruitH o. the Harre0tH =ithout
Bro<a<le cau0e.
(lorida v. !o-er" 4*+ 5.S. 491 I19$3;" Bolice 0u0Bected de.endant a0 drug
courier" aBBroached and a0?ed to 0Bea? to him and reAue0ted to 0ee hi0 tic?et and driver>0
licen0e''noted that name0 didn>t match '' a0?ed him to go to near<- room =hile retaining
hi0 tic?et and licen0e. 2eld '' thi0 con0tituted a H0eiOureH. 1% minute0 a.ter initial 0toB he
con0ented to 0earch o. 0uitca0e. Court ruled that thi0 Bolice conduct e..ectivel-
con0tituted an Harre0tH and reAuired Bro<a<le cau0e. Since there =a0 no /CC" Ialthough
there =a0 !CS; the illegal Harre0t tainted the con0ent.
3. NE#,D, C,SES
/ro<a<le cau0e to ma?e a =arrantle00 arre0t e)i0t0 i. the .act0 and
circum0tance0 ?no=n to the o..icer0 at the moment o. the arre0t =ould =arrant a Brudent
*4
man in <elieving that a .elon- had <een committed <- the Ber0on arre0ted. &homa0 v.
Sheri.." $% Nev. %%1 I19*9;.
&he HBro<a<le cau0eH te0t i0 <a0ed on the totalit- o. the circum0tance0
?no=n to the o..icer. 4inor v. State" 91 Nev. 4%* I197%;.
4. S&,ND,!D (3! /!3B,B6E C,5SE
Ba0icall-" the 0ame 0tandard IAuantit- o. Broo.; i0 needed .or arre0t0 a0 .or
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0earche0" 0o the 1llinoi0 v. :ate0" 4*2 5.S. 213 I19$3;" totalit- o. the circum0tance0 te0t
aBBlie0 ' i.e.: a .air Bro<a<ilit-" <ut not nece00aril- a certaint-.
1n 5.S. v. 3rnela0" 11* S. Ct. 1*%7 I199*; &he Court ruled: ,rticulating
Breci0el- =hat Hrea0ona<le 0u0BicionH and HBro<a<le cau0eH mean i0 not Bo00i<le. &he-
are common 0en0e" nontechnical conceBtion0 that deal =ith H >the .actual and Bractical
con0ideration0 o. ever-da- li.e on =hich rea0ona<le and Brudent men" not legal
technician0" act.> H ,0 0uch" the 0tandard0 are Hnot readil-" or even u0e.ull-" reduced to a
neat 0et o. legal rule0.H. 8e have de0cri<ed rea0ona<le 0u0Bicion 0imBl- a0 Ha
BarticulariOed and o<Jective <a0i0H .or 0u0Becting the Ber0on 0toBBed o. criminal activit-"
and Bro<a<le cau0e to 0earch a0 e)i0ting =here the ?no=n .act0 and circum0tance0 are
0u..icient to =arrant a man o. rea0ona<le Brudence in the <elie. that contra<and or
evidence o. a crime =ill <e .ound. 8e have cautioned that the0e t=o legal BrinciBle0 are
not H.inel-'tuned 0tandard0"H comBara<le to the 0tandard0 o. Broo. <e-ond a rea0ona<le
dou<t or o. Broo. <- a BreBonderance o. the evidence.
1n 5.S. v. Covarru<ia0" *% (.3d 13*2 I7th Cir.199%; the Court held that M/olice
have /CC to arre0t i. at the moment o. the arre0t the .act0 and circum0tance0 =ithin their
?no=ledge o. =hich the- had rea0ona<l- tru0t=orth- in.ormation =ere 0u..icient to
=arrant a Brudent Ber0on in <elieving that the 0u0Bect had committed an o..en0e. 8hile
/CC reAuire0 more than mere 0u0Bicion" =e do not reAuire it to reach the level o. virtual
certaint-.N
1n Brinegar v. 5.S." 33$ 5.S. 1*+ I1949; the Court held" M/CC reAuire0 le00 than
Ithe amount o.; evidence that =ould Ju0ti.- a conviction <ut more than mere 0u0Bicion.N
and in SBinelli v. 5.S." 393 5.S. 41+ I19*9; the Court held that Monl- the Bro<a<ilit- and
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not a Brima .acie 0ho=ing o. criminal activit- i0 the 0tandard o. /CC.N ,l0o" in :er0tein
v. /ugh" 42+ 5.S. 1+3 I197%;" in ruling on a magi0trateP0 determination o. /CC a.ter a
=arrantle00 arre0t" the Court held that Ma /CC determination doe0 not reAuire the .ine
re0olution o. con.licting evidence that a rea0ona<le dou<t or BreBonderance Imore than
%+Y Bro<a<ilit-; demand0.N
1n :reene v. !eeve0" $3+ (.3d 11+1 I*th Cir. 199*; Bolice arre0ted the Barent0 .or
Bromoting 0e)ual Ber.ormance0 <- a minor <a0ed on their 0ending o. a Bo0tcard =ith a
BhotograBh o. the genital area o. their unclothed minor daughter. &he Court uBheld the
arre0t 0tating that" M the /CC 0tandard doe0 not mean that the I evidence o. the 0u0Bected
criminal act; i0 more li?el- than not.N
*%
1n 5.S. v. 4athna-" $9% (.2d 141$ I9th Cir. 199+; H&he te0t .or Bro<a<le cau0e i0
=hether the .act0 and circum0tance0 =ithin the arre0ting o..icer>0 ?no=ledge are
0u..icient to =arrant a Brudent Ber0on to <elieve a 0u0Bect ha0 committed" i0 committing"
or i0 a<out to commit a crime.H , court ma- con0ider <oth the e)Berience and collective
?no=ledge o. all o..icer0 involved in the inve0tigation and their re0Bective level0 o.
e)Berti0e.. , court ma- al0o con0ider an- rea0ona<le in.erence0 dra=n .rom the o..icer0>
collective ?no=ledge.
1n 5.S. v. 3camBo" 937 (.2d 4$% I9th Cir. 1991; the Court held that M/CC
evaluation deBend0 on the totalit- o. the .act0 Io. the ca0e; even though there i0 an
innocent e)Blanation .or each .act.N
Note: 1n &err- v. 3hio" 392 5.S. 1 I19*$; the Bolice detective =ith more than 2+
-ear0 e)Berience 0a= &err- and hi0 Bartner0 =al? .rom a 0treet corner to loo? in the .ront
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=indo= o. a Je=elr- 0tore =ithout entering to 0hoB a<out a doOen time0 in t=elve
minute0. Even though thi0 action =a0 I0uBer.iciall-; innocent" the SuBreme Court agreed
that under all the circum0tance0 there =a0 !CS that the- =ere ca0ing the 0tore .or an
armed ro<<er-.
,lthough &err- involved !CS" 3camBo and numerou0 other ca0e0 hold that
Mo<viou0 criminalN <ehavior IBointing a gun at a victim;i0 not reAuired .or /CC.
%. S35!CES 3( /!3B,B6E C,5SE
!elia<le Con.idential 1n.ormant
See the 0ection in thi0 manual on 0earch =arrant0 to learn .actor0 that ma?e an in.ormant relia<le.
4cCra- v. 1llinoi0" 3$* 5.S. 3++ I19*7;. , 0trong Broven relia<le in.ormant =ith
.ir0t'hand in.ormation i0 enough .or Bro<a<le cau0e. H&he Court ha0 never reAuired a rule
o. comBul0or- di0clo0ure o. an in.ormant =here the i00ue i0 the Breliminar- one o.
Bro<a<le cau0e" and guilt or innocence i0 not at 0ta?eH Even an in.ormant o. le00er
relia<ilit- can <e enough i. the in.ormant Bredict0 .uture action0 and detail0. DraBer v.
5nited State0" 3%$ 5.S. 3+7 I19%9;.
1n 5. S. v. (i)en" 7$+ (.2d 1434"I 9th Cir." 19$*;" the Court held the arre0t =a0
la=.ul and <a0ed on /CC. H&he in.ormer" enli0ted <- the Bolice" met =ith the de.endant to
arrange deliver- o. 0ome cocaine9 he then told Bolice that the 0ource o. 0uBBl- =a0 a
6atin male .rom 6o0 ,ngele0. &he de.endant =a0 0urveilled traveling to 6o0 ,ngele0
=here" in a 0erie0 o. move0 aBBarentl- de0igned to di0courage detection" he aBBeared to
o<tain a <ro=n BaBer <ag .rom a 6atin male. 5Bon hi0 arre0t" cocaine =a0 .ound in the
<ag.H ,lthough veri.ication o. .act0 .rom the in.ormer>0 0tor- =a0 largel- o.HinnocentH
<ehavior" credi<ilit- =a0 enhanced <- the accurac- and detail o. the in.ormation given.
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:enerall-" BoliceCD, are not reAuired to di0clo0e in.ormantP0 identit-
De.endant0 al=a-0 =ant to ?no= the identit- o. an in.ormant .or o<viou0 rea0on0
**
0uch a0 threat0 to ma?e the in.ormant change hi0 0tor- or to lie a<out in.ormation given to
Bolice" and 0ometime0 more dra0tic mean0. &he .ollo=ing ca0e0 e)Blain the vie= o.
.ederal court0 on the i00ue o. in.ormant di0clo0ure.
1n 5.S. v. (i)en I0uBra; &he trial court re.u0ed identi.-ing the CC1 and the 9th
Circuit uBheld that ruling. H, BroBer <alance deBend0 on the Barticular circum0tance0 o.
each ca0e" con0ideration o. crime charged" Bo00i<le de.en0e0" Bo00i<le 0igni.icance o. the
in.ormer>0 te0timon-" and other relevant .actor0.H
,lthough the in.ormer>0 Brivilege mu0t give =a- =here the di0clo0ure o. the
in.ormant>0 identit- Hi0 relevant and helB.ul to the de.en0e o. an accu0ed" or i0 e00ential to
a .air determination o. a cau0e"H the <urden i0 on the de.endant to demon0trate the need
.or the di0clo0ure.
, trial court need not reAuire di0clo0ing the identit- o. a relia<le in.ormant =here
the 0ole ground .or 0ee?ing that in.ormation i0 to e0ta<li0h the e)i0tence o. Bro<a<le
cau0e .or arre0t. (i)en>0 reAue0t .or di0clo0ure e)Bre00e0 hi0 concern there ma- not have
<een an in.ormant or that Bolice lied a0 to the in.ormation related to them. ,n in camera
hearing I=ithout Bre0ence o. de.endant or hi0 la=-er; could have 0erved to alla- the0e
.ear0:
&hrough di0clo0ure o. the in.ormer>0 identit- to the trial Judge" and 0uch
0u<0eAuent inAuirie0 <- the Judge a0 ma- <e nece00ar-" the :overnment can <e Brotected
.rom an- 0igni.icant" unnece00ar- imBairment o. 0ecrec-" -et the de.endant can <e 0aved
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.rom =hat could <e 0eriou0 Bolice mi0conduct.
Nonethele00" a di0trict court need not conduct an in camera hearing =henever the
identit- o. an in.ormant i0 reAue0ted.
1n 5.S. v. :ordon" 173 (.3d 7*1 I1+th Cir. 1999; the court held that a de.endant
0ee?ing to .orce di0clo0ure o. an in.ormant>0 identit- ha0 the <urden to 0ho= the
in.ormant>0 te0timon- i0 relevant or e00ential to the .air determination o. de.endant>0 ca0e.
H8here it i0 clear that the in.ormant cannot aid the de.en0e" the government>0 intere0t in
?eeBing 0ecret the in.ormant>0 identit- mu0t Brevail over the de.endant>0 a00erted right o.
di0clo0ure.H
&he in.ormant>0 role in :ordon>0 arre0t =a0 e)tremel- limited. 2e did not detain
:ordon" and did not BarticiBate in or =itne00 :ordon>0 detention or the tran0action in
=hich :ordon BurBortedl- agreed to tran0Bort cocaine in e)change .or mone-. 8e have
re.u0ed di0clo0ure in 0imilar ca0e0 =here the in.ormant ha0 limited in.ormation" =a0 not
Bre0ent during commi00ion o. the o..en0e" and cannot Brovide an- evidence that i0 not
cumulative or e)culBator-.
1n 5.S. v. 2ic?man" 1%1 (.3d 44* I%th Cir. 199$; I!ever0ed on other ground0 in
179 (.3d 23+ I%th Cir. 199$;" the court held that it =a0 not nece00ar- to di0clo0e the
identit- o. an in.ormant.N&hi0 circuit ha0 cra.ted a three'Bart te0t to determine =hether
di0clo0ure o. a ICC1P0; identit- i0 nece00ar-. 8e e)amine: 1; the in.ormant>0 degree o.
involvement in the crime9 2; the helB.ulne00 o. the di0clo0ure to the de.en0e9 and 3; the
:overnment>0 intere0t in non di0clo0ure. ,0 to the .ir0t Brong" =e have held that mere
HtiB0ter0H are not 0o clo0el- related to a crime a0 to reAuire the di0clo0ure o. their identit-.
*7
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1n 5.S. v. 4angum" 1++ (.3d 1*4 IDC Cir. 199*; 4angum argued that he
needed to intervie= the ICC1; in order to determine =hether the CC1 might have Blanted
the gun in the ?naB0ac? in order to helB 0ecure an arre0t and curr- .avor =ith the
government. 2e never cited an- 0Beci.ic .act0 0uBBorting hi0 motion to di0clo0e the
identit- o. the in.ormant" <ut merel- =anted to intervie= the ICC1; <ecau0e the ICC1;
might Bo00e00 in.ormation that could e)culBate him.
&he court .ound that the de.endant =a0 not entitled to ?no= the ICC1P0; identit-
H<ecau0e there i0 no evidence in the record 0uBBorting the De.endant>0 0Beculation that
the ICC1; activel- BarticiBated in the o..en0e.H 2e .ailed to meet hi0 <urden <- H0ho=ing
that the in.ormant>0 te0timon- i0 nece00ar- to hi0 de.en0e 0o a0 to Ju0ti.- Blacing the
in.ormant>0 0a.et- in JeoBard-.H
M4ere 0Beculation that the ICC1; ma- Bo00i<l- <e o. 0ome a00i0tance i0 in0u..icient
to meet thi0 <urden. &o overcome the Bu<lic intere0t in Brotection o. the ICC1;"H the
de.endant mu0t 0ho= that the ICC1; =a0 Han actual BarticiBant in or a =itne00 to the
o..en0e charged"H and identit- i0 Hnece00ar- to the de.en0e.H
5.S. v. (ield0" 113 (.3d 313 I2d Cir. 1997; :overnment i0 not generall- reAuired
to di0clo0e the identit- o. ICC1P0;. 1t0 intere0t in Brotecting anon-mit- o. ICC1P0; =ho
.urni0h in.ormation regarding violation0 o. la= i0 0trong'' =ithholding a ICC1P0; identit-
imBrove0 the chance0 that the Ber0on =ill continue Broviding in.ormation and encourage0
Botential ICC1P0; to aid the government.
&he de.endant <ear0 the <urden o. 0ho=ing the need .or di0clo0ure o. a ICC1P0;
identit-" and mu0t e0ta<li0h that" a<0ent 0uch di0clo0ure" he =ill <e deBrived o. hi0 right to
a .air trial.
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00433
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Even i." a0 the de.endant0 claim" the in.ormant>0 in.ormation =a0 uncorro<orated
and con0tituted the <ul? o. the Bro<a<le cau0e uBon =hich the Bolice relied" the di0trict
court>0 in camera intervie= o. the ICC1;" conducted =ith a vie= to matter0 de.en0e coun0el
identi.ied in =riting a0 Botentiall- relevant" adeAuatel- Brotected de.endant0> right0. ,n in
camera intervie= o. a ICC1;that .ind0 no I0u<0tantial; incon0i0tenc- =ith Bolice te0timon-
can mitigate an- concern that the ICC1P0; te0timon- =ould in .act <e u0e.ul to the de.en0e
5.S. v. @ime" 99 (.3d $7+ I$th Cir. 199*;. @ime argue0 that the di0clo0ure o.
C1P0 identit- =a0 nece00ar- to te0t the veracit- o. hi0 or her in.ormation and the Auantum
o. Bro<a<le cau0e <ehind the a..idavit o..ered in 0uBBort o. the aBBlication .or the
interceBtion o. =ire and oral communication0. But @ime o..er0 no <a0i0 other than <ald
0Beculation .or hi0 a00ertion that 0uch a di0clo0ure and an oBBortunit- to intervie= C1'1
=ould allo= him to imBeach C1'1>0 a..idavit te0timon-. &he movant>0 <urden HreAuire0
more than mere 0Beculation that the te0timon- o. the in.ormant might Brove to <e helB.ul
to the de.en0e.H
1n.ormation .rom #ictim or 8itne00
:ate0" held that citiOen'in.ormant i0 Bre0umed relia<le unli?e a criminal C1
1n Ea0ton v. Cit- o. Boulder Colorado" 77* (.2d 1441I1+th Cir. 19$%;
&he Court held that M=hen e)amining in.ormant evidence u0ed to 0uBBort claim o.
*$
Bro<a<le cau0e .or =arrant .or arre0t" or =arrantle00 arre0t" 0?eBtici0m and care.ul
0crutin- u0uall- .ound in ca0e0 involving in.ormant0" 0ometime0 anon-mou0" .rom
criminal milieu" i0 aBBroBriatel- rela)ed i. in.ormant i0 identi.ied victim or ordinar-
citiOen =itne00.
- 40 -
00434
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Becau0e citiOen =itne00e0 are Bre0umBtivel- relia<le" the o..icer0 in thi0 0ituation
had no dut- to e)amine .urther the <a0i0 o. the =itne00> ?no=ledge or tal? =ith another
=itne00e0. &he BroBo0ition that Brivate citiOen =itne00e0 or crime victim0 are Bre0umed
relia<le doe0 not Hdi0Ben0e =ith the reAuirement that the in.ormant ... .urni0h underl-ing
.act0 0u..icientl- detailed to cau0e a rea0ona<le Ber0on to <elieve a crime had <een
committed and the named 0u0Bect =a0 the BerBetrator.H IKu0t a0 Bolice need to 0tate .act0
learned <- them to Ju0ti.- !CS or /CC;
5.S. v. Butler" 74 (.3d 91* I9th Cir.199*; Court held M-ou loo? at the totalit- o.
the circum0tance0 to determine /CC. M/CC can <e <a0ed on hear0a- ... or on in.ormation
rela-ed through o..icial Bolice channel0 ... and through the collective ?no=ledge o. Bolice
o..icer0 involved in an inve0tigation even i. 0ome o. thi0 in.ormation =a0 not ?no=n <-
the arre0ting o..icer Iand; i. an unAue0tiona<l- hone0t citiOen come0 .or=ard =ith a
reBort o. criminal activit- =hich i. .a<ricated =ould 0u<Ject him to criminal lia<ilit- =e
have .ound rigorou0 0crutin- o. the <a0i0 o. ?no=ledge unnece00ar-.N
&ang=all v. Stuc?e-" 13% (.3d %1+ I7th Cir. 199$; Court held that H8hen an
o..icer received hi0 in.ormation .rom 0ome Ber0on''normall- the Butative victim or e-e
=itne00''=ho it 0eem0 rea0ona<le to <elieve i0 telling the truth"> he ha0I/CC;.H No deeB0eated
logic or rationale underlie0 thi0 BrinciBle. I/CC; i0 a common 0en0e determination"
mea0ured under a rea0ona<lene00 0tandard.
Sharrar v. (el0ing" 12$ (.3d $1+ I3rd Cir. 1997; Court held that MEven i. the
o..icer heard the victimP0 claim that another Ber0on attac?ed her it =a0 rea0ona<le .or the
o..icer to a00e00 her demeanor" .ind her 0tor- credi<le" and rel- on her 0u<0eAuent
identi.ication o. her hu0<and a0 the attac?er. 8hen an o..icer ha0 received a relia<le 1D
- 41 -
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<- a victim o. hi0 or her attac?er" the Bolice have /CC to arre0t. Same ruling 6ee v.
Sand<erg" 13* (.3d 94 I2d Cir. 1997;.
3..icial Channel0
8hitle- v. 8arden" 4+1 5.S. %*+ I1971; I(ello= o..icer rule;. ,n o..icer =ho
doe0 not Ber0onall- Bo00e00 0u..icient in.ormation to con0titute Bro<a<le cau0e ma-
neverthele00 ma?e a valid arre0t i. he act0 uBon the direction or a0 a re0ult o. a
communication .rom a .ello= o..icer and the Bolice" a0 a =hole" Bo00e00 0u..icient
in.ormation to con0titute Bro<a<le cau0e. /eoBle v. (reeman" **$ /.2d 1371 IColo.
19$3;.
1n Doleman v. State" 1+7 Nev. 4+9 I1991;" Bolice arre0ted a murder 0u0Bect <a0ed
on in.ormation .rom an in.ormant and citiOen =itne00 I.act0 are 0ome=hat comBlicated;.
Even though the arre0ting o..icer ma- not have <een a=are o. each and ever- .act
included in the Bro<a<le cau0e" collectivel- he and the other o..icer0 involved in the
inve0tigation did Bo00e00 Bro<a<le cau0e and thi0 made the arre0t valid. &hi0 deci0ion
*9
e)tend0 the H.ello= o..icerH rule to it0 .ulle0t.
/er0onal 3<0ervation0 <- Bolice
&hi0 i0 the mo0t common ingredient o. Bro<a<le cau0e ' =hat -ou 0ee" hear" 0mell"
.eel or ta0te ma- give Bro<a<le cau0e <- it0el. or a0 corro<oration o. in.ormation received
.rom in.ormant.
Di0creBanc- <et=een in.ormation received and 0u0Bect con.ronted
&hi0 doe0 not automaticall- mean that there i0 no Bro<a<le cau0e. Some
di0creBancie0 normal due to human nature. Bro=n v. 5. S." 3*% (.2d 97* ID.C. Cir.
- 42 -
00436
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19**;" =here Bolice had de0criBtion o. ro<<er a0 <lac? male" driving maroon 19%4 (ord
and a<out a mile a=a-" minute0 later" Bolice 0a= car =hich =a0 19%2 maroon (ord and
had occuBant =ith di..erent clothing and height =a0 *H o.. '' 2eld: Bro<a<le cau0e
e)i0ted" de0Bite the di0creBanc- to 0toB the car and arre0t occuBant.
5.S. v. &ilmon" 19 (.3d 1221 I7th Cir.1994; /olice had /CC to arre0t &ilmon .or
<an? ro<<er- once he 0teBBed out o. car and o..icer0 could comBare him =ith de0criBtion
o. ro<<er" due to .act that Bolice alread- identi.ied hi0 di0tinctivel- mar?ed car9 although
de.endant =ore di..erent clothe0 .rom tho0e de0cri<ed <- ro<<er- e-e=itne00e0" and t=o
hour0 had Ba00ed 0ince ro<<er-.
6allemand v. 5. !. 1. " 9 (.3d 214 I10t Cir. 1993; ,..idavit =hich 0et .orth
victim>0 ver0ion o. raBe and .ollo=ed it =ith de0criBtion o. victim 0electing arre0tee>0
BhotograBh .rom Bicture arra- and Bo0itivel- identi.-ing him a0 the man =ho raBed her
Brovided Bro<a<le cau0e .or arre0t" even though there =ere di0creBancie0 <et=een
arre0tee>0 aBBearance and de0criBtion o. the BerBetrator.
5.S. v. #aleO" 79* (.2d 24 I2nd Cir. 19$*; 3<0erving o..icer>0 de0criBtion o.
cocaine 0eller =a0 adeAuatel- detailed" de0Bite hi0 0ilence on matter o. 0eller>0 .acial hair"
and de.endant" =ho =a0 in immediate area o. drug tran0action" 0u..icientl- .it de0criBtion
to give another o..icer Bro<a<le cau0e to arre0t de.endant =ithin 0hort 0Bace o. time
.ollo=ing tran0action.
*. N3 NEED &3 M/!ESE!#EN /!3B,B6E C,5SE
(reAuentl- an o..icer 0toB0 Ior arre0t0; a Ber0on .or a 0mall o..en0e and then
continue0 the inve0tigation and .ind0 /CC .or a maJor crime. 1n 0uch ca0e0" the o..icer
o.ten doe0nPt MchargeN the Ber0on =ith the initial" 0ometime0 Bett-" o..en0e. 1n the Ba0t
- 43 -
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0ome Judge0 have ruled that thi0 ma?e0 the entire arre0t <ad <ecau0e the o..icer didnPt
MBre0erve the Bro<a<le cau0e.N &hi0 i0 not the la=. 1n Scott v. State" 11+ Nev. *22
I1994; the de.endant =a0 in a car 0toBBed .or an imBroBerl- a..i)ed licen0e Blate. ,.ter
the 0toB it =a0 determined that Scott =a0 an e)'.elon and had a gun. 2e =a0 arre0ted .or
that" <ut no citation =a0 i00ued. &he Nevada SuBreme Court 0aid thi0 made no di..erence
in the validit- o. the 0toB. 1n 5.S. v. 8ood-" %% (.3d 12%7 I7th Cir. 199%; the court 0aid"
7+
M,n arre0t ma- <e Ber.ectl- rea0ona<le even i. the Bolice o..icer ultimatel- doe0 not
charge the 0u0Bect =ith the o..en0e giving ri0e to the o..icerP0 Bro<a<le cau0e
determination.
7. 82EN 8,!!,N& NEEDED 1N ,!!ES& S1&5,&13N
&he SuBreme Court 0aid in 5. S. v. 8at0on" 423 5.S. 411 I197*;" that -ou don>t
need an arre0t =arrant .or a la=.ul arre0t in a Bu<lic Blace ''Bro<a<le cau0e i0 enough"
even i. -ou had time to get an arre0t =arrant. Same ruling in (lorida v. 8hite" %2* 5.S.
%%9 I1999;" 5.S. v. 6evine" $+ (.3d 129 I199*;" 5.S. v. Sno=" $2 (.3d 93% I1+th
Cir.199*;" and numerou0 other ca0e0.
M&he SuBreme Court ha0 re.u0ed to attach 0igni.icance to the .act that the Bolice
had amBle time to get an arre0t =arrant <ut declined to do 0o. (or an arre0t in a Bu<lic
Blace ... the onl- reAuirement i0 Bro<a<le cau0e.N 5.S. v. De4a0i" 4+ (.3d 13+* I10t
Cir.1994;.
&here are t=o 0ituation0 =here a =arrant mu0t <e o<tained in arre0t 0ituation0
Iunle00 Bolice can Brove an emergenc- or con0ent e)ceBtion e)i0t0; <oth involving entr-
into Bremi0e0 to arre0t. &he0e are the H/,7&3N !56EH and the HS&E,:,6D
- 44 -
00438
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!56E.H
Ia; D1SC5SS13N 3N /,7&3N !56E
/a-ton v. Ne= 7or?" 44% 5.S. %73 I19$+;" the court held that Bolice cannot ma?e
a =arrantle00 non'con0en0ual entr- into a 0u0Bect>0 home to ma?e an arre0t unle00 e)igent
circum0tance0 e)i0t.
1n /a-ton" Bolice develoBed BCc to arre0t 0u0Bect .or murder occurring t=o da-0
earlier. /olice =ent to 0u0Bect>0 home =here light0 =ere on and mu0ic Bla-ing. 8hen
no<od- an0=ered ?noc? or door" Bolice made entr-. /a-ton =a0n>t home <ut 0hell ca0ing
to murder =eaBon =a0 in Blain vie= and =a0 0eiOed.
&he 5.S. SuBreme Court ordered thi0 evidence 0uBBre00ed 0tating that the Brivac-
intere0t in a home =a0 ver- high and Bolice needed either an arre0t =arrant .or /a-ton Ior
a 0earch =arrant .or hi0 home; to enter hi0 home.
,lthough the 5.S. SuBreme Court ha0 not decided all Bo00i<le 0u<'i00ue0 that
ari0e a.ter /a-ton ' the .ollo=ing rule0 have <een aBBlied <- high ran?ing State and
(ederal court0.
I1; 1. Bolice are other=i0e la=.ull- in a Ber0on>0 home" .or e)amBle" =ith a 0earch
=arrant" and Bro<a<le cau0e to arre0t aBBear0 it i0 3@ to arre0t =ithout arre0t =arrant.
4ahl<erg v. 4entOer" 9*$ (.2d 772 I$th Cir. 1992;" Kone0 v. Cit- o. Denver" $%4 (.2d
12+* I1+th Cir. 19$$;.
I2; 1n /eoBle v. 8hite" %12 N.E.2d *77 I1ll. 19$7;"the court held that =hether a
71
Blace i0 HhomeH deBend0 on thing0 li?e length o. 0ta-" regular u0e" relation0hiB to other
occuBant0" 0toring Bo00e00ion0 there and Ba-ment o. rent.
- 45 -
00439
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I3; &he /a-ton rule can <e violated even i. Bolice don>t Bh-0icall- enter the
home" 0o held in 8alter0 v. State" 1+* Nev. 4% I199+;. 8alter0 <ecame a 0u0Bect in a
murder ca0e. &he ne)t morning" =ithout o<taining a =arrant" Bolice u0ed a helicoBter
and <ullhorn and ordered him out o. hi0 home. 2e comBlied" =a0 arre0ted" and =a0 given
4iranda =arning0 and gave an incriminating 0tatement during the 1++ mile drive to the
Bolice 0tation. &he Court held the 0tatement 0hould <e 0uBBre00ed 0ince 8alter0 =a0
technicall- arre0ted in hi0 home I<- 0urrounding it =ith Bolice and ordering him out;
=ithout a =arrant and the con.e00ion =a0 the H.ruitH o. an illegal =arrantle00 arre0t.
INote: &hi0 =a0 overruled a.ter the 5.S. SuBreme Court deci0ion in Ne= 7or? v. 2arri0"
11+ S.Ct. 1*4+ I199+; holding that even a.ter /a-ton violation Bolice giving 4iranda
a=a- .rom re0idence or at Bolice 0tation 3@P0 interrogation;.
3ther court0 have ruled the 0ame in H0urroundH orH<ullhornH ca0e0. 5. S. v.
,OOa=-" 7$4 (.2d $9+ I9th Cir. 19$%;" 5. S. v. 4aeO" $72 (.2d 1444 I1+th Cir. 19$9;" 5.
S. v. 4organ" 744 (.2d 121% I*th Cir. 19$4;.
I4; &he /a-ton rule aBBlie0 to the 0u0Bect>0 Blace o. <u0ine00 a0 =ell a0 hi0 home.
I%; 4o0t court0 hold in addition to the =arrant reAuirement Bolice al0o need
Mrea0ona<le <elie.N Inot Bro<a<le cau0e; to <elieve a Barticular Bremi0e0 i0 that o. the
0u0Bect and that the 0u0Bect i0 HhomeH at the time o. Bolice entr-. 5.S. v. !i00e" $3 (.2d
212 I$th Cir. 199*;Ho..icer0 e)ecuting an arre0t =arrant mu0t have a >rea0ona<le <elie. that
the 0u0Bect re0ide0 at the Blace to <e entered ... and have rea0on to <elieve that the 0u0Bect
i0 Bre0ent> at the time the =arrant i0 e)ecuted. &he 0u0BectP0 home mean0 he ha0 common
authorit- or 0ome other 0igni.icant relation0hiB to the Bremi0e0 even i. the Bremi0e0 i0
o=ned <- a 3rd Ber0onH M!ea0ona<le <elie.N ruling .ollo=ed in 5.S. v. 6auter" %7 (.3d
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212 I2d Cir.199%; 5.S. v. 4agluta" 44 (.3d 1%3+I11th Cir.199%;5.S. v. !oute" 1+4 (.3d
%9I%th Cir.199*;.
1n #aldeO v. /heter0" 172 (.3d 122+ I1+th Cir. 1999; Court held that the BroBer
inAuir- i0 =hether there i0 a rea0ona<le <elie. that the 0u0Bect re0ide0 at the Blace to <e
entered ... and =hether the o..icer0 have rea0on to <elieve that the 0u0Bect i0 Bre0ent. 1n
5.S. v. Edmond0" %2 (.3d 123* I3d Cir.199%; although Hthe in.ormation availa<le to the
agent0 clearl- did not e)clude the Bo00i<ilit- that the 0u0Bect =a0 not in the aBartment"
the agent0 had rea0ona<le ground0 .or concluding that he =a0 there.
1n 5nited State0 v. ,l<re?t0en" 1%1 (.3d 9%1 I9th Cir.199$; the court recentl-
cited =ith aBBroval <oth !oute and !i00e .or the BroBo0ition that o..icer0 e)ecuting an
arre0t =arrant mu0t have H0ome rea0on to <elieve that the de.endant might live at and <e
Bre0ent =ithin the Bremi0e0H entered" ma?ing no mention o. an- higher 0tandard o.
?no=ledge.
I*; No need to have =arrant in hand. 8henever Bo00i<le o..icer0 0hould have a
coB- o. the arre0t =arrant" <ut a0 long a0 a .ello= o..icer con.irm0 that the =ritten 0igned
72
=arrant i0 in e)i0tence thi0 i0 0u..icient. 5.S. v. 4unoO" 1%+ (.3d 4+1 I%th Cir. 199$;.
I7; 4i0demeanor =arrant0. 8henever Bo00i<le o..icer0 0hould not ma?e a .orced
home entr- to 0erve a mi0demeanor arre0t =arrant. 2o=ever" N!S 171.13$ aBBear0 to
contemBlate a hou0e entr- to ma?e arre0t on a mi0demeanor =arrant. See al0o" Kone0 v.
State" %13 So. 2d $ I,la. 19$*;" 6-on0 v. State" 7$7 /.2d 4*+ I3?la. 19$9;. &he Nevada
SuBreme Court imBlied in 2atle- v. State" 1++ Nev. 214 I19$4;" that Bolice could ma?e
an in home arre0t on a mi0demeanor =arrant a0 long a0 it =a0 not a Brete)t to gain
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evidence re.erence an unrelated .elon- inve0tigation.
I$; 50e o. !u0e. N3&E: 7ou cannot u0e a ru0e to gain entr- into a Bremi0e0 to
avoid the /a-ton =arrant reAuirement. 2o=ever" the maJorit- o. ca0e0 on thi0 i00ue hold
that -ou can u0e a ru0e to get the 0u<Ject =hom -ou =i0h to arre0t I=ithout a =arrant; to
e)it the re0idence.
&he rationale o. the0e ca0e0 i0 roc?'0olid. &he BurBo0e o. the /a-ton rule i0 to
Brevent =arrantle00 Bolice entrie0 into a re0idence to arre0t. Since Bolice can legall-
arre0t out0ide a re0idence =ith Bro<a<le cau0e and =ithout a =arrant" =hat di..erence
doe0 it ma?e i. Bolice u0e a ru0e to get the 0u0Bect to leave the Bremi0e0 in0tead o.
=aiting out0ide until the 0u0Bect le.t on hi0 o=nD &he an0=er i0 o<viou0 ' no di..erence
and no /a-ton violation.
73
&he .ollo=ing ca0e0 uBheld u0e o. a ru0e to get Ber0on out o. Bremi0e0:
1n 5.S. v. !engi.o" $%$ (.2d $++ I10t Cir. 19$$; , government agent>0 teleBhone
call to de.endant0> motel room =arning them that there had <een HBro<lem0H =ith a
cocaine deliver- and that it =ould <e <e0t i. the- le.t the room and the area did not
imBroBerl- avoid reAuirement .or arre0t =arrant <- arti.iciall- creating e)igent
circum0tance.
1n 5.S. v. #a0iliavitch" 919 (. SuBB. 1113 IND 1llinoi0" 199*; &he Court held
that M court0 have .ound no con0titutional violation =hen Bolice o..icer0 u0e tactic0 o.
mi0in.ormation to 0olve crime0. 4o0t Brominent i0 the SuBreme Court>0 19*9 deci0ion in
(raOier v. CuBB" 394 5.S. 731 I19*9; in =hich Ku0tice 4ar0hall held that an o..icer>0 lie
to the de.endant that hi0 co'con0Birator had con.e00ed =a0 in0u..icient to ma?e an
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other=i0e voluntar- con.e00ion inadmi00i<le. &he ru0e at i00ue in (raOier =a0
0u<0tantiall- more 0eriou0 in it0 0coBe and it0 con0eAuence than the ru0e here. &he
de.endant in (raOier =a0 tric?ed into ma?ing a .ull con.e00ion.N
1n thi0 ca0e" the o..icer>0 u0e o. tric?er- onl- o<tained #a0iliavitchiou0> arre0t" an
inevita<le con0eAuence 0ince the o..icer0 had Bro<a<le cau0e. 5n0urBri0ingl- the court0
have uBheld the u0e o. 0u<ter.uge to tric? a de.endant into leaving hi0 home on man-
occa0ion0 under circum0tance0 ver- 0imilar to the one0 here. /eoBle v. 8ither0Boon"
%7* N.E.2d 1+3+" I1llinoi0" 1991; IH&he u0e o. deceBtion to lure a de.endant .rom hi0
home in order to e..ectuate an arre0t =ithout a =arrant ha0 <een held not to violate
.undamental .airne00.H;
I<; D1SC5SS13N 3( S&E,:,6D !56E
Steagald v. 5nited State0" 4%1 5.S. 2+4 I19$1;" held that =hile an arre0t =arrant
doe0 Bermit entr- into the 0u0Bect>0 o=n home to e..ect the arre0t" it doe0 not allo= Bolice
to enter a third Ber0on>0 home in 0earch o. the 0u0Bect. ,<0ent either con0ent or e)igent
circum0tance0" Bolice mu0t have a 0eBarate 0earch =arrant authoriOing them to enter the
third Ber0on>0 home.
I1; &he 0earch =arrant =ill reAuire not onl- a 0ho=ing o. Bro<a<le cau0e that the
0u0Bect i0 in0ide the third Ber0on>0 re0idence" <ut a 0ho=ing o. =h- it i0 rea0ona<le to
0ee? the 0earch =arrant and ma?e the entr- to arre0t a0 oBBo0ed to =aiting .or 0u0Bect to
deBart and arre0t el0e=here.
I2; &he Steagald rule al0o aBBlie0 to <u0ine00 o..ice0 and other area0 =here there
i0 a high rea0ona<le and legitimate e)Bectation o. Brivac-.
Civil 6ia<ilit-
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1n addition to 0uBBre00ion o. evidence" Bolice andCor Di0trict ,ttorne-0 ma- <e
civill- lia<le .or /a-ton'Steagald violation0.
74
1n /em<aur v. Cit- o. Cincinnati" 1+* S.Ct. 1292 I19$*;" /em<aur" a doctor"
=a0 indicted <- grand Jur- .or =el.are .raud. Su<Boena0 =ere i00ued .or t=o o. hi0
emBlo-ee0 and =hen the- .ailed to aBBear" =arrant0 .or their arre0t i00ued. &he t=o
emBlo-ee0 =ere located at the /em<aur>0 clinic" <ut he" /em<aur" re.u0ed to admit the
o..icer0 0erving the =arrant. &he o..icer0 called the Di0trict ,ttorne- =ho advi0ed the
o..icer0 to Hgo in and getH the t=o emBlo-ee0. &he- comBlied. /em<aur .iled a 0uit
under 42 5.S.C. 0ection 19$3 alleging a violation o. hi0 (ourth and (ourteenth
,mendment right0. 2e 0ued the Count-" the o..icer0 and the Di0trict ,ttorne- .or 2+
million dollar0.
&he 5. S. SuBreme Court 2eld: &he D, =a0 imBlementing Ho..icial Bolic-.H 1n
thi0 ca0e" the D, had the .inal authorit- in 0uch matter0" there.ore" the municiBalit-
Ho..iciall-H 0anctioned the uncon0titutional and tortiou0 conduct. &here.ore" the Count-
i0 lia<le. I1mBortant note: Count- and Bolice Bolic- u0uall- re0ulted in Di0trict ,ttorne-
ma?ing the0e deci0ion0 and a 0tate la= granted the Di0trict ,ttorne- the authorit- to give
0uch legal in0truction0.;
S4E66" 2E,!1N: ,ND &35C21N: 7. !elated to oBen vie= are Ia; oBen 0mell and I<; non'
electronic augmented hearing. &he court0 loo? at the0e <a0icall- the 0ame =a- and uBheld the
overhearing =ith the na?ed ear o. a Bhone conver0ation at an unenclo0ed teleBhone in a Bu<lic Blace.
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5nited State0 v. 4uc?enthaler" %$4 (.2d 24+ I$th Cir. 197$; and SiriBong0 v. Calderon" 3% (.3d 13+$
I9th Cir. 1994;. 1n 5.S. v. ,AuaBito" *2+ (.2d 324 I7th Cir. 19$+; and 5.S. v. 2e00ling" $4% (.2d *17
I*th Cir. 199$; the .act0 =ere the 0ame IBolice li0tened to conver0ation in adJoining hotel room
=ithout electronic eAuiBment Ina?ed ear;; and <oth court0 held no 4th ,mendment violation. Same
ruling in State v. 3rtiO" 2%7 Ne<. 7$4 I1999;. 2o=ever" in ca0e0 =here Bolice u0ed electronic
eAuiBment to augment hearing and gain in.ormation" virtuall- all court0 hold that thi0 i0 a 4th
,mendment Brivac- violation. $. 1n 5.S. v. :ault" 92 (.3d 99+ I1+th Cir. 199*; Bolice o..icer li.ted a
g-m <ag .rom the ai0le o. a train. &he court ruled that thi0 action =a0 not a 0earch. Similar .act0"
0ame ruling in 5.S. v. 8ard" 144 (.3d 1+24 I7th Cir. 199$; Smelling mariJuana coming .rom
Bac?age0 or <aggage i0 3@. Sim0 v. State" 42% So.2d %*3" I(la. 19$3;. 1n Bond v. 5.S." %29 5.S.
I2+++; the Court ruled that Bolice could not maniBulate a Ba00enger>0 0o.t luggage <ag =ithout
con0ent <ecau0e 0uch action =ould violate the Ba00enger>0 right to Brivac-. 9. 1n 5.S. v. 4cDonald"
1++ (.3d 132+ I7th Cir. 199*; and 5.S. v. :uOman" 7% (.3d 1+9+ I*th Cir. 199*; the Court0 <oth
ruled that a Bolice o..icer on a Bu<lic tran0Bortation vehicle could gra< and .eel I=ithout oBening;
<ag0 =hich =ere on overhead rac?0. 2o=ever" 0ome court0 hold that 0uch conduct <- Bolice i0 a
0earch" and i. 1$ done =ithout /CC" the re0ult0 =ould <e 0uBBre00ed. 5.S. v. Nichol0on" 144 (.3d *32
I1+th Cir. 199$;. 5SE 3( (6,S261:2&" B1N3C56,!S" E6EC&!3N1C DE#1CES 1+. &e)a0 v.
Bro=n" 1+3 S.Ct. 1%3% I19$3; held that u0ing a .la0hlight to 0ee 0omething at night =hich =ould
have <een in the oBen during the da- did not violate the (ourth ,mendment. See al0o State v. 8right"
1+4 Nev. %21 I19$$;" =hich 3@>d 0hining a .la0hlight into a car" and State v. Calvillo" 792 /.2d 11%7
IN.4. 199+;" =hich held that Bolice 0hining a .la0hlight into a re0idence =a0 not a 0earch. 3ther ca0e0
holding that u0e o. a .la0hlight to 0ee =hat could have <een 0een in da-light =a0 la=.ul are 5.S. v.
8illi0" 37 (.3d 313 I7th Cir. 1994; and 5.S. v. 3rtiO" *3 (.3d 19%2 I1+th Cir. 199%;. 11. &he great
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maJorit- o. deci0ion0 have held that u0e o. an air<orne H(61!H device to detect heat coming .rom
Bremi0e0 =a0 not a 0earch under the (ourth ,mendment. 5nited State0 v. /enn-'(eene-" 773 (.
SuBB. 22+ I2a=. 1991; IuBheld on other ground0 <ut no 0Beci.ic holding .or or again0t the (61! in
thi0 ca0e in the 9th Cir.. /enn-'(eene- 9$4 (.2d 1+%3 I9th Cir 1993;. 3ther court0 aBBroving (61! a0
a Mnon 0earchN are 5nited State0 v. Deaner" 1 (.3d 192 I3rd Cir. 1993;9 5.S. v. 4-er0" 4* (.3d **$
I7th Cir. 199%;9 5.S. v. !o<in0on" *2 (.3d 132% I11th Cir. 199%;9 and 5.S. v. 10hmael" 4$ (.3d $%+
I%th Cir. 199%;. 5nited State0 v. @-llo" $+9 (. SuBB. 7$7 I3re. 1992; INote: &hi0 deci0ion =a0
rever0ed <- 9th Cir. 14+ (.3d 1249 I199$; <ut that deci0ion =a0 =ithdra=n and it i0 un?no=n no=
ho= the 9th Circuit =ill rule;.1n 5.S. v. Cu0amano" $3 (.3d 1247 I1+th Cir. 199*; the Court held that
the 0earch =arrant =hich included u0e o. (61! =a0 valid on the <a0i0 that there =a0 enough
additional /CC .or the =arrant. &he Court re.u0ed to rule on =hether the (61! =a0 a 0earch. , .e=
court0 have reached the oBBo0ite re0ult on u0e o. (61! 0a-ing that it =a0 a 0earch. 12. &here i0 a
con.lict in holding0 =ith regard to loo?ing into the interior o. a hou0e or an o..ice <uilding through a
tele0coBe or <inocular0. Some court0 0a- that it i0 an inva0ion on 4th ,mendment Brivac-. See 5. S.
v. &a<orda" *3% (.2d 131" 13$'39 I2d Cir.19$+;9 /eoBle v. ,rno" 1%3 Cal. !Btr. *24 I1979;9 5. S. v.
@im" 41% (.SuBB. 12%2" 12%%'%7 ID.2a=.197*;. But there i0 contrar- authorit- on tele0coBic and
<inocular o<0ervation" 0tating that it i0 not an inva0ion on 4th ,mendment Brivac-. Common=ealth v.
2ernle-" 2*3 ,.2d 9+4 I/enn.197+;" and dicta in t=o SuBreme Court deci0ion0" 3n 6ee v. 5. S." 343
5.S. 747 I19%2;" and 5. S. v. 6ee" 274 5.S. %%9 I1927; Several State SuBreme Court0 uBheld the
conceBt that u0e o. vi0ion enhancing device0 0uch a0 <inocular0 or night vi0ion 0coBe0 doe0 not
intrude on a rea0ona<le and legitimate e)Bectation o. Brivac-. State v. Carter" 79+ /.2d 11%2 I3re.
199+; Irever0ed in 19$$ on other ground0;" State v. #ogel" 42$ N.8.2d 272 IS.D. 19$$;" Sa-lor v.
State" 3*% S.E.2d 493 I:a. 19$$;. 13. 5. S. v. @nott0" 4*+ 5.S. 27* I19$3; Bolice But a <eeBer on a
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0u0BectP0 car and u0ed the <eeBer to trail the car. Court 0aid that 0ince the Bolice could have .ollo=ed
the car <- vi0ual 0urveillance a0 it moved around in Bu<lic area0" monitoring o. the <eeBer 0ignal0 did
not invade an- legitimate e)Bectation o. Brivac-. 19 /5B61C 5&161&7 ,ND B5S1NESS
!EC3!DS 14. /hone comBan- record0. Smith v. 4ar-land" 442 5.S. 73% I1979; 0aid Min all
Bro<a<ilit- a Ber0on had no actual e)Bectation o. Brivac- in the Bhone num<er0 he dialed" and even i.
he did" hi0 e)Bectation =a0 not legitimate.N Con0eAuentl-" the u0e o. a Ben regi0ter =a0 not a 0earch
and no =arrant =a0 reAuired. ISee 0ection on Electronic Surveillance in thi0 manual;. Same ruling
5.S. v. /lun?" 1%3 (.3d 1+11 I9th Cir. 199$; Mthere i0 no e)Bectation o. Brivac- in Bhone comBan-
record0.N 1%. 5nited State0 v. 4iller" 42% 5.S. 43% I197*; 0aid" M de.endant urge0 he ha0 a 4th
,mendment intere0t in record0 ?eBt <- Ihi0; <an?. Even =ith original chec?0 and deBo0it 0liB0" =e
Berceive no legitimate e)Bectation o. Brivac-.N 1*. 8e0tern 5nion cu0tomer0 have no Brivac- intere0t
in 8.5. record0 a0 the- are not the cu0tomer0P BroBert-. 1n re :rand Kur- Su<Boena Duce0 &ecum"
$27 (.2d 3+1 I$th Cir. 19$7;. 1n 5.S. v. /hi<<0" 999 (.2d 1+%3 I*th Cir. 1993; .ederal o..icial0 could
0u<Boena <u0ine00 record0" credit card0 and Bhone comBan- record0. &he in.ormation =a0 acce00i<le
to emBlo-ee0 o. tho0e comBanie0 during the normal cour0e o. <u0ine00" and there =a0 no 0tanding .or
the cu0tomer0 to comBlain <ecau0e there =a0 no e)Bectation o. Brivac-. 17. 1n Common=ealth v.
Cote" %%* N.E.2d 4% I4a00." 199+; the 4a00achu0ett0 SuBreme Court held that there =a0 no
e)Bectation o. Brivac- in me00age0 ta?en do=n <- a contracted an0=ering 0ervice a0 u0e o. 0uch
0ervice Mnece00aril- involved a conve-ance o. in.ormation to that third Bart-.N 1$. 1n State v.
4a).ield" $$* /.2d 123 I8a0h." 1994; the 8a0hington SuBreme Court held that there =a0 no
e)Bectation o. Brivac- in Bo=er con0umBtion record0.S&3/ ,ND (!1S@ I1N#ES&1:,&1#E
DE&EN&13N;: 41D6E#E6 C3N&,C& I1; &2E &E!!7 C,SE ,ND NE#,D, S&,&5&ES: 1n
19*$ the 5.S. SuBreme Court 0aid in &err- v. 3hio" 392 5.S. 1 I19*$; that Bolice could 0toB Iconduct
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an inve0tigative detention =here the 0u0Bect =a0 not .ree to leave; a Ber0on <a0ed on Harticula<le and
rea0ona<le 0u0BicionH that the Ber0on Hi0 committing" ha0 committed or i0 a<out to commit a crime"H
even =here there i0 not 4+ Bro<a<le cau0e .or an arre0t. 1. there i0 rea0ona<le 0u0Bicion in addition to
that =hich Ju0ti.ie0 the 0toB =hich cau0e0 -ou to <elieve the 0u0Bect ma- <e armed" -ou can Bat do=n
clothing .or =eaBon0. Ku0t <ecau0e H0toBH i0 legal and <a0ed on rea0ona<le 0u0Bicion doe0n>t
automaticall- mean that H.ri0?H i0 3@ too. Si<ron v. Ne= 7or?" 392 5.S. 4+ I19*$;. &err- i0 codi.ied
in N.!.S. 171.123 a0 .ollo=0: 171.123 &emBorar- detention <- Beace o..icer o. Ber0on 0u0Bected o.
criminal <ehavior: 6imitation0. 1. ,n- Beace o..icer ma- detain an- Ber0on =hom 0uch o..icer
encounter0 under circum0tance0 =hich rea0ona<l- indicate that 0uch Ber0on ha0 committed" i0
committing or i0 a<out to commit a crime. 2. &he o..icer ma- detain 0uch Ber0on onl- to a0certain the
identit- o. 0uch Ber0on and the 0u0Biciou0 circum0tance0 0urrounding hi0 Bre0ence a<road. ,n-
Ber0on 0o detained 0hall identi.- him0el." <ut ma- not <e comBelled to an0=er another inAuir- o.
an- Beace o..icer. 3. No Ber0on ma- <e detained longer than i0 rea0ona<l- nece00ar- to e..ect the
BurBo0e o. thi0 0ection" and in no event longer than *+ minute0. Such detention 0hall not e)tend
<e-ond the Blace or the immediate vicinit- o. the Blace =here the detention =a0 .ir0t e..ected. I19*9"
B.%3%9 1973" B.%97" 197%;. 171.1232 Search to a0certain Bre0ence o. dangerou0 =eaBon9 0eiOure o.
=eaBon or evidence. 1. 1. an- Beace o..icer rea0ona<l- <elieve0 that an- Ber0on =hom he ha0
detained or i0 a<out to detain Bur0uant to N!S 171.123 i0 armed =ith a dangerou0 =eaBon and i0 a
threat to the 0a.et- o. the Beace o..icer or another" the Beace o..icer ma- 0earch 0uch Ber0on to the
e)tent rea0ona<l- nece00ar- to a0certain the Bre0ence o. 0uch =eaBon. 1. the 0earch di0clo0e0 a
=eaBon or an- evidence o. a crime" 0uch =eaBon or evidence ma- <e 0eiOed. &he Aue0tion ari0e0 a0
to =hether the Bolice" during a M&err- t-Be 0toBN can la=.ull- reAuire that the Ber0on identi.- him or
her 0el.. 1n ,dam0 v. 8illiam0" 4+7 5.S. 143 I1972; =here the court .ound that a 0eiOure o. the
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Ber0on had occurred" the court imBlied that Aue0tioning a0 to the Ber0onP0 identit- and a reAue0t .or
identi.ication =ere not in violation o. the 4th ,mendment. 1n Bro=n v. &e)a0" 443 5.S. 47 I1979; the
Bolice arre0ted Bro=n =hen he re.u0ed to identi.- him0el.. 2o=ever" the Court noted that the
inve0tigative 0toB o. Bro=n =a0 invalid <ecau0e Bolice had no rea0on to 0toB him. &he reAue0t .or 41
identi.ication" re.u0al and arre0t =ere M.ruit0 o. the Boi0oned tree.N 1n @olander v. 6a=0on" 4*1 5.S.
3%2 I19$3; a Cali. 0tate la= reAuired a Ber0on la=.ull- 0toBBed <- Bolice to Broduce a Mcredi<le and
relia<le id.N &he Court held that thi0 language =a0 uncon0titutionall- vague.
Neither ca0e held that it =a0 uncon0titutional .or Bolice to reAuire identi.ication .rom a Ber0on in a
la=.ul M&err- StoB.N 1n 4artinelli v. Cit- o. Beaumont" $2+ (.2d 491 I9th Cir. 19$7; the court ruled
that o..icer0 had rea0ona<le 0u0Bicion to 0toB the Ber0on" <ut the Cali.. Statute allo=ing arre0t i. the
Ber0on re.u0ed to identi.- him0el. =a0 uncon0titutional. &he 9th Circuit Court erroneou0l- con0trued
the 5.S. SuBreme CourtP0 deci0ion in @olander v. 6a=0on to Ju0ti.- thi0 ruling even though it i0 clear
that the 5.S. SuBreme Court ha0 never decided thi0 Aue0tion. 1n ,l<right v. !odrigueO" %1 (.3d 1%31
I1+th Cir. 199%; the court ruled that i. Bolice made a valid &err- 0toB" and the Ber0on re.u0ed to
identi.- him0el." and i. there =a0 a 0tate 0tatute =hich allo=ed Bolice to arre0t .or .ailure to identi.-"
then the reAue0t .or identi.ication" re.u0al and arre0t =a0 con0titutionall- valid. 1n State v. (l-nn" 2$%
N.8. 2d 71+ I8i0c. 1979;" cert. denied 449 5.S. $4* the Court noted language in ,dam0 v. 8illiam0
a 0toB and .ri0? ca0e =here the SuBreme Court 0aid that the o..icer in a <rie.Ivalid; 0toB Min order to
determine Ithe 0u0BectP0; identit-..ma- <e mo0t rea0ona<le.N &he (l-nn court noted that unle00 the
o..icer i0 entitled to a0certain the identit- o. the 0u0Bect" the &err- 0toB can 0erve no u0e.ul BurBo0e.
Same ruling in 5.S. v. Ba0e-" $1* (.2d 9$+ I%th Cir. 19$7;" State v. 6andr-" %$$ So.2d 34%I6a.
1991;. 1n 5.S. v. #anicromanee" 742 (.2d 34+ I7th Cir. 19$4; the Court held that mere detention i0
not an arre0t9 a Bolice o..icer ma-" 0hort o. an arre0t" detain an individual <rie.l- in order to determine
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hi0 identit- momentaril- =hile o<taining more in.ormation i. the o..icer ha0 articula<le .act0
0u..icient to give ri0e to !CS that the Ber0on had committed or i0 committing a crime. &he Nevada
SuBreme Court ha0 not ruled on thi0 i00ue although a reAuirement .or identi.ication i0 in N!S
171.123. &he ca0e0 o. Bro=n v. &e)a0 and @olander v 6a=0on do not rule on the identit-
reAuirement in N!S 171.123 I0ee detailed e)Blanation in ,l<right v. !odrigueO;. 5ntil the Nevada
SuBreme Court rule0 on thi0 i00ue" Bolice o..icer0 0hould <e 0elective in arre0ting .or .ailure to 1D
=ith .actor0 0uch a0 the 0trength o. the articula<le 0u0Bicion .or the 0toB and the t-Be o. crime
0u0Bected. (or e)amBle i. Bolice 0ee a Ber0on continuou0l- hanging around a grade 0chool =ith minor
children Bre0ent. a &err- 0toB i0 valid. 1. the Ber0on ha0 a Brior record .or mole0tation o. minor
children it =ould <e deva0tating .or the communit- i. the Bolice o..icer =a0 not Bermitted to reAue0t
identi.ication. , related i00ue a<out Bolice o<taining identi.ication during a valid &err- StoB i0 42
=hether Bolice can Bat do=n or 0earch the Ber0on .or documenta<le 1D 0uch a0 driverP0 licen0e. &he
ca0e0 in thi0 area are .e= and the validit- o. the Bractice i0 uncertain. 1n /eoBle v. 6ong" 2%4 Cal.
!Btr. 4$3 I19$7;" the o..icer had !CS to 0toB 6ong in a <ar =here he =a0 =ith an under aged girl. &he
o..icer a0?ed .or 1D and 6ong 0tated hi0 name <ut 0aid he didnPt have an- 1D. &he o..icer noted a
=allet 0iOed <ulge in hi0 rear Bant0 Boc?et" again a0?ed .or =ritten 1D and 6ong 0aid he had none. &he
o..icer directed 6ong to loo? through hi0 =allet" =hich 6ong did" and the o..icer 0a= 0ome Bla0tic
<aggie0 containing drug0. &he Court uBheld the o..icerP0 demand .or =ritten 1D" citing (l-nn and
,dam0 v. 8illiam0. Same ruling in /eoBle v. 6oudermil?" 194 Cal. ,BB.3d 447 I19$7; =here an
o..icer had !CS to 0toB a Ber0on 0u0Bected o. .iring a gun. /at do=n .elt =allet <ut Ber0on re.u0ed to
1D" and in 2arBer v. State" %32 So. 2d 1+91 I(la. 19$$;. 1n State v. (raOier" 31$ N.8. 2d 42 I4inn.
19$2; an o..icer 0toBBed a Ber0on and too? her Bur0e and reached in to get 1D and .ound a gun. &he
gun =a0 0uBBre00ed <ecau0e the court ruled that 0uch a 0earch =a0 uncon0titutional =ithout giving
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the detainee an oBBortunit- to voluntaril- Broduce 1D. I2; 82,& C3NS&1&5&ES , HS&3/H ,S
3//3SED &3 MN3NSE1Z5!EDN &he 2odari D. ca0e and the Bo0tic? ca0e de.ine the Bre'0toB or
Bre'0eiOure area. !emem<er a H&err- 0toBH i0 a .orm o. 0eiOure ' the Ber0on i0 not .ree to go. Dra=ing
the line <et=een a HBo0tic? encounterH and a H&err- 0toBH ha0 to <e done on a ca0e <- ca0e <a0i0.
!emem<er" the de.en0e la=-er =ill tr- to Bu0h the time o. the H&err- 0toBH a0 earl- a0 Bo00i<le in the
contact =hen the o..icer ha0 le00 articula<le 0u0Bicion" hoBing to Ber0uade the court that -ou made an
illegal &err- 0toB and i. 0o" =iBing out -our ca0e =ith a .ruit o. /.&. argument. C,SE EZ,4/6ES:
1. 5. S. v. :arcia" $** (.2d 147 I*th Cir. 19$9;" an imBortant .actor in di0tingui0hing 0eiOure0 .rom
ca0ual contact0 i0 =hen the Ber0on i0 a0?ed to accomBan- the Bolice to a Blace =here the Ber0on had
not Blanned to go. ,n o..icer ma- aBBroach a traveler in an airBort and a0? to 0Bea? to him" and
continue that conver0ation until a rea0ona<le Ber0on =ould no longer .eel that the Ber0on =a0 .ree to
go. 3nce that Boint ha0 <een reached" the o..icer mu0t have a rea0ona<le articula<le 0u0Bicion" or el0e
the 0toB or detention i0 illegal" and .ruit0 o. that 0earch mu0t <e 0uBBre00ed. :arcia =a0 not 0eiOure
<ecau0e Hthere =ere onl- t=o agent0 Bre0ent" no =eaBon =a0 di0Bla-ed" he =a0 not Bh-0icall-
touched " and the agent0 did not rai0e their voice0 or threaten him in an- =a-.H 2. 5.S. v. :la00" 12$
(.3d 139$ I1+th Cir. 1997; ha0 0ome .actor0 that court0 u0e in determining =hether a Bolice'citiOen
contact i0 a 0eiOure. &he0e .actor0 include: Ia; &elling a Ber0on that he i0 a 0u0Bect .or a Barticular
t-Be o. crime I<; &he num<er o. o..icer0 that are Bre0ent Ic; 4oving the conver0ation .rom Bu<lic to
Brivate Blace or =hether the contact 43 i0 in a Bu<lic or Brivate Blace Id; 8hether the Ber0on i0 told
that he need not tal? to the o..icer0 Ie; 8hether the Ber0onP0 egre00 =a0 <loc?ed 3. 5.S. v. @im" 27
(.3d 947 I3rd Cir. 1994; utiliOing e00entiall- the 0ame .actor0 in the :la00 ca0e =hich had <een
related in earlier 5S Circuit Court ca0e0 held that none o. the0e .actor0 alone i0 determinative
regarding =hether a 4th ,mendment 0eiOure o. the Ber0on occur0. 4. , .e= .ederal ca0e0 IBre
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Bo0tic?; gave 0trong =eight in their anal-0i0 o. 0eiOure to a Bolice o..icerP0 a0?ing directl-
incriminating and .ocu0ed Aue0tion0" almo0t to the Boint o. Ber 0e rule ma?ing 0uch contact0 a
0eiOure. 5. S. v. Nunle-" $73 (.2d 1$2 I$th Cir.19$9; 5.S. v. Karamillo" $91 (.2d *2+ I7th Cir.19$9;
2o=ever" Nunle- =a0 modi.ied <- 5.S. v. /erdue" 9*1 (.2d 723 I$th Cir. 1992; and Karamillo =a0
rever0ed <- 5.S. v. 3rnela0'6ede0ma" 1* (.3d 714 I7th Cir. 1994;IBoth Bo0t Bo0tic? ca0e0;. %. 5.S.
v. CardoOa" 129 (.3d * I10t Cir 1997; De.endant =a0 not H0eiOedH =ithin meaning o. (ourth
,mendment <e.ore Bolice 0a= him =ith contra<and" even though Bolice crui0er turned =rong =a- uB
one'=a- 0treet" ma?ing clear o..icer>0 intent to come into contact =ith him" and o..icer0 a0?ed him
=hat he =a0 doing out at that time9 rea0ona<le Ber0on =ould not have concluded that he =a0 not .ree
to leave" a0 o..icer0 did not u0e .la0hing light0 or 0iren0" and o..icer0 did not a0? de.endant to 0toB" or
even to aBBroach Batrol car. &he re0ult" there.ore" Mi0 the directive that Bolice conduct" vie=ed .rom
the totalit- o. the circum0tance0" mu0t o<Jectivel- communicate that the o..icer i0 e)erci0ing o..icial
authorit- to re0train the individual>0 li<ert- o. movement <e.ore =e can .ind a 0eiOure occurred.N *.
5.S. v. !odrigueO'(ranco" 749 (.2d 1%%% I11th Cir. 19$%;" held that 1NS agent0 aBBroached a grouB
o. H2i0Banic loo?ingH Ber0on0 in a mall and a0?ed Aue0tion0 a<out citiOen0hiB and a0?ed Inot
commanding; t=o Ber0on0 to 0teB over to a <ench there =a0 no &err- 0toB. I&hi0 t-Be o. Bolice
Brocedure might argua<l- have <een imBroBer had it <een done <- other than 1NS agent0. See the
ne)t ca0e;. 1n 6oBeO v. :arriga" 917 (.2d *3 I10t Cir. 199+; an 1NS agent a0?ed Aue0tion0 o. Ber0on0
<e.ore <oarding airline0 in /uerto !ico. &he Court held that 1NS agent0 at an airBort gate ma-"
=ithout violating the Con0titution" inAuire a<out a Bro0Bective Ba00enger>0 citiOen0hiB and
de0tination. &he mere Bo0ing o. Aue0tion0 <- a government o..icial i0 not con0idered to <e a 0eiOure.
&he Court noted that under .ederal la=" the 1NS ha0 authorit- to a0? Aue0tion0 o. a Ber0on the- thin?
ma- <e violating immigration la=0. 7. 3Ohu=an v. State" 7$* /.2d 91$ I,la0?a" 199+;" held that a
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&err- 0toB occurred =hen an o..icer Bartiall- <loc?ed a Ber0on>0 car =ith the Bolice car =hile
activating the overhead light0. $. 5.S. v. 8a0?al" 7+9 (.2d *%3 I11th Cir. 19$3;" held that a &err-
0toB occurred =hen Bolice 0Bo?e to a Ber0on in an airBort and too? hi0 tic?et and a0?ed him to go to a
44 near<- o..ice =ithout returning the tic?et. 9. 5.S. v. &avolacci" $9% (.2d 1423 ID.C. Cir. 199+;"
held no &err- 0toB =here an o..icer ?noc?ed on a door to a Ber0on>0 train comBartment" a0?ed
Bermi00ion to a0? Aue0tion0 and reAue0ted and received a train tic?et and Ber0onal identi.ication" then
BromBtl- returned them. 1+. 5.S. v. &orre0':uevara" 147 (.3d 12*1 I1+th Cir. 199$; 3..icer0
encountered the de.endant at an airBort and a0?ed .or and received her identi.ication and an airline
tic?et. &he o..icer0 loo?ed at the0e item0 returned them immediatel- and told her 0he =a0 not under
arre0t and could leave. &he o..icer0 never touched or re0trained the =oman <ut a0?ed her t=ice .or
con0ent to 0earch .or drug0. 8hen the o..icer again a0?ed .or Bermi00ion to 0earch her 0he did not
re0Bond. &he o..icer a0?ed her again and 0he again did not re0Bond. &he o..icer then told her i. 0he
had drug0" 0he 0hould turn them over. ,nother o..icer" a0?ed H-ou have drug0" don>t -ouDH 8hen 0he
But her head do=n in0tead o. an0=ering" he a0?ed: Hdon>t -ouDH She re0Bonded:H-e0.H /olice detained
her and had a .emale Bolice o..icer 0earch her and .ound the drug0 &he Court
ruled that thi0 =a0 a non'0eiOure encounter 0tating that a0?ing incriminating Aue0tion0 doe0 not Ber 0e
ma?e thi0 an inve0tigative 0toB although accu0ator- and Ber0i0tent Aue0tioning" di0Bla- o. =eaBon0"
or commanding or threatening tone o. voice =ould amount to an inve0tigative detention. I3; 82,&
C3NS&1&5&ES H!E,S3N,B6E S5S/1C13NDH H!ea0ona<le 0u0BicionH i0 a term li?e HBro<a<le
cau0eH =hich evade0 Breci0e de.inition. ,lthough the rule0 .or Bolice'citiOen contact0 are <a0ed on
o<Jective 0tandard0" a deci0ion <- a court that rea0ona<le 0u0Bicion e)i0t0 deBend0 on the oBinion <-
that Judge Ior in the ca0e o. an aBBellate court ' a grouB o. Judge0;. &he 0ame articula<le .actor0
=hich might <e no more than a HhunchH in one court>0 mind ma- amount to over=helming rea0ona<le
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0u0Bicion in another court>0 mind. &hi0 i0 a human .actor =e all have to live =ith. (or e)amBle" read
the Ca0e o. 5.S. v. 4endenhall" 44* 5.S. %44 I19$+;" involving an encounter <et=een Bolice and a
0u0Bected drug courier at an airBort. &hree SuBreme Court Ku0tice0 thought that the contact <et=een
the Bolice and 4endenhall =a0 a non'0eiOure contact reAuiring no Ju0ti.ication. &hree other Ku0tice0
thought it =a0 a &err- 0toB" <ut that rea0ona<le 0u0Bicion e)i0ted. &hree other Ku0tice0 thought it =a0
a &err- 0toB" <ut =a0 illegal <ecau0e there =a0 not !CS. 3..icer0 0hould ?no= the vie= o. the va0t
maJorit- o. court0 a<out the .actor0 that ma- indicate !CS and .actor0 =hich have little or no 0uBBort
.or !CS or /CC. NE!#35SNESS I1; 1n 5.S. v 8ood" 1+* (.3d 942 I1+th Cir 1997; the Court ruled"
M8e have 4% reBeatedl- held that nervou0ne00 i0 o. limited 0igni.icance in determining rea0ona<le
0u0Bicion and that the government>0 reBetitive reliance on the nervou0ne00 o. either the driver or
Ba00enger a0 a <a0i0 .or rea0ona<le 0u0Bicion Hin all ca0e0 o. thi0 ?ind mu0t <e treated =ith caution.N
N1t i0 common ?no=ledge that mo0t citiOen0" =hether innocent or guilt-" =hen con.ronted <- a la=
en.orcement o..icer =ho a0?0 them Botentiall- incriminating Aue0tion0 are li?el- to e)hi<it 0ome
0ign0 o. nervou0ne00.H Same ruling on nervou0ne00 in 5.S. v. /eter0" 1+ (.3d 1%17" 1%21 I1+th
Cir.1993; and 5.S. v. Bec?" 14+ (.3d 1129 I$th Cir. 199$;. See 5.S. v. 4c!ae" $1 (.3d 1%2$ I1+th
Cir. 199*; holding that nervou0ne00 along =ith other o<Jective .actor0 ma- contri<ute to !CS.
!E(5S,6 &3 C33/E!,&E I2; 1n (lorida v. Bo0tic?" 111 S.Ct. 23$2 I1991; in addition to holding
that the Bolice contact =a0 non' 0eiOure" the Court al0o 0tated that the 0u0Bect>0 re.u0al to cooBerate
=ith Bolice Ii.e.: an0=er Aue0tion0 andCor con0ent to 0earch; =ould not have given the Bolice
rea0ona<le 0u0Bicion let alone Bro<a<le cau0e to 0eiOe the 0u<Ject or 0earch hi0 luggage. Same
deci0ion <- all (ederal and State Court0: 5.S. v. (letcher" 91 (.3d 4$ I$th Cir. 199*;" 5.S. v. &orre0"
*% (.3d 1241 I4th Cir. 199%;" @arne0 v. S?rut0?i" *2 (.3d 4$% I3rd Cir. 199%; and :a0ho v. 5nited
State0" 39 (.3d 142+ I9th Cir. 1994;. &!,1NED 3BSE!#,&13NS I3; Several 5S Circuit court
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ca0e0 hold that" M=hen u0ed <- trained la= en.orcement o..icer0" o<Jective .act0" meaningle00 to the
untrained" can <e com<ined =ith Bermi00i<le deduction0 .rom 0uch .act0 to .orm a legitimate <a0i0 .or
0u0Bicion.H 5.S. v. Sholola" 124 (.3d $+3 I7th Cir. 1997; and 5.S. v. 6uJan" 1$$ (.3d %2+ I1+th Cir.
1999;. I4; 5.S. v. CorteO" 449 5.S. 1 I19$1;" dealt =ith an inve0tigation <- the Border /atrol into
0muggling alien0. 3ver 0everal month0" o..icer0 0a= 0et0 o. .ootBrint0" one o. =hich had a uniAue
Battern" coming acro00 the <order and ending uB near a high=a- =hich ran Barallel to the <order. &he
trac?0 led into o<0tacle0 =hich =ould have <een vi0i<le during the da-. &he trac?0 turned ea0t=ard at
the high=a-" then di0aBBeared a.ter a 0hort di0tance. &he o..icer0 0et uB a vantage Boint at night"
a<out 27 mile0 ea0t o. the location =here mo0t o. the .ootBrint0 di0aBBeared into the high=a-. &he-
e0timated it =ould ta?e a<out 1 [ hour0 .or a vehicle to Ba00 their location" go to the Bic?uB Boint and
return to their location. &he- 0toBBed a Bic?uB =ith a camBer 0hell =hich =ent Ba0t and then returned
in that time .rame. &he 5.S. SuBreme Court held: rea0ona<le 0u0Bicion did e)i0t on the0e .act0 to
Ju0ti.- a 0toB o. the truc?. /ro0ecutor0 0hould read and cite thi0 ca0e o.ten. 1t contain0 language telling
court0 that even HinnocentH action0 =hen vie=ed <- Bolice o..icer0 =ho have ?no=ledge o. the
mode0 or Battern0 o. certain t-Be0 o. criminal activit- can give !CS. H, trained o..icer dra=0
in.erence0 .rom data that might =ell elude an 4* untrained Ber0on.H H&he te0t .or rea0ona<le
0u0Bicion i0 not in =eighed in term0 o. li<rar- anal-0i0 <- 0cholar0.H I%; 5.S. v. 6ender" 9$% (.2d
1%1I4th Cir.1993; o..icer0 o<0erved .our or .ive men Hhuddled on a cornerH in a ?no=n drug area.
3ne o. the men Hhad hi0 hand 0tuc? out =ith hi0 Balm uB" and the other men =ere loo?ing do=n
to=ard hi0 Balm.H 8hen the grouB 0a= the Bolice " the- H<egan to di0Ber0e" and the de.endant =al?ed
a=a- .rom the o..icer0 =ith hi0 <ac? to them.H Ba0ed on the hour o. the da-" the grouB>0 di0Ber0al
uBon 0eeing the o..icer0" the ?no=n character o. the neigh<orhood" and the o..icer0> Bractical
e)Berience in recogniOing drug tran0action0" the court uBheld the 0toB. I*; 5.S. v. 4attarlo" 191 (.3d
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1+$2 I9th Cir. 1999; 6ate at night" an o..icer =a0 on a dar? 0ecluded countr- road and 0a= a Bic?uB
truc? in the drive=a- o. a .enced con0truction 0torage area" =ith the gate clo0ed. &he truc? le.t the
drive=a- =ith a three.oot 0Auare crate in the <ac?. ,t that hour there =a0 no <u0ine00 activit-. &he
o..icer 0toBBed the de.endant. &he Court held" M&he o..icer ha0 an o<Jective <a0i0 .or hi0 0u0Bicion0
<a0ed on all the circum0tance0. 1t i0 not a matter o. hard certaintie0" <ut o. Bro<a<ilitie0. &hi0 reAuire0
more than an o..icer>0 hunch" <ut a BreBonderance o. the evidence to 0ho= Broo. o. =rong doing i0
not reAuired at thi0 0tage. !CS there.ore can ari0e .rom in.ormation di..erent in Aualit- and content
and even le00 relia<le than that reAuired .or the e0ta<li0hment o. Bro<a<le cau0e. &he o..icer>0 training
and e)Berience are .actor0 to con0ider in determining i. the o..icer>0 0u0Bicion0 =ere rea0ona<le. See
0ection on Ba0i0 .or (ri0? .or other Bart o. 4attarlo ca0e I7; 5.S. v. Xuinn" $3 (.3d 917 I7th Cir.
199*; ,n o..icer 0a= three men on a 0treet corner in a high drug crime area. 5Bon 0eeing the o..icer"
one thre= a Bla0tic <ag do=n and the- 0Blit uB and <egan to =al? a=a-. 3ne man =ent one =a- and
the other t=o =ent in the oBBo0ite direction. &he o..icer ordered Xuinn to 0toB and 0a= that he =a0
carr-ing a leather Jac?et H=added uB in hi0 arm0.N 2e ordered Xuinn to accomBan- him <ac? to the
Bolice car and to Blace the Jac?et on the car. ,0 he did 0o" the o..icer heard a HthudH 0ound. 2e did a
Bat'do=n 0earch .inding no =eaBon0 then Batted the Jac?et and .elt a hard o<Ject in0ide and removed
a .22 ri.le 0a=ed'o.. and modi.ied into a handgun. 2e arre0ted Xuinn then =ent to the corner to
retrieve the 0u0Bected crac? cocaine. &he Court held the Bolice action la=.ul" Mthe de.endant>0
Bre0ence in a high crime area i0 an in0u..icient ground I<- it0el.; to 0toB or 0earch. 2o=ever" court0
ma- con0ider the de.endant>0 Bre0ence in a high crime area a0 Bart o. the totalit- o. circum0tance0
con.ronting the o..icer at the time o. the 0toB. DE(1N1N: !E,S3N,B6E S5S/1C13N I$; 5.S. v.
/errin" 4% (.3d $*9 I4th Cir. 199%; the court held Mrea0ona<le 0u0Bicion i0 a le00 demanding 0tandard
than Bro<a<le cau0e not onl- <ecau0e !CS can <e e0ta<li0hed =ith in.ormation that i0 le00 in Auantit-
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than that reAuired to 0ho= /CC" <ut al0o .rom in.ormation that i0 le00 relia<le than needed .or /CC.N
47 I9; 5.S. v. 2en0le-" 1+% S.Ct. *7% I19$%;" i0 imBortant .or at lea0t t=o Boint0. &he 5nited State0
SuBreme Court held that the H.ello= o..icerH rule aBBlie0 to &err- 0toB0 0o that the o..icer actuall-
ma?ing the 0toB could rel- on a H=anted .or inve0tigationH .lier i00ued <- Bolice in another 0tate 0o
long a0 the i00uing Bolice had rea0ona<le 0u0Bicion. ,l0o" thi0 ca0e e)tended the authorit- to ma?e a
&err- 0toB <e-ond rea0ona<le 0u0Bicion that Hcriminal activit- =a0 a.ootH Ii.e." a Bre0entl- occurring
crime; to a 0eriou0 crime Iarmed ro<<er-; that had occurred =ee?0 earlier. I1+; 1n 3rnela0 v. 5.S."
11* S.Ct. 1*%7 I199*; Bolice in 4il=au?ee =ho =ere trained in drug interdiction 0a= a 19$1
3ld0mo<ile =ith Cali.ornia Blate0 in a motel Bar?ing lot in Decem<er. &he Bolice chec?ed the
regi0tered o=ner through di0Batch and then learned .rom the DE, that the !C3 =a0 in N,DD1S
IDE, comButer; a0 a M0u0BectedN drug tra..ic?er. /olice learned .rom the motel manager that 3rnela0
and another man chec?ed in at 4am =ithout re0ervation0. /olice al0o ?ne= that older model :4 car0
had large 0Bace0 in the door0 and other location0. &he 5.S. SuBreme Court 0aid that the0e .act0
con0tituted !CS. &he Court 0aid that although the mo0aic =hich i0 anal-Oed .or !CS or /CC i0 multi
.aceted and one determination =ill 0eldom <e u0e.ul Brecedent .or another a court 0hould loo? at all
the Brecedent0 in ma?ing a deci0ion. &he court 0hould determine the Mhi0torical .act0N Iie: the 0Beci.ic
.act0 o. the ca0e; and then ma?e a legal deci0ion a0 to =hether the .act0 0ati0.- the con0titutional
0tandard. I11; 1n State v. Sonne.eld" 114 Nev. *31 I199$; the Court ruled that a deBut- 0heri.. had
rea0ona<le 0u0Bicion 0u..icient to ma?e inve0tigator- 0toB o. vehicle <a0ed on hi0 corro<oration o.
<artender>0 detailed tiB to di0Batcher that ine<riated cu0tomer had le.t <ar and =a0 driving under
in.luence9 <artender Brovided color o. car" de0criBtion o. di0tingui0hing roo. rac?" licen0e Blate
num<er" Bh-0ical de0criBtion o. driver and direction in =hich vehicle =a0 heading" all o. =hich =ere
con.irmed <- the o..icer there<- e0ta<li0hing !CS. I12; 3ther Nevada ca0e0 are
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8right v. State" $$ Nev. 4*+ I1972;" Kac?0on v. State" 9+ Nev. 2** I1974;" Nel0on v. State" 9* Nev.
3*3 I19$+;" and 1del.on0o v. State" $$ Nev. 3+7 I1972;. ,ll o. the0e reAuired ver- little in term0 o.
Marticula<le .act0N to 0ho= !CS. ,N3N7435S ,ND 3&2E! &1/S I13; ,la<ama v. 8hite" 11+
S.Ct. 2412 I199+;" held that an anon-mou0 tiB that a .emale =ould leave a Barticular aBartment
comBle) at a Barticular time" =ould drive a certain de0cri<ed car" =ould go to a certain de0tination
and =ould <e carr-ing drug0 =a0 enough .or rea0ona<le 0u0Bicion =hen Bolice corro<orated the
detail0 o. the tiB and 0toBBed the car a0 it neared the de0tination. 1t made no di..erence that all the
action0 o<0erved <- the Bolice =ere Hinnocent.H 40. 8hite>0 0u<0eAuent con0ent to 0earch" =hich
turned uB the doBe" =a0 not the .ruit o. an unla=.ul &err- 0toB. I14; 1n 5.S. v. /rice" 1$4 (.3d *37
I7th Cir. 1999;" the /olice received an 4$ anon-mou0 tiB 0tating that a =hite 4ercur- Cougar" =ith a
licen0e Blate containing the letter0 H(6K"H =ould <e delivering one ?ilogram o. cocaine to a 0Beci.ic
re0idence in 4il=au?ee. &he tiB0ter told the Bolice that the car had le.t She<o-gan at a<out 9:++ B.m.
I ,<out *+ mile0 .rom 4il=au?ee.; and al0o 0tated that the car =ould contain t=o <lac? =omen"
Charlene and /atricia " and one <lac? man named Calvin Ial0o gave la0t name0; /olice arrived at the
vicinit- o. the 0u0Bect re0idence in an unmar?ed car at around 1+:4% B.m.. &he o..icer0 did not veri.-
=ho lived at the re0idence" and did not Ber.orm record chec?0 o. three BeoBle named <- the tiB0ter.
,t aBBro)imatel- 11:2+ B.m." a =hite 4ercur- Cougar arrived containing t=o <lac? =omen and t=o
<lac? men. &he driver dou<le'Bar?ed the car and le.t the engine running. &he licen0e Blate contained
the letter0 H:K6.H ,ll .our occuBant0 got out and aBBroached the re0idence. /olice 0toBBed them at
the 0ide=al? and indicated that the- =ere inve0tigating a narcotic0 comBlaint. Several o. the
occuBant0 Broduced 1D con.irming the name0 given <- the in.ormant. 6ater" narcotic0 =ere .ound.
&he Court held that the 0toB =a0 <a0ed on !CS.I ,la<ama v. 8hite.;. I1%; 1n 5.S. v. Bell" 1$3 (.3d
$4* I$th Cir. 1999; /olice acted on a tiB .rom 40. 2arri0" =ho Brovided detailed in.ormation that
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criminal activit- =a0 a.oot. M2arri0 =a0 a clo0e acAuaintance o. Bell =ho had Breviou0l- Brovided
accurate in.ormation a<out him. 2arri0>0 tiB''that Bell and 1ngram =ere driving to 6ittle !oc? to Bic?
uB crac? cocaine .rom 6inda Bee''=a0 con0i0tent =ith in.ormation received .rom other 0ource0 le00
than a month earlier and =ith more recent in.ormation that Bell and 1ngram =ere 0elling drug0 at
2314 Kean Street. &he tiB =a0 .urther corro<orated =hen the o..icer0 0a= a car matching the
de0criBtion 2arri0 had Brovided traveling on 5.S. 2igh=a- *% in the direction o. /ine Blu... M
Con0idering the totalit- o. the circum0tance0" =e agree =ith the di0trict court that the 0toB did not
violate Bell>0 (ourth ,mendment right0.N 1ND1#1D5,6 S5S/1C13N I1*; 7<arra v. 1llinoi0" 1++
S.Ct. 33$ I1979;" =a0 a ca0e =here Bolice had a 0earch =arrant .or a tavern and the <artender" <a0ed
on Bro<a<le cau0e" that he =a0 0elling drug0 at the <ar. /olice entered the tavern during <u0ine00
hour0 to 0erve the 0earch =arrant" and Batted do=n the Batron0. 3ne o. the Batron0 =a0 7<arra =ho
had doBe in hi0 Boc?et =hich =a0 0eiOed. &he 5nited State0 SuBreme Court held: illegal 0earch ' no
rea0ona<le 0u0Bicion that 7<arra =a0 engaged in criminal activit- andCor that he might have a
=eaBon" Ju0t <ecau0e he =a0 in the <ar. !ea0ona<le 0u0Bicion and Bro<a<le cau0e mu0t <e
individualiOed. I17; , recent ca0e demon0trate0 the rule that rea0ona<le 0u0Bicion mu0t <e
individualiOed. &he di..erence =a0 =hether the !CS did or did not cover more than one Ber0on. 1n
5.S. v. Kohn0on" 17+ (.3d 7+$ I7th Cir. 1999; Bolice =ere aBBroaching a re0idence .or a M?noc? and
tal?.N ,0 the- arrived" a Ber0on e)ited the re0idence and =a0 &err- 0toB detained <- Bolice. &he
detention and Bat do=n =ere held to <e unla=.ul <ecau0e there =a0 no individualiOed 0u0Bicion a0 to
that Ber0on. 49 !E,S3N,B6E 41S&,@E 3( (,C&S &=o ca0e0 0ho= that rea0ona<le 0u0Bicion
can <e .ound in a ca0e =here the Bolice =ere mi0ta?en a<out the .act0 Ju0ti.-ing the detention" <ut the
.act0 <elieved <- the Bolice =ere .ound to <e rea0ona<le Iie: the Bolice had no rea0on to <elieve that
the .act0 =ere incorrect =hen the 0toB =a0 made. I1$; 1n the ca0e o. Stuart v. State" 94 Nev. 721
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I197$;" the o..icer noticed that the trun? loc? on the vehicle =a0 mi00ing. ,.ter the 0toB =a0 e..ected"
the o..icer detected the odor o. mariJuana and noticed =hat aBBeared to <e mariJuana 0eed0 on the
.loor in the .ront 0eat o. the vehicle. &he court 0aid H&he o..icer" in thi0 ca0e" had o<0erved the
mi00ing trun? loc?" and" <a0ed uBon training he had received at the 2igh=a- /atrol ,cadem-"
in.erred that the vehicle might <e 0tolen. 5nder the0e circum0tance0" =e <elieve the o..icer>0
conclu0ion =a0 rea0ona<le and he =a0 Ju0ti.ied in 0toBBing the vehicle .or routine Aue0tioning and
inve0tigation.H Since the o..icer had la=.ull- attained the Bo0ition .rom =hich he o<0erved the
mariJuana in oBen vie=" and it =a0 in a vehicle =hich could <e 0earched =ithout a =arrant he had a
right to 0eiOe it and the mariJuana =a0 BroBerl- admitted into evidence. N3&E: &he vehicle =a0 not
actuall- 0tolen. I19; 5.S. v. ,lvareO" $99 (.2d $33 I9th Cir. 199+;" an unidenti.ied caller told Bolice
that tall 2i0Banic male =ould ro< certain <an? =ithin 1+ minute0 and had e)Blo0ive0 in trun? o. =hite
4u0tang. /olice 0a= =hite 4u0tang <ac?ed into Bar?ing 0Bace .acing <an? =ith 2i0Banic driver. Car
Bulled out =hen Bolice arrived. /olice 0toBBed car and Batted do=n driver. (ound gun then 0earched
car and .ound gun0 and drug0 in trun?. Be.ore trial" caller =a0 identi.ied and it =a0 0ho=n that hi0
Hro<<er- BlanH claim =a0 .al0e. 2eld: Bolice action 3@. Even anon-mou0 tiB can Brovide /CC or !CS
.or &err- 0toB =here Bolice can corro<orate all detail0 o. tiB. (act that all o. 0u0Bect>0 action0 =ere
HinnocentH ma?e0 no di..erence. /olice didn>t ?no= tiB =a0 .al0e'Bolice had o<Jectivel- rea0ona<le
articula<le <a0i0 .or 0toB. I2+; But ' -ou mu0t <e care.ul a<out a 0toB <a0ed on =rong in.ormation. 1.
the o..icer>0 Ior Bolice deBartmentP0; negligence cau0e0 or Broduce0 the incorrect in.ormation =hich"
on the 0ur.ace" Ju0ti.ie0 the 0toB ' later on the court =ill Bro<a<l- 0a- 0toB i0 no good. (or e)amBle:
0toB no good =here Bolice o..ice called in =rong licen0e num<er" or el0e di0Batcher heard it =rong
and told o..icer Blate0 didn>t match. 6ater determined that Blate0 did match. Evidence .rom the 0toB
=a0 tainted. 5nited State0 v. De6eon'!e-na" $9$ (.2d 4$* I%th Cir. 199+; ' 0ame re0ult in 3tt v.
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State" *++ ,.2d 111 I4d. 1992;. INote: thi0 i0 0till true even a.ter the deci0ion in ,riOona v" Evan0
I0ee 0ection on MBolice mi0ta?e0; <ecau0e there the error =a0 done <- the court cler?P0 o..ice not <-
the Bolice deBartment;. 5N/!3#3@ED (61:2& (!34 /361CE I21; 1n 1llinoi0 v. 8ordla=
Idecided Kanuar- 2+++; the maJorit- o. the 5.S. %+ SuBreme Court held that" although a Ber0on
0tanding in an area ?no=n .or heav- narcotic0 tra..ic?ing" <- that .act alone i0 not 0u<Ject to a &err-
0toB. 1. the Ber0on .lea0 .rom the Bolice Bre0ence =ithout Brovocation" that Ber0on can <e &err-
0toBBed. /olice did 0o9 did a Bat'do=n <ecau0e" in the o..icerP0 e)Berience it =a0 common .or
=eaBon0 to <e around drug tran0action0" and .ound a =eaBon on 8ordla=" =hich =a0 held
admi00i<le. &=o .ollo=ing ca0e0 hold that although unBrovo?ed .light .rom Bolice alone i0 not
enough .or !CS" that the .light along =ith other .actor0" can 0uBBort !CSC I22; State v. Stinnett" 1+4
Nev. 39$ I19$$;" Bolice =ere on Batrol in area =ith high incidence o. drug crime0 and 0a= 0everal
men huddled in .ront o. a<andoned re0idence. 3ne o. the grouB noticed the Bolice" he ran to=ard the
<ac? o. the re0idence cha0ed <- the Bolice. , .e= minute0 later" Bolice entered the a<andoned home
and .ound 0u0Bect huddled in a clo0et =ith drug0 near<-. 2eld: &he 0u0Bect =a0 not detained =hen he
ran .rom the Bolice. 8hen the 0u0Bect =a0 .ound in0ide the a<andoned hou0e" he =a0 detained" <ut all
the circum0tance0 including hi0 unBrovo?ed .light Ju0ti.ied an inve0tigative detention. I23; 1n 5.S. v.
Kac?0on" 17% (.3d *++ I$th Cir. 1999; the Court ruled that 1t =a0 rea0ona<le .or o..icer to tac?le
de.endant to e..ect inve0tigative 0toB =hen o..icer0 =ere re0Bonding to call that 0hot0 had <een .ired
at addre00 in high'crime neigh<orhood" de.endant =a0 <ehind area =here 0hot0 =ere .ired and
nervou0l- <egan to .lee =hen o..icer0 aBBroached in mar?ed 0Auad car" o..icer0 noticed that
de.endant aBBeared to <e clutching 0omething at hi0 0ide a0 he ran" and continued to .lee a.ter o..icer0
announced that the- =ere o..icer0 and told de.endant to 0toB. I4; M/!3(161N:N Xuite a <it o.
con.u0ion e)i0t0 in Bolice circle0 concerning MBro.ilingN <ut modern ca0e0 ma?e the correct legal
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con0eAuence0 Auite clear. 1n a nut0hell" =hen o..icer0 ma?e a 0toB <a0ed on Bro.iling" the .act that
Bro.iling =a0 u0ed ha0 no legal 0igni.icance at all. 1t doe0nPt helB or hurt the validit- o. the 0toB. &hi0
=a0 the holding o. the 5. S. SuBreme Court in So?olo=. 1. 1n 5nited State0 v. So?olo=" 1+9 S.Ct.
1%$1 I19$9;" DE, agent0 0toBBed the 0u0Bect at 2onolulu ,irBort <ecau0e I1; he had Baid L2"1++
ca0h .or airline tic?et0" I2; he traveled under a name that did not match the name under =hich the
Bhone num<er he u0ed =a0 li0ted" I3; hi0 de0tination had <een 4iami =hich =a0 a H0ource cit-H" I4;
he 0ta-ed in 4iami onl- 4$ hour0" I%; he aBBeared nervou0 and I*; he had no chec?ed luggage. DE,
.ound 1 ?ilo o. cocaine in hi0 carr-'on luggage a.ter a trained drug 0ni..ing dog alerted on the
luggage and DE, o<tained a 0earch =arrant. 2eld: !ea0ona<le 0u0Bicion .or a &err-
0toB e)i0ted. ,lthough each .actor ta?en alone =a0 in0u..icient to Ju0ti.- a 0toB" =hen ta?en together
the- amount to rea0ona<le 0u0Bicion. &he HBro.ileH .actor0 0ho=n here are HBro<ativeH and amount to
rea0ona<le 0u0Bicion even though none o. them are HcriminalH. &he .act that the Ber0on .it a HBro.ileH
did not in and o. it0el. eAual rea0ona<le 0u0Bicion. %1 2. 1n @arne0 v. S?rut0?i" *2 (.3d 4$% I3rd Cir.
199%; the Court ruled that Hthe drug courier Bro.ile ha0 little meaning indeBendent o. the o<Jective
.act0H Bre0ented <- the la= en.orcement o..icer a0 0u..icient to demon0trate rea0ona<le 0u0Bicion. 1n
other =ord0" the .actor0 that the la= en.orcement o..icer u0e0 to e0ta<li0h /CC or !CS mu0t <e
articulated Iie: 0Beci.ied; <a0ed on the circum0tance0 o. each ca0e. &he Bro.ile it0el. doe0 not Brovide
an- additional 0uBBort .or .inding /CC or !CS. Same ruling in 5.S. v. 4alone" $$* (.2d 11*2 I9th Cir.
19$9;" 5.S. v. 4oore" 22 (.3d 241 I1+th Cir. 1994; and 5.S. v. L%3"+$2 in 5S Currenc-" 9$% (.2d
2$% I*th Cir. 1993; a0 =ell a0 numerou0 0tate 0uBreme court ca0e0. 3. See the 0ection on M/rete)t
StoB0N in thi0 manual. &he modern la= <a0ed on the 8hren ca0e .rom the 5.S. SuBreme Court and
:ama ca0e .rom the Nevada SuBreme Court ma?e it clear that a0 long a0 an o..icer ha0 an- o<Jective
<a0i0 .or ma?ing a 0toB" the o..icerP0 internal motive0 are irrelevant. &hi0 mean0 that an o..icer can
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ma?e a 0toB <a0ed on a MBro.ileN <ut onl- 0o long a0 there i0 0ome other <a0i0 .or the 0toB. &here i0 no
longer an- 0uch thing a0 an illegal Brete)t 0toB. 4. 50e o. indicator0 0uch a0 mem<er0hiB in certain
racial grouB0 in drug courier Bro.iling ha0 <een 0harBl- challenged. MDe.endantP0 nationalit-
I4e)ican; and hi0 .riend0P u0e o. SBani0h cannot 0uBBort rea0ona<le 0u0Bicion o. 0muggling drug0N
according to 5nited State0 v. :arcia" 23 (.3d 1331 I$th Cir. 1994;. I%; 82,& (3!4S &2E B,S1S
&3 (!1S@ D &he right to .ri0? i0 not generall- automatic =ith a valid M0toB.N 1. 1n Si<ron v. Ne=
7or?" 392 5.S. 4+ I19*$; and 7<arra v. 1llinoi0" 444 5.S. $% I1979; the 5.S. SuBreme Court 0aid that
the general rule i0 that a M.ri0?N i0 not al=a-0 Ju0ti.ied <ecau0e the M0toBN i0 Ju0ti.ied. &he o..icer ha0
to <e a<le to Boint to Barticular .act0 that made him thin? the 0u0Bect Mma- <eN armed. 2. 1n
4inne0ota v. Dic?er0on" 113 S.Ct. 213+ I1993;" the HBlain .eelH ca0e" Ku0tice Scalia>0 concurring
oBinion ma?e0 it clear that the right to H.ri0?H doe0 not automaticall- accomBan- the right to H0toB.H
I&hi0 i0 the oBBo0ite o. H0earch incident to arre0tH rule =hich doe0 automaticall- accomBan- an-
la=.ul cu0todial arre0t.;. 3. ,dam0 v. 8illiam0" 4+7 5.S. 143 I1972;" held that =here a relia<le
in.ormant told an o..icer that a Ber0on 0itting in a Bar?ed car had a concealed =eaBon. &he o..icer
a0?ed the Ber0on to 0teB .rom the car" <ut in0tead ,dam0 rolled do=n the =indo=. &he o..icer
reached in the =indo= to hi0 =ai0t<and and .elt" then 0eiOed" a gun. &hi0 =a0 enough rea0ona<le
0u0Bicion .or a 0toB and .ri0?. 4. 1n 5.S. v. 4attarolo" 191 (.3d 1+$2 I9th Cir. 1999; the Court ruled
that an o..icer ma- conduct a limited Brotective 0earch .or concealed =eaBon0 i. there i0 a rea0on to
<elieve the 0u0Bect ma- have a =eaBon. &he o..icer mu0t choo0e <et=een <eing 0ure that the 0u0Bect
i0 not armed and JeoBardiOing hi0 o=n 0a.et-. ,n o..icer ma?ing a 0toB %2 under the 0u0Biciou0
circum0tance0 o. the Bre0ent ca0e =ho .ailed to Batdo=n the 0u0Bect .or =eaBon0 =ithin the limited
0coBe o. &err- could <e ta?ing 0u<0tantial and unnece00ar- ri0?0.N Di0tingui0hing an earlier ca0e" the
Court that the 0toB in that ca0e =a0 in a <an? Bar?ing lot during the da-light hour0" not on a remote
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0ection o. road at midnight. &he Ber0on 0toBBed =a0 a 0u0Bected counter.eiter" not a 0u0Bect caught
Bo00i<l- in the act o. committing a nighttime <urglar- and there.ore more li?el- to <e armed. 1n
4attarolo" the de.endant got out o. hi0 car 0=i.tl- and =al?ed Auic?l- to=ard the 0Auad car <e.ore
the o..icer had the chance to get out o. hi0 car. &hi0 cau0ed the o..icer to get out o. hi0 0Auad car
Auic?l- 0o a0 not to <e traBBed =ith the mean0 o. Brotecting him0el. con0eAuentl- limited. :iven the
totalit- o. the circum0tance0" the Batdo=n 0earch =a0 .ull- Ju0ti.ied and a Brovident Brocedure to
.ollo=. %. 1n 5. S. v. Sinclair" 9$3 (.2d %9$ I4th Cir. 1993; the Court held that Mthe o..icerP0
rea0ona<le <elie. ma- derive a0 much .rom hi0 e)Berience0 in 0imilar ca0e0 a0 .rom hi0 ?no=ledge o.
the dangerou0 BroBen0itie0 o. the 0u0Bect at hand.N *. 1n 5. S. v. :i<0on" *4 (.3d *17 I11th Cir. 199%;
the Court 0aid that =here the o..icer had corro<orated ever- item o. in.ormation .rom an anon-mou0
tiB0ter a<out a certain 0u0Bect" the o..icer had rea0on to <elieve the tiB0terP0 0tatement that the 0u0Bect
=a0 armed. 7. 1n 5.S. v. &a-lor" 1*2 (.3d 12 I10t Cir. 199$; the Court ruled that 1n.ormant>0 tiB that
occuBant0 o. automo<ile =ere in Bo00e00ion o. crac? cocaine and =eaBon0 and =ere delivering
narcotic0 e)hi<ited 0u..icient indicia o. relia<ilit- to Ju0ti.- inve0tigator- 0toB o. automo<ile and .ri0?
o. the occuBant09 in.ormant had Brovided relia<le in.ormation in the Ba0t" tiB included 0uch detail0 a0
ma?e and color o. car and de0criBtion o. it0 occuBant0" and tiB =a0 corro<orated in 0igni.icant a0Bect0
<- the o..icer. $. 1n 5.S. v. CamB<ell" 17$ (.3d 34% I%th Cir. 1999; the Court ruled it =a0 not
unrea0ona<le .or Bolice o..icer to dra= hi0 =eaBon" order armed <an? ro<<er- 0u0Bect to lie on
ground" handcu.. 0u0Bect =ith hi0 hand0 <ehind hi0 <ac?" and .ri0? 0u0Bect during cour0e o.
inve0tigator- 0toB" even though 0u0Bect comBlied =ith o..icer>0 order0 and ro<<er- had occurred
aBBro)imatel- 3+ hour0 Brior to 0toB9 0u0Bect matched de0criBtion o. armed <an? ro<<er and he =a0
getting into driver>0 0ide o. automo<ile matching de0criBtion o. geta=a- car" there =ere other BeoBle
in area during 0toB" and there =ere onl- three o..icer0 to control three 0u0Bect0. !E4E4BE! ' ,
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(!1S@ C,N 3N67 BE D3NE (3! 8E,/3NS" N3& (3! ,N7 3&2E! 1&E4S 3!
C3N&!,B,ND. 238E#E!" 1( &2E (!1S@ 1S D3NE 81&2 !CS &2,& , 8E,/3N 1S
/!ESEN&" B5& ,(&E! !E43#1N: &2E 1&E4 &2,& M(E6& 61@EN , 8E,/3N" &2E
/361CE (1ND &2,& 1& 8,S N3& ,C&5,667 , 8E,/3N" &2E SE,!C2 G SE1Z5!E 1S
S&166 #,61D 9. 5.S. v. !a-mond" 1%2 (.3d 3+9 I4th Cir. 199$; /olice 0toBBed a car .or 0Beeding.
!a-mond =a0 a Ba00enger and the Bolice ordered him out o. the car. 2e got out clutching hi0
0tomach. &he o..icer Batted him do=n and .elt a large di0c li?e o<Ject =hich he thought might <e a
=eaBon. 1t turned out to <e a 7H roc? cocaine di0?. &he %3 court ruled that the circum0tance0 gave ri0e
to an articula<le 0u0Bicion that he might have <een armed =ith a =eaBon. &here =a0 a rea0ona<le
<a0i0 .or conducting a Batdo=n 0earch <a0ed on hi0 0trange e)it .rom the car" a0 i. he =ere attemBting
to conceal 0omething under hi0 Jac?et" and the a=?=ard =a- in =hich he leaned again0t the car =hile
tal?ing to Bolice. 1+. 5.S. v. !ahman" 1$9 (.3d $$ I2d Cir. 1999; the Court held that 0eiOure o.
.orged Ba00Bort0 <- agent0 =a0 rea0ona<le" =here agent0 learned that vehicle u0ed in <om<ing o.
o..ice <uilding in Ne= 7or? Cit- had <een rented <- Ber0on li0ting hi0 addre00 a0 0u0Bect>0 addre00"
agent0 o<tained =arrant to 0earch 0uch addre00" agent0 o<0erved 0u0Bect returning to the <uilding at
accelerated Bace =hen the- entered to 0earch" 0u0Bect re0i0ted <eing .ri0?ed" and agent0 .elt .irm
rectangular o<Ject in hi0 Boc?et that the- could have rea0ona<l- e)Bected =a0 an e)Blo0ive device"
<ut turned out to <e enveloBe containing Ba00Bort0. 11. 5.S. v. Ed=ard0" %3 (.3d *1* I3rd Cir. 199%;
the Court ruled Bolice =ere Ju0ti.ied in conducting &err- Brotective Batdo=n .or =eaBon0 and
oBening enveloBe .ound in Boc?et o. Jac?et on de.endant>0 laB. /olice re0Bonded to reBort o. credit
card .raud in Brogre00" and =ere Ju0ti.ia<l- concerned that 0mall'cali<er handgun could <e concealed
in enveloBe" =hich mea0ured .our <- 0i) inche0 and .elt .rom out0ide a0 i. it held hard" <ul?- o<Ject.
I.ound 0tolen credit card0'3@;. 12. 5.S. v. Strahan" 9$4 (.2d 1%% I*th Cir. 1993; the Court
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recogniOed the rule that =here an o..icer i0 doing a la=.ul M.ri0?N and .eel0 an o<Ject that rea0ona<l-
aBBear0 to <e 0ome 0ort o. =eaBon" the o..icer can remove that item" and i. it turn0 out that it =a0 not
actuall- a =eaBon" <ut i0 contra<and" the 0eiOure o. the contra<and i0 la=.ul. IBulge and hard item
turned out to <e mone- cliB; 13. 1n 5.S. v. Bro=n" 1$$ (.3d $*+ I7th Cir. 1999; the Court ruled that
3..icer had articula<le ground0 .or !CS that Ber0on in a tra..ic 0toB might <e armed and dangerou0" to
Ju0ti.- an initial Bat'do=n 0earch9 circum0tance0 included o..icer>0 ?no=ledge o. (B1 0urveillance o.
the vehicle a0 a Bo00i<le Bart o. a large'0cale drug oBeration" the 0mell o. mariJuana 0mo?e .rom the
car" driverP0 ver- nervou0 demeanor" hi0 .ailure to ma?e e-e contact" hi0 glancing <ac? to the vehicle"
=here the other occuBant0 rolled do=n the tinted =indo=0 during the tra..ic 0toB" and the .act that the
0toB occurred in a high crime area =here there =a0 gang and drug activit- and had <een recent
0hooting0. Nervou0ne00" re.u0al to ma?e e-e contact or high crime area alone =ill not Ju0ti.- a &err-
0toB and Bat'do=n" <ut 0uch <ehavior ma- <e con0idered a0 a .actor in the totalit- o. circum0tance0.
&he Court Ju0ti.ied a Bat'do=n 0earch .ollo=ing tra..ic 0toB =hich di0clo0ed a hard o<Ject a<out the
0iOe o. a Bing'Bong <all in 0u0Bect>0 groin area. M 1t =a0 rea0ona<le .or o..icer to thin? o<Ject =a0 the
<utt o. a gun" even i. o..icer =ould have <een more rea0ona<le to thin? the o<Ject =a0 drug0.N 14.
5.S. v. CamB<ell" 17$ (.3d 34% I%th Cir. 1999; Court held removal" during %4 cour0e o. inve0tigator-
0toB" o. content0 o. 0u0Bected armed <an? ro<<er>0 Boc?et =a0 rea0ona<le and =ithin 0coBe o.
Bermi00i<le &err- .ri0?" =here Bolice o..icer had not ruled
out Bo00i<ilit- that large <ulge" .ormed <- over L1"4++ in currenc- and card<oard <o) containing
gold chain" =a0 a =eaBon. Note: 3..icer0 0hould <e a=are that an item encountered and la=.ull-
removed during a M.ri0?N doe0 not generall- give the right to oBen the item unle00 it might rea0ona<l-
contain a =eaBon. 3ther=i0e" i. it i0 oBened" evidence =ill <e 0uBBre00ed unle00 there =a0
Ju0ti.ication. I!emem<er: !CS i0 enough to get =eaBon0 <ut /CC U con0ent or a SC8 i0 needed to get
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contra<and or evidence. Be=are o. a Brete)t arre0t to get authorit- to 0earch; M&he need to di0cover
=eaBon0 cannot Ju0ti.- oBening the match<o)N/ace v. Beto" 4*9 (.2d 13$9 I%th Cir. 1972" 0ame
ruling regarding 0mall Bouch /eoBle v. 4artineO" $+1 /.2d %42 IColo. 199+; and cigarette ca0e in
C.2. v. State" %4$ So.2d $9% I(lorida" 19$9; /lea0e re.er to the M/lain #ie=N 0ection in thi0 manual
under 0u<Ject o. M1mmediatel- aBBarent"N .or di0cu00ion on M0ingle BurBo0eN container0. &he
theoretical di0tinction <et=een H0toB0H and H.ri0?0H Ithat each reAuire0 it0 0eBarate Ju0ti.ication; i0
0ometime0 <lurred" although the courtP0 deci0ion i0 correct" .or e)amBle: 1%. 1n !u0ling v. State" 9*
Nev. 77$ I19$+;" a Bolice o..icer 0a= a Ber0on =ith a car Bar?ed in the road" trun? and door oBen"
=al? acro00 the 0treet to a truc? =here a ru<<er ho0e led .rom the ga0 tan? to a ga0 can. &he 0u0Bect
.led and the o..icer <roadca0t a de0criBtion. ,nother o..icer 0toBBed the 0u0Bect I<a0ed on matching
de0criBtion and location; a<out one hour later. &he 0u0Bect =a0 Batted do=n and a gun =a0 .ound.
De.endant =a0 charged =ith Bo00e00ion o. a .irearm <- e)'.elon. 3n the Bat do=n i00ue" the court
0aid: H&he o..icer need not <e a<0olutel- certain that the individual i0 armed I&err-;. &he o..icer had
rea0ona<le ground0 to anticiBate danger to him0el. or the other o..icer. &he 0u0Bect met the
de0criBtion o. one =ho =a0 Bo00i<l- engaged in auto the.t. &he 0u0Bect .led and =a0 hiding. &he 0toB
occurred late at night. ,ll the0e .actor0 led the o..icer to conclude rea0ona<l- that the 0u0Bect =a0
involved in criminal conduct. &here.ore" it =a0 not imBroBer .or him to in.er the Bo00i<ilit- o. a
concealed =eaBon.H Certain &-Be0 o. Crime Do Ku0ti.- an MautomaticN (ri0? 4an-" <ut not all" court0
hold that certain t-Be0 o. criminal activit- are commonl- a00ociated =ith =eaBon0" there<- Ju0ti.-ing
a .ri0? .or =eaBon0 i. there i0 rea0ona<le 0u0Bicion o. that t-Be o. criminal activit-. (or e)amBle"
Mhigh levelN drug dealing ha0 <een vie=ed thi0 =a- in the .ollo=ing ca0e0: 5.S. v. Bro=n" 9+3 (.2d
%4+ I$th Cir. 199+;" /eoBle v. 6ee" 24+ Cal. !Btr. 32 I19$7;" 5.S. v. /ea-" $$% (.SuBB. 1 IDC D.C.
199%;" 5. S. v. 4c4urra-" 34 (.3d 14+% %% I$th Cir.1994; and 5.S. v. Sala0" $79 (.2d %3+ I9th Cir.
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19$9; 5.S. v. /rice" 1$4 (.3d *37 I7th Cir.1999;. #iolent dome0tic di0Bute0 can Auali.-" /eoBle v.
Bar<er" %37 N.E.2d 1171 I1ll. 19$9;" State v. #a0AueO" $+7 /.2d %2+ I,riO. 1991;. ,rmed ro<<er-:
5.S. v. ,<o?hi" $29 (.2d *** I$th Cir.19$7; and 5.S. v. 6ang" $1 (.3d 14+% I$th Cir. 1994;.
Burglar-: 5.S. v. 8al?er" 924 (.2d 1 I10t Cir. 1991;" 5.S. v. 4oore" $17 (.2d 11+% I4th Cir. 19$7;.
I*; M/6,1N (EE6N 4inne0ota v. Dic?er0on" 113 S.Ct. 213+ I1993;" i0 the 0o'called HBlain .eelH ca0e.
5ni.ormed Bolice =ere on Batrol at night near an aBartment <uilding ?no=n to them a0 a hot<ed o.
drug dealing0. /olice had 0erved 0everal drug 0earch =arrant0 at that <uilding and had citiOen
comBlaint0 o. drug0 <eing 0old in the hall=a-0. Dic?er0on =a0 o<0erved leaving the <uilding and
=al?ed to=ard the mar?ed Bolice car. 5Bon 0eeing the Bolice" he turned and a<ruBtl- =al?ed the
other =a- and entered an alle-. &he o..icer0 made a H&err- 0toBH on Dic?er0on and al0o H.ri0?edH
him. 8hile H.ri0?ingH Dic?er0on" one o..icer .elt 0omething in hi0 Boc?et =hich the o..icer 0lid
around and maniBulated" then removed a Bla0tic <ag containing 1C% gram o. roc? cocaine. I&he
legalit- o. the H0toBH and the deci0ion to H.ri0?H =ere not an i00ue <e.ore the 5nited State0 SuBreme
Court. 1t =a0 a00umed" <ut not directl- held <- the Court" that the- =ere valid.; &he i00ue i0 =hether
and =hen HBlain .eelH =ould allo= o..icer0 to legall- 0eiOe item0 other than 0u0Bected =eaBon0. &he
Court held a0 .ollo=0: a00uming that there i0 a legal 0toB and a legal .ri0?" and during the .ri0? the
o..icer .eel0 an item that i0 not a 0u0Bected =eaBon" then i. it i0 immediatel- aBBarent .rom the ma00
and contour that the item i0 Bro<a<l- contra<and" the o..icer can legall- 0eiOe it I=ithout having to
arre0t the Ber0on and rel- on 0earch incident to arre0t;. 1n Dic?er0on" the Court ruled that the roc?
cocaine =ould have to <e 0uBBre00ed" <ecau0e the o..icer continued .eeling and .ri0?ing a.ter the
o..icer alread- concluded no =eaBon =a0 in the Boc?et ' i.e." Blain .eel mean0 immediatel- aBBarent.
1n 5.S. v. /roctor" 14$ (.3d 39 I10t Cir. 199$; Bolice had la=.ull- entered a Bremi0e0 and 0eiOed a
large Bac?age o. mariJuana. ,<out 1% minute0 later. &=o Ber0on0 ?noc?ed on the door and =ere
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admitted entr-. &he o..icer Batted them do=n and .elt =hat he thought =a0 a Bla0tic <ag containing
mariJuana. &he Court uBheld the .ri0? and al0o the 0eiOing o. the mariJuana <a0ed on the o..icerP0
e)Berience and the .act that the Ber0on0 entered a drug hou0e Ju0t a.ter the drug0 arrived. 1n State v.
Conner0" 11* Nev. FFFF" 994 /2d 44 I(e< 4" 2+++; an o..icer la=.ull- 0toBBed and .ri0?ed Satan
!enee Conner0. ,.ter ruling out a =eaBon the o..icer changed hi0 griB on a Boc?et to determine =hat
an o<Ject =a0 and removed a 0mall vial o. methamBhetamine. &he item =a0 0uBBre00ed <a0ed uBon
the Dic?er0on ruling. 8e0tla= comButer re0earch di0clo0e0 that man- .ederal court0 have .ollo=ed
the %* rule e0ta<li0hed <- 4inne0ota v. Dic?er0on and that more than 9+Y o. State SuBreme Court0
=hich have dealt =ith the i00ue have adoBted the 0ame rule. I7; 82,& 6141&S EZ1S& 3N &2E
SC3/E ,ND 1N&ENS1&7 3( &2E S&3/D &he :eneral !ule 1n 5.S. v. SharBe" 1+% S.Ct. 1%*$
I19$%;" a DE, agent develoBed rea0ona<le 0u0Bicion that one o. t=o vehicle0 traveling in tandem on
a high=a- =a0 0muggling drug0. &he agent got helB .rom a 0tate trooBer and a Ba00enger car =a0
Bulled over. &he Bic?uB truc? 0u0Bected to contain the drug0 could not <e Bulled over .or 0everal
mile0. &he Bolice unit0 lo0t radio contact and the Bic?uB truc? and it0 driver =ere detained a<out 1%
minute0 <e.ore an agent arrived" 0melled mariJuana and develoBed Bro<a<le cau0e. &he criminal
claimed that thi0 time dela- converted the H0toBH into an Harre0tH and 0ince there =a0 onl- rea0ona<le
0u0Bicion and not Bro<a<le cau0e" he claimed there =a0 an unla=.ul arre0t. &he Court held: no arre0t
until a.ter the 0ni.. o. mariJuana ' 0coBe o. &err- 0toB =a0 3@. &he Court 0aid a &err- 0toB =a0 a
temBorar- detention Ia0 oBBo0ed to an arre0t; and that the 0coBe =a0 la=.ul a0 long a0 the Bolice
diligentl- Bur0ued a mean0 o. inve0tigation that =a0 li?el- to con.irm or di0Bel their 0u0Bicion0
Auic?l-. N3&E: 1n So?olo=" the 5nited State0 SuBreme Court held that the inve0tigative mean0 u0ed
<- Bolice to con.irm or di0Bel 0u0Bicion do not have to <e the lea0t intru0ive mean0 Bo00i<le ' onl-
that the- <e Hrea0ona<leH mean0. 5.S. v. 3=en0" 1*7 (.3d 739 I10t Cir 1999;%+ minute detention o.
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driver and Ba00enger a.ter 0toB o. automo<ile .or 0Beeding =a0 not 0o long a0 to convert inve0tigative
0toB into de .acto arre0t. 6ength o. detention =a0 rea0ona<le under the circum0tance0: driver did not
have valid driver>0 licen0e" need to determine =hether Ba00enger had authorit- to drive the
automo<ile" and o..icer0> diligent Bur0uit o. mean0 o. inve0tigation that =ould di0Bel their 0u0Bicion0.
M&he Bermi00i<le 0coBe o. the detention deBend0 on the .act0 and circum0tance0 o. each ca0e" <ut in
ever- ca0e it mu0t <e temBorar- and la0t no longer than nece00ar- to e..ectuate the BurBo0e o. the
0toB.N 5.S. v. Sandoval" 29 (.3d %37 I1+th Cir.1994;. &hi0 rule i0 the 0ame a0 0et .orth in Nevada
6a=. But" note that Nevada Blace0 an a<0olute limit o. *+ minute0 .or a &err- 0toB. See al0o
8a0hington v. State" 94 Nev. 1$1 I197$;. N.!.S. 171.1231. ,rre0t i. Bro<a<le cau0e aBBear0. ,t an-
time a.ter the on0et o. the detention Bur0uant to N!S 171.123" the Ber0on 0o detained 0hall <e arre0ted
i. Bro<a<le cau0e .or an arre0t aBBear0. 1." a.ter inAuir- into the circum0tance0 =hich BromBted the
detention" no Bro<a<le cau0e .or arre0t aBBear0" 0uch Ber0on 0hall <e relea0ed. 1." in the cour0e o. the
detention" .urther in.ormation come0 to the ?no=ledge o. %7 the o..icer =hich amount0 toH/CCN to
arre0t Ii.e." more .act0 than needed .or rea0ona<le 0u0Bicion;" then -ou can arre0t. 1n reBort =riting" <e
0ure to di..erentiate initial 0toB a0 inve0tigator- detention and =hen and ho= it e0calated into an
arre0t. Non'Search E)amination 1n 5.S. v. 4artin" $+* (.2d 2+4 I$th Cir. 19$*;" =here an o..icer
loo?ed through the =indo= o. a 0u0Bect>0 Bic?uB truc? and 0a= machine gun Bart0 '' he could 0eiOe
them =ithout =arrant" or in &e)a0 v. Bro=n" 4*+ 5.S. 73+ I19$3;" =here Bolice 0hined a .la0hlight
into a Ber0on>0 car =hich =a0 0toBBed at a routine tra..ic chec? Boint and 0a= =hite Bo=der and
<alloon0. &hi0 rule =a0 aBBlied in State v. 2er<ert 8right" 1+4 Nev. %21 I19$$;. &emBorar- SeiOure
o. 1tem0 !ea0ona<le 0u0Bicion can 0uBBort a temBorar- 0eiOure I=ithout a 0earch; o. Ber0onal item0
0uch a0 the 0u0Bect>0 0uitca0e in 5. S. v. /lace" 4*2 5.S. *9* I19$3; Ialthough in /lace" the 9+'minute
detention o. the 0uitca0e =a0 too long .or an inve0tigative 0eiOure =ith !CS" <ut =ithout Bro<a<le
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cau0e;. ,n o..icerP0 removal o. a 0uitca0e .rom a <aggage area conve-or <elt" 0AueeOing the <ag and
then 0ni..ing the <ag =a0 neither a 0earch nor a 0eiOure. 5.S. v. :arcia" 42 (.3d *+4 I1+th Cir. 1994;
M&he temBorar- moving o. unattended luggage .rom one area o. a <u0 to another to .acilitate a dog
0ni.. i0 not a 0eiOure.M 5.S.
v. :raham" 9$2 (.2d 273 I$th Cir. 1992; M&he de.endantP0 onl- intere0t =a0 that the airline =ould
Blace hi0 luggage on the ne)t airBlane. &he Bolice Broce00 o. ta?ing the luggage .rom a cart to an
o..ice and having the dog 0ni.. it =a0 comBleted Brior to the time the luggage =ould have <een
Blaced on the airline. &here =a0 no 0eiOure o. the luggage until a.ter the dog alerted.N 5.S. v.
(uru?a=a" 99 (.3d 1147 I9th Cir.199*; Same re0ult in 5.S. v. 8ard" 144 (.3d 1+44 I7th Cir. 199$;.
Conducting a one'on'one at the 0cene or el0e=here. N3&E: N!S 171.123 0a-0 in Nevada the Hone on
oneH mu0t <e at Blace =here 0u0Bect detained. ,lthough no emergenc- e)ceBtion i0 li0ted in Nevada
0tatute0" Bro<a<l- it =ould <e 3@ to tran0Bort the 0u0Bect Ia00uming !CS; to the victim i. the victim
couldn>t <e tran0Borted. , 39'minute detention o. 2 0e)ual a00ault 0u0Bect0" including tran0Bortation
to a ho0Bital to <e vie=ed <- the victim" =a0 valid =here <a0ed on !CS. ,t lea0t 2% minute0 o. the
detention =a0 due to comBletion o. the victim>0 treatment at the ho0Bital <e.ore vie=ing the 0u0Bect0.
/olice =ere acting diligentl- to Bur0ue a mean0 o. inve0tigation" namel-" di0Bla- o. the de.endant0 to
the victim =hile her memor- =a0 0till .re0h" =hich =a0 li?el- to con.irm or di0Bel their 0u0Bicion
Auic?l-" and thi0 mean0 o. inve0tigation %$ o<viou0l- reAuired the rea0ona<le detention o. the
de.endant0.H State v. 4itchell" %+7 ,.2d 1+17" Conn.19$*;. I$; 5SE 3( 8E,/3NS 3!
2,NDC5((S 1N DE&EN&13N Numerou0 ca0e0 have held that di0Bla- o. =eaBon or handcu..ing
0u0Bect doe0 not in and o. it0el. convert a HdetentionH into an Harre0tH Ialthough the0e thing0 tend to
Bu0h in the direction o. arre0t'0ee Mlevel0 o. contactN .actor0; <ut -ou mu0t <e a<le to articulate =h-
the0e mean0 =ere emBlo-ed Ithing0 0uch a0 0u0Bicion directed at crime o. violence" detection
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occurred at night" i0olated area" o..icer alone" ri0? o. .light;. 2andcu..0 o?a-" 5. S. v. Bauti0ta" *$4
(.2d 12$* I9th Cir. 19$2;. Same re0ult in 5.S. v. Blac?man" ** (.3d 1%72 I11th Cir. 199%; and al0o
in 5.S. v. &ilmon" 19 (.3d 1221 I7th Cir. 1994; /lacing 0u0Bect in Bolice car did not eAual an arre0t.
State v. Bra)ton" 49% ,.2d 273 I19$%;. Same re0ult in 5.S. v. Cannon" 29 (.3d 472 I9th Cir. 1994;.
1n 5. S. v. 4erritt" *9% (.2d 12*3 I1+th Cir. 19$2;" the Court held that Bointing a gun at a 0u0Bect
0toBBed on a rea0ona<le 0u0Bicion o. criminal activit- doe0 not nece00aril- turn the encounter into an
arre0t reAuiring Bro<a<le cau0e. , Bic?uB truc? <elieved to contain a murder .ugitive and 2 other
Ber0on0 =a0 0urrounded <- at lea0t 12 o..icer0" and a0 man- a0 three Bointed gun0 at the 0u0Bect0.
&hi0 0ho= o. .orce =a0 not unrea0ona<le" con0idering the Botential danger .aced <- the o..icer0. 3ne
o. the Ber0on0 <elieved to <e in the truc? =a0 =anted .or murder" and the Bolice had <een advi0ed that
he =a0 dangerou0 and heavil- armed. ,l0o" the Bolice had Ju0t <een to a hou0e =here the 0u0Bect =a0
thought to re0ide" and o<0erved a large a00ortment o. deadl- =eaBon0 and ammunition. &he 0ame
circum0tance0 0uBBorted a H.ri0?H o. the Bic?uB truc? .or =eaBon0. 4erritt ha0 <een .ollo=ed in
numerou0 other ca0e0: 5. S. v. 2ardnett" $+4 (.2d 3%3 I*th Cir. 19$*;ICC1 0aid 4 armed men =ere in
car;9 5. S. v. !oBer" 7+2 (.2d 9$4 I11th Cir. 19$3; I<ail JumBer;9 5. S. v. /erate" 719 (.2d 7+* I4th
Cir. 19$3;9 5. S. v. Kone0" 7%9 (.2d *33 I$th Cir. 19$%;9 5. S. v. &rullo" $+9 (.2d 1+$ I10t Cir. 19$7;"
5.S. v. ,lvareO" $99 (.2d $33 I9th Cir. 199+; IBo00i<le <an? ro<<er- and e)Blo0ive0;9 5.S. v. &a-lor"
$%7 (.2d 21+ I4th Cir. 19$$; I!CS 0toB and Bolice ?ne= Ber0on had <een convicted .or a00ault =ith
intent to murder and ro<<er-;9 5.S. v. &ilmon" 19 (.3d 1221 I7th Cir. 1994; I!CS 0toB o. <an? ro<<er
=ho threatened u0e o. e)Blo0ive09 5.S. v. Cole" 7+ (.3d 113 I4th Cir. 199%; IBolice 0u0Bected car
occuBant0 had a large amount o. drug0 and might <e armed;. 1n 2ou0ton v. Clar? Count-" 174 (.3d
$+9 I*th Cir. 1999; the Court held that it =a0 valid .or the o..icer" a.ter a !CS 0toB to handcu.. a
0u0Bect in a 0eriou0 violent crime" <ut the length and manner o. the o..icerP0 conduct mu0t <e related
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to the initial <a0i0 .or the 0toB9 Same ruling in 5.S. v. CamB<ell" 17$ (.3d 34% I%th Cir. 1999; valid
.or o..icer I=ith !CS .or the 0toB; to dra= gun and handcu.. the 0u0Bect =ho =a0 in a car =ith the
licen0e num<er o. a recent armed ro<<er-. 1n 5.S. v. Navarrete'Baron" 192 (.3d 7$* I$th Cir. 1999;
the Court held that %9 Bolice o..icer0 did not e)ceed 0coBe o. &err- 0toB =hen the- handcu..ed
occuBant0 o. automo<ile and Blaced them in 0eBarate Batrol car0 =hile o..icer0 0earched automo<ile9
there =ere t=o 0u0Bect0 and onl- t=o o..icer0 at 0cene" detention did not la0t .or unrea0ona<l- long
time" and in light o. dangerou0 nature o. 0u0Bected crime o. drug tra..ic?ing and good Bo00i<ilit- that
driver or Ba00enger had =eaBon" their con.inement =ith handcu..0 in <ac? o. Batrol car0 during
0earch =a0 rea0ona<l- nece00ar- to maintain 0tatu0 Auo" Brotect o..icer0" and allo= them to conduct
0earch immediatel- and =ithout inter.erence. 1n 5.S. v. 4aOa'Corrale0" 1$3 (.3d 111* I9th Cir.
1999; Drug en.orcement agent0> temBoraril- detaining de.endant =ith the u0e o. handcu..0 .or 1% to
3+ minute0 =hile Aue0tioning him" =a0 rea0ona<le and did not e0calate into a .ull'<lo=n arre0t" given
relativel- 0mall num<er o. o..icer0 Bre0ent at 0cene" .act that =eaBon0 had <een .ound and more
=eaBon0 Botentiall- remained hidden" .leeing Ber0on0 =ere on the loo0e" uncooBerative Ber0on0 =ere
in0ide the re0idence" an armed loo?out =a0 out0ide and <le= a car horn =hen DE, came. &he Court
held that Mintru0ive and aggre00ive Bolice conduct =ill not <e deemed an arre0t in tho0e circum0tance0
=hen it i0 a rea0ona<le re0Bon0e to legitimate 0a.et- concern0 on the Bart o. the inve0tigating o..icer0.
8hen =e ma?e 0uch Judgment0" common 0en0e and ordinar- human e)Berience rather than <right'
line rule0 0erve a0 our guide" and =e recogniOe that H=e allo= intru0ive and aggre00ive Bolice conduct
=ithout deeming it an arre0t in tho0e circum0tance0 =hen it i0 a rea0ona<le...H
,l0o" =here i0 the Broo. o. 0ervice on dda -oung0 .iling0D 8h- 0hould all other litigant0 have to
comBl- =ith 0uch technicalitie0. DD, 7oung get0 Baid enough and ha0 enough 0ta.. to comBl- Ju0t
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li?e ever-one el0e mu0t. Doe0 the !eno Ku0tice Court have a corollar- to 8DC! 1+" reAuiring and
1nde) to E)hi<it0 and cover Bage0 .or e)hi<it0D
,ccording to the court in 1n re 8att0" %%7 ,.2d *+1 ID.C. 19$9;" a remand =ould <e nece00ar- in the
ca0e o. an aBBlicant =ho had <een convicted o. the.t" a 0econd'degree .elon-" and 0entenced to an
indeterminate term o. not le00 than one" nor more than 1%" -ear0 and .ined L1"%++" =here the 0tate
committee .ailed to conduct 0u..icient inAuir- or to con0ider adeAuatel- the evidence concerning the
aBBlicant>0 Bre0ent moral character and .itne00 to Bractice la=. 1n 0o ruling" the court Bointed out that
a count- attorne- in 5tah" the 0tate in =hich the conviction had occurred" initiated Broceeding0"
Bur0uant to it0 di0cretion" to e)Bunge <oth o. the aBBlicant>0 conviction0. Su<0eAuentl-" the court
0tated" the 5tah SuBreme Court ordered <oth o. the conviction0 e)Bunged a.ter .inding that the
aBBlicant had <een reha<ilitated and the e)Bungement0 =ould not <e again0t the Bu<lic intere0t.
4oreover" the court indicated" the 0tate o. 5tah al0o admitted the aBBlicant to it0 <ar =here he had
Bracticed .or aBBro)imatel- t=o -ear0 =ithout incident" the court adding that he had <een active in
hi0 communit-" =or?ing =ith the <ar" reBre0enting indigent0" 0erving on the Board o. Director0 o. the
Children>0 Center" and underta?ing other volunteer activitie0. !ea0oning thu0l-" the court ordered that
the ca0e <e remanded to the committee to conduct an indeBendent inve0tigation o." and to ma?e
.urther .inding0 a0 to" the aBBlicant>0 current moral .itne00 to Bractice la= in the Di0trict o. Colum<ia.
Vthe court" den-ing certi.ication o. a <ar aBBlicant =ho had <een involved in the.t and BerJur-
o..en0e0" reJected the aBBlicant>0 claim that he had re.ormed him0el." the court commenting that the
.act that he =a0 an adult =hen the action0 comBlained o. occurred cau0ed it to aBBroach the
aBBlicant>0 claim =ith caution" the court adding that the aBBlicant =a0 a .ir0t-ear la= 0tudent =hen he
0tole a 0hirt and BerJured him0el.9 one =ho ha0 0et on that .inal 0tage o. .ormal training .or admi00ion
to the <ar i0 not 0till to <e treated a0 a -outh" =ho doe0 not -et recogniOe and adhere to the
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rudimentar- reAuirement0 o. legal and moral <ehavior" and mem<er0 o. the <ar can <e a00umed to
?no= that certain ?ind0 o. conduct" generall- condemned <- re0Bon0i<le BeoBle" =ill <e ground0 .or
di0<arment" the court 0tating that =hile the aBBlicant 0u<mitted letter0 .rom 0everal mem<er0 o. the
Bro.e00ion in 0uBBort o. hi0 aBBlication" and =hile the aBBlicant>0 academic accomBli0hment0 and
other Bo0itive Aualitie0 =ere Bre0ent" i. the court i0 not convinced that an aBBlicant can =ith0tand
the0e temBtation0" it =ould <e remi00 to admit the aBBlicant" the court concluding that dou<t o.
con0eAuence mu0t <e re0olved in .avor o. the Brotection o. the Bu<lic" a0 a re0ult o. =hich the
aBBlicant =ould <e denied admi00ion at the Bre0ent time. ,BBlication o. &a-lor" 293 3r. 2$%" *47
/.2d 4*2 I19$2;Vin a ca0e in =hich a <ar aBBlicant engaged in thiever- o. a reBetitive nature" the
court denied the aBBlicant>0 aBBlication 0ince it aBBeared that the aBBlicant had not undergone the
reAui0ite reha<ilitation o. hi0 good moral character" the court Bointing out that the cru) o. the
aBBlicant>0 ca0e =a0 that hi0 Bre0ent moral character .itne00 Ju0ti.ied hi0 admi00ion to the <ar and that
hi0 reBetitive the.t0 =ere the re0ult o. a temBorar- a<erration that no longer e)i0ted and o. =hich
there =a0 no danger o. recurrence under the 0tre00 o. reBre0enting client09 the evidence o.
reha<ilitation in the ca0e re0ted Brimaril- on the oBinion o. a B0-chologi0t" -et the reBort .urni0hed no
in0ight into =h- a 2*'-ear'old college graduate =ho had comBleted one -ear o. evening la= 0chool
0tud- =ould reBeatedl- engage in Bett- thiever- =hile an invitee in the home0 o. hi0 cu0tomer0" and
the reBort o..ered no e)Blanation o. ho= thi0 comBul0ion" i. indeed it =ere a comBul0ion" had <een
treated" the court adding that it .urni0hed no rea0on0 =h- the aBBlicant>0 reha<ilitation 0hould <e
con0idered .ull and comBlete. ,BBlication o. :. S." 291 4d. 1$2" 433 ,.2d 11%9 I19$1;,ccording to
the court in 1n re Bar ,dmi00ion o. !iBBl" 2%+ 8i0. 2d %19" 2++2 81 1%" *39 N.8.2d %%3 I2++2; " a
<ar aBBlicant =ho had <een convicted o. mi0demeanor the.t Bre0ented 0u..icient evidence 0uBBorting
her reha<ilitation" and =ould there.ore <e admitted to the Bar o. 8i0con0in. &he court 0tated that
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=hile it aBBreciated that the <oard o. <ar e)aminer0 ma- have .elt con0trained to .ind that the
aBBlicant>0 variou0 in.raction0 Brecluded certi.-ing her character and .itne00 .or the BurBo0e0 o. <ar
admi00ion" it =a0 nonethele00 o. the oBinion that incident0 the <oard relied uBon" =hile certainl-
trou<ling" =ere not o. 0u..icient gravit- to =arrant a conclu0ion that the aBBlicant 0hould <e .orever
<arred .rom admi00ion to the Bractice o. la= in the 0tate. 1n 0o ruling" the court commented that it =a0
in.luenced <- the aBBlicant>0 0trong academic record" =hich 0he achieved =hile =or?ing 0everal Jo<0
and Ber.orming e)ten0ive communit- 0ervice" the court adding that it =a0 al0o in.luenced <- the
aBBlicant>0 evidence o. reha<ilitation a0 re.lected in the glo=ing te0timonial0 Brovided <- numerou0
emBlo-er0 .or =hom the aBBlicant had =or?ed. 4oreover" the court remar?ed" it did not aBBear that
the aBBlicant =ill.ull- .ailed to di0clo0e an- relevant in.ormation on her <ar aBBlication" and the
negative e..ect o. her earlier conduct =a0 diluted <- the Aue0tiona<le relia<ilit- o. 0ome o. the
in.ormation concerning that conduct. &he court concluded that the aBBlicant>0 record" =hile trou<ling
in certain o. it0 Barticular0" =a0 not 0u..icient" =hen revie=ed in the conte)t o. thi0 Broceeding" to
=arrant the conclu0ion that 0he .ailed to e0ta<li0h the reAui0ite character and .itne00 to <e admitted to
the Bractice o. la= in 8i0con0in1n (lorida Bd. o. Bar E)aminer0 !e: 6. @. D." 397 So. 2d *73 I(la.
19$1;" a Broceeding in0tituted on a Betition .or <ar admi00ion" the court held that the .inding0 o. the
<oard o. <ar e)aminer0 =ith re0Bect to an incident in =hich a <ar aBBlicant =a0 charged =ith" and
=a0 later acAuitted o." 0hoBli.ting" =a0 not alone 0u..icient to <ar the aBBlicant>0 admi00ion to Bractice
o. la=. &he aBBlicant>0 Jur- acAuittal" the court noted at the out0et" =hile not <inding on the <oard or
on the court in reaching conclu0ion0 regarding the alleged incident o. the.t it0el." had 0Becial
0igni.icance =ith regard to the <oard>0 conclu0ion that the aBBlicant lied three time0 in a00erting her
innocence. &hat i0" the court remar?ed" the Jur->0 conclu0ion vindicated the aBBlicant>0 declaration o.
innocence o. the crime charged <e.ore and at the Jur- trial" the court adding that her acAuittal =ould
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continue to Ju0ti.- her Brote0tation o. innocence at her 0u<0eAuent <oard hearing" even though the
<oard might have thought it advantageou0 to ma?e a 0ho=ing o. reBentance. &he court concluded that
the aBBlicant had carried her <urden o. demon0trating good character" and had 0ho=n a Bre0ent
.itne00 to enter the Bractice o. la=" a0 a re0ult o. =hich her Betition .or admi00ion =ould <e granted.1n
,BBlication o. ,llan S." 2$2 4d. *$3" 3$7 ,.2d 271 I197$;" the court held that an aBBlicant .or
admi00ion to the 4ar-land Bar =ho had <een convicted in the Ba0t e0ta<li0hed hi0 HBre0entH moral
character .itne00 =here there =a0 no evidence in the record even remotel- 3 ,.6.!.*th 49 /age 21 3
,.6.!.*th 49 I3riginall- Bu<li0hed in 2++%; \ 2+11 &hom0on !euter0. No Claim to 3rig. 5S :ov.
8or?0. 0ugge0ting that he had <een involved in an- mi0conduct in the -ear0 .ollo=ing hi0 the.t
o..en0e and =here he Bre0ented convincing evidence" including a letter .rom hi0 attorne-'emBlo-er"
o. hi0 reha<ilitation. &he ultimate te0t o. Bre0ent moral character" aBBlica<le to original admi00ion0 to
the <ar" i0 =hether" vie=ing the aBBlicant>0 character in the Beriod 0u<0eAuent to the aBBlicant>0
mi0conduct" he ha0 0o convincingl- reha<ilitated him0el. that it i0 BroBer that the aBBlicant <ecome a
mem<er o. a Bro.e00ion that mu0t 0tand .ree .rom all 0u0Bicion. &hat the a<0ence o. good moral
character in the Ba0t i0 0econdar- to the e)i0tence o. good moral character in the Bre0ent i0 a cardinal
BrinciBle in con0idering aBBlication0 .or original admi00ion to the <ar" the court concluded.1n
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BrinciBle in con0idering aBBlication0 .or original admi00ion to the <ar" the court concluded.1n
,.6.!.*th 49
mi0conduct in the -ear0 .ollo=ing hi0 the.t o..en0e and =here he Bre0ented convincing evidence"
including a letter .rom hi0 attorne-'emBlo-er" o. hi0 reha<ilitation. &he ultimate te0t o. Bre0ent moral
character" aBBlica<le to original admi00ion0 to the <ar" i0 =hether" vie=ing the aBBlicant>0 character in
the Beriod 0u<0eAuent to the aBBlicant>0 mi0conduct" he ha0 0o convincingl- reha<ilitated him0el. that
it i0 BroBer that the aBBlicant <ecome a mem<er o. a Bro.e00ion that mu0t 0tand .ree .rom all
0u0Bicion. &hat the a<0ence o. good moral character in the Ba0t i0 0econdar- to the e)i0tence o. good
moral character in the Bre0ent i0 a cardinal BrinciBle in con0idering aBBlication0 .or original
admi00ion to the <ar" the court concluded.1n ,BBlication o. ,llan S." 2$2 4d. *$3" 3$7 ,.2d 271
I197$;" the court held that an aBBlicant .or admi00ion to the 4ar-land Bar =ho had <een convicted in
the Ba0t e0ta<li0hed hi0 HBre0entH moral character .itne00 =here there =a0 no evidence in the record
even remotel- 3 ,.6.!.*th 49 /age 21 3 ,.6.!.*th 49 I3riginall- Bu<li0hed in 2++%; \ 2+11
&hom0on !euter0. No Claim to 3rig. 5S :ov. 8or?0. 0ugge0ting that he had <een involved in an-
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admi00ion to the <ar" the court concluded.1n ,BBlication o. ,llan S." 2$2 4d. *$3" 3$7 ,.2d 271
I197$;" the court held that an aBBlicant .or admi00ion to the 4ar-land Bar =ho had <een convicted in
the Ba0t e0ta<li0hed hi0 HBre0entH moral character .itne00 =here there =a0 no evidence in the record
even remotel- 3 ,.6.!.*th 49 /age 21 3 ,.6.!.*th 49 I3riginall- Bu<li0hed in 2++%; \ 2+11
&hom0on !euter0. No Claim to 3rig. 5S :ov. 8or?0. 0ugge0ting that he had <een involved in an-
admi00ion to the <ar" the court concluded.
(rom N# Bar Bar Coun0el !eBort0: HN# Bar No.: 9*44 Doc?et No.: %*939 (iled: Novem<er 1%"
2+1+ 3!DE! 3( &E4/3!,!7 S5S/ENS13N &emBorar- 0u0Ben0ion =arranted .ollo=ing
re0BondentP0 criminal conviction. Bar Coun0el .or the State Bar o. Nevada .iled an SC! 111 Betition
a0?ing thi0 court to re.er attorne- Konathan !. /atter0on .or .ormal di0ciBlinar- Broceeding0 andCor to
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temBoraril- 0u0Bend /atter0on .rom the Bractice o. la=. 3n 3cto<er 22" 2+1+" =e i00ued an order
re.erring /atter0on to the Southern Nevada Di0ciBlinar- Board .or commencement o. .ormal
di0ciBlinar- Broceeding0 and directing /atter0on to 0ho= cau0e =h- he 0hould not <e temBoraril-
0u0Bended .rom the Bractice o. la= Bending re0olution o. the .ormal di0ciBlinar- Broceeding0 again0t
him. /atter0on .iled a timel- re0Bon0e to our order. /atter0on .ir0t contend0 that he ha0 not 0u0tained a
conviction Bur0uant to SC! 111. 8e di0agree. (or BurBo0e0 o. the rule" Ma ]convictionP 0hall include
a Blea o. guilt-N ISC! 111I1;;. /atter0on admit0 that" even i. he comBlied .ull- =ith the condition0 o.
hi0 0ta-ed adJudication" he =ill 0till <e guilt- o. a crime. ,ccordingl-" he ha0 0u0tained a MconvictionN
.or BurBo0e0 o. SC! 111I1;. /atter0on ne)t contend0 that he had demon0trated good cau0e =h- he
0hould not <e temBoraril- 0u0Bended. 8e di0agree. !eceiving treatment" lac? o. client contact and
.inancial o<ligation0 are in0u..icient to overcome the .act that the crime to =hich he Bleaded guilt-
re.lect0 adver0el- on hi0 .itne00 to Bractice la=. ,ccordingl-" Bur0uant to SC! 111I9;" =e here<-
temBoraril- 0u0Bended attorne- Konathan !. /atter0on .rom the Bractice o. la= in Nevada. 1t i0 0o
3!DE!ED./ur0uant to SC! 111" temBorar- 0u0Ben0ion and re.erral to the aBBroBriate di0ciBlinar-
<oard are mandator- =hen an attorne- ha0 <een convicted o. a 0eriou0 crime" =hich include0 .elonie0
ISee SC! 111I*;'I$;;.
1n ,BBlication o. ,llan S." 2$2 4d. *$3" 3$7 ,.2d 271 I197$;" the court held that an aBBlicant .or
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BrinciBle in con0idering aBBlication0 .or original admi00ion to the <ar" the court concluded. Criminal
!ecord a0 ,..ecting ,BBlicant>0 4oral Character .or /urBo0e0 o. ,dmi00ion to the Bar" 3 ,.6.!.*th
49 I3riginall- Bu<li0hed in 2++%; &he.t or larcen- S4"%"13"14"1*'19
E)amBle0 o. 1llegal Conduct &hat 1nvolve0 4oral &urBitude , li0t o. crime0 involving moral
turBitude in =hich mem<er0 o. the <ar have <een con' 1* K6E:/!3 2*1 /age 2 1* K. 6egal /ro.. 2*1
\ 2+11 &hom0on !euter0. No Claim to 3rig. 5S :ov. 8or?0. victed and di0ciBlined <- the court0
include0 <ri<er-" Q(N12R em<eOOlement" Q(N13R eva0ion o. .ederal ta)e0" Q(N14R larcen-" Q(N1%R
ca0ting .ictitiou0^2*4 vote0" Q(N1*R e)tortion" Q(N17R receiving and concealing 0tolen BroBert-"
Q(N1$R mail .raud" Q(N19R and 0e)ual mi0conduct. Q(N2+R Crime0 &hat 4a- or 4a- Not Con0titute
4oral &urBitude (or 0everal rea0on0" it i0 imBo00i<le to comBile an e)hau0tive li0t o. crime0 =hich
de.initel- do not involve moral turBitude. (ir0t" =hether illegal conduct con0titute0 moral turBitude
o.ten deBend0 on the uniAue circum0tance0 0urrounding the commi00ion o. the crime. Second" court0
^2*% 0ometime0 do not 0a- =hether a crime con0titute0 moral turBitude. &hird" =hat con0titute0 0uch
a crime in one 0tate ma- not in another 0tate. (ourth" a0 Breviou0l- mentioned" the de.initional
Bro<lem0 Bo0e di..icultie0 =hen cla00i.-ing o..en0e0. But" the .ollo=ing are e)amBle0 o. o..en0e0 that
the ,la<ama court0 have held do not involve moral turBitude: a00ault and <atter-" di0tilling or
other=i0e violating the Brohi<ition la=0" Bu<lic drun?enne00 and di0orderl- conduct" 0Beeding"
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re0i0ting the o..icer ma?ing arre0t0" and u0ing a<u0ive and o<0cene language. Q(N21R &he remainder
o. the di0cu00ion =ill <e divided into .our toBic0" the .ir0t <eing drug related o..en0e0. Q(N1+R. See"
e.g." Barto0 v. 5nited State0 Di0t. Ct. .or Di0t. o. Ne<ra0?a" 19 (.2d 722 I$th Cir.1927;. Q(N11R.
4odel !ule0 o. /ro.e00ional Conduct !ule $.4 comment I19$3;. Q(N12R. &he (lorida Bar v. !endina"
%$3 So.2d 314 I(la.1991; IBer curiam; Iattorne->0 attemBt to <ri<e 0tate attorne- to o<tain le00er
criminal 0entence .or client =arrant0 di0<arment;9 1n re Barron" 1%% 8.#a. 9$" 1$1 S.E.2d 273 I1971;
Iconviction o. con0Birac- to commit <ri<er- and o. <ri<ing a Juror i0 conviction involving moral
turBitude" reAuiring annulment o. licen0e to Bractice la=;9 C.. 1n re @err" $* 8a0h.2d *%%" %4$ /.2d
297 I197*; I?no=ingl- BarticiBating in attemBt to 0u<orn BerJur- i0 a crime involving moral turBitude
and =arrant0 di0<arment;. Q(N13R. 1n re Shumate" 3$2 S.8.2d 4+% I@-.19*4; Iconviction o. attorne-
o. em<eOOling mone- =hich came into hi0 charge a0 tru0tee in <an?ruBtc- and o. ?no=ingl- and
.raudulentl- concealing mone- .rom the tru0tee and .rom creditor0 in <an?ruBtc- Broceeding0"
involved moral turBitude and =a0 ground .or di0<arment;. Q(N14R. 1n re :rime0" 414 4ich. 4$3" 32*
N.8.2d 3$+ I19$2; I.elon- conviction0 .or =ill.ul eva0ion o. .ederal ta)e0 and coun0eling a client to
lie to inve0tigator0 in connection =ith ta) .raud ca0e =arrant di0<arment;9 See al0o @entuc?- State
Bar ,00oc. v. #incent" %37 S.8.2d 171 I@-.197*;. But c.." Clar? v. ,la<ama State Bar" %47 So.2d
4*1 I,la.19$9; I.ailure to Ba- .ederal income ta)e0 a.ter one ha0 .iled doe0 not con0titute a crime o.
moral turBitude a0 a matter o. la=;9 1n re (ahe-" $ Cal.3d $42" %+% /.2d 13*9" 1+* Cal.!Btr. 313
I1973; I?no=ing 1* K6E:/!3 2*1 /age $ 1* K. 6egal /ro.. 2*1 \ 2+11 &hom0on !euter0. No
Claim to 3rig. 5S :ov. 8or?0. and unla=.ul .ailure to .ile a .ederal income ta) return doe0 not
involve moral turBitude =ithin meaning o. the di0ciBlinar- 0tatute0 =here .ailure i0 not .or BurBo0e o.
Ber0onal .inancial gain or =ith intent to avoid ultimate Ba-ment o. ta) o<ligation0 <ut i0 re0ult o.
Bro.e00ional and dome0tic Bre00ure0 and B0-choneurotic di..icultie0;. Q(N1%R. 1n re Schuler" $1$ /.2d
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13$ ICal.1991; I!a<ino=itO" C.K." and 4atthe=0" K." di00enting; Iattorne->0 conviction .or
mi0demeanor the.t =arrant0 t=o -ear 0u0Ben0ion;9 See al0o @entuc?- State Bar ,00>n v. Scott" 4+9
S.8.2d 293 I@-.19**;. Q(N1*R. 1n re Smith" 1%$ 8.#a. 13" 2+* S.E.2d 92+ I1974; I.ederal
conviction o. con0Birac- to ca0t .ictitiou0 vote0 .or .ederal" 0tate" and local candidate0 in Brimar-
election con0titute0 conviction o. crime involving moral turBitude" reAuiring annulment o. licen0e to
Bractice la=;. Q(N17R. 6i<arian v. State Bar o. Cali.ornia" 3$ Cal.2d 32$" 239 /.2d $*% I19%2;
Iattorne- =ho =rote and mailed a threatening letter in an attemBt to 0ecure mone- .or hi0 client .ound
guilt- o. e)tortion" a crime o. moral turBitude" and 0u0Bended .rom the Bractice o. la= .or 0i)
month0;. Q(N1$R. 1n re &homB0on 37 Cal.,BB. 344" 174 /. $* I191$;9 See generall- ,nnotation"
,ttorne->0 Conviction in (oreign or (ederal Kuri0diction a0 :round .or Di0ciBlinar- ,ction" 9$
,.6.!.3d 3%7" 41$ I19$+;. Q(N19R. 1n re Com-n0" 132 8a0h. 391" 232 /. 2*9 I192%; Iconviction o.
attorne- .or u0ing mail0 o. 5nited State0 .or BurBo0e o. o<taining BroBert- under .al0e Breten0e0 =a0
ground0 .or di0<arment 0ince 0uch o..en0e involve0 moral turBitude;. Q(N2+R. 1n re @amin" 2*2
N.8.2d 1*2 I4inn.197$; I0e)ual a<u0e again0t children o. client =arrant0 di0<arment;9 See al0o 1n re
2o=ard" 297 3r. 174" *$1 /.2d 77% I19$4; Iin e)change .or legal 0ervice0" attorne- and client
engaged in 0e)ual activit-9 attorne- =a0 convicted o. Bro0titution" a mi0demeanor involving moral
turBitude" and received a Bu<lic reBrimand;. See generall- ,nnotation" ,ttorne-0 Se)ual
1mBroBrietie0" 43 ,.6.!.4th 1+*2 I19$*;. Q(N21R. C. :am<le" 4cElro->0 ,la<ama Evidence S
14%.+1I1+; I3d ed. 1977;. Q(N22R. 1n re @innear" 1+% N.K. 391" 394" %22 ,.2d 414" 41* I19$7;.
Q(N23R. 1n re 4claughlin" %22 ,.2d 999" 1+++ IN.K.19$7; IAuoting 1n re @innear" %22 ,.2d 414
IN.K.19$7;;.1n re Schuler" $1$ /.2d 13$ ICal.1991; I!a<ino=itO" C.K." and 4atthe=0" K." di00enting;
Iattorne->0 conviction .or mi0demeanor the.t =arrant0 t=o -ear 0u0Ben0ion;9 See al0o @entuc?- State
Bar ,00>n v. Scott" 4+9 S.8.2d 293 I@-.19**;.
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Conviction o. .ive count0 o. the.t o. client .und0" neglect o. Bro<ate o. e0tate0 and conver0ion o.
.und0 <elonging to one o. tho0e e0tate0 i0 mi0conduct =arranting revocation o. licen0e to Bractice
la=. SC! 11.+%" 2+.32I3;" 2+.%+" 21.1+I1;. 4atter o. Di0ciBlinar- /roceeding0 ,gain0t 4c6ean" 143
8i0. 2d 371" 421 N.8.2d %1% I19$$;. Se)uall- hara00ing .emale emBlo-ee re0ulting in
mi0demeanorConviction o. mi0demeanor the.t =arrant0 1$Hmonth 0u0Ben0ion .rom Bractice o. la="
a0 reciBrocal di0ciBline" =ith 0u0Ben0ion to commence .rom date o. .iling o. di0ciBlinar- comBlaint"
rather than .rom date o. SuBreme Court order. SC! 22.2%. 4atter o. Di0ciBlinar- /roceeding0
,gain0t Sneed" 17* 8i0. 2d 12*" 499 N.8.2d **$ I1993;.5nauthoriOed retention o. .und0 <elonging
to la= .irm at =hich attorne- i0 emBlo-ed" .ailure to .ile criminal aBBeal =ithin aBBlica<le time
Beriod" .ailure to ?eeB client in.ormed a0 to 113 ,.6.!. 1179 /age 41* 113 ,.6.!. 1179 I3riginall-
Bu<li0hed in 193$; \ 2+11 &hom0on !euter0. No Claim to 3rig. 5S :ov. 8or?0. 0tatu0 o. matter
and BromBtl- comBl- =ith client rea0ona<le reAue0t0 .or in.ormation" and conviction o. .elon- the.t
.or endor0ing and deBo0iting la= .irm client .ee0 into Ber0onal account =arrant0 revocation o. licen0e
to Bractice la=. SC! 2+:1.4Ia;" 2+:$.4I<" c;. 4atter o. Di0ciBlinar- /roceeding0 ,gain0t 6e!o0e" 1$2
8i0. 2d %9%" %14 N.8.2d 412 I1994;.Conviction0 .or .elon- the.t <- <ailee and the.t <- .raud
=arrant revocation o. licen0e to Bractice la=. SC! 2+.+4I3; I!eBealed;9 SC! 2+:$.4I<;. 4atter o.
Di0ciBlinar- /roceeding0 ,gain0t 4cBride" 1$4 8i0. 2d *+4" %1* N.8.2d 421 I1994;.
:overnment i0 entitled to 0elect ca0e0 .or Bro0ecution =hich it <elieve0 =ill Bromote Bu<lic
comBliance =ith Selective Service regi0tration la=09 =hile deci0ion to Bro0ecute individual cannot <e
made in retaliation .or e)erci0e o. right under (ir0t ,mendment to Brote0t :overnment regi0tration
and dra.t Bolicie0" Bro0ecution o. Brote0tor0 =ho Bu<licl- and =ith attendant Bu<licit- a00ert alleged
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Ber0onal Brivilege not to regi0ter a0 Bart o. Brote0t i0 not 0election on imBermi00i<le <a0i0. 5nited
State0 v 4artin I19$2" ND 1o=a; %%7 ( SuBB *$1" revd on other gnd0 IC,$ 1o=a; 733 (2d 13+9" cert
den I5S; $% 6. Ed. 2d 1%$" 1+% S Ct 1$*4. 8hat con0titute0 0uch di0criminator- Bro0ecution or
en.orcement o. la=0 a0 to Brovide valid de.en0e in 0tate criminal Broceeding0 9% ,.6.!.3d 2$+
I3riginall- Bu<li0hed in 1979;9$QaR 1nvidiou0ne00 or ar<itrarine00 o. Barticular <a0i0 .or 0electionQ47R
VDe.endant>0 e)erci0e o. con0titutional right0 QCumulative SuBBlementR 1n the .ollo=ing ca0e0 it
=a0 held that 0election o. the de.endant0 0olel- on the <a0i0 o. their e)erci0e o. their con0titutional
right0 =ould <e invidiou0. 8here the de.endant0 contended that the- alone had <een 0ingled out .or
Bro0ecution 9% ,.6.!.3d 2$+ /age 4$ 9% ,.6.!.3d 2$+ I3riginall- Bu<li0hed in 1979; \ 2+12
&hom0on !euter0. No Claim to 3rig. 5S :ov. 8or?0. 0olel- <ecau0e o. their vigorou0 u0e o. their
(ir0t ,mendment right0 to Brote0t the Bolicie0 o. the 0chool and the 0chool 0-0tem" the court in
/eoBle v Serna I1977" 2d Di0t; 71 Cal ,BB 3d 229" 139 Cal !Btr 42*" concluded that tho0e
allegation0" i. Broved" =ould con0titute the de.en0e o. invidiou0 Bro0ecution" and held that it =a0
error .or the trial court to den- de.endant0 .ull di0cover- in connection =ith their claim. 1n 5nited
State0 v Smith I197*" Di0t Col ,BB; 3%4 ,2d %1+" the de.endant contended that the Bro0ecution>0
Bolic- o. not granting .ir0t'o..ender treatment to de.endant0 =ho had litigated an- i00ue0 in their
ca0e0 con0tituted a Bolic- o. uncon0titutional di0crimination again0t individual0 =ho cho0e to
e)erci0e their legal right0. ,lthough .inding that the government>0 Bolic- did not have that e..ect in
the ca0e <e.ore it" the court 0aid it had no Auarrel =ith the trial court>0 ruling that a Bolic- intended to
deter de.endant0 .rom e)erci0ing their legal right0 could not <e tolerated. C5456,&1#E
S5//6E4EN& Ca0e0: See State v :il<ert I19$7" ,BB; 112 1daho $+%" 73* /2d $%7" S 2%Q<R. Q&oB o.
SectionR QEND 3( S5//6E4EN&R S $Q<R 1nvidiou0ne00 or ar<itrarine00 o. Barticular <a0i0 .or
0electionQ^RVSe) QCumulative SuBBlementR 1n the .ollo=ing ca0e0" the court0 =ere divided on the
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00485
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i00ue o. =hether the 0e) o. the de.endant con0tituted an invidiou0 or ar<itrar- <a0i0 .or 0election .or
Bro0ecution. 1n the ca0e0 immediatel- .ollo=ing" the court0 held that 0e) =a0 an invidiou0 <a0i0. 1n
/eoBle v SuBerior Court o. ,lameda Count- I1977; 19 Cal 3d 33$" 13$ Cal !Btr **" %*2 /2d 131%"
in =hich the court reJected de.endant0> claim that the- had <een uncon0titutionall- di0criminated
again0t in the en.orcement o. the Bro0titution la=0" the court held that 0e) =a0 an ar<itrar-
cla00i.ication .or the BurBo0e0 o. a di0criminator- en.orcement claim. 1n Common=ealth v @ing
I1977" 4a00; 1977 ,dv Sheet0 2*3*" 372 NE2d 19*" the court concluded that a .emale charged =ith
Bro0titution or night=al?ing =ould <e entitled to a di0mi00al o. the charge0 =ith BreJudice on an
aBBroBriate 0ho=ing that the Bolice deBartment or the Bro0ecutor>0 o..ice .ollo=ed an unJu0ti.ia<le
Bolic- o. 0elective en.orcement again0t .emale Bro0titute0 and not male Bro0titute0. Noting that
,rticle 1+* o. the ,mendment0 to the Con0titution o. the Common=ealth o. 4a00achu0ett0 contain0
an e)Bre00 Brohi<ition o. di0crimination on the <a0i0 o. 0e)" grouBing it =ith other Brohi<ited <a0e0
.or di0crimination =hich are 0u<Ject to 0trict Judicial 0crutin-" the court concluded that it mu0t vie=
0e) di0crimination =ith the 0ame vigorou0 di0aBBroval that it =ould vie= racial" ethnic" and religiou0
di0crimination. Con0eAuentl-" the court 0aid" the Common=ealth could not en.orce the Bro0titution
la= again0t .emale Bro0titute0" <ut not again0t male Bro0titute0" unle00 it could demon0trate a
comBelling intere0t =hich =ould reAuire 0uch a Bolic-. 1n State v 4aldonado I197$" 4ont; %7$ /2d
29*" the court" in reJecting the de.endant>0 contention that the 4ontana Ber0i0tent .elon- o..ender
0tatute had <een di0criminatoril- aB' 9% ,.6.!.3d 2$+ /age 49 9% ,.6.!.3d 2$+ I3riginall-
Bu<li0hed in 1979; \ 2+12 &hom0on !euter0. No Claim to 3rig. 5S :ov. 8or?0. Blied again0t him"
0tated" in dicta" that the con0ciou0 e)erci0e o. 0ome 0electivit- in en.orcement =a0 not in it0el. a
.ederal con0titutional violation a<0ent an allegation and a 0ho=ing that the 0election =a0 deli<eratel-
<a0ed uBon an unJu0ti.ia<le 0tandard or ar<itrar- cla00i.ication 0uch a0 0e). 2o=ever" in the .ollo=ing
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ca0e in =hich the de.endant claimed that 0he had <een di0criminatoril- Bro0ecuted on the <a0i0 o. 0e)"
the court held that" a0 a matter o. con0titutional interBretation" 0e) had not <een declared an invidiou0
or ar<itrar- <a0i0 .or di0crimination. 1n 4inneaBoli0 v Bu0chette I197*; 3+7 4inn *+" 24+ N82d
%++" the de.endant" charged =ith Bro0titution" contended that the 0tatute =a0 di0criminatoril-
en.orced again0t her on the <a0i0 o. 0e). Stating that in order to <e a violation o. the eAual Brotection
clau0e" entitling de.endant to a di0mi00al o. the charge" the arre0t mu0t have <een <a0ed uBon an
unJu0ti.ia<le 0tandard 0uch a0 race" religion" or other ar<itrar- cla00i.ication" the court 0aid that" a0 a
matter o. con0titutional interBretation" di0crimination <a0ed uBon 0e) had not <een declared a matter
.or 0trict 0crutin-" =here the 0tate or local authorit- mu0t 0ho= a comBelling intere0t in emBlo-ing the
cla00i.ication. Concluding that all that =a0 needed to <e 0ho=n =a0 a rational <a0i0 .or the 0electivit-"
the court 0aid that =hile there had <een a con0ciou0 0electivit- in the en.orcement o. the Bro0titution
ordinance" there =a0 a rational relation0hiB <et=een that 0electivit- and the governmental o<Jective
o. controlling Bro0titution. C5456,&1#E S5//6E4EN& Ca0e0: See State v Evan0 I19$%; 73 NC
,BB 214" 32* SE2d 3+3" S 22QaR. Q&oB o. SectionR QEND 3( S5//6E4EN&R S $QcR 1nvidiou0ne00 or
ar<itrarine00 o. Barticular <a0i0 .or 0electionQ^RV&-Be o. legal activit- illegall- conducted
QCumulative SuBBlementR 1n the .ollo=ing ca0e in =hich de.endant contended that he had <een
di0criminated again0t on the <a0i0 o. the Barticular ?ind o. generall- legal activit- =hich he =a0
conducting in an illegal manner" the court held that di0crimination <a0ed uBon the t-Be o. <u0ine00
conducted <- the de.endant =ould reBre0ent a rea0ona<le cla00i.ication. ,BBealing .rom hi0
conviction .or violating a Sunda- clo0ing la=" the de.endant in &a-lor v /ine Blu.. I19%*; 22* ,r?
3+9" 2$9 S82d *79" cert den 3%2 5S $94" 1 6 Ed 2d $%" 77 S Ct 12%" contended that the 0tatute =a0
<eing di0criminatoril- en.orced" in that the Bolice arre0ted ever-one =ho oBerated a grocer- on
Sunda-" <ut allo=ed other <u0ine00e0 to remain oBen on that da-. 2o=ever" concluding that a
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di0tinction <et=een grocer- 0tore0 and other <u0ine00e0 =ould reBre0ent a rea0ona<le cla00i.ication"
the court held the de.endant =a0 entitled onl- to <e treated in the 0ame manner a0 other grocer0" and
uBheld hi0 conviction. C5456,&1#E S5//6E4EN& 9% ,.6.!.3d 2$+ /age %+ 9% ,.6.!.3d 2$+
I3riginall- Bu<li0hed in 1979; \ 2+12 &hom0on !euter0. No Claim to 3rig. 5S :ov. 8or?0. Ca0e0:
Native ,merican de.endant .ailed to e0ta<li0h Brima .acie ca0e o. 0elective or di0criminator-
Bro0ecution a0 ha<itual criminal =here" though hi0 evidence e0ta<li0hed that 2* individual0 during
1971 to 1977 =ere eligi<le .or Bro0ecution a0 ha<itual criminal0" that 1$ =ere Native ,merican0
I*9.2Y; and eight =ere Cauca0ian I3+.$Y;" and that o. the eight individual0 actuall- Bro0ecuted a0
ha<itual criminal0" 0even =ere Native ,merican0 I$7.%Y;" 0iOe o. grouB e)amined rendered 0tati0tic0
inconclu0ive. State v Bird 2ead I1979; 2+4 Ne< $+7" 2$% N82d *9$. Burglar-" e)tortion" larcen-"
ro<<er-" and the.t QCumulative SuBBlementR 1n the .ollo=ing ca0e0 in =hich the de.endant0 =ere
convicted o. <urglar-" larcen-" ro<<er-" the.t" and e)tortion" the court0 held that the de.en0e o.
di0criminator- Bro0ecution =a0 not e0ta<li0hed <- the de.endant. 1n Blount v Smith I1977" 4D /a;
44+ ( SuBB %2$" the court reJected the di0criminator- en.orcement claim o. Blainti..0" =ho =ere
convicted in 0tate court o. .raudulentl- receiving unemBlo-ment comBen0ation <ene.it0. &he Bureau
o. EmBlo-ment Securit- did not in0titute criminal Broceeding0 again0t ever- claimant .ound to have
received overBa-ment0" <ut onl- Bro0ecuted the mo0t 0eriou0 violator0. &he court 0aid that to Brevail
on their eAual Brotection claim0" Blainti..0 =ould have to 0ho= not onl- that the- =ere Bro0ecuted
=hile other0 =ere not" <ut al0o that the 0election =a0 made on the <a0i0 o. 0ome ar<itrar-
cla00i.ication. Noting that the Bureau o. EmBlo-ment Securit- manual o. oBeration0 and Brocedure0
Brovided e)ten0ive nondi0criminator- criteria to guide agenc- determination0 a0 to =hich violation0
=arranted Bro0ecution" the court 0aid that no=here in the record <e.ore it =a0 there an- 0ugge0tion
that the deci0ion to Bro0ecute Blainti..0 =a0 made on an- <a0i0 other than the criteria 0et .orth in the
- 94 -
00488
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manual" and accordingl- denied Blainti..0> claim .or relie.. 8here a de.endant =a0 convicted o.
ro<<er- =hich occurred =hen hi0 code.endant" a =oman" lured the victim into a <uilding .or BurBo0e0
o. Bro0titution" the court in /eoBle v 8illiam0 I19*%" 10t Di0t; 23% Cal ,BB 2d 3$9" 4% Cal !Btr 427"
reJected a0 <eing o<viou0l- irrelevant the claim o. de.endant that he =a0 di0criminated again0t
<ecau0e he and hi0 code.endant 9% ,.6.!.3d 2$+ /age %7 9% ,.6.!.3d 2$+ I3riginall- Bu<li0hed
in 1979; \ 2+12 &hom0on !euter0. No Claim to 3rig. 5S :ov. 8or?0. =ere Bro0ecuted .or ro<<er-"
=herea0 the victim =a0 not charged =ith adulter-" con0Birac- to commit act0 o. Bro0titution" or the
li?e. 1n /eoBle v &homB0on I197+" 2d Di0t; 1+ Cal ,BB 3d 129" $$ Cal !Btr 7%3" in =hich de.endant
=a0 convicted o. the.t" the court recogniOed that the .act that 0ome =rongdoer0 are Broceeded again0t
=hile other0" eAuall- 0u0Bect" are not doe0 not" o. it0el." amount to illegal di0crimination" and that
mere la)it- in en.orcement o. la=0 <- Bu<lic o..icial0 i0 not a denial o. eAual Brotection. De.endant"
convicted o. the.t o. trade 0ecret0" contended on aBBeal in /eoBle v Serrata I197*" 10t Di0t; *2 Cal
,BB 3d 9" 133 Cal !Btr 144" $4 ,6!3d 9%2" that hi0 conviction 0hould <e rever0ed <ecau0e the Benal
code =a0 0electivel- and di0criminatoril- en.orced again0t him. De.endant <a0ed hi0 argument uBon
the .act that there =ere no ca0e0 cited in the annotation0 to the 0tatute" =hich had <een enacted nearl-
1+ -ear0 earlier" and uBon the additional .act that the te0timon- at the trial e0ta<li0hed that man-
the.t0 o. the de.endant>0 emBlo-er>0 trade 0ecret0 had occurred Brior to the the.t0 .or =hich he =a0
Bro0ecuted and convicted. 1n holding that the argument =a0 untena<le" the court 0aid that the
0elective en.orcement o. a Benal 0tatute =a0 not a denial o. eAual Brotection o. the la=0 unle00 the
0election =a0 deli<eratel- <a0ed uBon an unJu0ti.ia<le 0tandard. &he court 0aid that the record =a0
devoid o. an- evidence that the la= en.orcement authoritie0 0ingled de.endant out .or Bro0ecution
<a0ed uBon an- 0uch unJu0ti.ia<le 0tandard" =here the record" 0ho=ing that de.endant>0 Bro0ecution
and conviction =ere the re0ult o. an e)tremel- di..icult" comBlicated" and e)Ben0ive inve0tigation
- 95 -
00489
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in0tigated <- hi0 emBlo-er onl- <ecau0e the value o. the 0tolen trade 0ecret0 =a0 e)tremel- great"
0ugge0ted the rea0on the 0tatute =a0 0o rarel- en.orced. 1n /eoBle v 4ac(arland I197%; 1$9 Colo
3*3" %4+ /2d 1+73" de.endant" convicted o. the.t" argued that he =a0 denied eAual Brotection o. the
la= <ecau0e the Bro0ecution o..ered immunit- to the other Bartie0 to the crime" <ut not to de.endant.
Stating that the con0ciou0 e)erci0e o. 0electivit- in the en.orcement o. la=0 i0 not in it0el. a
con0titutional violation a<0ent a 0ho=ing that a Bro0ecutor ha0 e)erci0ed a Bolic- o. 0electivit- <a0ed
uBon an unJu0ti.ia<le 0tandard" the court" 0a-ing that de.endant had the <urden o. Broving
di0criminator- Bro0ecution" held that <ald allegation0 o. 0uch Bractice0 hardl- 0u..iced. De.endant0"
.ound guilt- o. e)tortion" contended in /eoBle v /lamondon I197%; *4 4ich ,BB 413" 23* N82d $*
Idi0agreed =ith on other ground0 /eoBle v /ulle-" ** 4ich ,BB 321" 239 N82d 3**; and Idi0agreed
=ith on other ground0 /eoBle v ,mi0on" 7+ 4ich ,BB 7+" 24% N82d 4+%; and revd on other ground0
4++ 4ich %%9" 2%% N82d *19 and Iovrld on other ground0 /eoBle v Sacora.a0" 7* 4ich ,BB 37+"
2%* N82d %99;" that the deci0ion to Bro0ecute them" and the manner in =hich the Bro0ecution =a0
handled" =a0 done 0o =ith an Hevil e-eH and an HuneAual hand"H contrar- to the BrinciBle0 o. 7ic? 8o
v 2oB?in0 I1$$*; 11$ 5S 3%*" 3+ 6 Ed 22+" * S Ct 1+*4. Stating that it =a0 =ell e0ta<li0hed that
con0titutional Brovi0ion0 .or<id di0criminator- en.orcement o. the la=0" the court 0aid that a violation
o. eAual Brotection =ill not <e .ound unle00 the deci0ion to Bro0ecute =a0 <a0ed uBon an ar<itrar- or
invidiou0 cla00i.ication. Noting that de.endant0 =ere advocate0 .or a num<er o. antie0ta<li0hment
cau0e0" the court 0aid that de.endant0 .ailed to 0ho= that other alleged e)tortioni0t0 =ith
Broe0ta<li0hment vie=Boint0 =ere not 0u<Ject0 o. Bro0ecution. (inding that de.endant0 .ailed to ma?e
an a..irmative 0ho=ing that the deci0ion to Bro0ecute them =a0 Bremi0ed on an ar<itrar-
cla00i.ication" the court held that their argument =a0 =ithout merit. De.endant" convicted o. .ir0t'
degree <urglar-" comBlained on aBBeal in State v ,ndre=0 I19*9; 2$2 4inn 3$*" 1*% N82d %2$" o.
- 96 -
00490
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the allegedl- ar<itrar- and di0criminator- deci0ion 9% ,.6.!.3d 2$+ /age %$ 9% ,.6.!.3d 2$+
I3riginall- Bu<li0hed in 1979; \ 2+12 &hom0on !euter0. No Claim to 3rig. 5S :ov. 8or?0. o. the
Bro0ecutor to treat him more 0everel- than hi0 accomBlice =ho" a.ter Blea <argaining" =a0 charged
=ith third'degree <urglar-. &he record did not 0ho= =hat con0ideration0 imBelled the Bro0ecution to
grant lenienc- to de.endant>0 accomBlice or" i. it =a0 indeed the re0ult o. a Blea <argain" =h- the
0ame <argain =a0 not negotiated =ith de.endant. De.endant attemBted to in.er that no rational <a0i0
e)i0ted .or the di0Barate treatment" claiming that nothing 0ugge0ted that de.endant =a0 a more active
BarticiBant in the crime than hi0 accomBlice" that de.endant>0 Brior criminal record =a0 no =or0e than
the accomBlice>0" that the accomBlice gave the Bro0ecution no greater co'oBeration than did
de.endant" and that their relative reha<ilitation Botential0 =ere not nota<l- di..erent. 2o=ever" the
court 0aid that the arra- o. element0 involved in an evaluation o. 0uch .actor0 =a0 o<viou0l- too
numerou0 and comBle) to te0t de.endant>0 claim on that <a0i0 alone. Stating that a di0criminator-
BurBo0e =ill not <e Bre0umed" the court 0aid that the record did not e0ta<li0h that there had <een an
a<u0e o. Bro0ecutorial di0cretion. De.endant" convicted o. Bett- larcen- .or removing .rom a Bu<lic
li<rar- a magaOine <ecau0e it contained =hat he regarded to <e an o<0cene Ba00age" contended on
aBBeal in /eoBle v :orton I19*9; *+ 4i0c 2d $33" 3+4 N7S2d *9" that the trial court erred in not
Bermitting him to Bre0ent evidence in 0uBBort o. hi0 claim o. di0criminator- en.orcement o. the la=
again0t him. SBeci.icall-" de.endant 0ought to introduce evidence that the li<rar- had deBarted .rom
it0 u0ual Bractice regarding overdue <oo?0 =hich had not <een returned and had 0ingled him out .or
criminal Bro0ecution. Stating that de.endant>0 =rong.ul act could not <e eAuated =ith the .ailure to
return a <oo? =hich had <een BroBerl- <orro=ed in the .ir0t in0tance" the court 0aid that the
Brocedure cu0tomaril- emBlo-ed again0t delinAuent <orro=er0 =ould <e o. no relevanc-" and held
that there =a0 no genuine i00ue o. di0criminator- criminal Bro0ecution. C5456,&1#E
- 97 -
00491
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S5//6E4EN& Ca0e0: De.endant convicted o. the.t .ailed to e0ta<li0h vindictivene00 on Bart o.
Bro0ecution" a<0ent 0ho=ing in record that" a0 contended" 0tate attemBted to have de.en0e coun0el
removed in court Broceeding0 and that maliciou0 attitude e)i0ted to=ard de.endant <ecau0e o. hi0
nationalit-" lac? o. ,riOona re0idenc- and hi0 de.en0e coun0el. State v Kahn0 I19$2" ,BB; 133 ,riO
%*2" *%3 /2d 19. /ro0ecution o. Blac? 6i<eration ,rm- de.endant0 on 0tate <an? ro<<er- charge0
.ollo=ing .ederal conviction on <an? ro<<er- charge0 =a0 not di0criminator- Bro0ecution =here
e)amination o. Bro0ecution hi0tor- 0urrounding 0i) <an? ro<<erie0 in 0ame count- at time in Aue0tion
=a0 inconclu0ive regarding Bolitical or racial motivation0. State v 2a0?in0 I19$2; 1$$ Conn 432" 4%+
,2d $2$. Blac? de.endant convicted o. the.t in Bro0ecution ari0ing .rom undercover H0tingH oBeration
in Bredominantl- <lac? neigh<orhood =ith 0tati0ticall- high <urglarl- rate .ailed to e0ta<li0h raciall-
di0criminator- imBact and di0criminator- intent. State v !u00ell I19$4" 4inn; 343 N82d 3*. See
/eoBle v Dra?e I19$3" 3d DeBt; 92 ,BB Div 2d 1+11" 4*1 N7S2d %+9" a..d in Bart and mod in Bart
on other gnd0" remanded *1 N72d 3%9" 474 N7S2d 27*" 4*2 NE2d 37*" later Broceeding I19$4; 12*
4i0c 2d 3+9" 4$2 N7S2d 2+$" S 21. See State v SchmitO I19$$" ND; 431 N82d 3+%" S $QiR. 9%
,.6.!.3d 2$+ /age %9 9% ,.6.!.3d 2$+ I3riginall- Bu<li0hed in 1979; \ 2+12 &hom0on !euter0. No
Claim to 3rig. 5S :ov. 8or?0. Q&oB o. SectionR QEND 3( S5//6E4EN&R
3&2E! (35!&2 ,4END4EN& 1N&!5S13NS ISE,!C2 G
EN&!1ES;
,. SE,!C2 1NC1DEN& &3 ,!!ES& MS1&,N
I1; 1n :eneral
, MS1&,N i0 a MBolic- Ju0ti.iedN 0earch in the 0en0e that it doe0 not reAuire it0 o=n
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00492
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Ju0ti.ication in term0 o. Bro<a<le cau0e or rea0ona<le 0u0Bicion. ,ll that i0 reAuired i0 a
la=.ul cu0todial arre0t and a S1&, can occur.
1n 1llinoi0 v. 6a(a-ette" 4*2 5.S. *4+ I19$3;" the 5.S. SuBreme Court 0aid" M&he
authorit- to 0earch the Ber0on incident to a la=.ul cu0todial arre0t" =hile <a0ed on the
need to di0arm and to di0cover evidence" doe0 not deBend on =hat a court ma- later
decide =a0 the Bro<a<ilit- in a Barticular arre0t 0ituation that =eaBon0 or evidence
=ould in .act <e .ound on the Ber0on o. the 0u0Bect ... the arre0t <eing la=.ul mean0
the S1&, reAuire0 no additional Ju0ti.ication.N
1n 5nited State0 v. !o<in0on" 414 5.S. 21$ I1979; &he Court 0aid all cu0todial
arre0t0 .rom murder to tra..ic violation0 are eAual in Ju0ti.-ing S1&,.
I2; ScoBe o. S1&,
Since the S1&, i0 automatic =ith a la=.ul cu0todial arre0t" the legal i00ue0 in thi0
area all involve the 0coBe o. the S1&,. 2o= 0oon mu0t it occurD 2o= .ar can it go in
term0 o. area and intru0ionD &he .ollo=ing ca0e0 Brovide 0ome guideline0 <ut o..icer0
0hould realiOe that the more I1; time goe0 <- and I2; the .urther a=a- .rom the e)act
Blace o. the arre0t and I3; the harder it =ould <e .or the arre0tee to get into the area
0earched" the le00 li?el- it =ill <e a valid S1&,.
Ia; &ime
&he general rule i0 that the S1&, mu0t <e McontemBoraneou0N =ith the arre0t. 1t i0
a)iomatic that a S1&, cannot Brecede an arre0t in Broviding the Ju0ti.ication .or the
arre0t" <ut i. the Ju0ti.ication e)i0t0 alread- Iie ' Bolice had /CC <e.ore the S1&,; then the
.act that the .ormal arre0t immediatel- .ollo=ed the S1&, made no di..erence. !a=ling0
v. @entuc?-" 44$ 5.S. 9$ I19$+;.
- 99 -
00493
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,lthough the 0earch mu0t <e contemBoraneou0" court0 Brovide Bolice a <rie.
cu0hion o. time until the- have gained comBlete control o. the 0ituation. 5.S. v.
L*39"%%$ in 5.S. Currenc-" 9%% (.2d 712 ID.C. Cir. 1992; &here i0 no Brohi<ition
again0t a rea0ona<le dela- <et=een the elimination o. danger and the 0earch. 5.S. v.
2an" 74 (.3d %37I4th Cir. 199*; , 0earch incident to arre0t mu0t <e contemBoraneou0
<ut not nece00aril- immediate. 5.S. v. 8illi0" 37 (.3d 313 I7th Cir. 1994;.IDi..erent
77
Ber0on .rom 5.S. v. 8illi0 in Brete)t arre0t;.
1n 5.S. v. Kohn0on" 114 (.3d 43% I4th Cir. 1997;,BBl-ing 2an to the .act0 at
hand" no dou<t e)i0t0 that the car =a0 =ithin Kohn0on>0 immediate control at the
<eginning o. hi0 encounter =ith the o..icer09 the 0earch =a0 conducted at the 0cene o. the
arre0t" a.ter the o..icer0 moved the car to the .ront o. the 0hoBBing center mall into a
<etter lighted area9 and the dela- <et=een the elimination o. the danger''Kohn0on'' and
the 0earch =a0 not unrea0ona<le.
I<; /lace 0earched
1n Chimel v. Cali.ornia" 39% 5.S. 7%2I19*9; the 5.S. SuBreme Court held that
Bolice could not 0earch area0 in0ide a hou0e out0ide the immediate control o. the 0u0Bect
at the time o. the la=.ul arre0t. /olice are not allo=ed to 0imulate circum0tance0
Ju0ti.-ing a S1&, merel- <- <ringing the item the- =i0h to 0earch into the area near the
Ber0on arre0ted or vice ver0a. 5.S. v. /erea" 9$* (.2d *33 I2d Cir. 1993; 2o=ever" i. the
0u0Bect voluntaril- a0?0 to move a<out hi0 Bremi0e0 Ito get a coat or other clothe0" etc.;"
the o..icer can monitor the arre0teeP0 movement0 and S1&, ma- <e valid at another
location. 8a0hington v. Chri0man" 4%% 5.S. 1 I19$2;.
- 100 -
00494
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1tem0 Himmediatel- a00ociated =ith the Ber0onH can <e 0earched incident to the
arre0t o. the Ber0on including a =oman>0 0houlder <ag regardle00 o. =hether on her
0houlder or on the ground a .e= .eet a=a-. 5.S. v. Nel0on" 1+2 (.3d 1344 I4th Cir. 199*;
1n 5.S. v. Cotnam" $$ (.3d 4$7 I7th Cir. 199*; 3@ to 0earch arre0teeP0 Jac?et la-ing a
.e= .eet a=a- at arre0t. 5.S. v. 3rtiO" $4 (.3d 977 I7th Cir. 199*; 3@ to Bu0h <utton on
Bager .ound on de.endant at time o. arre0t revealing numeric me00age0.
Some court0 allo= a S1&, o. a loc?ed area or container" 5.S. v. :onOale0" 71
(.3d $19 I11th Cir.199*; and Clemon0 v. 5.S." 72 (.3d 12$ I4th Cir. 199%;. 2o=ever" i.
the arre0tee i0 handcu..ed and in Bolice cu0tod- and ha0 no chance o. unloc?ing and
oBening the container" it 0eem0 that 0earche0 o. loc?ed container0 reAuire a 0earch
=arrant or other e)ceBtion.I0uch a0 inventor- 0earch or con0ent;.
1n 5.S. v. &araOon" 9$9 (.2d 1+4% I9th Cir. 1993; Bolice could 0earch a de0?
dra=er =here de.endant =a0 0itting at time o. arre0t even though he =a0 handcu..ed.
Same ruling in 5.S. v. 2ud0on" 1++ (.3d 14+9 I9th Cir. 199*; 3@ to 0earch ri.le ca0e at
.eet o. Ber0on arre0ted even though he =a0 removed .rom the room 3 minute0 earlier.
Same ruling in 5.S. v. 2orne" 4 (.3d %97 I$th Cir. 1993; 0earch o. 0eat =here he =a0
arre0ted even though handcu..ed.
Ic; ,rre0tee 2andcu..ed
Ever- ca0e decided in S1&, la= 0a-0 that it ma?e0 no di..erence that the Ber0on
=a0 in handcu..0 at the time o. the S1&, a0 long a0 the other S1&, reAuirement0 are met.
Chimel v. Cali.ornia" 5nited State0 v. 2elm0etter" %* (. 3d 21 I%th Cir.199%; ISee
ca0e0 a<ove;.
- 101 -
00495
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2ii<el v. Si)th Kudicial Di0trict Court o. Nevada
(rom 8i?iBedia" the .ree enc-cloBedia
2ii<el v. Si)th Kudicial Di0trict Court o. Nevada
Seal o. the 5nited State0 SuBreme Court.0vg
SuBreme Court o. the 5nited State0
,rgued 4arch 22" 2++4
Decided Kune 21" 2++4
(ull ca0e name 6arr- D. 2ii<el v. Si)th Kudicial Di0trict Court o. Nevada" 2um<oldt Count-"
et al.
Citation0 %42 5.S. 177 Imore;
124 S. Ct. 24%19 1%9 6. Ed. 2d 2929 2++4 5.S. 6EZ1S 43$%9 72 5.S.6.8. 4%+99 17 (la. 6. 8ee?l-
(ed. S 4+*
/rior hi0tor- De.endant convicted" Ku0tice Court o. 5nion &o=n0hiB" 2um<oldt Count-9 a..irmed"
Si)th Kudicial Di0trict Court" 2um<oldt Count-9 a..irmed" %9 /.3d 12+1 INev. 2++2;9 cert. granted"
%4+ 5.S. 9*% I2++3;
Su<0eAuent hi0tor- 5S SuBreme Court rehearing denied <- 2ii<el v. Si)th Kudicial Di0t. Court"
%42 5.S. 9*+" 12% S. Ct. 1$" 1%9 6. Ed. 2d $49" 2++4 5.S. 6EZ1S 4$*$ I5.S." ,ug. 23" 2++4;
2olding
6a=0 reAuiring 0u0Bect0 to identi.- them0elve0 during inve0tigative 0toB0 <- la= en.orcement o..icer0
do not violate the (ourth ,mendment" and do not nece00aril- violate the (i.th ,mendment.Q1R
Court mem<er0hiB
Chie. Ku0tice
- 102 -
00496
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8illiam !ehnAui0t
,00ociate Ku0tice0
Kohn /. Steven0 _ Sandra Da- 3>Connor
,ntonin Scalia _ ,nthon- @enned-
David Souter _ Clarence &homa0
!uth Bader :in0<urg _ SteBhen Bre-er
Ca0e oBinion0
4aJorit- @enned-" Joined <- !ehnAui0t" 3>Connor" Scalia" &homa0
Di00ent Steven0
Di00ent Bre-er" Joined <- Souter" :in0<urg
6a=0 aBBlied
5.S. Con0t. amend0. 1#" #9 Nev. !ev. Stat. S 171.123I3;
2ii<el v. Si)th Kudicial Di0trict Court o. Nevada" %42 5.S. 177 I2++4;" held that 0tatute0 reAuiring
0u0Bect0 to di0clo0e their name0 during Bolice inve0tigation0 did not violate the (ourth ,mendment i.
the 0tatute .ir0t reAuired rea0ona<le and articula<le 0u0Bicion o. criminal involvement. 5nder the
ru<ric o. &err- v. 3hio" 392 5.S. 1 I19*$;" the minimal intru0ion on a 0u0Bect>0 Brivac-" and the
legitimate need o. la= en.orcement o..icer0 to Auic?l- di0Bel 0u0Bicion that an individual i0 engaged
in criminal activit-" Ju0ti.ied reAuiring a 0u0Bect to di0clo0e hi0 name.
&he Court al0o held that the identi.ication reAuirement did not violate 2ii<el>0 (i.th ,mendment
right0 <ecau0e he had no rea0ona<le <elie. that hi0 name =ould <e u0ed to incriminate him9 ho=ever"
- 103 -
00497
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the Court le.t oBen the Bo00i<ilit- that (i.th ,mendment Brivilege might aBBl- in a 0ituation =here
there =a0 a rea0ona<le <elie. that giving a name could <e incriminating.Q1R
Content0
1 Bac?ground o. the ca0e
2 4aJorit- oBinion
3 Di00enting oBinion0
4 See al0o
% Note0
* E)ternal lin?0
QeditR Bac?ground o. the ca0e
Nevada ha0 a M0toB'and'identi.-N la= that allo=0 a Bolice o..icer to detain an- Ber0on he encounter0
Munder circum0tance0 =hich rea0ona<l- indicate that the Ber0on ha0 committed" i0 committing or i0
a<out to commit a crimeN9 the Ber0on ma- <e detained onl- to Ma0certain hi0 identit- and the
0u0Biciou0 circum0tance0 0urrounding hi0 Bre0ence a<road.N 1n turn" the la= reAuire0 the Ber0on
detained to Midenti.- him0el.N" <ut doe0 not comBel the Ber0on to an0=er another Aue0tion0 But to
him <- the o..icer. &he Nevada SuBreme Court ha0 interBreted that Midenti.- him0el.N to mean to
merel- 0tate hi0 name. ,0 o. ,Bril 2++$" 23 other 0tate0Q2R have 0imilar la=0.
3n the evening o. 4a- 21" 2+++" the 0heri..P0 deBartment in 2um<oldt Count-" Nevada received a
reBort that a man had a00aulted a =oman in a red and 0ilver :4C truc? on :ra00 #alle- !oad. &he
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re0Bonding deBut- .ound a truc? Bar?ed on the 0ide o. the road. , man =a0 0mo?ing a cigarette
<e0ide the truc?" and a -oung =oman =a0 0itting in0ide it. &he deBut- o<0erved 0?id mar?0 in the
gravel <ehind the vehicle" leading him to <elieve the vehicle had come to a 0udden 0toB.
&he deBut- e)Blained to the man that there had <een a reBort o. a .ight <et=een the man and the
-oung =oman" and a0?ed the man i. he had an- identi.ication on him. &he man Brote0ted that he had
no rea0on to Brovide identi.ication" and <ecame ill'temBered =hen the deBut- continued to Bre00 him
.or hi0 identi.ication. &he man then a0?ed the deBut- =hat crime he =a0 <eing accu0ed o." a0 the
deBut- continued hi0 reAue0t0 .or identi.ication" 0tating that he =a0 Mconducting an inve0tigationN.
&he man Ber0i0ted in hi0 re.u0al to Brovide identi.ication" a0?ing in0tead to <e handcu..ed and ta?en
to Jail. &he deBut- continued to a0? .or the manP0 identi.ication" 0tating that the man =ould .ace arre0t
i. he did not cooBerate and Brovide identi.ication.Q3R 1n re0Bon0e" the man declared he =ould not
cooBerate <ecau0e he had not committed an- crime. 2e then turned around and =a0 arre0ted <- the
deBut-.
&hat man =a0 6arr- Dudle- 2ii<el" the Betitioner in thi0 ca0e" and the -oung =oman =a0 hi0
daughter 4imi 2ii<el. 6arr- 2ii<el =a0 charged =ith M=ill.ull- re0i0tQingR" dela-QingR" or
o<0tructQingR a Bu<lic o..icer in di0charging or attemBting to di0charge an- legal dut- o. hi0
o..ice.NQ4R 1n the Ku0tice Court .or 5nion &o=n0hiB" Nevada" 2ii<el =a0 convicted o. thi0 charge and
.ined L2%+. 2e aBBealed to the Si)th Kudicial Di0trict Court" =hich a..irmed the conviction. 2e then
aBBealed to the Nevada SuBreme Court" arguing that the reAuirement that he identi.- him0el. to an-
Bolice o..icer uBon reAue0t violated the (ourth ,mendment Brohi<ition on unrea0ona<le 0earche0 and
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0eiOure0 and hi0 (i.th ,mendment Brivilege again0t 0el.'incrimination. &he Nevada SuBreme Court
reJected the0e argument0" and 2ii<el a0?ed the 5.S. SuBreme Court to hear the ca0e.
QeditR 4aJorit- oBinion
StoB'and'identi.- la=0 have their root0 in earl- Engli0h vagranc- la=0 that reAuired 0u0Bected
vagrant0 to .ace arre0t unle00 the- gave a Mgood accountN o. them0elve09 thi0 Bractice" in turn" derived
.rom the common'la= Bo=er o. an- Ber0on to arre0t 0u0Biciou0 Ber0on0 and detain them until the-
gave Ma good accountD o. them0elve0. 4odern 0toB'and'identi.- la=0 com<ine a0Bect0 o. the old
vagranc- la=0 =ith a guide .or Bolice o..icer0 conducting inve0tigator- 0toB0" 0uch a0 tho0e
authoriOed under &err- v. 3hio" 392 5.S. 1 I19*$;.
2o=ever" the Court ha0 identi.ied a con0titutional di..icult- =ith man- modern vagranc- la=0. 1n
/aBachri0tou v. Kac?0onville" 4+% 5.S. 1%* I1972;" the Court held that a traditional vagranc- la= =a0
void .or vaguene00 <ecau0e it0 M<road 0coBe and imBreci0e term0 denied BroBer notice to Botential
o..ender0 and Bermitted Bolice o..icer0 to e)erci0e un.ettered di0cretion in the en.orcement o. the
la=.N 1n Bro=n v. &e)a0" 443 5.S. 47 I1979;" the Court 0truc? do=n &e)a0P0 0toB'and'identi.- la= a0
violating the (ourth ,mendment <ecau0e it allo=ed Bolice o..icer0 to 0toB individual0 =ithout
M0Beci.ic" o<Jective .act0 e0ta<li0hing rea0ona<le 0u0Bicion to <elieve the 0u0Bect =a0 involved in
criminal activit-.N ,nd in @olender v. 6a=0on" 4*1 5.S. 3%2 I19$3;" the Court 0truc? do=n a
Cali.ornia 0toB'and'identi.- la= that reAuired a 0u0Bect to Brovide Mcredi<le and relia<le
identi.icationN uBon reAue0t.Q%R &he =ord0 Mcredi<le and relia<leN =ere vague <ecau0e the-
HBrovided no 0tandard .or determining =hat a 0u0Bect mu0t do to comBl- =ith Qthe la=R" re0ulting in
virtuall- unre0trained Bo=er to arre0t and charge Ber0on0 =ith a violation.H
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M&he Bre0ent ca0e <egin0 =here our Brior ca0e0 le.t o... 2ere there i0 no Aue0tion that the initial 0toB
=a0 <a0ed on rea0ona<le 0u0Bicion" 0ati0.-ing the (ourth ,mendment reAuirement0 noted in Bro=n.
(urther" the Betitioner ha0 not alleged that the 0tatute i0 uncon0titutionall- vague" a0 in @olender.
2ere the Nevada 0tatute i0 narro=er and Breci0e.N &he Nevada SuBreme Court had held that the
Nevada 0tatute reAuired onl- that the 0u0Bect divulge hi0 name9 Bre0uma<l-" he could do 0o =ithout
handing over an- document0 =hat0oever. ,0 long a0 the 0u0Bect tell0 the o..icer hi0 name" he ha0
0ati0.ied the dictate0 o. the Nevada 0toB'and'identi.- la=.
&he narro= reAuirement0 o. NevadaP0 0toB'and'identi.- la= meant that it did not run a.oul o. the
(ourth ,mendment. M1n the ordinar- cour0e a Bolice o..icer i0 .ree to a0? a Ber0on .or identi.ication
=ithout imBlicating the (ourth ,mendment.N Since &err-" it ha0 <een clear that a Bolice o..icer =ho
rea0ona<l- 0u0Bect0 that a Ber0on i0 involved in criminal activit- ma- detain a Ber0on long enough to
di0Bel that 0u0Bicion. Xue0tion0 related to a Ber0onP0 identit- are a Mroutine and acceBted Bart o. man-
&err- 0toB0.N @no=ing a Ber0onP0 identit- ma-" o. cour0e" helB to clear a 0u0Bect and divert the
attention o. the Bolice to another 0u0Bect. 3n the other hand" ?no=ing the 0u0BectP0 name ma- Ju0t a0
Auic?l- con.irm to the o..icer that the Ber0on i0 =anted .or another" unrelated crime. 1n ca0e0 0uch a0
thi0" =here the Bolice are inve0tigating a dome0tic di0Bute" o..icer0 Mneed to ?no= =hom the- are
dealing =ith in order to a00e00 the 0ituation" the threat to their o=n 0a.et-" and Bo00i<le danger to the
Botential victim.N M&he reAue0t .or identit- ha0 an immediate relation to the BurBo0e" rationale" and
Bractical demand0 o. a &err- 0toB. &he threat o. criminal 0anction helB0 en0ure that the reAue0t .or
identit- doe0 not <ecome a legal nullit-.N Balancing the intru0ion into the individualP0 Brivac- again0t
the e)tent to =hich the 0toB'and'identi.- la= Bromote0 legitimate government intere0t0" the Court
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concluded that the (ourth ,mendment did not Brohi<it Nevada .rom ma?ing it a crime .or a Ber0on
detained under condition0 o. &err- to re.u0e to di0clo0e hi0 name to a Bolice o..icer uBon reAue0t.
(urthermore" the o..icerP0 reAue0t that 2ii<el identi.- him0el. did not imBlicate 2ii<elP0 (i.th
,mendment Brivilege again0t 0el.'incrimination. &here =a0 no Marticulated real and aBBrecia<le .ear
that Q2ii<elP0R name =ould <e u0ed to incriminate him" or that it ]=ould .urni0h a lin? in the chain o.
evidence needed to Bro0ecuteP him.N Becau0e 2ii<elP0 name =a0 not an incriminating Biece o.
evidence" he could not invo?e the (i.th ,mendment Brivilege in re.u0ing to di0clo0e it.
QeditR Di00enting oBinion0
Ku0tice Steven0 oBined that the CourtP0 Brecedent reAuired it to 0tri?e do=n NevadaP0 0toB'and'
identi.- la=. 5nder the Court>0 &err- Juri0Brudence" a 0u0Bect ha0 al=a-0 had the right to re.u0e to
an0=er Aue0tion0 But to him <- Bolice o..icer0 during a &err- 0toB. ,nd the (i.th ,mendment
Brivilege had al=a-0 attached during cu0todial interrogation0 <ecau0e in.ormation e)torted <- the
Bolice during 0uch interrogation0 i0 unavoida<l- te0timonial. 8h- el0e =ould the Bolice a0? .or a
Ber0onP0 name" i. not to determine =hether that Ber0on =a0 either =anted .or committing a crime or
directl- 0u0Bected o. committing a crimeD M&he o..icer in thi0 ca0e told Q2ii<elR that he =a0
conducting an inve0tigation and needed to 0ee 0ome identi.ication. ,0 the target o. that inve0tigation"
Q2ii<elR" in m- vie=" acted =ell =ithin hi0 right0 =hen he oBted to 0tand mute. ,ccordingl-" 1
re0Bect.ull- di00ent.N
Ku0tice Bre-er noted that Mthe Court =rote that an ]o..icer ma- a0? the Q&err-R detainee a moderate
num<er o. Aue0tion0 to determine hi0 identit- and to tr- to o<tain in.ormation con.irming or
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00502
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di0Belling the o..icerP0 0u0Bicion0. But the detainee i0 not o<liged to re0Bond.P Ber?emer v. 4cCart-"
4*$ 5.S. 42+ I19$4; IemBha0i0 added;.... the CourtP0 0tatement in Ber?emer" =hile technicall- dicta"
i0 the ?ind o. 0trong dicta that the legal communit- t-Bicall- ta?e0 a0 a 0tatement o. the la=. ,nd that
la= ha0 remained undi0tur<ed .or more than 2+ -ear0. &here i0 no good rea0on no= to reJect thi0
generation'old 0tatement o. the la=.D
Ku0tice Bre-er al0o e)Bre00ed a M0liBBer-'0loBeN concern that the maJorit-P0 oBinion =ould lead to
allo=ing the Bolice to a0? .ollo='uB Aue0tion0" 0uch a0 =hat the Ber0onP0 licen0e num<er i0" or =here
a Ber0on live0" =ithout running a.oul o. con0titutional Brotection0.
QeditR See al0o
6i0t o. 5nited State0 SuBreme Court ca0e0" volume %42
6i0t o. 5nited State0 SuBreme Court ca0e0
StoB and 1denti.- 0tatute0
QeditR Note0
` a < 1n uBholding 2ii<elD0 conviction" the Court noted
M1n thi0 ca0e BetitionerP0 re.u0al to di0clo0e hi0 name =a0 not <a0ed on an- articulated real and
aBBrecia<le .ear that hi0 name =ould <e u0ed to incriminate him.... ,0 <e0t =e can tell" Betitioner
re.u0ed to identi.- him0el. onl- <ecau0e he thought hi0 name =a0 none o. the o..icerP0 <u0ine00.D V
%42 5.S. 177" at 19+
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But the Court le.t oBen the Bo00i<ilit- o. di..erent circum0tance0:
MStill" a ca0e ma- ari0e =here there i0 a 0u<0tantial allegation that .urni0hing identit- at the time
o. a 0toB =ould have given the Bolice a lin? in the chain o. evidence needed to convict the individual
o. a 0eBarate o..en0e. 1n that ca0e" the court can then con0ider =hether the Brivilege aBBlie0" and" i.
the (i.th ,mendment ha0 <een violated" =hat remed- mu0t .ollo=. 8e need not re0olve tho0e
Aue0tion0 here.D V %42 5.S. 177" at 191
` See the article StoB and identi.- 0tatute0 .or a li0t o. 0tate0 =ith M0toB'and'identi.-N la=0.
` (rom the oBinion o. the Nevada SuBreme Court in 2ii<el v. Di0t. Ct." a0 =ell a0 the State o.
NevadaP0 <rie. to the SuBreme Court IBrie. .or !e0Bondent" B. 4;" the Court under0tood the 0tatute to
reAuire onl- that the 0u0Bect 0tate hi0 name or communicate it to the o..icer <- other mean0. &he
maJorit- oBinion noted that 2ii<el =a0 a0?ed to Brovide identi.ication" =hich the Court under0tood a0
a reAue0t to Broduce a driverP0 licen0e or 0ome other .orm o. =ritten identi.ication" 11 di..erent time09
ho=ever" it did not indicate that 2ii<el =a0 ever a0?ed 0imBl- to identi.- him0el.. 2ii<el did not rai0e
thi0 argument until hi0 Betition .or rehearing <- the SuBreme Court I/etition .or !ehearing" B. 1;.
` Nev. !ev. Stat. IN!S; S171.123I3; Brovide0 that:
M&he o..icer ma- detain the Ber0on Bur0uant to thi0 0ection onl- to a0certain hi0 identit- and the
0u0Biciou0 circum0tance0 0urrounding hi0 Bre0ence a<road. ,n- Ber0on 0o detained 0hall identi.-
him0el." <ut ma- not <e comBelled to an0=er another inAuir- o. an- Beace o..icer.N
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00504
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1t =a0 determined that <- re.u0ing to identi.- him0el." 2ii<el violated N!S S199.2$+" =hich 0tate0:
M, Ber0on =ho" in an- ca0e or under an- circum0tance0 not other=i0e 0Beciall- Brovided .or"
=ill.ull- re0i0t0" dela-0 or o<0truct0 a Bu<lic o..icer in di0charging or attemBting to di0charge an-
legal dut- o. hi0 o..ice 0hall <e Buni0hed ...N
` &he reAuirement o. Cali.ornia /enal Code S *47Ie; to Brovide Mcredi<le and relia<le
identi.icationN derived not .rom the 0tatutor- language <ut .rom a con0truction o. the 0tatute given <-
a Cali.ornia aBBellate ca0e" /eoBle v. Solomon I1973;" 33 Cal.,BB.3d 429. 1n 8ain=right v. Stone"
414 5.S. 21 I1973;" the 5.S. SuBreme Court had held that MQ.Ror the BurBo0e o. determining =hether
a 0tate 0tatute i0 too vague and inde.inite to con0titute valid legi0lation ]=e mu0t ta?e the 0tatute a0
though it read Breci0el- a0 the highe0t court o. the State ha0 interBreted it.P N
QeditR E)ternal lin?0
&e)t o. 2ii<el v. Si)th Kudicial Di0trict Court o. Nevada" %42 5.S. 177 I2++4; i0 availa<le .rom
State v. Cli..ord" 14 Nev. 72 234 6,!CEN7 2341 3..en0e0 and !e0Bon0i<ilit- &here.or 234 11
&a?ing 234?1* ?. /roBert- lo0t or mi0laid. Nev."1$79 &he rule that the .inder o. BroBert- 0o mar?ed
that the o=ner can <e a0certained i0 guilt- o. larcen- ,<andoned" lo0t" or mi0laid BroBert- 8e0t>0
@e- Num<er Dige0t 8e0t>0 @e- Num<er Dige0t" 6arcen- 1+ &rial Strateg- ,<andonment o. tangi<le
Ber0onal BroBert-" 2% ,m. Kur. /roo. o. (act0 2d *$% (orm0 ,..idavitVB- .inder or 0aver o. lo0t
BroBert-. ,m. Kur. 6egal (orm0 2d" ,<andoned" 6o0t" and 5nclaimed /roBert- S 1:11 !eBort <-
.inder o. lo0t BroBert-V&o Bolice or 0heri..>0 deBartment. ,m. Kur. 6egal (orm0 2d" ,<andoned"
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00505
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6o0t" and 5nclaimed /roBert- S 1:13 ,..idavitVB- .inder o. lo0t BroBert-" ,m. Kur. /leading and
/ractice (orm0" ,<andoned" 6o0t" and 5nclaimed /roBert- S 19 /etition or aBBlicationVB- .inderV
&o e0ta<li0h title to lo0t BroBert-" ,m. Kur. /leading and /ractice (orm0" ,<andoned" 6o0t" and
5nclaimed /roBert- S 34 4o0t modern authorit- hold0 that larcen- ma- <e committed =hen a Ber0on
.ind0 and retain0 an o=ner>0 lo0t BroBert-"Q1R 0o long a0 it =a0 the .inder>0 intent to deBrive the o=ner
o. the BroBert-.Q2R &o e0ta<li0h the o..en0e o. the.t o. lo0t or mi0laid BroBert-" the 0tate mu0t Brove:
I1; that the BroBert- =a0 lo0t or mi0laid" I2; that the de.endant ?ne= or learned the o=ner>0 identit- or
learned o. a rea0ona<le method o. identi.-ing the o=ner" and ,4K5! 6,!CEN7 S %$ /age 1 %+
,m. Kur. 2d 6arcen- S %$ \ 2+11 &hom0on !euter0. No Claim to 3rig. 5S :ov. 8or?0. I3; that the
de.endant .ailed to ta?e rea0ona<le mea0ure0 to return the BroBert-.Q3R 8hen one acAuire0 lo0t
BroBert- =hich he or 0he ?no=0 to have <een lo0t or mi0laid and doe0 not ta?e rea0ona<le mea0ure0
to return it to it0 o=ner" the acAuirer commit0 larcen- i. hi0 or her intent i0 to di0Bo0e o. the BroBert-
.or the acAuirer>0 o=n <ene.it or that o. another Ber0on.Q 4R &a?ing or =ithholding o. 0uch BroBert- i0
not =rong.ul unle00 the .inder .ailed to ta?e rea0ona<le mea0ure0 to return the BroBert- to it0 true
o=ner.Q%R &here i0 authorit- that there can <e no conviction .or the o..en0e o. the.t o. lo0t or mi0laid
BroBert- =ithout 0u..icient evidence that the BroBert- =a0 actuall- lo0t or mi0laid.Q*R 3ther authorit-
0tate0 that" <e.ore larcen- o. 0uch BroBert- ma- <e charged" there mu0t <e evidence that the o=ner
0till claim0 a right or intere0t in the BroBert-.Q7R /ractice :uide: 3ne =ho 0ee?0 to return lo0t BroBert-
in return .or a re=ard that he or 0he ha0 0olicited ha0 not ta?en rea0ona<le mea0ure0 to return lo0t
BroBert- and ha0 intended" <- 0ee?ing a re=ard" to di0Bo0e o. the BroBert- .or hi0 or her o=n <ene.it
and there<- commit0 larcen-.Q$R ,<andoned BroBert- i0 not the 0u<Ject o. larcen-"Q9R <ecau0e
BroBert- that ha0 <een voluntaril- a<andoned <- the o=ner <ecome0 0u<Ject to aBBroBriation <- the
.ir0t ta?er or .inder" =ho acAuire0 it a<0olutel-.Q1+R &he 4odel /enal Code Brovide0 that a Ber0on
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00506
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=ho come0 into control o. BroBert- o. another ?no=ing it to have <een lo0t" mi0laid" or delivered
under a mi0ta?e a0 to the nature or amount o. the BroBert- or the identit- o. the reciBient i0 guilt- o.
the.t i." =ith a BurBo0e to deBrive the o=ner o. it" the Ber0on .ail0 to ta?e rea0ona<le mea0ure0 to
re0tore the BroBert- to the one entitled to have it.Q11R Q(N1R 6ong v. State" 33 ,la. ,BB. 334" 33 So.
2d 3$2 I194$;9 Calhoun v. State" 191 4i00. $2" 2 So. 2d $+2 I1941;9 State v. @au.man" 31+ N.8.2d
7+9 IN.D. 19$1;9 State v. 4ac?" 31 3r. ,BB. %9" %*9 /.2d *24 I1977;9 State v. Kim" 13 3r. ,BB. 2+1"
%+$ /.2d 4*2 I1973;. ,0 to 0tra- animal0" 0ee SS %4" %%. ,0 to =hen .inder o. lo0t good0 ma- <e
guilt- o. larcen-" 0ee S $$. Q(N2R State v. 4oore" 4* N.C. ,BB. 2%9" 2*4 S.E.2d $99 I19$+;. Q(N3R
State v. Smith" 27* 4ont. 434" 91* /.2d 773 I199*;. Q(N4R /eoBle v. Dadon" 1*7 4i0c. 2d *2$" *4+
N.7.S.2d 42% ICit- Crim. Ct. 199*;. Q(N%R State v. Evan0" 119 1daho 3$3" $+7 /.2d *2 ICt. ,BB.
1991;. Q(N*R State v. 4ac?" 31 3r. ,BB. %9" %*9 /.2d *24 I1977;. ,4K5! 6,!CEN7 S %$ /age 2
%+ ,m. Kur. 2d 6arcen- S %$ \ 2+11 &hom0on !euter0. No Claim to 3rig. 5S :ov. 8or?0. (loral
de0ign0 Blaced uBon a grave are o. value to their donor0 0o long a0 the- remain in a condition to 0erve
the intended BurBo0e" <ut =hen the- have =ithered and died the- cea0e to <e the 0u<Ject o. larcen-.
Bu0ler v. State" 1$1 &enn. *7%" 1$4 S.8.2d 24 I1944;. Q(N7R Shedd v. State" 3%+ So. 2d 1+$% I(la.
Di0t. Ct. ,BB. 10t Di0t. 1977;. Q(N$R /eoBle v. Dadon" 1*7 4i0c. 2d *2$" *4+ N.7.S.2d 42% ICit-
Crim. Ct. 199*;. Q(N9R 4ori00ette v. 5.S." 342 5.S. 24*" 72 S. Ct. 24+" 9* 6. Ed. 2$$ I19%2;9 Com.
v. 8etmore" 3+1 /a. SuBer. 37+" 447 ,.2d 1+12 I19$2;. Q(N1+R ,m. Kur. 2d" ,<andoned" 6o0t" and
5nclaimed /roBert- S 27. Q(N11R 4odel /enal Code S 223.%. \ 2+11 &hom0on !euter0. 33'34B \
2+11 &hom0on !euter0C!1,. No Claim to 3rig. 5.S. :ovt. 8or?0. ,ll right0 re0erved. ,4K5!
6,!CEN7 S %$ END 3( D3C54EN& ,4K5! 6,!CEN7 S %$ /age 3 %+ ,m. Kur. 2d 6arcen- S
%$ \ 2+11 &hom0on !euter0. No Claim to 3rig. 5S :ov. 8or?0. ,merican Kuri0Brudence" Second
Edition Data<a0e uBdated ,ugu0t 2+11 ,<andoned" 6o0t" and 5nclaimed /roBert- ,nne 4. /a-ne"
- 113 -
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K.D. 11. !ight0 and 3<ligation0 o. (inder0" 3=ner0 and (ormer 3=ner0 D. 4i0laid /roBert- &oBic
Summar- Correlation &a<le !e.erence0 S 37. (inder0V3=ner or occuBant o. Bremi0e0 =here
BroBert- .ound 8e0t>0 @e- Num<er Dige0t 8e0t>0 @e- Num<er Dige0t" ,<andoned and 6o0t
/roBert- 1+ to 13 ,.6.!. 6i<rar- 6ia<ilit- .or lo00 o. hat" coat" or other BroBert- deBo0ited <-
cu0tomer in Blace o. <u0ine00" %4 ,.6.!.%th 393 &he right o. Bo00e00ion" a0 again0t all e)ceBt the true
o=ner" i0 in the o=ner or occuBant o. the Bremi0e0 =here the BroBert- i0 di0covered"Q1R .or mi0laid
BroBert- i0 Bre0umed to have <een le.t in the cu0tod- o. the o=ner or occuBier o. the Bremi0e0 uBon
=hich it i0 .ound.Q2R 8hen the o=ner o. Bremi0e0 ta?e0 Bo00e00ion o. mi0laid Ber0onal BroBert- le.t
<- an invitee" he or 0he <ecome0 a gratuitou0 <ailee <- oBeration o. la=" =ith a dut- to u0e ordinar-
care to return it to the o=ner.Q3R 8here a tenant .ind0 mi0laid BroBert- in the <a0ement o. hi0 or her
aBartment" =hich include0 the <a0ement" the tenant" not the landlord" i0 entitled to the BroBert-" a0 the
Ber0on in Bo00e00ion o. the Bremi0e0.Q4R &he rule that the o=ner o. the Bremi0e0 =here mi0laid
BroBert- i0 .ound ha0 right0 to Bo00e00ion 0uBerior to tho0e o. the .inder" ma-" ho=ever" <e changed
<- 0tatute and" thu0" thi0 di0tinction <et=een lo0t and mi0laid BroBert- ma- <e a<oli0hed.Q%R ,0
again0t ever-one <ut the true o=ner o. the mi0laid BroBert-" the o=ner o. 0uch Bremi0e0 i0 a<0olutel-
lia<le .or a mi0deliver-.Q*R Q(N1R &err- v. 6oc?" 343 ,r?. 4%2" 37 S.8.3d 2+2 I2++1;9 CamB<ell v.
Cochran" 41* ,.2d 211 IDel. SuBer. Ct. 19$+; Ithe o=ner o. the Bremi0e0 i0 entitled to the BroBert-;9
State v. :reen" 4%* So. 2d 13+9 I(la. Di0t. Ct. ,BB. 3d Di0t. 19$4;9 Corli00 v. 8enner" ,4K5!
,B,ND S 37 /age 1 1 ,m. Kur. 2d ,<andoned" 6o0t" and 5nclaimed /roBert- S 37 \ 2+11
&hom0on !euter0. No Claim to 3rig. 5S :ov. 8or?0. 13* 1daho 417" 34 /.3d 11++ ICt. ,BB. 2++1;9
BenJamin v. 6indner ,viation" 1nc." %34 N.8.2d 4++ I1o=a 199%;9 @im<rough v. :iant (ood 1nc." 2*
4d. ,BB. *4+" 339 ,.2d *$$ I197%; Ithe o=ner o. the Bremi0e0 i0 entitled to the BroBert-;9 !a- v.
(lo=er 2o0B." 1 3hio ,BB. 3d 127" 439 N.E.2d 942 I*th Di0t. 6uca0 Count- 19$1;9 4organ v. 8i0er"
- 114 -
00508
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711 S.8.2d 22+" *1 ,.6.!.4th 1173 I&enn. Ct. ,BB. 19$%;. Q(N2R Schle- v. Couch" 1%% &e). 19%"
2$4 S.8.2d 333 I19%%;. Q(N3R 4ic?e- v. Sear0" !oe<uc? G Co." 19* 4d. 32*" 7* ,.2d 3%+ I19%+;9
@im<rough v. :iant (ood 1nc." 2* 4d. ,BB. *4+" 339 ,.2d *$$ I197%;. Q(N4R !o.rano v. Du..-" 291
(.2d $4$ I2d Cir. 19*1;. Q(N%R !o.rano v. Du..-" 291 (.2d $4$ I2d Cir. 19*1; Ide.ining lo0t BroBert-
a0 including <oth mi0laid and lo0t BroBert-" and giving the .inder" =ith certain e)ceBtion0" entitlement
to it a0 again0t the Ber0on in Bo00e00ion o. the Bremi0e0 =here it i0 .ound;. ,0 to lo0t'BroBert-
0tatute0" 0ee S 31. ,0 to 0tatute0 =hich determine the right0 to BroBert- =ithout re.erence to 0tatu0"
0ee S 2+. Q(N*R Dolit0?- v. Dollar Saving0 Ban?" 2+3 4i0c. 2*2" 11$ N.7.S.2d *% I4un. Ct. 19%2;.
\ 2+11 &hom0on !euter0. 33'34B \ 2+11 &hom0on !euter0C!1,. No Claim to 3rig. 5.S. :ovt.
8or?0. ,ll right0 re0erved. ,4K5! ,B,ND S 37 END 3( D3C54EN& ,4K5! ,B,ND S 37
/age 2 1 ,m. Kur. 2d ,<andoned" 6o0t" and 5nclaimed /roBert- S 37 \ 2+11 &hom0on !euter0. No
Claim to 3rig. 5S :ov. 8or?0. ,merican Kuri0Brudence" Second Edition Data<a0e uBdated ,ugu0t
2+11 ,<andoned" 6o0t" and 5nclaimed /roBert- ,nne 4. /a-ne" K.D. 11. !ight0 and 3<ligation0 o.
(inder0" 3=ner0 and (ormer 3=ner0 D. 4i0laid /roBert- &oBic Summar- Correlation &a<le
!e.erence0 S 3*. (inder0 8e0t>0 @e- Num<er Dige0t 8e0t>0 @e- Num<er Dige0t" ,<andoned and
6o0t /roBert- 1+ to 13 , .inder o. mi0laid BroBert- acAuire0 no o=ner0hiB right0 in it"Q1R and" =here
0uch BroBert- i0 .ound uBon another>0 Bremi0e0" the .inder ha0 no right to it0 Bo00e00ion"Q2R <ut i0
reAuired to turn it over to the o=ner o. the Bremi0e0.Q3R &hi0 i0 true =hether the .inder i0 an emBlo-ee
or occuBier o. the Bremi0e0 on =hich the mi0laid article i0 .oundQ4R or a cu0tomer o. the o=ner or
occuBant.Q%R &he holder o. mi0laid BroBert- i0 a gratuitou0 <ailee .or the o=ner" and i0 reAuired to
hold the BroBert- inde.initel-.Q*R 1. the .inder o. mi0laid BroBert- i0 the emBlo-ee o. another" and he
or 0he .ind0 it in hi0 or her 0tatu0 a0 an emBlo-ee" then the right o. cu0tod- o. the BroBert- i0 in the
emBlo-er and not in the emBlo-ee or agent =ho recover0 it0 Bh-0ical Bo00e00ion.Q7R Q(N1R (avorite v.
- 115 -
00509
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4iller" 17* Conn. 31+" 4+7 ,.2d 974 I197$;9 2endle v. Steven0" 224 1ll. ,BB. 3d 1+4*" 1** 1ll. Dec.
$*$" %$* N.E.2d $2* I2d Di0t. 1992;. Q(N2R (la) v. 4onticello !ealt- Co." 1$% #a. 474" 39 S.E.2d
3+$ I194*;. Q(N3R CamB<ell v. Cochran" 41* ,.2d 211 IDel. SuBer.
Ct. 19$+;. Q(N4R 4cDonald v. !ail=a- E)B. ,genc-" $9 :a. ,BB. $$4" $1 S.E.2d %2% I19%4;9
Schle- v. Couch" 1%% &e). 19%" 2$4 S.8.2d 333 I19%%;. Q(N%R (oul?e v. Ne= 7or? Con0ol. !. Co."
22$ N.7. 2*9" 127 N.E. 237" 9 ,.6.!. 13$4 I192+;. ,4K5! ,B,ND S 3* /age 1 1 ,m. Kur. 2d
,<andoned" 6o0t" and 5nclaimed /roBert- S 3* \ 2+11 &hom0on !euter0. No Claim to 3rig. 5S
:ov. 8or?0. Q(N*R Dolit0?- v. Dollar Saving0 Ban?" 2+3 4i0c. 2*2" 11$ N.7.S.2d *% I4un. Ct.
19%2;. Q(N7R 4cDonald v. !ail=a- E)B. ,genc-" $9 :a. ,BB. $$4" $1 S.E.2d %2% I19%4;9 Denni0 v.
North=e0tern Nat. Ban?" 249 4inn. 13+" $1 N.8.2d 2%4 I19%7;. \ 2+11 &hom0on !euter0. 33'34B
\ 2+11 &hom0on !euter0C!1,. No Claim to 3rig. 5.S. :ovt. 8or?0. ,ll right0 re0erved. ,4K5!
,B,ND S 3* END 3( D3C54EN& ,4K5! ,B,ND S 3* /age 2 1 ,m. Kur. 2d ,<andoned"
6o0t" and 5nclaimed /roBert- S 3* \ 2+11 &hom0on !euter0. No Claim to 3rig. 5S :ov. 8or?0.
,merican Kuri0Brudence /roo. o. (act0 2d Data<a0e uBdated Kul- 2+1+ Categorical 6i0t o. ,rticle0
,<andonment o. &angi<le /er0onal /roBert-Q^R !u00ell 6. 8ald" 66.B.Q^^R Correction: &he Bortion
o. the running head0 on Bage0 *$* to 724 that read0 H2%'*71H i0 an error. &he correct re.erence i0: 2%'
*$%. &,B6E 3( C3N&EN&S ,rticle 3utline ScoBe 1nde) !e0earch !e.erence0 &oBic o. ,rticle:
8hether tangi<le Ber0onal BroBert- =a0 a<andoned <- it0 o=ner" thu0 entitling the .inder to
o=ner0hiB o. it a0 again0t the .ormer o=ner. &hi0 .act Aue0tion ma- ari0e in an- action in =hich title
to and right o. Bo00e00ion o. Ber0onal BroBert- i0 in i00ue. ,!&1C6E 35&61NE 1 Bac?ground S 1
1ntroduction9 0coBe S 2 De.inition0 and di0tinction0V,<andoned BroBert- S 3 De.inition0 and
di0tinction0V6o0t and mi0laid BroBert-9 trea0ure trove and BroBert- em<edded in earth S 4 8hat
con0titute0 a<andonment" generall-9 Bre0umBtion0 and <urden o. Broo. S % 8hat con0titute0
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a<andonment" generall-9 Bre0umBtion0 and <urden o. Broo.V1ntent to a<andon9 Barticular act0 and
omi00ion0 S %.% 5ni.orm ,ct0 11 /roo. o. ,<andonment o. &angi<le /er0onal /roBert- , Element0 o.
/roo. S * :uide and chec?li0t B &e0timon- o. /lainti.. 1 Direct E)amination S 7 /reviou0 o=ner0hiB
o. BroBert- <- Ber0on a<andoning it 2% ,4K5! /3( 2d *$% /age 1 2% ,m. Kur. /roo. o. (act0 2d
*$% I3riginall- Bu<li0hed in 19$1; \ 2+11 &hom0on !euter0. No Claim to 3rig. 5S :ov. 8or?0. S $
Nature o. BroBert- 2 Cro00'e)amination S 9 #oluntar- relinAui0hment o. Bo00e00ion S 1+ 6aB0e o.
time S 11 Nonu0e o. BroBert-9 .ailure to reclaim BroBert- S 12 Character o. Blace =here BroBert- =a0
le.t C &e0timon- o. De.endant S 13 Bac?ground S 14 /reviou0 o=ner0hiB o. BroBert- <- Ber0on
a<andoning it S 1% Character o. Blace =here BroBert- =a0 le.t S 1* #oluntar- relinAui0hment o.
Bo00e00ion S 17 Demand to reclaim BroBert- S 1$ (ailure to reclaim BroBert- S 19 6aB0e o. time S 2+
,BBroBriation o. BroBert- .ollo=ing a<andonment S 21 Condition o. BroBert-9 deterioration in value
D &e0timon- o. 8itne00 Corro<orating 1ntent o. 3=ner to ,<andon /roBert- S 22 /reviou0
o=ner0hiB o. BroBert- <- Ber0on a<andoning it S 23 Declaration o. intent to a<andon !e0earch
!e.erence0 &oBic o. ,rticle: 8hether tangi<le Ber0onal BroBert- =a0 a<andoned <- it0 o=ner" thu0
entitling the .inder to o=ner0hiB o. it a0 again0t the .ormer o=ner. &hi0 .act Aue0tion ma- ari0e in an-
a
S 1+. Bri<er- 1n the .ollo=ing ca0e0 in =hich the de.endant0 =ere convicted o. <ri<er-" it =a0 held
that their claim0 o. di0criminator- Bro0ecution =ere =ithout merit. 1n Common=ealth v Bene.icial
(inance Co. I1971; 3*+ 4a00 1$$" 27% NE2d 33" %2 ,6!3d 1143" cert den 4+7 5S 91+" 32 6 Ed 2d
*$3" 92 S Ct 2433 and cert den 4+7 5S 91+" 32 6 Ed 2d *$3" 92 S Ct 243% and cert den 4+7 5S 91+"
32 6 Ed 2d *$3" 92 S Ct 244$ and cert den 4+7 5S 914" 32 6 Ed 2d *$9" 92 S Ct 2433 and cert den
4+7 5S 914" 32 6 Ed 2d *$9" 92 S Ct 2434" the court reJected de.endant>0 contention that he =a0 the
victim o. 0elective Bro0ecution in violation o. the eAual Brotection clau0e. De.endant" a Bu<lic o..icial
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00511
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convicted o. receiving a <ri<e" o..ered to Brove that not all o..icial0 ?no=n to have received <ri<e0
=ere indicted" and that variou0 mem<er0 o. the 4a00achu0ett0 Crime Commi00ion had 0tated that
the- =ere intere0ted in getting de.endant. &he court held that 0uch Broo. =ould <e in0u..icient to
0uBBort a claim o. 0elective en.orcement" =hich reAuire0 a 0ho=ing o. 0ome ar<itrar- cla00i.ication"
0uch a0 race or religion" uBon =hich Bro0ecution0 are <eing <a0ed. &he court 0aid that mere .ailure to
Buni0h other o..ender0 <- it0el. =a0 no <a0i0 .or holding that there =a0 a denial o. eAual Brotection.
1ndeed" 0aid the court" it ma- <e altogether aBBroBriate to Bic? out .rom a grouB one or more
o..ender0 =ho0e conduct or Bo0ition i0 0uch that a 0tri?ing e)amBle o. them can <e made in the
e)Bectation that general comBliance =ill .ollo=. &he court 0aid that de.endant" a0 the BrinciBal Bu<lic
.igure involved in a ca0e <e.ore the court" certainl- had no 0tanding to comBlain o. hi0 indictment
under that 0tandard" e0Beciall- 0ince he =a0 not the onl- Bu<lic o..icial again0t =hom indictment0
=ere returned. 1n State v Savoie I1974; 12$ NK SuBer 329" 32+ ,2d 1*4" revd on other ground0 *7
NK 439" 341 ,2d %9$" the court held to <e =ithout merit de.endant>0 contention that the trial court
erred in den-ing hi0 Bretrial motion to di0mi00 the indictment on the ground that the 0tate had
uncon0titutionall- engaged in di0criminator- 0elective Bro0ecution o. de.endant. De.endant" a
<uilding in0Bector" =a0 convicted o. corruBtl- engaging in mi0conduct in hi0 Bu<lic o..ice <-
receiving a 0um o. mone-" allegedl- a0 a Chri0tma0 gratuit-" .rom a <uilder in connection =ith the
in0Bection o. home0 <eing con0tructed. &he Broo. o..ered <- de.endant 0ho=ed that among the
reciBient0 o. Chri0tma0 gratuitie0" Bro0ecution0 =ere initiated onl- again0t t=o o..icial0 =ho received
gi.t0 in e)ce00 o. L1++. &he court 0aid that that did not 0ati0.- the reAuirement o. 0ho=ing that the
0election =a0 <a0ed on 0ome unJu0ti.ia<le 0tandard9 0electivit- in en.orcement <- it0el." a<0ent a
0ho=ing o. invidiou0 and ar<itrar- cla00i.ication" did not con0titute a violation o. con0titutional eAual
Brotection right0. S 11. Drug and alcohol o..en0e0 QCumulative SuBBlementR 1n the .ollo=ing ca0e0 in
- 118 -
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=hich the de.endant0 =ere .ound guilt- o. violation o. la=0 governing the u0e o. alcohol" narcotic0"
and other drug0" the court0 held that the de.en0e o. di0criminator- Bro0ecution had not <een
e0ta<li0hed <- the de.endant0. /lainti..0" arre0ted .or Bo00e00ion o. mariJuana =hile attemBting to
enter a Bu<lic coli' 9% ,.6.!.3d 2$+ /age *+ 9% ,.6.!.3d 2$+ I3riginall- Bu<li0hed in 1979; \ 2+12
&hom0on !euter0. No Claim to 3rig. 5S :ov. 8or?0. 0eum" 0ought to enJoin the en.orcement o. the
drug la=0" in 8heaton v 2agan I1977" 4D NC; 43% ( SuBB 1134. /lainti..0 a00erted that the
coli0eum>0 o..icial Bolic- o. arre0ting Bo00e00or0 o. 0mall amount0 o. mariJuana =hile not arre0ting
Bo00e00or0 o. alcoholic <everage0 violated the due Broce00 and eAual Brotection clau0e0 o. the
(ourteenth ,mendment. 1n holding that the di0tinction made <- la= en.orcement o..icial0 at the
coli0eum did not ri0e to the level o. di0criminator- or 0elective en.orcement o. the la= that i0
Brohi<ited" the court held that the Blainti..0 did not Brove the- =ere treated di..erentl- than Ber0on0
0imilarl- 0ituated 0ince Ber0on0 violating di0tinct" 0eBarate 0tatute0 are not 0o 0imilarl- 0ituated.
(urthermore" the court 0aid that a00uming that a 0ingle cla00 o. violator0 might <e de.ined that
include0 Ber0on0 =ho are .ound to Bo00e00 either mariJuana or alcoholic <everage" the Blainti..0 could
not Brevail 0ince there =a0 no evidence to 0uBBort a .inding that an- 0elective en.orcement =a0 <a0ed
uBon 0ome con0titutionall- imBermi00i<le ground 0uch a0 race" religion" or the e)erci0e o. the (ir0t
,mendment right to .ree 0Beech. , Di0trict Court determination that 3?lahoma>0 liAuor la=0 =ere
di0criminatoril- aBBlied =a0 rever0ed <- the court in National !ailroad /a00enger CorB. v 2arri0
I1974" C,1+ 3?la; 49+ (2d %72. &he evidence <e.ore the Di0trict Court 0ho=ed that the alcohol
<everage control <oard had meticulou0l- en.orced the Brovi0ion0 o. the la= =ith re.erence to the 0ale
o. liAuor <- licen0ed Bac?age 0tore0 <ut had made it0 inve0tigation0 o. Blace0 0elling liAuor <- the
drin? at the reAue0t o. other la= en.orcement agencie0 onl-. &he Di0trict Court 0aid that the <oard>0
e..ort0 to en.orce tho0e Brovi0ion0 o. the la= had <een 0Boradic and nonuni.orm and that no good'
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00513
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.aith e..ort =a0 made to en.orce the Brovi0ion uni.orml-. 1n rever0ing the Di0trict Court>0
determination" the Court o. ,BBeal0 0aid that Blainti.. did not have an- evidence =ith re.erence to it0
di0crimination claim. 3n the contrar-" 0aid the court" the record 0ho=ed that the Bro0ecution =a0
initiated <- a teleBhone call .rom a ne=0BaBer reBorter to the alcohol <everage control <oard"
advi0ing that ,mtra? =a0 0elling liAuor <- the drin? on it0 train0. (urthermore" the court 0aid that the
record di0clo0ed that there =ere in that count- alone" aBBro)imatel- 34 Bro0ecution0 in0tituted during
the 9'month Beriod immediatel- Breceding the .iling o. the in0tant 0uit. 1n Belgarde v State I197%"
,la0?a; %43 /2d 2+*" the de.endant a00erted that the aBBlication o. the mariJuana la=0 in ,la0?a
re0ulted in invidiou0 di0crimination again0t -oung Ber0on0. !e.erring to 0tati0tic0 =hich indicated that
t=o'third0 o. the Ber0on0 charged =ith the Bo00e00ion o. mariJuana =ere =ithin the age0 o. 1$ and 21"
the de.endant argued that the data 0ho=ed a di0criminator- aBBlication o. a la= neutral on it0 .ace"
thu0 demon0trating a violation o. the eAual Brotection clau0e o. the 5nited State0 Con0titution.
2o=ever" the court 0aid that it had not <een 0ho=n that en.orcement o. the 0tatute =a0 conducted in
0uch a =a- a0 to BurBo0el- 0ingle out -oung Ber0on0 a0 the target0 o. en.orcement =hile ignoring
violation0 <- other0. &he court 0aid that the mere 0ho=ing that man- -oung Ber0on0 =ere 0u<Jected to
Bro0ecution did not Brove de.endant>0 the0i0 0ince the mo0t o<viou0 e)Blanation .or the 0tati0ticall-
large Bercentage o. -oung Ber0on0 <eing the o<Ject o. mariJuana la= en.orcement =a0 that mariJuana
u0e occur0 =ith greater .reAuenc- among the -oung than among tho0e o. older -ear0. &he court held
that a ca0e o. uncon0titutional" invidiou0 di0crimination had not <een made out <- de.endant. 1n
5nited State0 v Smith I197*" Di0t Col ,BB; 3%4 ,2d %1+" the court 0et a0ide the trial court>0 order
di0mi00ing Bo00e00ion o. mariJuana charge0 again0t de.endant. See?ing to comBel the government to
Bre0ent te0timon- a0 to =h- he =a0 not <eing granted .ir0t'o..ender treat' 9% ,.6.!.3d 2$+ /age *1
9% ,.6.!.3d 2$+ I3riginall- Bu<li0hed in 1979; \ 2+12 &hom0on !euter0. No Claim to 3rig. 5S
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00514
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:ov. 8or?0. ment" de.endant .iled a motion 0tating that he reAue0ted 0uch treatment <ut =a0
in.ormed that it =a0 Bolic- to den- it to de.endant0 =ho had litigated an- i00ue0 in their ca0e" a0 had
de.endant. De.endant a00erted that 0uch a Bolic- had an uncon0titutionall- di0criminator- e..ect uBon
individual0 =ho cho0e to e)erci0e their legal right0. 3n aBBeal o. di0mi00al o. the charge0" the court
0aid that it had no Auarrel =ith the trial court>0 ruling that a Bolic- intended to deter de.endant0 .rom
e)erci0ing their legal right0 cannot <e tolerated. 2o=ever" the court held that de.endant had not made
an adeAuate 0ho=ing that the Bolic- o. the government had 0uch e..ect. Noting that i. a de.endant
0ucce00.ull- comBleted the .ir0t o..ender treatment Brogram" charge0 =ere droBBed again0t him" the
court 0aid that the <ene.iciar- o. 0uch a di0Bo0ition could 0carcel- <e 0aid to have <een deterred .rom
e)erci0ing hi0 right to de.end him0el." .or" <- di0mi00ing 0uch charge0" the government had done
a=a- =ith an- rea0on .or him to do 0o. &he court 0aid that 0hould the Bro0ecutor den- .ir0t'o..ender
treatment to a de.endant" the latter i0 in no =a- <arred .rom then invo?ing hi0 legal right0 and
de.en0e0. 1n a..irming de.endant>0 conviction .or unla=.ull- Bo00e00ing alcoholic <everage0" the court
in Cone v State I1937; 1$4 :a 31*" 191 SE 2%+" held that the trial court did not err in 0tri?ing
de.endant>0 0Becial Blea alleging that the la= en.orcement o..icial0 did not imBartiall- en.orce the
Brohi<ition la=0" <ut Broceeded onl- again0t Ber0on0 to=ard =hom the- =ere BreJudiced. De.endant
alleged that =hile it =a0 generall- ?no=n that there =ere man- BeoBle violating the Brohi<ition la="
and that the o..icer0 ?ne= tho0e Bartie0 and ?ne= the- =ere violating the la=" the- did not arre0t
them <ut onl- Bic?ed out a .e= o. the Boorer citiOen0 and Baid no attention to the =ealthier cla00e0 or
tho0e =ho had BroBert- and =ere higher uB in li.e. 1n 0u0taining the 0tri?ing o. de.endant>0 Blea" the
court 0aid that the .act that other Ber0on0 or cla00e0 o. Ber0on0 ma- have violated the la= =ithout
<eing Bro0ecuted there.or =a0 no e)cu0e .or a violation <- de.endant. 1n Schmidt v 1ndianaBoli0
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I19+7; 1*$ 1nd *31" $+ NE *32" in =hich de.endant aBBealed .rom hi0 conviction .or violating an
ordinance =hich Brohi<ited the maintenance" =ithout a licen0e" o. a deBot or agenc-
o. a <re=er-" de.endant contended that other Ber0on0 =ithin the cit- =ere engaged in <u-ing <eer
.rom <re=erie0 and 0elling the 0ame in a li?e manner a0 de.endant9 that the o<Ject o. the ordinance
=a0 to oBBre00 and di0criminate again0t <u0ine00e0 o. <re=erie0 located out0ide the cit-9 and that the
0ame =a0 0o en.orced a0 to .avor the <u0ine00 o. <re=erie0 located =ithin the cit- o. 1ndianaBoli0.
2o=ever" the court 0aid that the charge that the ordinance at a given time =a0 un.airl- en.orced =a0
too general to Bre0ent an- Aue0tion0. &he court 0aid that no .act0 =ere alleged uBon =hich to re0t the
conclu0ion that the ordinance =a0 0o en.orced a0 to .avor the <u0ine00 o. <re=erie0 located =ithin the
cit-. 8ithout intimating that the validit- o. a Benal ordinance might <e a00ailed on the ground o.
Bartialit- in it0 en.orcement" the court held that" in the a<0ence o. .act0 Bleaded 0ho=ing a .i)ed and
continuou0 Bolic- o. unJu0t di0crimination on the Bart o. the municiBalit-" it =ould not enter uBon a
con0ideration o. the Aue0tion 0ugge0ted. 1n State v ,Bt I197*" 1o=a; 244 N82d $+1" de.endant
contended that the Bro0ecutor 0hould not <e Bermitted to Bro0ecute him .or Bo00e00ion and deliver- o.
a controlled 0u<0tance =ithout al0o Bro0ecuting a Bolice in.ormer =ho al0o Bo00e00ed the drug0.
Stating that the con0ciou0 e)erci0e o. 0ome 0electivit- in en.orcement i0 not in it0el. a .ederal
con0titutional violation" the court 0aid it =a0 not 0tated that 0election =a0 deli<eratel- <a0ed uBon an
unJu0ti.ia<le 0tandard" and there.ore held that it .ound no eAual Brotection violation. 1n State v
Kourdain I19%4; 22% 6a 1+3+" 74 So 2d 2+3" the de.endant aBBealed .rom hi0 9% ,.6.!.3d 2$+ /age
*2 9% ,.6.!.3d 2$+ I3riginall- Bu<li0hed in 1979; conviction .or Bo00e00ion o. mariJuana"
contending that the manner in =hich the narcotic la= =a0 <eing admini0tered <- the di0trict attorne-
deBrived him o. eAual Brotection o. the la=" in that de.endant>0 in.raction =a0 <eing activel-
Bro0ecuted =herea0 the Bro0ecuting o..icial0 had re.rained
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.rom Bro0ecuting other" more 0eriou0 violation0 o. the narcotic act. !eJecting that claim a0 untena<le"
the court 0aid that it =a0 de.endant>0 contention that the .ailure o. the Bro0ecuting o..icial0 to o..er
de.endant immunit-" i. he =ould <ecome an in.ormer" oBerated a0 a BurBo0e.ul di0crimination again0t
him and thu0 denied him eAual Brotection o. the la=. 2o=ever" 0tating that the .act that not ever- la=
violator had <een Bro0ecuted =a0 o. no concern to de.endant in the a<0ence o. an allegation that he
=a0 a mem<er o. a cla00 <eing Bro0ecuted 0olel- <ecau0e o. race" religion" color" or the li?e" or that
he =a0 the onl- Ber0on =ho had <een Bro0ecuted under the 0tatute" the court 0aid that =ithout 0uch
charge0" de.endant>0 claim did not come =ithin the cla00 o. uncon0titutional di0crimination.
De.endant>0 contention that he =a0 di0criminated again0t <- la= en.orcement o..icial0 in the
aBBlication o. the 0tate alcohol Brohi<ition la= =a0 reJected on aBBeal <- the court in State v 8ood
I19**" 4i00; 1$7 So 2d $2+. De.endant urged that <ecau0e in certain countie0 the la= =a0 not
en.orced <- local la= en.orcement o..icial0" he =a0 <eing denied hi0 con0titutional right o. eAual
Brotection o. la= .or the rea0on that there e)i0ted a deli<erate or intentional Battern or 0-0tematic Blan
o. not uni.orml- en.orcing the la=. 2o=ever" =hile conceding that 0heri..0 and Bolice o..icial0 =ere
en.orcement o..icer0 o. the 0tate" the court 0aid that it did not .ollo= that the 0tate had control and
direction over tho0e o..icer0" and that a0 a matter o. .act the oBBo0ite =a0 true" thu0 Bartiall-
e)Blaining =h- la= en.orcement had <een la) in certain countie0. Noting that the record 0ho=ed that
the 0heri.. =ho arre0ted de.endant had demon0trated unu0ual e..ort to en.orce the la=
indi0criminatel- and had <een 0ucce00.ul in 0o doing" the court 0aid that the .act that the 0heri.. made
no attemBt to en.orce the liAuor la=0 in0ide the corBorate limit0 o. a cit- =ithin the count- did not
amount to deli<erate" BurBo0e.ul di0crimination 0ince the 0heri.. te0ti.ied that there =a0 an agreement
to the e..ect that he =ould en.orce the la=0 in the count- and leave cit- la= en.orcement to the cit-
Bolice. &he court concluded that the element o. BurBo0e.ul or intentional di0crimination" =hich
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de.endant had to 0ho= in order to Bermit him to Ju0tl- a00ert that he had <een denied eAual Brotection
o. the la=0" =a0 lac?ing. 1n Cairn0 v Sheri.." Clar? Count- I1973; $9 Nev 113" %+$ /2d 1+1%"
de.endant" charged =ith the 0ale o. narcotic0" 0ought Bretrial ha<ea0 relie. alleging a violation o. hi0
con0titutional right0 <ecau0e o. the Bolic- o. the la= en.orcement o..icer0 in granting immunit- .rom
Bro0ecution to tho0e arre0ted .or narcotic0 violation0 =ho later <ecame in.ormer0. De.endant
contended that the o..er o. immunit- conditioned on <ecoming an in.ormant oBerated a0 a BurBo0e.ul
di0crimination again0t him. &he court 0aid that even i. it conceded that the 0tate had .ailed to
Bro0ecute la= violater0 =ho had agreed to <ecome in.ormer0" that did not con0titute an unla=.ul
admini0tration o. the 0tatute or evidence o. intentional or BurBo0e.ul di0crimination again0t
de.endant. &he .act that not ever- la= violater ha0 <een Bro0ecuted i0 o. no concern to de.endant" 0aid
the court" in the a<0ence o. an allegation and Broo. that he i0 a mem<er o. a cla00 <eing Bro0ecuted
0olel- <ecau0e o. race" religion" color" or the li?e" or that he i0 the onl- Ber0on =ho ha0 <een
Bro0ecuted under the 0tatute. De.endant" charged =ith the criminal 0ale o. a controlled 0u<0tance"
contended in /eoBle v !o0enthal I1977; 91 4i0c 2d 7%+" 39$ N7S2d *39" that he had <een
0electivel- Bro0ecuted. ,lthough .inding de.endant not guilt- on other ground0" the court held that
de.endant>0 claim 9% ,.6.!.3d 2$+ /age *3 9% ,.6.!.3d 2$+ I3riginall- Bu<li0hed in 1979; \ 2+12
&hom0on !euter0. No Claim to 3rig. 5S :ov. 8or?0. that he had <een 0electivel- Bro0ecuted =a0
=ithout merit 0ince the record <e.ore the court =a0 <arren o. an- evidence that de.endant had <een
denied eAual Brotection o. the la= <ecau0e o. a Bo00i<le di0criminator- en.orcement o. the Benal la=
0ection under =hich de.endant =a0 charged. &he court 0aid that in order .or de.endant to have
Brevailed" he =ould have had to have 0ho=n that there =a0 invidiou0 or <ad'.aith 0election o. him a0
a target. 1n Common=ealth v Butch I197$" /a SuBer; 39+ ,2d $+3" the court reJected the contention
o. a de.endant that he =a0 uncon0titutionall- di0criminated again0t =hen he =a0 charged =ith the
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more 0eriou0 crime o. deliver- o. mariJuana rather than Bo00e00ion o. mariJuana =hen he did not co'
oBerate in leading the Bolice to other drug 0ource0. Stating that the con0ciou0 e)erci0e o. 0ome
0electivit- in en.orcement i0 not in it0el. a .ederal con0titutional violation unle00 the 0election =a0
deli<eratel- <a0ed uBon an unJu0ti.ia<le 0tandard" the court 0aid that even i. it =ere to a00ume that the
de.endant>0 deBiction o. the circum0tance0 =a0 comBletel- accurate" the Brocedure de0cri<ed =a0 in
no =a- unrea0ona<le" ar<itrar-" or un.airl- di0criminator-. 1n State v Boutch I1973; *+ 8i0 2d 397"
21+ N82d 7%1" the court reJected the contention o. the de.endant" =ho =a0 convicted o. aiding and
a<etting the 0ale o. a dangerou0 drug" that he =a0 the victim o. unJu0t di0crimination. De.endant
claimed that 0uch di0crimination re0ulted .rom the granting o. tran0actional immunit- <- the trial
court to the 0eller o. the dangerou0 drug" in order to in0ure her te0timon- again0t de.endant.
De.endant claimed that the o..er o. immunit- .rom the 0tate .or te0timon- <- one involved in a
criminal tran0action again0t another individual involved in the 0ame tran0action deBrived that
individual o. eAual Brotection o. the la=0" a0 an e)erci0e in invidiou0 di0crimination. 2o=ever" the
court 0aid that in the a<0ence o. an allegation and Broo. that de.endant i0 a mem<er o. a cla00 <eing
Bro0ecuted 0olel- <ecau0e o. race" religion" color" or other ar<itrar- cla00i.ication" or that he i0 the
onl- Ber0on =ho ha0 <een Bro0ecuted under the 0tatute" de.endant>0 claim did not come =ithin the
cla00 o. uncon0titutional di0criminator- en.orcement. C5456,&1#E S5//6E4EN& Ca0e0: State
Bolice trooBer .ailed to 0ho= that Bolice engaged in 0elective en.orcement o. la=" in violation o. hi0
eAual Brotection right0" <- vigorou0l- inve0tigating circum0tance0 0urrounding hi0 Bre0ence in 0tate
vehicle" Bar?ed <- 0ide o. road during morning hour0" =hile Bo00i<l- into)icated" =hen no 0ho=ing
=a0 made o. ho= 0imilarl- 0ituated mem<er0 o. Bu<lic =ere treated. 5.S. Con0t. ,mend. 14. Die0el
v. &o=n o. 6e=i0<oro" 232 (.3d 92 I2d Cir. 2+++;. Claim <- aBBellant convicted o. 0elling cocaine"
that he 0u..ered di0criminator- Bro0ecution <a0ed on te0timon- o. inve0tigator that arre0tee0 =ere
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00519
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routinel- o..ered oBBortunit- to cooBerate =ith narcotic ta0? .orce in e)change .or 0ome t-Be o.
recommendation regarding charge0 again0t them" =a0 BroBerl- reJected a0 .ailing to 0ho= <a0i0 .or
relie." =here aBBellant did not demon0trate that he had <een deli<eratel- 0ingled out .or Bro0ecution
on <a0i0 o. 0ome invidiou0 criterion. /eoBle v Blend I19$1" %th Di0t; 121 Cal ,BB 3d 21%" 17% Cal
!Btr 2*3. 1n Bro0ecution .or Bo00e00ion o. cocaine" de.endant .ailed to e0ta<li0h de.en0e o.
di0criminator- Bro0ecution" <a0ed on allegation0 that Bolice o..icer .ailed to reBort drug activitie0 o.
hi0 .riend0 or hi0 o=n alleged drug activit-" =here de.endant .ailed to allege that Bro0ecutor" <-
=ord0 or conduct" either e)Blicitl- or imBlicitl-" authoriOed Bolice o..icer0 to engage in al' 9%
,.6.!.3d 2$+ /age *4 9% ,.6.!.3d 2$+ I3riginall- Bu<li0hed in 1979; \ 2+12 &hom0on !euter0. No
Claim to 3rig. 5S :ov. 8or?0. leged conduct claimed <- de.endant. /eoBle v @urO I1992" Colo
,BB; $47 /2d 194. /ractice o. 0heri..>0 deBartment to conduct Hrever0e 0tingH oBeration0 Iin =hich
undercover agent0 o..er to 0ell drug0 to 0u0Bected tra..ic?er0; onl- in ca0e0 involving %+ Bound0 or
more o. mariJuana did not rai0e in.erence o. di0criminator- en.orcement. 3=en v State I19$3" (la
,BB D1; 443 So 2d 173. !etailer Bro0ecuted .or 0elling drug BaraBhernalia in violation o. 0tatute
.ailed to e0ta<li0h di0criminator- or 0elective en.orcement o. the la=" =here onl- evidence o..ered
=a0 that de.endant and one other e0ta<li0hment received =arning letter0 and that onl- de.endant =a0
0u<0eAuentl- Bro0ecuted" and argument that although hundred0 o. merchant0 0old 0and=ich <ag0 onl-
de.endant =a0 arre0ted .or 0elling drug BaraBhernalia: mere .act that de.endant0 =ere .ir0t to <e
Bro0ecuted under la= did not alone e0ta<li0h that di0trict attorne->0 o..ice engaged in ar<itrar-
en.orcement o. the la=. State v Dunn I19$3; 233 @an 411" **2 /2d 12$*. See /eoBle v Barn=ell
I19$9; 143 4i0c 2d 922" %41 N7S2d **4" S $. De.endant .ailed to e0ta<li0h Brima .acie ca0e o.
0elective Bro0ecution" although de.endant alleged that 0ome cocon0Birator0 =ere 0imilarl- 0ituated
<ut received .avora<le treatment9 de.endant =a0 charged =ith more 0eriou0 narcotic0 o..en0e0 and
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running corruBt organiOation" 0econdar- Bla-er0 =ere o..ered Blea agreement0 in e)change .or their
te0timon- again0t de.endant" and evidence e0ta<li0hed that de.endant =a0 more culBa<le than hi0
cohort0. Com. v. !ic?a<augh" 7+* ,.2d $2* I/a. SuBer. Ct. 1997;" reargument denied" I(e<. 27"
199$;. Deci0ion to Bro0ecute into)icated teenage driver =ho 0truc? and ?illed three children" and not
to Bro0ecute comBanion =ho 0uBBlied liAuor" =a0 not <a0ed on unJu0ti.ia<le 0tandard and Bro0ecution
=a0 thu0 not di0criminator-. State v Kudge I19$4; 1++ 8a0h 2d 7+*" *7% /2d 219. Q&oB o. SectionR
QEND 3( S5//6E4EN&R S 12. E0caBe .rom cu0tod- 1n the .ollo=ing ca0e0 in =hich the de.endant0
=ere convicted o. e0caBing .rom Bri0on" the court0 held that de.endant0 had not e0ta<li0hed the
de.en0e o. di0criminator- Bro0ecution. 8here" during
a 2'-ear Beriod in =hich 31 inmate0 e0caBed .rom the ,riOona State /ri0on" onl- .ive charge0 o.
e0caBe =ere .iled" including the charge0 again0t the t=o aBBellant0" the court in State v Scott I1972;
17 ,riO ,BB 1$3" 49* /2d *+9" .ound no merit in aBBellant0> <are a00ertion that the- =ere denied
eAual Brotection and due Broce00 <ecau0e the- =ere charged =ith e0caBe =hile other0 =ere not" and
.urther .ound no 0ugge0tion o. invidiou0 di0crimination to=ard aBBellant0. 1n Common=ealth v
/hilliB0 I1977; 24$ /a SuBer 4++" 37% ,2d 1%$" de.endant contended that he 0u..ered BreJudice at the
hand0 o. the Common=ealth <- virtue o. the .act that he =a0 Bro0ecuted and received a 0entence on
an e0caBe charge" =hile a co.elon in the e0caBe =a0 not Bro0ecuted. Stating that in e00ence de.endant
0eemed to <e arguing di0criminator- Bro0ecution" the court 0aid it =a0 =ell e0ta<li0hed that a
de.endant alleging 0uch conduct mu0t Brove the element o. intentional and BurBo0e.ul di0crimination
<e.ore a violation o. con0titutional right0 can <e 0ho=n. 1n reJecting de.endant>0 claim" the court 0aid
that de.endant had Bre0ented no evidence to e0ta<li0h 0uch an element and the mere .ailure o.
authoritie0 to Bro0ecute other0 0imilarl- 0ituated doe0 not con0titute a violation o. due Broce00 or
eAual Brotection 9% ,.6.!.3d 2$+ /age *% 9% ,.6.!.3d 2$+ I3riginall- Bu<li0hed in 1979; \ 2+12
- 127 -
00521
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&hom0on !euter0. No Claim to 3rig. 5S :ov. 8or?0. right0. S 13. :am<ling QCumulative
SuBBlementR 1n the .ollo=ing ca0e0 in =hich the de.endant0 =ere convicted o. violation o. variou0
la=0 concerning gam<ling" it =a0 held that the de.en0e o. di0criminator- Bro0ecution had not <een
e0ta<li0hed <- the de.endant0. De.endant" convicted o. violating an ordinance ma?ing it a
mi0demeanor .or an- Ber0on to vi0it a <arricaded hou0e containing gam<ling imBlement0" contended
in ,h Sin v 8ittman I19+%; 19$ 5S %++" 49 6 Ed 1142" 2% S Ct 7%*" that the ordinance violated S 1
o. the (ourteenth ,mendment o. the Con0titution o. the 5nited State0" in that it deBrived him o. the
eAual Brotection o. the la=0" <ecau0e it =a0 en.orced 0olel- and e)clu0ivel- again0t Ber0on0 o. the
Chine0e race. Stating that de.endant 0ought to 0et a0ide a criminal la=" not on the ground that it =a0
uncon0titutional on it0 .ace or that it =a0 di0criminator- in tendenc- and ultimate actual oBeration"
<ut on the ground that it =a0 made 0o <- the manner o. it0 admini0tration" the court 0aid it =a0 a
matter o. Broo. and no .act0 0hould <e omitted to ma?e it out comBletel-. &he court noted that there
=a0 no averment that the condition0 and Bractice0 to =hich the ordinance =a0 directed did not e)i0t
e)clu0ivel- among the Chine0e" or that there =ere o..ender0 again0t the ordinance" other than the
Chine0e" a0 to =hom it =a0 not en.orced. Stating that no latitude o. intention 0hould <e indulged" and
that there 0hould <e certaint- to ever- intent" the court a..irmed de.endant>0 conviction. 1n
8a0hington v 5nited State0 I19*$; 13+ ,BB DC 374" 4+1 (2d 91%" the court reJected the de.endant>0
contention that it =a0 error .or the trial court to re.u0e to Bermit him to introduce evidence to Brove
an uncon0titutional di0tinction in the en.orcement o. the 0tatute under =hich he =a0 charged. &he
de.endant" convicted o. t=o violation0 o. the lotter- la=0" 0ought to Brove the e)i0tence o. other
lotterie0 in the to=n =hich =ere not 0u<Jected to the Brovi0ion0 o. the 0tatute. &he court 0aid that a
deBrivation o. eAual Brotection mu0t inevita<l- <e .ound in the actual e)i0tence o. an invidiou0
di0crimination and not in the mere Bo00i<ilit- that there =ill <e other li?e or 0imilar ca0e0 =hich =ill
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<e treated more lenientl-. Stating that there =a0 no claim o.Vmuch le00 a Bro.e00ed a<ilit- to
0u<0tantiateVan- intentional" BurBo0e.ul di..erentiation" the court 0aid it =ould not do 0imBl- to
0ho=" a0 de.endant =ould" that en.orcement o. the la= =a0 la)" or even that other o..ender0 had gone
.ree. 1n a..irming de.endant0> conviction0 .or <oo?ma?ing" the court in /eoBle v 3rec? I194*; 74 Cal
,BB 2d 21%" 1*$ /2d 1$*" reJected de.endant0> contention that the trial court erroneou0l- 0u0tained
o<Jection0 to certain Aue0tion0 aimed at 0ho=ing that the Bolice di0criminated again0t hor0erace
<etting in that the- did not raid certain e0ta<li0hment0 0BecialiOing in election and other t-Be0 o. <et0.
De.endant0 did not o..er to Brove that the- =ere <eing Bro0ecuted <ecau0e o. their race" color"
religion" or Bolitical <elie.0" <ut 0imBl- 0ought to 0ho= that other0 eAuall- guilt- =ere not <eing
Bro0ecuted. De.endant0 contended that the .act0 that the- 0ought to Brove =ould demon0trate that
the- had <een denied eAual Brotection o. the la=0. Stating that the di0crimination claimed <-
de.endant0 =a0 that tho0e engaged in hor0erace <etting =ere <eing Bro0ecuted =hile tho0e =ho ran
other t-Be0 o. illegal <etting e0ta<li0hment0 =ere not" the court 0aid that 0uch t-Be o. di0crimination"
i. di0crimination it <e" =a0 not =ithin the rule o. the ca0e0 cited <- de.endant0. &he court 0aid that it
=a0 the la= that a Ber' 9% ,.6.!.3d 2$+ /age ** 9% ,.6.!.3d 2$+ 0on committing a crime cannot
claim an unla=.ul di0crimination uBon a mere 0ho=ing that other Ber0on0 or cla00e0 o. Ber0on0 have
committed the 0ame o..en0e and have not <een Bro0ecuted there.or. &he trial court>0 di0mi00al o.
criminal charge0 again0t the de.endant on the ground o. di0criminator- en.orcement o. the la= =a0
rever0ed in /eoBle v :arner I1977" 2d Di0t; 72 Cal ,BB 3d 214" 139 Cal !Btr $3$. Conviction0 .or
the.t <- deceBtion" the.t <- .ailure to ma?e reAuired di0Bo0ition o. .und0 received" criminal
con0Birac-" and aiding in the con0ummation o. crime0 =arrant0 di0<arment. 1$ /a.C.S.,. SS 9+3"
3921" 3922" 3927" %1+7. 3..ice o. Di0ciBlinar- Coun0el v. Co0tigan" %2* /a. 1*" %$4 ,.2d 29*
I199+;. Vin a ca0e in =hich a <ar aBBlicant engaged in thiever- o. a reBetitive nature" the court
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denied the aBBlicant>0 aBBlication 0ince it aBBeared that the aBBlicant had not undergone the reAui0ite
reha<ilitation o. hi0 good moral character" the court Bointing out that the cru) o. the aBBlicant>0 ca0e
=a0 that hi0 Bre0ent moral character .itne00 Ju0ti.ied hi0 admi00ion to the <ar and that hi0 reBetitive
the.t0 =ere the re0ult o. a temBorar- a<erration that no longer e)i0ted and o. =hich there =a0 no
danger o. recurrence under the 0tre00 o. reBre0enting client09 the evidence o. reha<ilitation in the ca0e
re0ted Brimaril- on the oBinion o. a B0-chologi0t" -et the reBort .urni0hed no in0ight into =h- a 2*'
-ear'old college graduate =ho had comBleted one -ear o. evening la= 0chool 0tud- =ould reBeatedl-
engage in Bett- thiever- =hile an invitee in the home0 o. hi0 cu0tomer0" and the reBort o..ered no
e)Blanation o. ho= thi0 comBul0ion" i. indeed it =ere a comBul0ion" had <een treated" the court
adding that it .urni0hed no rea0on0 =h- the aBBlicant>0 reha<ilitation 0hould <e con0idered .ull and
comBlete. ,BBlication o. :. S." 291 4d. 1$2" 433 ,.2d 11%9 I19$1; .Conviction o. Bett- the.t =hile
emBlo-ed a0 a00i0tant Bro0ecuting attorne- =arrant0 one-ear 0u0Ben0ion .rom Bractice o. la=" =ith
that 0anction 0u0Bended on condition that no other violation0 o. di0ciBlinar- rule Brohi<iting illegal
conduct involving moral turBitude <e committed. Code o. /ro..!e0B." D! 1H1+2I,;I3H%;.
Di0ciBlinar- Coun0el v. Na00" *% 3hio St. 3d 1*+" *+2 N.E.2d *1+ I1992;. Conviction o. .ir0t'degree
retail .raud .or 0hoBli.ting =arrant0 0u0Ben0ion .rom the Bractice o. la= .or one -ear =ithout credit
.or time 0erved. :overnment o. the Bar !ule # I9;Ia;Iiii;9 Code o. /ro..!e0B." D! 1H1+2I,;I3H%;.
Di0ciBlinar- Coun0el v. ,<oo?ire" *3 3hio St. 3d 391" %$$ N.E.2d 793 I1992;. ,ttorne- Bett- the.t
conviction .or 0hoBli.ting and her conviction .or tamBering =ith record0 =arranted 0u0Ben0ion .rom
Bractice o. la= .or t=o -ear0" =ith one -ear 0u0Bended" and uBon comBletion o. 0u0Ben0ion" attorne-
mu0t 0u<mit to B0-chiatric e)amination to determine =hether 0he i0 emotionall- .it to re0ume Bractice
o. la=. Code o. /ro..!e0B." D! 1H1+2I,;I4" %;. &oledo Bar ,00n. v. 6oc?hart" $4 3hio St. 3d 7"
199$'3hio'*$7" 7+1 N.E.2d *$* I199$;. ,ttorne- conviction0 .or 0hoBli.ting and hi0 .ailure to reBort
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one o. tho0e conviction0 to Bar ,00ociation =hen 0Beci.icall- Aue0tioned =arranted 0u0Ben0ion .rom
Bractice o. la= .or 1$ month0" =ith one -ear o. 0u0Ben0ion 0ta-ed Bending 0ucce00.ul comBletion o.
one'-ear Bro<ation Beriod and aBBroBriate coun0eling. Code o. /ro..!e0B." D! 1H1+2I,;I3" 4" *;" D!
1H1+3I,;. Cincinnati Bar ,00n. v. (idler" $3 3hio St. 3d 39*" 199$'3hio'39" 7++ N.E.2d 323
I199$;.&he court in ,BBlication o. 2o=ard C." 2$* 4d. 244" 4+7 ,.2d 1124 I1979;" held that the
0tate <oard o. la= e)aminer0 acted BroBerl- in not con0idering t=o Bett- the.t o..en0e0 .or =hich the
aBBlicant had <een Blaced on Bro<ation =ithout verdict" having <een legall- e)Bunged under the
Brovi0ion0 o. 4d. ,nn. Code art. 27" S 737" in determining the moral character o. the aBBlicant .or
admi00ion to the 4ar-land Bar. , <ar aBBlicant =ho had <een charged =ith 0hoBli.ting" <ut not
convicted o. the crime" 3 ,.6.!.*th 49 /age $3 3 ,.6.!.*th 49 I3riginall- Bu<li0hed in 2++%; \
2+11 &hom0on !euter0. No Claim to 3rig. 5S :ov. 8or?0. =ould <e entitled to admi00ion to the
3regon Bar" Barticularl- 0ince he had aBBarentl- made re0titution in the criminal matter" the court
held in ,BBlication o. &o<iga" 31+ 3r. 4*" 791 /.2d $3+ I199+;. ,n aBBlicant .or admi00ion to the <ar
mu0t Brove good character" the court remar?ed" and" <e.ore the court ma- admit an aBBlicant" it mu0t"
Bur0uant to 3r. !ev. Stat. S 9.2%+" direct an order to <e entered to the e..ect that an aBBlicant i0 o.
Hgood moral character.H &he rea0on .or the reAuirement" the court continued" i0 Brotection o. the
Bu<lic in it0 dealing0 =ith Bractitioner0" although the Brotection o. the Bu<lic doe0 not Bermit den-ing
individual aBBlication0
on mere 0u0Bicion. 2ere" the court 0tated" 0everal circuit court Judge0" North=e0tern 6a= School
.acult- and admini0trative 0ta.." the la= 0chool dean" a nun" other religiou0 Bro.e00ional0" /ortland
State 5niver0it- .acult-" and over a hal.'doOen Bracticing attorne-0 vouched .or the aBBlicant>0 moral
character and hone0t-" and 0trong and uninterruBted cro00e)amination o. man- o. them did not 0ha?e
their <elie. in the aBBlicant>0 character <a0ed uBon their actual e)Berience and contact0 =ith him.
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4oreover" the court indicated" arre0t record0 o<tained <- the <ar revealed no other arre0t0 <e.ore or
a.ter the aBBlicant>0 19$% 0hoBli.ting charge. Ba0ed on the totalit- o. evidence in the record" and
giving due =eight to the 0u<0tantial <od- o. evidence .rom a =ide variet- o. citiOen0 a0 to hi0
character and hone0t-" the court .ound <- clear and convincing evidence that the aBBlicant =a0 a
Ber0on o. good moral character entitled to admi00ion to the Bar o. 3regon. &he court in ,BBlication
o. Schae..er" 273 3r. 49+" %41 /.2d 14++ I197%;" held that the arre0t or citation o. an aBBlicant .or
admi00ion to the 3regon Bar on a charge o. <eing a minor in Bo00e00ion o. <eer =a0 not a 0igni.icant
re.lection uBon the aBBlicant>0 moral character .or the BurBo0e0 o. admi00ion. 2o=ever" uBon ground0
not relevant in the in0tant ca0e" the court determined that .urther inve0tigation o. the aBBlicant>0
conduct =a0 nece00ar- in order to determine =hether he =a0 Auali.ied .or admi00ion to the <ar.
a <ar aBBlicant =ho 0tole 0leeBing Bill0 .rom cu0tomer0> home0 =hile =or?ing a0 a 0ale0Ber0on a.ter
hi0 .ir0t -ear o. la= 0chool and =ho 0u<0eAuentl- =a0 convicted o. Bett- the.t0 .ailed to e0ta<li0h
Bre0ent good moral character" the court related" the court o<0erving" more 0Beci.icall-" that the
aBBlicant had o<tained a Jo< 0elling <a<- Bicture0" =or? that involved calling on cu0tomer0 at their
home0" and that" 0ome month0 a.ter entering thi0 line o. =or?" the aBBlicant <egan to 0teal Bill0 .rom
hi0 cu0tomer0 =hen he reAue0ted Bermi00ion to u0e the cu0tomer>0 <athroom" a.ter =hich he =ould
0earch .or" and 0teal" the medication9 vie=ing the reha<ilitation reBort BreBared =ith re0Bect to the
aBBlicant mo0t charita<l-" it 0eemed to re.lect a lac? o. aBBreciation o. the 0eriou0 e..ect that
reBetitive the.t <- an adult la= 0tudent ha0 on the di..icult ta0? o. determining Bre0ent moral
character .itne00 .or admi00ion to the <ar" the court concluded. ,BBlication o. :. S." 291 4d. 1$2"
433 ,.2d 11%9 I19$1; .1n (lorida Bd. o. Bar E)aminer0 !e: 6. @. D." 397 So. 2d *73 I(la. 19$1;" a
Broceeding in0tituted on a Betition .or <ar admi00ion" the court held that the .inding0 o. the <oard o.
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<ar e)aminer0 =ith re0Bect to an incident in =hich a <ar aBBlicant =a0 charged =ith" and =a0 later
acAuitted o." 0hoBli.ting" =a0 not alone 0u..icient to <ar the aBBlicant>0 admi00ion to Bractice o. la=.
&he aBBlicant>0 Jur- acAuittal" the court noted at the out0et" =hile not <inding on the <oard or on the
court in reaching conclu0ion0 regarding the alleged incident o. the.t it0el." had 0Becial 0igni.icance
=ith regard to the <oard>0 conclu0ion that the aBBlicant lied three time0 in a00erting her innocence.
&hat i0" the court remar?ed" the Jur->0 conclu0ion vindicated the aBBlicant>0 declaration o. innocence
o. the crime charged <e.ore and at the Jur- trial" the court adding that her acAuittal =ould continue to
Ju0ti.- her Brote0tation o. innocence at her 0u<0eAuent <oard hearing" even though the <oard might
have thought it advantageou0 to ma?e a 0ho=ing o. reBentance. &he court concluded that the
aBBlicant had carried her <urden o. demon0trating good character" and had 0ho=n a Bre0ent .itne00 to
enter the Bractice o. la=" a0 a re0ult o. =hich her Betition .or admi00ion =ould <e granted , <ar
aBBlicant =ho0e 0hoBli.ting charge had <een di0mi00ed =ould <e entitled to admi00ion to the 3regon
Bar" the court held in ,BBlication o. &o<iga" 31+ 3r. 4*" 791 /.2d $3+ I199+;. &he court e)Blained
that the aBBlicant>0 0hoBli.ting charge =a0 di0mi00ed in 19$* a0 Bart o. a civil comBromi0e in =hich
the aBBlicant Baid L1++" the court adding that the aBBlicant>0 attorne- on the 0hoBli.ting charge
e)Blained to the <ar e)aminer0 that he convinced the aBBlicant to acceBt the civil comBromi0e and
di0mi00al o. the charge0 over the aBBlicant>0 o<Jection0 that the aBBlicant =a0 innocent. &he trial
Banel did not .ind that the 0tore incident =a0 ground0 .or re.u0ing admi00ion to Bractice" though the
.act o. a charge and a di0mi00al i0 not" in and o. it0el." determinative on the Aue0tion o. moral
character" the court declared.Vthe court held that an aBBlicant .or admi00ion to the 4ar-land Bar
=ho had <een convicted .or 0hoBli.ting on t=o occa0ion0" once in 19** .or 0tealing a <ottle o. rum
.rom a 0uBermar?et and again in 1971 .or 0tealing a taBe mea0ure" e0ta<li0hed hi0 Bre0ent moral
character .itne00 =here there =a0 no evidence in the record even remotel- 0ugge0ting that he had
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<een involved in an- mi0conduct in -ear0 .ollo=ing the 1971 the.t o..en0e. ,BBlication o. ,llan S."
2$2 4d. *$3" 3$7 ,.2d 271 I197$;.
,n aBBlicant to the <ar" =ho had <een convicted o. 0hoBli.ting and re0i0ting arre0t =ith violence" did
not have the reAui0ite character and .itne00 to allo= admi00ion to the <ar at the Bre0ent time" the court
held in 1n re !oot0" 7*2 ,.2d 11*1 I!.1. 2+++;. 4ore 0Beci.icall-" the aBBlicant" =hen he =a0 1$
-ear0 o. age" =a0 charged =ith and convicted o. 0hoBli.ting in (lorida" and" 0u<0eAuentl-" he =a0
arre0ted again in (lorida and convicted o. the .elon- o. re0'$; .i0ting arre0t =ith violence. &he court
commented that the aBBlicant had the <urden at all time0 to demon0trate hi0 moral .itne00 and
character to Bractice a0 a la=-er in the 0tate" and here" the aBBlicant>0 Ba0t" including hi0 criminal
record and conviction0" gave the court Bau0e in acceBting the aBBlicant>0 avo=al to that he could no=
in good .aith ta?e and a<ide <- the reAui0ite attorne->0 oath. &he court o<0erved" a0 =ell" that the
aBBlicant 0tated to the committee and to the court that he =ould not onl- ta?e the attorne->0 oath i.
admitted to the <ar" <ut that he =ould a<ide <- it. 2o=ever" the court 0tre00ed" the Brior record o. the
aBBlicant" including hi0 criminal Ba0t and other Aue0tiona<le conduct demon0trating hi0 lac? o.
candor and truth.ulne00" ca0t 0uch dou<t uBon the 0incerit- o. the aBBlicant>0 Bro.e00ed =illingne00 to
a<ide <- the term0 o. the oath that he mu0t ta?e a0 a mem<er o. the <ar o. thi0 0tate that hi0
aBBlication 0hould <e denied at the Bre0ent time. ,lthough the record revealed .ar too man- recent
and Ba0t criminal act0" in0tance0 o. untruth.ulne00" and a lingering ina<ilit- o. the candidate to ta?e
the reAui0ite attorne->0 oath in good .aith" to =arrant current admi00ion" the court held that the denial
o. hi0 aBBlication =ould not Breclude the Bo00i<ilit- o. the aBBlicant reaBBl-ing .or and o<taining
aBBroval o. hi0 admi00ion to the <ar at 0ome later time" though no 0ooner than t=o -ear0 .rom the
date o. the oBinion.Vin <ar aBBlicant .itne00 Broceeding0" the court" a..irming the deci0ion o. the
Board o. Bar E)aminer0 den-ing a <ar aBBlicant>0 certi.ication" held that the .ailure o. the aBBlicant
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00528
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to Brove reha<ilitation .ollo=ing a conviction on non.elon- charge0" including a00ault" in0ulting an
o..icer" 0hoBli.ting" the.t <- ta?ing" 0imBle <atter-" tre0Ba00ing" and Bo00e00ing a .irearm =ithout a
Bermit" during a 1+'-ear Beriod ending at age 2* Brecluded certi.ication o. .itne00 to Bractice la=" the
court relating that =here an aBBlicant .or admi00ion to the <ar ha0 a criminal record" hi0 or her <urden
o. e0ta<li0hing Bre0ent good moral character ta?e0 on the added =eight o. Broving .ull and comBlete
reha<ilitation 0u<0eAuent to conviction. ,BBlication o. Ca0on" 249 :a. $+*" 294 S.E.2d %2+ I19$2;
.,ccording to the court in (lorida Bd. o. Bar E)aminer0 !e: 6. @. D." 397 So. 2d *73 I(la. 19$1;" a
.inding o. the Board o. Bar E)aminer0 =ith regard to an incident in =hich the aBBlicant =a0 charged
=ith" <ut not convicted o." 0hoBli.ting" =a0 not alone 0u..icient to <ar admi00ion to the Bractice o. la=
in (lorida in light o. 0u<0tantial" unre.uted evidence o. the candidate>0 character. &he court 0tated that
it =a0 comBelled to conclude that the Board o. Bar E)aminer0> .inding0" even though 0ome=hat
0uBBorted in the record" =a0 not alone 0u..icient to <ar the aBBlicant>0 admi00ion. &he .act that the
Board o. Bar E)aminer0 heard live te0timon-" the court Bointed out" did not in0ulate it0 .act'.inding
.rom revie= <- the court in a 0ome=hat more detailed manner than i0 u0ual in an aBBellate revie= o.
a Jur- .inding" the court adding that the <oard>0 HtrialH did not Breclude it .rom revie=ing the .actual
underBinning0 o. it0 recommendation" <a0ed on an indeBendent revie= o. the record develoBed at the
hearing0. 8hile additional adver0e .inding0 =ere made <- the <oard" the court Bointed out" t=o o.
the0e .inding0 0temmed .rom the aBBlicant>0 Ber0i0tent Brote0tation o. her innocence o. =rongdoing
<e.ore or at her criminal trial" and the0e added nothing at all to her character anal-0i0. Similarl-" the
court 0tre00ed" the other adver0e .inding lac?ed indeBendent 0igni.icance in evaluating the aBBlicant>0
character a0 it .lo=ed" cumulativel-" .rom the <oard>0 conclu0ion that the aBBlicant =a0" in .act" guilt-
o. the alleged larcen- charge0. ,ttorne- =ho commit0 act o. Bro.e00ional mi0conduct <- 0hoBli.ting
=ill <e cen0ured" =here" at time o. incident" attorne- Judgment =a0 0u..icientl- imBaired to cau0e her
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a<errational conduct and =here attorne- ha0 0ought and o<tained aBBroBriate B0-chological helB.
4c@inne- Kudiciar- 6a= S 9+9 N.7.Ct.!ule0" S *91.2. 4atter o. 4ongioi" 213 ,.D.2d 1+7" *31
N.7.S.2d 77 I2d DeB>t 199%;.
VConviction o. cla00 B mi0demeanor o. the.t and admi00ion to charge o. 0hoBli.ting =arranted
24Hmonth 0u0Ben0ion .rom Bractice o. la=" 0ta-ed on condition that attorne- commit no .urther act0
o. the.t" =here attorne- had no Brior di0ciBlinar- record" re0titution =a0 made in <oth in0tance0" he
=a0 =ell'regarded a0 comBetent and talented la=-er" he had recentl- lo0t hi0 emBlo-ment" he =a0
receiving treatment .or Ber0onal and emotional 0tre00" including inten0ive treatment 0ince time o.
incident0" he made .ull and .ree di0clo0ure in di0ciBlinar- inve0tigation and =a0 cooBerative to=ard
Broceeding0" he admitted conduct in <oth Betition0" and he =a0 contrite and remor0e.ul. !ule0 .or
6a=-er Di0ciBline" !ule 1.2" 0u<d. ,I2;9 Standard0 .or 1mBo0ing 6a=-er Sanction0" Standard 9.3.
,BBlication .or Di0ciBlinar- ,ction 113 ,.6.!. 1179 /age 34+ 113 ,.6.!. 1179 I3riginall-
Bu<li0hed in 193$; 1997 ND 234" %71 N.8.2d 37+ IN.D. 1997;.Conviction o. .ir0t'degree retail .raud
.or 0hoBli.ting =arrant0 0u0Ben0ion .rom the Bractice o. la= .or one -ear =ithout credit .or time
0erved. :overnment o. the Bar !ule # I9;Ia;Iiii;9 Code o. /ro..!e0B." D! 1H1+2I,;I3H%;.
Di0ciBlinar- Coun0el v. ,<oo?ire" *3 3hio St. 3d 391" %$$ N.E.2d 793 I1992;.Eight a..idavit0 .rom
attorne-0" attorne- emBlo-er and other re0Bon0i<le Ber0on0 a0 =ell a0 length- te0timon- at hearing o.
B0-chiatri0t =ho treated attorne- .or nearl- three -ear0 .ollo=ing hi0 0hoBli.ting conviction =a0
0u..icient to demon0trate attorne- moral reha<ilitation =ith clear and convincing evidence" Ju0ti.-ing
hi0 rein0tatement to Bractice conditioned uBon attorne- 0ucce00.ul comBletion o. State Bar
e)amination and Bro.e00ional re0Bon0i<ilit- e)am. SDC6 1*H19H$4. /etition o. Draeger" 4*3 N.8.2d
34* IS.D. 199+;.Nevada Birmingham" /etition o." 11+ Nev. 7+" $** /.2d 11%+ I1994; Vin a ca0e in
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=hich a la= 0chool graduate" =ho had <een .ound guilt- o. con0Birac- to di0tri<ute mariJuana"
Betitioned .or a =aiver o. the rule that an aBBlicant =ho ha0 <een once denied admi00ion to the <ar .or
.ailure to meet nece00ar- character reAuirement0" the court 3 ,.6.!.*th 49 /age 39 3 ,.6.!.*th 49
I3riginall- Bu<li0hed in 2++%; \ 2+11 &hom0on !euter0. No Claim to 3rig. 5S :ov. 8or?0. held
that the aBBlicant had clearl- and convincingl- demon0trated .ull and comBlete reha<ilitation .rom hi0
Brior criminal involvement9 the court 0tated that the aBBlicant>0 Hman- Bo0itive accomBli0hment0
0ince the commi00ion o. hi0 criminal o..en0e0"H along =ith the num<er and magnitude o. hi0
achievement0" 0uBBorted the determination that the aBBlicant =a0 reha<ilitated and that he =ould
Hdi0tingui0h him0el. in the Bractice o. the la=.H /etition o. Birmingham" 11+ Nev. 7+" $** /.2d 11%+
I1994; . ,ccording to the court in /etition o. Birmingham" 11+ Nev. 7+" $** /.2d 11%+ I1994;" an
aBBlicant =ho had Bled guilt- to a .ederal charge o. con0Birac- to di0tri<ute mariJuana and 0erved
time in Bri0on =ould nonethele00 <e entitled to admi00ion to the <ar. &he aBBlicant =a0 a Bilot =ho"
in 19$3" admittedl- =a0 involved in a 0cheme to 0muggle mariJuana into the 5nited State0 .rom
South ,merica9 he voluntaril- =ithdre= .rom thi0 illicit activit- and entered la= 0chool" though"
=hile in la= 0chool" hi0 Ba0t Hcaught uB =ith him"H and he =a0 arre0ted <- .ederal o..icial0. &he
aBBlicant Bleaded guilt- to a .ederal charge o. con0Birac- to di0tri<ute mariJuana and =a0 0ent to
Bri0on" and" <ecau0e o. hi0 cooBeration =ith la= en.orcement" he =a0 Blaced on earl- Barole in
(e<ruar- 19$9. 8hile on Barole" the aBBlicant returned to la= 0chool and =a0 a<le to graduate in
4a- 199+" =hereuBon he too? the Nevada <ar e)amination and Ba00ed it. &he aBBlicant =a0
di0charged .rom Barole in 1991" and" a.ter hearing0" the 0tate Board o. Bar E)aminer0 recommended
to the court that he <e admitted to the Bractice o. la=. 1n a =ritten order" the court initiall- re.u0ed to
acceBt the <oard>0 recommendation .or the aBBlicant>0 admi00ion and Aue0tioned the <oard>0
conclu0ion that the aBBlicant Bo00e00ed the H0uita<le moral characterH that =ould Auali.- him to <e
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num<ered among tho0e licen0ed to Bractice la= in thi0 0tate. &he graduate Betitioned .or a =aiver o.
the rule that an aBBlicant =ho ha0 <een once denied admi00ion to the <ar .or .ailure to meet nece00ar-
character reAuirement0 ma- not aBBl- again" and .or admi00ion to Bractice la=" and the court" on
revie=" granted the Betition. &he court commented that the Board o. Bar E)aminer0" having given a
good deal o. time to the matter in the .orm o. inve0tigation0 and hearing0" i0 in a <etter Bo0ition than
the court to Ba00 Judgment on the Aue0tion o. =hether admitting the aBBlicant i0 0o de0tructive o.
HBu<lic con.idence in the <ar a0 a =holeH a0 to reAuire den-ing him mem<er0hiB in the <ar. 8hile
noting that it re0Bected the right o. the minorit- to <e Barticularl- 0trict =hen it come0 to drug
con0Birator0" there =a0 nonethele00 in0u..icient rea0on in the ca0e to reJect the <oard>0 .avora<le
recommendation and to e)clude the aBBlicant 0olel- uBon the 3 ,.6.!.*th 49 /age %* 3 ,.6.!.*th 49
I3riginall- Bu<li0hed in 2++%;
&2E D1((E!ENCE BE&8EEN SE,!C2 G SE1Z5!E 4an- la=-er0" Judge0 and Bolice o..icer0
tal? a<out M0earch and 0eiOureN a0 though it i0 all one thing. ,ctuall-" t=o di..erent conceBt0 are
involved. 5.S. v. Kaco<0en" 4** 5.S. 1+9 I19$4; and 5.S. v. ,ver-" 137 (.3d 343 I*th Cir. 1997;. 1.
, M0earchN i0 a Bolice intru0ion on a legitimate e)Bectation o. Brivac-. 2. , M0eiOureN Ia; o. the
Ber0on occur0 =hen Bolice inter.ere =ith an individualP0 .reedom o. movement9 I<; o. BroBert- i0 an
inter.erence =ith a Ber0onP0 right to Bo00e00 or control the item. &he 4th ,mendment rule0 0et .orth
<- the 5S SuBreme Court and other court0 are di..erent in the .ollo=ing t=o Bolice action0: I1;
SeiOure0 o. the Ber0on I0toB and .ri0? and arre0t0;. I2; ,ll other 0earche0 and 0eiOure0 Iinter.erence
=ith Brivac- or Bo00e00ion;. & 2 E C , ! D 1 N , 6 ! 5 6 E i 0 d i . . e r e n t . o r 1 G 2 1
SeiOure0 o. Ber0on0 need Ju0ti.ication <ut generall- don>t need a 0earch =arrant even i. there i0 time
to get a =arrant. &here are t=o main e)ceBtion0 =hen an arre0t or 0earch =arrant i0 reAuired in an
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arre0t 0ituation. I/a-ton rule and Steagald rule ' di0cu00ed later;. 2 ,ll other t-Be0 o. Brivac-
intru0ion0 into Blace0 or 0eiOure0 o. item0 u0uall- need a =arrant. &he 5nited State0 and Nevada
SuBreme Court0 have 0tated reBeatedl- ' 0earche0 =ithout a =arrant are Bre0umed to <e unla=.ul and
Bolice need to <e BreBared to te0ti.- in court and demon0trate I=ith legal argument <- the D,; that an
e)ceBtion aBBlie0. Cali.ornia v. ,cevedo" 111 S.Ct. 19$2 I1991; and /hilliB0 v. State" 1+* Nev. 7*3
I199+;. &he0e conceBt0 are di0cu00ed in detail later in thi0 outline. E. &2E S5/!E4E C35!& ,ND
&2E EZC65S13N,!7 !56E (or a<out 1++ -ear0 a.ter 1791 .e= 5.S. SuBreme Court ca0e0 =ere
decided concerning the meaning o. the (ourth ,mendment. Bet=een 1$$* and 1914 0everal ca0e0
=ere decided ending =ith 8ee?0 v. 5.S. I1914; that 0aid in all (ederal court0" evidence 0eiOed in
violation o. the (ourth ,mendment =ould <e e)cluded. 1n 19*1" the 5.S. SuBreme Court decided
4aBB v. 3hio" 3*7 5.S. *43 0a-ing the (ederal e)clu0ionar- rule aBBlied in State court Broceeding0
a0 =ell. &he theor- u0ed <- the Court to Ju0ti.- thi0 ruling =a0 that the e)clu0ionar- rule =ould deter
unla=.ul Bolice conduct <- removing the incentive to act unla=.ull-. INote: no 0cienti.ic or 0tati0tical
0tud-" either <e.ore or 0ince 4aBB" ha0 ever Broved or di0Broved thi0 theor- o. the 9 Court.;. (.
(!51& 3( &2E /31S3NED &!EE 1n 19*3" the 5.S. SuBreme Court decided 8ong Sun v. 5nited
State0" 371 5.S. 4+7 I19*3; and held that i. there i0 a 4th ,mendment violation <- Bolice" the
evidence thro=n out i0 not onl- that =hich i0 immediatel- recovered <ut all evidence that derive0
directl- .rom it. (or thi0 rea0on" a de.en0e la=-er =ill .ocu0 on the earlie0t a0Bect o. the Bolice
contact =ith the de.endant and tr- to .ind .ault =ith the Bolice conduct. &hi0 rule mean0 that" in mo0t
ca0e0" i. Bolice commit a 4th ,mendment violation" it =ill Boi0on or MtaintN evidence o<tained later in
the 0ame inve0tigation even i. Bolice" a.ter committing the violation" then .ollo=ed la=.ul 4th
,mendment Brocedure0 <e.ore 0eiOing the evidence. ,n e)amBle o. thi0 rule i0 .ound in the ca0e o.
,rter<urn v. State" 111 Nev. 1121I199*;. 1n that ca0e" Bolice =ere inve0tigating a Ber0on .or the.t o. a
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motor vehicle and learned that ,rter<urn =a0 a00ociated =ith the 0u0Bect. ,rter<urn =a0 0een near
the car Bar?ed at a motel. /olice 0toBBed him and" according to the SuBreme CourtP0 vie= o. the
.act0" reAuired him to go to the Bolice 0tation .or Aue0tioning. ,t the 0tation" he con0ented to a 0earch
o. hi0 Ber0on =hich turned uB drug0 .or =hich he =a0 convicted. &he Nevada SuBreme Court 0aid
that even i. the con0ent to 0earch at the 0tation =a0 la=.ul" the drug0 =ould <e 0uBBre00ed <ecau0e the
Brior action0 o. the Bolice amounted to hi0 Marre0tN =ithout Bro<a<le cau0e and the con0ent =a0 the
M.ruitN o. the 4th ,mendment violation. ISee thi0 outline M6evel0 o. ContactN a0 to =h- thi0 =a0 an
Marre0t.N;. &he 5.S. SuBreme Court ha0 .ollo=ed the 0ame theor- on man- occa0ion0. (or e)amBle" in
Bro=n v. 1llinoi0" 422 5.S. %9+ I197%; the Court 0aid that the 8ong Sun rule =a0 0till la= and that a
con.e00ion made <- a 0u<Ject 0hortl- a.ter an illegal arre0t =a0 thro=n out even though correct
4iranda =arning0 =ere given a.ter the illegal arre0t. 2o=ever ' over the -ear0 uB to and including
the Bre0ent the 5. S. SuBreme Court ha0 re.u0ed to aBBl- the 0trict 8ong Sun I.ruit o. Boi0oned tree;
rule in 0ome ca0e0. Note: the0e 0ituation0 in =hich a Brior Iin time; 4th ,mendment violation doe0
not re0ult in 0uBBre00ion o. all 0u<0eAuent evidence in the 0ame inve0tigation are the e)ceBtion" not
the rule" and the <urden i0 on the Bolice'Bro0ecution 0ide to Brove the e)ceBtion. I1; 1NDE/ENDEN&
S35!CE D3C&!1NE: Segura v. 5nited State0" 4*$ 5.S. 79* I19$4;. 1. there i0 an illegal Bolice
activit- =hich lead0 to di0cover- o. the evidence <ut there i0 al0o a legal and valid indeBendent
0ource <- =hich Bolice recovered the evidence ' it =ill not <e 0uBBre00ed. ISee H/remi0e0 (reeOeH in
Search 8arrant Section;. I2; 1NE#1&,B6E D1SC3#E!7 D3C&!1NE: Ni) v. 8illiam0" 4*7 5.S.
431 I19$4;. 1. the evidence =ould have <een di0covered an-=a- ' it =ill not <e 0uBBre00ed <a0ed on
illegal Bolice conduct. &he theor- o. the e)clu0ionar- rule i0 that Bolice 0hould not Bro.it .rom their
mi0conduct. &hi0 rationale i0 .urthered <- Butting the Bolice in the 0ame Bo0ition" <ut not a =or0e
Bo0ition than i. no mi0conduct had occurred. 1+ M1nevita<le di0cover-N doe0 not mean that there i0 no
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0uBBre00ion o. evidence i. the Bolice Mcould haveN gotten the evidence la=.ull-" <ut didnPt. &he
<urden i0 on the Bro0ecution to 0ho= <- a BreBonderance o. the evidence that the Bolice M=ould
haveN di0covered the evidence <- la=.ul mean0. INi) v. 8illiam0; 1t reAuire0 more than an argument
a<out thing0 that in retro0Bect the Bolice could have done. (or e)amBle" in 5.S. v. ,llen" 1%9 (.3d $2
I4th Cir. 199$; the court 0aid" M8e reJect the contention that inevita<le di0cover- aBBlie0 =here
Bolice have Bro<a<le cau0e and then 0earch =ithout a =arrant I<ut argue that the- Mcould haveN
gotten a 0earch =arrant; <ecau0e then there =ould never <e a rea0on .or Bolice to 0ee? a 0earch
=arrant.N See al0o" 5.S. v. Bro=n" *4 (.3d 1+$3 I7th Cir. 199%;. 1nevita<le di0cover- reAuire0 a
0ho=ing that either Ia; at the time o. the mi0conduct" or a.ter the mi0conduct" there =a0 an
indeBendent line o. Bolice inve0tigation under=a- =hich develoBed .act0 not a0 a re0ult o. the
mi0conduct and =ould have led to the di0cover- o. the evidence or" I<;in the alternative" that there
=a0 a 0tandard Brocedure I0uch a0 inventor-; in e..ect that =ould have turned uB the 0ame evidence.
Cocaine =a0 .ound <- Bolice =ithout a =arrant in a mi0routed 0uitca0e <ut the court held that the
cocaine =ould have <een .ound <- the airline =hen it 0earched the 0uitca0e .or identit- o. the o=ner
5.S. v. @enned-" *1 (.3d 494 I*th Cir. 199%;. 1n 5.S. v. 6ar0en" 127 (.3d 9$4 I1+th Cir. 1997;" the
court held Minevita<le di0cover- aBBlie0 =henever an indeBendent inve0tigation =ould have
inevita<l- led to the di0cover- o. the evidence =hether or not the inve0tigation =a0 ongoing at the
time o. the illegal Bolice action.N I,n indeBendent inve0tigation i0 not valid i. made a0 a re0ult o.
thing0 learned <- illegal Bolice action; 3ther ca0e0 uBholding inevita<le di0cover- are 5.S. v.
8ood-" %% (.3d 12%7 I7th Cir. 199%;" 7eoman v. State" 92 Nev. 3*$ I197*;" Clough v. State" 92
Nev. *+3 I197*; and Carli0le v. State" 9$ Nev. 12$ I19$2;. I3; ,&&EN5,&13N: , court =ill admit
evidence recovered a.ter Bolice mi0conduct i. the Bro0ecution can 0ho= that there i0 no 0igni.icant
relation0hiB <et=een the unla=.ul conduct and the di0cover- o. the evidence. Nardone v. 5.S." 3+$
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5.S. 33$ I1939; (actor0 include the time Bro)imit- <et=een the mi0conduct and di0cover-" =hether
there are other intervening circum0tance0" and the BurBo0e and .lagranc- o. the Bolice mi0conduct.
Bro=n v. 1llinoi0" 422 5.S. %9+ I197%; &he0e .actor0 have <een recogniOed <- the great maJorit- o.
court0 =ith re0ult0 di..ering <a0ed on the .act0 o. each ca0e. 5.S. v. 8il0on" 3* (.3d 129$ I%th Cir.
1994;" 5.S. v. SheBhard" 21 (.3d 933 I9th Cir. 1994;. 1n 5nited State0 v. Ceccolini" 43% 5.S. 2*$
I197$; the Court re.u0ed to 0uBBre00 the te0timon- o. a live =itne00 =ho0e identit- =a0 learned a0 a
re0ult o. a 4th ,mendment violation. &he .actor0 =ere: Ba00age o. time <et=een illegal 0earch and
contact =ith =itne00" the .act that =itne00 =a0 te0ti.-ing o. her o=n .ree =ill and the .act that the
Bolice illegalit- =a0 not de0igned or intended to di0cover the identit- o. =itne00e0. See al0o 5.S. v.
4c@innon" 92 (.3d 244 I4th Cir. 199*;. 1n 5nited State0 v. Cre=0" 44% 5.S. 4*3 I19$+; the
de.endant =a0 arre0ted in violation o. the 4th ,mendment. , <oo?ing Bhoto =a0 u0ed in a lineuB and
a =itne00 to the crime identi.ied Cre=0. &he Court 0aid that the Bhoto lineuB identi.ication =a0 11
0uBBre00ed <ut did allo= the =itne00 to te0ti.- at trial and identi.- Cre=0 <a0ed on her recollection
.rom the time o. the crime <ecau0e the a<ilit- to identi.- him came <e.ore the Bolice mi0conduct. &he
de.endantP0 .ace =a0 not the M.ruitN o. the illegal arre0t. M&he <od- or identit- o. a de.endant in a
criminal Broceeding i0 never it0el. 0uBBre00i<le a0 the .ruit o. an unla=.ul arre0t" even i. it i0
conceded that an unla=.ul arre0t" 0earch or interrogation occurred.N1NS v. 6oBeO' 4endoOa" 4*$ 5.S.
1+32 I19$4;. 1n Ne= 7or? v. 2arri0" 11+ S.Ct. 1*4+ I199+; the de.endant =a0 arre0ted in hi0 home in
violation o. the 4th ,mendment. &he Bolice had Bro<a<le cau0e .or the arre0t <ut didnPt get a =arrant
in violation o. the /a-ton rule I0ee M,rre0tN 0ection o. thi0 outline;. 2arri0 =a0 4irandiOed and
con.e00ed at hi0 home9 then a.ter he got to the Bolice
0tation he =a0 4irandiOed again and con.e00ed a 0econd time. &he .ir0t con.e00ion =a0 0uBBre00ed a0
the .ruit o. the /a-ton violation <ut the 0econd =a0 not the M.ruitNo. the illegal arre0t. INote: thi0 ca0e
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i0 di..erent .rom Bro=n v. 1llinoi0 =here there =a0 no Bro<a<le cau0e .or the arre0t and 4iranda
=arning0 at the Bolice 0tation didnPt cure the MtaintN<ecau0e the con.e00ion =a0 immediatel- tied or
connected to the illegal due to lac? o. /CC Marre0t.N;.
EZC65S13N,!7 !56E ,ND &2E 3BKEC&1#E &ES& 4an- time0 more than one legal
Ju0ti.ication .or a 0earch ma- e)i0t contemBoraneou0l- on a certain 0et o. .act0. 4u0t the o..icer
0elect the HrightH or H<e0tH Ju0ti.icationD &he 5nited State0 SuBreme Court 0ugge0ted the an0=er i0
HN3H in the ca0e o. Scott v. 5nited State0" 43* 5.S. 12$ I197$;. ,lthough mo0t o. the deci0ion
involved a =iretaB i00ue" it held the court 0hould He)amine the challenged 0earch under a 0tandard o.
o<Jective rea0ona<lene00 =ithout regard to the motivation o. the o..icer0 involved.H &hu0" -ou ma-
thin? -ou are ma?ing a legal 0earch on an Hinventor- theor-H and the court rule0 that it =a0nPt a valid
inventor- <ut i. the 0earch can <e Ju0ti.ied a0 a H0earch incident to arre0tH or HBro<a<le cau0e 0earchH
the evidence =ill <e admi00i<le. See State v. :reen=ald" 1+9 Nev. $+$ INev. 1993; in =hich the
Nevada SuBreme Court held that <oth t-Be0 o. 0earche0 =ere invalid on the .act0 o. that ca0e" <ut
clearl- ruled that i. Bolice 0earched or 0eiOed under a =arrant e)ceBtion that Bolice thought =a0 valid
<ut that the court deemed incorrect" 0uBBre00ion =ould not occur i." <a0ed on the totalit- o. .act0 and
circum0tance0 o. the encounter there =a0 a valid o<Jective Ju0ti.ication under a di..erent theor- .or
the Bolice action. 1n Surianello v. State" 92 Nev. 492 I197*; the court 0aid that <ecau0e Bro<a<le
cau0e to arre0t Ior rea0ona<le 0u0Bicion to 0toB; i0 determined <- o<Jective .act0" it =a0 immaterial
that the o..icer te0ti.ied that he didn>t thin? he had enough .act0 .or an arre0t9 hi0 action =a0
nonethele00 la=.ul i. the court determine0 that the legal Ju0ti.ication I!CS .or a 0toB or /CC .or an
arre0t; =a0 Bre0ent. 13 1. 41S&,@ES B7 /361CE 1N SE,!C2 G SE1Z5!E 1n real li.e" there are
time0 =hen Bolice ma?e mi0ta?e0 a<out the .act0 Bertaining to a 0ituation and <a0e =hat =ePll call
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M4th ,mendment t-Be deci0ion0N on erroneou0 .act0. 8hen thi0 occur0" 0uBBre00ion o. evidence i0
not al=a-0 the re0ult" a0 long a0 the Bolice and Bro0ecutor can carr- the <urden o. 0ho=ing that the
mi0ta?e =a0 a rea0ona<le one and =a0 not the re0ult o. Bolice negligence. (or e)amBle" in 2ill v.
Cali.ornia" 4+1 5.S. *4% I1971;" Bolice =ere inve0tigating a ro<<er- and develoBed 2ill a0 a 0u0Bect.
&he- =ent to 2illP0 aBartment and a man =ho .it 2illP0 de0criBtion an0=ered the door and admitted
the Bolice. &he man 0aid he =a0 4iller" not 2ill <ut the Bolice arre0ted him an-=a- and a 0earch
incident to arre0t di0clo0ed evidence that =a0 u0ed to convict 2ill at trial. 1t turned out that the man in
2illP0 Blace =a0 reall- 4iller. &he 5.S. SuBreme Court uBheld the 0earch" 0tating that although Mgood
.aithN alone =ould not have Ju0ti.ied the Bolice action" under the .act0 o. that ca0e" the Bolice mi0ta?e
=a0 o<Jectivel- rea0ona<le. 3ther e)amBle0 include a Bolice o..icer 0toBBing a car <a0ed on a
comButer entr- 0a-ing that the driver had an out0tanding =arrant =hen the =arrant had <een Aua0hed"
<ut that had not <een entered in the comButer <- the court cler?. ,riOona v. Evan0" 11% S.Ct. 11$%
I199%; Ierror not created <- Bolice; See al0o" 5.S. v. Sharee." 1++ (.3d 1491 I1+th Cir. 199*; and
5.S. v. Santa" 1$+ (.3d 2+ I2d Cir. 1999;. 8hen Bolice entered a re0idence <a0ed on con0ent .rom a
Ber0on =ho" a.ter Aue0tioning <- the o..icer0 aBBeared to have common authorit- over the Bremi0e0"
<ut =ho later on turned out not to have 0uch authorit-" the Bolice 0earch =a0 held valid in 1llinoi0 v.
!odrigueO" 11+ S. Ct. 2793 I199+; and Sn-der v. State" 1+3 Nev. 27% I19$7;. I,0 long a0 Bolice
ma?e a rea0ona<le e..ort to learn the current .act0: M8h- can thi0 Ber0on give con0entDN;. &he 0ame
rationale uBheld a 0earch in 4ar-land v. :arri0on" 1+7 S. Ct. 1+13 I19$7; =here Bolice had a 0earch
=arrant .or the 3rd .loor aBartment at a certain addre00. 1n .act" un?no=n to Bolice" the 3rd .loor had
<een divided into t=o 0eBarate aBartment0 and <oth =ere 0earched =ith drug0 <eing .ound in the
M=rongN aBartment. &he 5. S. SuBreme Court ruled Mno 0uBBre00ionN 0a-ing that the legalit- o. the
Bolice action had to <e <a0ed on the in.ormation availa<le to Bolice at the time o. the action9 the
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mi0ta?e occurred de0Bite rea0ona<le e..ort0 <- Bolice to inve0tigate and learn the correct .act0. M,
BolicemanP0 mi0ta?en <elie. o. .act can contri<ute to a /CC determination and can count Ju0t a0 much
a0 a correct <elie. a0 long a0 the mi0ta?en <elie. =a0 rea0ona<le in light o. all the circum0tance0.N
5.S. v. :onOale0" 9*9 (.2d 999 I11th Cir. 1992;. See al0o Stuart v. State INevada 197$; and 5.S. v.
,lvareO in 0ection on M8hat 10 !ea0ona<le Su0Bicion;. 14 K. M:33D (,1&2N M:ood .aithN i0 a term
=hich i0 o.ten u0ed <- Bolice and Bro0ecutor0 =ithout a .ull under0tanding o. =hether it helB0 avoid
0uBBre00ion o. evidence. &he <a0ic rule e0ta<li0hed <- the 5.S. SuBreme Court man- -ear0 ago i0 that
an o..icerP0 Mgood .aithN i0 irrelevant in deciding =hether or not there ha0 <een a 4th ,mendment
violation. &here are man- rea0on0 .or thi0 <a0ic rule" not the lea0t o. =hich i0 that it i0 imBo00i<le .or
a Judge or an-one el0e to read a Ber0onP0 mind. ,l0o" according to the 5.S. SuBreme Court" a Judge
deciding a motion to 0uBBre00 on 4th ,mendment ground0 mu0t u0e an o<Jective te0t. (lorida v.
Bo0tic?" 111 S.Ct. 23$2 I1991;. &here.ore" M0u<JectiveNor Mtrue inner <elie.N good .aith generall-
mean0 nothing.N1. 0u<Jective good .aith alone =ere the te0t the Brotection0 o. the 4th ,mendment
=ould evaBorate and BeoBle =ould <e 0ecure in their Ber0on0" hou0e0" BaBer0 and e..ect0 onl- in the
di0cretion o. the Bolice.N Bec? v. 3hio" 379 5.S. $9 I19*4;. 2o=ever" in a .e= 0ituation0" =hen there
i0 Mo<JectiveN or out=ardl- Brova<le good .aith <- a Bolice o..icer" the 5.S. SuBreme Court ha0 u0ed
the term Mgood .aithN to re0ult in admi00ion rather than 0uBBre00ion o. evidence. 1n 4ichigan v.
De(illiBo" 443 5.S. 31 I1979; and 1llinoi0 v. @rull" 4$+ 5.S. 34+ I19$7; Bolice o..icer0 made arre0t0
or 0earche0 acting Bur0uant to a 0tate 0tatute =hich =a0 later held <- the court0 to <e uncon0titutional.
&he 5.S. SuBreme Court uBheld the Bolice action in <oth ca0e0 <ecau0e o. the o..icerP0 reliance on
the 0tatute. 2o=ever" the Court noted that thi0 re0ult =ould not .ollo= i. Ia; the legi0lature =holl-
a<andoned it0 re0Bon0i<ilit- to enact con0titutional la=0 or I<; i. a rea0ona<l- =ell trained o..icer
0hould have ?no=n that the 0tatute =a0 uncon0titutional. 1n 5nited State0 v. 6eon" 4*$ 5.S. $97
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I19$4; the Court held that i. Bolice got a 0earch =arrant 0igned <- an imBartial Judge and the .act0
0u<mitted <- the Bolice in the a..idavit =ere true Iin the 0en0e that the- =ere not intentionall- or
rec?le00l- .al0e; then no 0uBBre00ion =ould occur even i. another Judge .ound a.ter the 0earch that
there =a0 not enough /CC. 3nce again" the Court limited thi0 to ca0e0 =here a rea0ona<l- =ell trained
o..icer =ould not have realiOed that there =a0 in0u..icient /CC. &he 6eon ca0e ha0 <een .ollo=ed in
0tate 0uBreme court0 on a ratio o. a<out .our to one. &he Nevada SuBreme Court cited 6eon in it0
deci0ion in /o=ell v. State" 113 Nev. 41 I1997;.
De.endant" charged =ith <oo?ma?ing" had 0ucce00.ull- moved to di0mi00 the indictment on the
ground0 that the Bolice and di0trict attorne- had a Bolic- not to arre0t or Bro0ecute <ettor0 =hile the-
arre0ted and Bro0ecuted <oo?ma?er0" although the 0tatute made it a crime to Blace a0 =ell a0 to
receive a <et. &he court 0aid that <a0ed on the record it =a0 clear that de.endant =a0 Bro0ecuted
<ecau0e 0he =a0 a <oo?ma?er and not a <ettor" and thu0 the Bro0ecuting authoritie0 di0criminatoril-
en.orced the Benal code again0t her. 2o=ever" the court 0aid that the 0elective en.orcement o. the
0tatute =a0 not <a0ed on an invidiou0 and unJu0ti.ia<le 0tandard. &he court 0aid that a di0tinction
dra=n on the <a0i0 o. the di..erence in the ?ind o. criminal conduct" even though o. eAual culBa<ilit-
under the la=" =a0 neither 0u0Bect nor invidiou0. Stating that de.endant did not a00ert that 0he =a0
Bro0ecuted <ecau0e o. her race" religion" 0e)" or e)erci0e o. (ir0t ,mendment right0" the court 0aid
that 0he had thu0 not demon0trated that a<0ent the announced Bolic-" 0he =ould not have <een
Bro0ecuted. 1n /eoBle v 8inter0 I19%9; 171 Cal ,BB 2d SuBB $7*" 342 /2d %3$" the court rever0ed
the trial court>0 0ua 0Bonte di0mi00al" <- rea0on o. di0criminator- en.orcement" o. gam<ling charge0
<rought again0t de.endant0. &he trial court>0 <a0i0 .or 0o doing =a0 the court>0 corre0Bondence =ith
the Bolice chie. =hich indicated that gam<ling arre0t0 o. Negroe0 =ere 1+ time0 a0 numerou0 a0
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gam<ling arre0t0 o. Cauca0ian0 even though Negroe0 con0tituted onl- 1+ Bercent o. the BoBulation.
Stating that di0criminator- la= en.orcement =ill not <e Bre0umed" and <e.ore it can <e e0ta<li0hed"
Broo. thereo. mu0t <e Judiciall- made" the court 0aid that the di0mi00al o. the action =a0 =ithout
Butting intentional di0crimination in i00ue. 1n ordering the trial o. de.endant to Broceed" the court 0aid
that that =a0 =ithout BreJudice to the right o. the de.endant" a0 a matter o. de.en0e" to a00ert and o..er
Broo. that an- conviction =ould den- him eAual Brotection o. the la=0 <ecau0e o. an- Broven
intentional or deli<erate di0crimination. Convicted o. variou0 violation0 o. the municiBal gam<ling
la=0" the de.endant in Davi0 v 5nited State0 I197$" Di0t Col ,BB; 39+ ,2d 97*" contended that the
Bro0ecution o. gam<ling ca0e0 in the Di0trict o. Colum<ia =a0 0elective and di0criminator- in that
there =ere no Bro0ecution0 .or Bo00e00ing 0o'called HlegalH lotter- tic?et0" 0uch a0 tho0e 0old <-
4ar-land. Stating that in order .or a de.endant to Brove di0criminator- en.orcement o. a valid 0tatute
there mu0t <e at lea0t a Brima .acie 0ho=ing that other0 0imilarl- 0ituated have not generall- <een
Broceeded again0t and that the di0criminator- Bro0ecution =a0 <a0ed on imBermi00i<le
con0ideration0" the court 0aid that the de.endant did not meet that <urden 0ince he did not allege a
di..erence in treatment <a0ed uBon a con0titutionall- 0u0Bect 0tandard <ut did no more than allege a
.ailure to Bro0ecute other0. Such a conclu0or- allegation" 0aid the court" =a0 in0u..icient =ithout
more. 1n Crea0h v State I193$; 131 (la 111" 179 So 149" in =hich de.endant0 =ere .ound guilt- o.
?eeBing and oBerating a gam<ling hou0e" the de.endant0 comBlained that the arre0ting o..icer0
e)hi<ited inordinant BreJudice again0t de.endant0" in that the- Bermitted other H<ingoH Blace0 to go
unmole0ted and to run =ide oBen at the time the- arre0ted de.endant0. &he court 9% ,.6.!.3d 2$+
/age *7 9% ,.6.!.3d 2$+ I3riginall- Bu<li0hed in 1979; \ 2+12 &hom0on !euter0. No Claim to
3rig. 5S :ov. 8or?0. 0aid that even i. that =a0 true" it =a0 not material to the ca0e. 1n 3a?land
Count- /ro0ecuting ,ttorne- v 4*th Kudicial Di0t. Kudge I1977; 7* 4ich ,BB 31$" 2%* N82d 77*"
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de.endant0" charged =ith con0Birac- to violate the 0tate gam<ling 0tatute" claimed that the- had <een
0u<Jected to di0criminator- Bro0ecution <ecau0e no one el0e had <een Bro0ecuted .or engaging in
activitie0 0imilar to tho0e in =hich the- engaged" and al0o that the- had <een 0u<Jected to 0elective
Bro0ecution <ecau0e the Bro0ecutor 0a= .it to di0mi00 a0 again0t t=o o. the con0Birator0. Stating that
0electivit- and the en.orcement o. la=0 i0 not a violation o. eAual Brotection unle00 it i0 <a0ed uBon
race" religion" or 0ome other ar<itrar- cla00i.ication"
the court 0aid that intentional or BurBo0e.ul di0crimination =ill not <e Bre0umed and there mu0t <e an
a..irmative 0ho=ing o. clear and intentional di0crimination. 2olding that there had <een no 0uch
0ho=ing on the Bart o. an- o. the de.endant0" the court remanded the cau0e to the trial court. 1n
/eoBle v Shing I197%; $3 4i0c 2d 4*2" 371 N7S2d 322" the court denied de.endant0> motion to
di0mi00 the in.ormation0 on the ground o. 0elective and di0criminator- Bro0ecution. De.endant0" =ho
=ere o. Chine0e de0cent" =ere charged =ith the crime0 o. Bromoting gam<ling and Bo00e00ion o.
gam<ling device0. Noting that de.endant0 argued that the- had rea0on to <elieve that the- =ere <eing
undul- hara00ed <ecau0e o. their heritage" the court 0aid that to invo?e the de.en0e o. di0criminator-
Bro0ecution one mu0t Brove that the 0election o. the de.endant0 .or Bro0ecution =a0 deli<eratel-
<a0ed uBon their race or religion. &he court 0aid that it =a0 not enough to allege intentional and
BurBo0e.ul di0crimination" <ut the de.en0e mu0t Bre0ent .act0 0u..icient to rai0e a rea0ona<le dou<t
a<out the Bro0ecutor>0 BurBo0e. 2o=ever" the onl- allegation0 =ere that .ive or more grouB0 o.
,0iatic',merican0 =ere charged =ith violating the gam<ling 0tatute0 in a 3'month Beriod and that the
de.endant0 had rea0on to <elieve that there had not <een that 0ame num<er o. Bro0ecution0 .or tho0e
crime0 in the =hole <orough o. 4anhattan. Stating that even i. that =ere true" there =a0 no evidence
.rom =hich to conclude that the Bro0ecution0 =ere deli<eratel- di0criminator-" the court 0aid that
mere 0electivit- in Bro0ecution" in and o. it0el." created no con0titutional Bro<lem. C5456,&1#E
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S5//6E4EN& Ca0e0: 1n Bro0ecution .or <oo?ma?ing o..en0e0 o. Ber0on0 involved in oBerating
neigh<orhood re0taurant0 and <ar0" trial court did not a<u0e di0cretion <- den-ing de.en0e motion .or
di0cover- o. documentar- evidence" allegedl- Bo00e00ed <- the Bro0ecution" to 0ho= di0criminator-
la= en.orcement" =here de.endant did not ma?e Brima .acie 0ho=ing o. 0elected Bro0ecution <a0ed
0olel- uBon geograBhic or 0ocio'economic .actor0. ,lthough it =a0 not nece00ar- that the Hcla00H
involved <e one again0t =hich there ha0 <een traditional or hi0toric di0crimination" na?ed allegation
that de.endant0 =ere mem<er0 o. cla00 o. local neigh<orhood <ar0 did not give ri0e to rational
in.erence o. 0elective la= en.orcement <a0ed on condemned invidiou0 criteria. /era?i0 v SuBerior
Court o. Santa Clara Count- I1979" 10t Di0t; 99 Cal ,BB 3d 73+" 1*+ Cal !Btr 44%. 1n Bro0ecution
.or attemBted di00emination o. gam<ling in.ormation" evidence that all o. the numerou0 arre0t0 under
0tatute in Barticular cit- had involved de.endant0 or their emBlo-ee0 and emBlo-er0 =a0 in0u..icient
to e0ta<li0h that 0tatute =a0 <eing di0criminatoril- en.orced. /eoBle v 4ilano I1979" 2d Di0t; $9 Cal
,BB 3d 1%3" 1%2 Cal !Btr 31$. 9% ,.6.!.3d 2$+ /age *$ 9% ,.6.!.3d 2$+ I3riginall- Bu<li0hed in
1979; \ 2+12 &hom0on !euter0. No Claim to 3rig. 5S :ov. 8or?0. Statute =hich criminaliOed
oBeration o. lotter- =hile e)emBting Bla-er0 .rom criminal re0Bon0i<ilit- did not 0uBBort oBerator>0
claim o. di0criminator- Bro0ecution in a<0ence o. evidence o. intentional or BurBo0e.ul
di0crimination in Bro0ecution0 under 0tatute. Common=ealth v Covert I19$3; 322 /a SuBer 192" 4*9
,2d 24$.'
Selective or di0criminator- Bro0ecution %7 C.K.S. 4ilitar- Ku0tice S 1%7 &o 0uBBort a de.en0e o.
0elective or di0criminator- Bro0ecution" a de.endant <ear0 the <urden o. e0ta<li0hing that he or 0he
ha0 <een 0ingled out .or Bro0ecution" and that the government>0 di0criminator- 0election o. him or her
.or Bro0ecution ha0 <een invidiou0 or in <ad .aith. &o 0uBBort a de.en0e o. 0elective or di0criminator-
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Bro0ecution" a de.endant <ear0 a heav- <urden o. e0ta<li0hing" at lea0t Brima .acie" that he or 0he ha0
<een 0ingled out .or Bro0ecution =hile other0 0imilarl- 0ituated have not generall- <een Broceeded
again0t <ecau0e o. 0imilar conduct" and that the government>0 di0criminator- 0election o. him or her
.or Bro0ecution ha0 <een invidiou0 or in <ad .aith" i.e." <a0ed uBon imBermi00i<le con0ideration0 0uch
a0 race" religion" or the de0ire to e)erci0e con0titutional right0.Q1R Bare contention0 that other0 =ere
0imilarl- lia<le due to criminal activit-" <ut not Bro0ecuted" are in0u..icient to <ar good'.aith
Bro0ecution0.Q 2R &he con0ciou0 e)erci0e o. 0ome 0electivit- in en.orcement o. the la= i0 not in it0el.
a .ederal con0titutional violation.Q3R Even though 0tati0tic0 might 0uBBort an imBlication o. 0elective
en.orcement" there mu0t <e a .urther 0ho=ing that the 0election =a0 deli<eratel- <a0ed uBon an
unJu0ti.ia<le 0tandard.Q4R Q(N1R C4,V5.S. v. 2agen" 2% 4.K. 7$ IC.4.,. 19$7;. :CC4!V5.S. v.
&atum" 17 4.K. 7%7 IC.:.C.4.!. 19$4;. N4C4!V5.S. v. :ar=ood" 1* 4.K. $*3 IN.4.C.4.!.
19$3;" deci0ion a..>d" 2+ 4.K. 14$ IC.4.,. 19$%;. CKS 4161&,!7 S 1%7 /age 1 %7 C.K.S. 4ilitar-
Ku0tice S 1%7 \ 2+12 &hom0on !euter0. No Claim to 3rig. 5S :ov. 8or?0. Q(N2R N4C4!V5.S.
v. :ar=ood" 1* 4.K. $*3 IN.4.C.4.!. 19$3;" deci0ion a..>d" 2+ 4.K. 14$ IC.4.,. 19$%;. Q(N3R
C:C4!V5.S. v. &atum" 17 4.K. 7%7 IC.:.C.4.!. 19$4;. Q(N4R C:C4!V5.S. v. &atum" 17 4.K.
7%7 IC.:.C.4.!. 19$4;.
5ncooBerative =itne00 5.S.V5.S. v. @ehm" 799 (.2d 3%4" 21 (ed. !. Evid. Serv. 339 I7th Cir.
19$*;. Q(N2R 5.S.V5.S. v. !amireO" 7*% (.2d 43$ I%th Cir. 19$%;. ,la.VElmore v. State" 44% So.
2d 943 I,la. Crim. ,BB. 19$3;. ,riO.V 4urra- v. &horne-cro.t e) rel. ,riOona 2igh=a- DeBt.
4otor #ehicle Divi0ion" 131 ,riO. 1%*" *39 /.2d 34* ICt. ,BB. Div. 2 19$1;. Conn.VState v.
2a0?in0" 1$$ Conn. 432" 4%+ ,.2d $2$ I19$2;. CKS C!146,8 S 79 /age 2 22 C.K.S. Criminal 6a=
S 79 \ 2+12 &hom0on !euter0. No Claim to 3rig. 5S :ov. 8or?0. :a.V6ee v. State" 177 :a. ,BB.
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*9$" 34+ S.E.2d *%$ I19$*;. 6a.VState v. Coleman" 4*% So. 2d 7+9 I6a. 19$%;. 4ich.V/eoBle v.
4onroe" 127 4ich. ,BB. $17" 339 N.8.2d 2*+ I19$3;. Ne<.VState v. SBrague" 213 Ne<. %$1" 33+
N.8.2d 739 I19$3;. N.2.VState v. 4onahan" 12% N.2. 17" 4$+ ,.2d $*3 I19$4;. !.1.VState v.
!icci" 7+4 ,.2d 21+ I!.1. 1997;. S.D.VState v. Secre0t" 331 N.8.2d %$+ IS.D. 19$3;. 22 C.K.S.
Criminal 6a= S 79 De.en0e0 and Circum0tance0 Barring /ro0ecution or Conviction C. 3..icial
,ction or 4i0conduct 3. Selective /ro0ecution or Di0criminator- En.orcement. &hi0 i0 0een in
Coughlin getting arre0ted .or &re0Ba00 on 11C12C11 =herea0 Nevada Court Service0 =a0 not:
httB:CC===.-outu<e.comC=atchDvEND1c/,<#e1g Coughlin .iled numerou0 Bolice reBort0 in thi0
regard" -et the !/D ha0 not re0Bonded in an- =a-. (urther" a0 0een in the attached 22 Bage letter
regarding N# Energ-" 8CS3 0ervice i00ue0 in eviction0" the !/D and 8CD, 0electivel- Bro0ecute0
in a retaliator- manner again0t tho0e a00erting their con0titutional right0. Coughlin reBorted <atterie0
commited again0t him to the !/D in variou0 Bolice reBort0" -et the !/D re.u0ed to inve0tigate or
charge an-one. 2o=ever" !ichard 2ill get0 Coughlin arre0ted .or Ja-=al?ing and 3(.icer 6oo? o. the
!/D <end0 over <ac?=ard0 and Bracticall- <rea?0 into the Jail in a Bathetic attemBt to 0erve a &/3
.or 21ll" and 2ill 0ho=ed uB to the 1C31C12 E)ten0ion hearing on hi0 0ill- &/3 and" o. cour0e"
=ithdre= it <ecau0e hi0 mal.ea0ance =a0 .inall- 0tarting to re.lect Boorl- on him. Kudge Schroeder
=a0 inaBBroBriate in 0creaming at Coughlin HDo -ou =ant to go to JailaH =hen Coughlin attemBted to
addre00 21ll>0 a<u0e o. Broce00 and <ad .aith aBBlication .or a &/3" meant onl- to Brevent Coughlin
.rom a00erting hi0 la=.ul right to collect evidence incident to 21ll>0 =rong.ul eviction
3..icer0 had Bro<a<le cau0e to arre0t de.endant .or ro<<er-9 o..icer0> receiving unit0 Bic?ed uB 0ignal
.rom tran0mitter .rom H<ait Bac?H o. currenc- =hich contained electronic tran0mitting device"
tran0mitter =a0 located in Bar?ed vehicle .rom =hich de.endant e)ited" de.endant .led to Bar?ing
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garage =hen he 0a= o..icer0 aBBroaching vehicle" and one o..icer>0 handheld trac?ing device
indicated that <ait mone- tran0mitter =a0 on de.endant>0 Ber0on. 5.S.C.,. Con0t.,mend. 4. 5.S. v.
Bro=n" *3* (. SuBB. 2d 111* ID. Nev. 2++9;.
Si)th ,mendment violation can <e Bredicated uBon coun0el>0 de.ective reBre0entation o. de.endant in
connection =ith Bretrial Blea <argaining" and" under Stric?land" BreJudice can <e e0ta<li0hed i. there
i0 rea0ona<le Bro<a<ilit- that guilt- Blea =ould have en0ued. 5.S.C.,. Con0t. ,mend. *. 5.S. v.
/rice" 237 (. SuBB. 2d 1 ID.D.C. 2++2;.
Nev."1973 ,00uming =ithout deciding that Blainti.." =ho =a0 chie. accountant o. cit-" =a0 not
reAuired to regi0ter a0 an e)'.elon <ecau0e hi0 Cali.ornia conviction had <een e)Bunged" and that he
there.ore =a0 not committing a mi0demeanor in the Bre0ence o. o..icer0 <- not regi0tering" o..icer0
=ere Brotected .rom civil 0uit .or .al0e imBri0onment .ollo=ing a .al0e arre0t <- 0tatute Broviding that
no action ma- <e <rought again0t an- Beace o..icer unle00 an act or omi00ion amount0 to gro00
negligence or to =ill.ul and =anton mi0conduct" =here there =a0 no 0ho=ing o. gro00 negligence or
=anton mi0conduct 0ince" inter alia" there =a0 no evidence that o..icer0 intended to do harm. N.!.S.
41.+34" 2+7.+$+'2+7.1%+. (ormerl- 4$,?349I4;" 4$,?349" 3%?*3.1" 3%?*3I1; Nev."1972 3..icer0
=ho ?ne= that licen0e Blate0 on vehicle containing de.endant =ere 0tolen acted BroBerl- =hen the-
0toBBed and aBBroached de.endant and hi0 comBanion" =ho alleged that onl- the 2igh=a- /atrol had
the dut- to en.orce 0tatute relating to licen0e Blate0" and that local Bolice could not inve0tigate =hen
an evident mi0demeanor involving Bo00e00ion and u0e o. 0tolen licen0e Blate0 =a0 committed in their
Bre0ence. N.!.S. 171.124" 0u<d. 1Ia;" 4$2.%4%.
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1n /eoBle v 8al?er I19**; %+ 4i0c 2d 7%1" 271 N7S2d 447" the court held that the de.endant had
demon0trated" <- a clear BreBonderance o. evidence" that 0he =a0 0ingled out .or criminal Bro0ecution
<- an intentional" BurBo0e.ul" and unu0ual 0election Broce00. &he court 0aid that the manner o.
Bro0ecution =a0 not the 0ame a0 u0uall- emBlo-ed and =a0 in 0harB contra0t to the then'e)i0ting
Battern o. en.orcement o. hou0ing la=0. &he court 0aid that the time allo=ed to de.endant .or
correction o. hou0ing violation0 =a0 0o unrea0ona<l- 0hort a0 to ma?e correction imBo00i<le and
criminal conviction a certaint-. Concluding that the evidence led irre0i0ti<l- to the conclu0ion that the
intentional di0criminator- Bro0ecution =a0 in retaliation .or de.endant>0 Bu<lic e)Bo0ure o. corruBtion
in the deBartment o. <uilding0" the court held that the evidence reAuired di0mi00al o. the Bro0ecution
on the ground that de.endant =a0 deBrived o. her con0titutional right to eAual Brotection o. la=0. 7QeR
1nvidiou0ne00 or ar<itrarine00 o. Barticular <a0i0 .or 0electionQ^RV#indictivene00 to=ard de.endant
QCumulative SuBBlementR 1n the .ollo=ing ca0e" the court held that Ber0onal vindictivene00 on the
Bart o. the Bro0ecutor to=ard the de.endant =ould con0titute an invidiou0 <a0i0 .or 0election o. the
de.endant .or Bro0ecution. 1n 5nited State0 v BourAue I197*" C,1 !1; %41 (2d 29+" the court 0tated
that Ber0onal vindictivene00 on the Bart o. a Bro0ecutor to=ard the de.endant =ould 0u0tain a charge
o. di0crimination. 2o=ever" the court held that the de.endant .ailed to ma?e a 0u<0tantial 0ho=ing
that the Bro0ecution0 =ere not normall- in0tituted .or the o..en0e =ith =hich the de.endant =a0
charged" and thu0 a..irmed hi0 conviction .or violation0 o. the .ederal internal revenue la=0.
C5456,&1#E S5//6E4EN& Ca0e0: 1n Bro0ecution o. mem<er o. Congre00 .or <ri<er- o..en0e"
motion to di0mi00 indictment" <a0ed uBon" inter alia" allegation o. 0elective Bro0ecution" =a0 BroBerl-
denied =here Blainti.. had made no claim that other0 0imilarl- 0ituated had not een Bro0ecuted" nor
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had he 0uBBlied an- 0uBBort .or conclu0or- allegation that he =a0 Hdi0.avoredH legi0lator9 to 0hi.t to
:overnment <urden o. Broving that deci0ion to Bro0ecute i0 .ree o. di0criminator- taint" de.endant
mu0t 0ho= that" =hile other0 0imilarl- 0ituated have not generall- <een Broceeded again0t <ecau0e o.
conduct o. t-Be .orming <a0i0 o. charge again0t him" he ha0 <een 0ingled out .or Bro0ecution and that
:overnment>0 di0criminator- 0election o. him .or Bro0ecution ha0 <een invidiou0 or in <ad .aith.
5nited State0 v 4-er0 I19$+" C,2 N7; *3% (2d 932" cert den 449 5S 9%*" ** 6 Ed 2d 221" 1+1 S Ct
3*4. 1n Bro0ecution0 .or con0Biring to violate civil right0 o. .ederal =itne00 I<- ?illing him to Brevent
him .rom te0ti.-ing again0t de.endant0;" de.endant0> motion to di0mi00 indictment on ground o.
0elective en.orcement =ould <e denied" de0Bite evidence o. variou0 magaOine and ne=0BaBer reBort0
and other hear0a- 0tatement0 <- individual0 =ho allegedl- had 0Bo?en =ith agent0 o. (ederal Bureau
o. 1nve0tigation" to e..ect that agent0 had 0aid that the- had to remove de.endant .rom 0treet0" 0ince
0uch evidence =ould not 0uBBort de.en0e o. 0elective en.orcement in that de.endant had .ailed to
0ho= that he had <een 0ingled out .or Bro0ecution" =hile other0" 0imilarl- 0ituated" had not <een
Bro0ecuted" and that :overnment>0 determination to Bro0ecute him had <een made in <ad .aith9
.urther" con0ciou0 e)erci0e o. 0ome 0electivit- doe0 not violate de.endant>0 right0. 5nited State0 v
Bu.alino I19$1" SD N7; %1$ ( SuBB 119+. 4% ,.6.!. (ed. 732 /age 4* 4% ,.6.!. (ed. 732
I3riginall- Bu<li0hed in 1979; \ 2+12 &hom0on !euter0. No Claim to 3rig. 5S :ov. 8or?0.
/ro0ecution i0 not vindictive a0 long a0 Bro0ecutor>0 deci0ion i0 <a0ed uBon normal .actor0 ordinaril-
con0idered in determining =hat cour0e to Bur0ue" rather than uBon genuine animu0 again0t de.endant
.or imBroBer rea0on or in retaliation .or e)erci0e o. legal or con0titutional right0. 5.S. v. De4ichael"
*92 (.2d 1+%9 I7th Cir. 19$2;. 1n criminal Bro0ecution" de.endant>0 motion to di0mi00 indictment on
<a0i0 o. alleged Bro0ecutorial vindictivene00 in <ringing 0econd charge =ould <e denied 0ince court
.ound no evidence o. actual Bro0ecutorial vindictivene00 in re0Bon0e to de.endant>0 reAue0t .or change
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o. venue and record 0uBBorted .act that Bro0ecution had made initial deci0ion to <ring charge0 in
certain di0trict" in0tead o. in t=o di0trict0" on <a0i0 o. convenience" economic0 and Bro0ecutorial
re0ource0" and that once ca0e had <een tran0.erred" rea0on0 .or <ringing 0econd charge =ere
legitimate and did not mani.e0t BurBo0e.ul governmental retaliation or de.endant0> e)erci0e o. legal
right9 given legitimate nonvindictive rea0on .or returning 0econd indictment" court 0hould not
inter.ere =ith Bro0ecutor>0 e)erci0e o. di0cretion unle00 determination o. actual vindictivene00 ha0
<een made. 5.S. v. 4ulherin" %29 (. SuBB 91* IS.D. :a. 19$1;" Judgment a..>d" 71+ (.2d 731 I11th
Cir. 19$3;. Selective Bro0ecution and vindictive Bro0ecution are not de.en0e0 on the merit0 to the
criminal charge <ut indeBendent a00ertion0 that the Bro0ecutor ha0 <rought the charge .or rea0on0 that
the Con0titution Brohi<it0. E) Barte Xuintana" 34* S.8.3d *$1 I&e). ,BB. El /a0o 2++9;" reh>g
overruled" I3ct. 2$" 2++9; and Betition .or di0cretionar- revie= re.u0ed" I4ar. 24" 2+1+;. Q&oB o.
SectionR QEND 3( S5//6E4EN&R S 7Q.R 1nvidiou0ne00 or ar<itrarine00 o. Barticular <a0i0 .or
0electionQ^RV!ace QCumulative SuBBlementR 1n the .ollo=ing ca0e" it =a0 held that i. the de.endant
=ere 0elected .or Bro0ecution on the <a0i0 o. hi0 race" the de.en0e o. di0criminator- en.orcement
=ould <e e0ta<li0hed. 1n 5nited State0 v ,lle-ne I197$" SD N7; 4%4 ( SuBB 11*4" the court 0tated
that allegation0 o. 0election .or Bro0ecution on the <a0i0 o. race" i. Broved" =ould e0ta<li0h a de.en0e
o. illegal 0elective en.orcement. &he de.endant" charged =ith a violation o. la=0 .or the Brotection
and regulation o. naviga<le =ater0" contended that he =a0 di0criminatoril- 0elected .or en.orcement
<ecau0e o. hi0 race. &he de.endant" the onl- <lac? Ber0on in hi0 area" =ho =a0 di0charging .ill"
0u<mitted BhotograBh0 Bortra-ing allegedl- illegal di0charge o. .ill into a river <- =hite BeoBle
adJacent to hi0 BroBert-. &he de.endant 0tated that the other Bartie0 in hi0 area =ho had not <een
Bro0ecuted .or violation0 =ere =hite. &ho0e allegation0 i. Broved" the court 0aid" =ould e0ta<li0h a
de.en0e o. di0criminator- Bro0ecution. ,ccordingl-" the court held that an evidentiar- hearing =a0
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=arranted to a..ord the de.endant the oBBortunit- to 0u<0tantiate hi0 claim. C5456,&1#E
S5//6E4EN& Ca0e0: &rial court erred in re.u0ing to aBBl- #irgin 10land0 ha<itual criminal 0tatute
0ince" a<0ent 4% ,.6.!. (ed. 732 /age 47 4% ,.6.!. (ed. 732 I3riginall- Bu<li0hed in 1979; \ 2+12
&hom0on !euter0. No Claim to 3rig. 5S :ov. 8or?0. Broo. that 0elective en.orcement comBlained
o. =a0 deli<eratel- <a0ed on unJu0ti.ia<le 0tandard" Bro0ecutor had <road di0cretion in en.orcing
ha<itual criminal 0tatute" and record did not 0ugge0t that either Judge or de.endant had charged
Bro0ecutor =ith 0elective en.orcement o. 0tatute on <a0i0 o. race" religion" or other ar<itrar-
cla00i.ication. :overnment o. #irgin 10land0 v. David" 741 (.2d *%3 I3d Cir. 19$4;. &o Brevail on
0elective Bro0ecution theor- in criminal Bro0ecution" de.endant mu0t 0ho= that :overnment>0
deci0ion to <ring action 0Brang .rom either invidiou0 di0crimination or intent to Buni0h de.endant .or
e)erci0e o. .undamental right. 5nited State0 v 6e=i0 I19$1" 4D /a; %14 ( SuBB 1*9.
HDi0criminator- e..ect"H .or BurBo0e0 o. a 0elective Bro0ecution claim" i0 demon0trated <-
e0ta<li0hing that 0imilarl- 0ituated individual0 o. a di..erent race =ere not Bro0ecuted. 5.S. Con0t.
,mend. #. 5.S. v. 4inerd" 1$2 (. SuBB. 2d 4%9 I8.D. /a. 2++2;. &o e0ta<li0h a 0elective Bro0ecution
claim" a de.endant mu0t 0ho= that the Bro0ecution had a di0criminator- e..ect and that it =a0
motivated <- a di0criminator- intent9 thi0 reAuire0 the de.endant to e0ta<li0h <oth I1; that 0imilarl-
0ituated individual0 o. a di..erent race =ere not Bro0ecuted" and I2; that the deci0ion to Bro0ecute =a0
invidiou0 or in <ad .aith. Kohn0on v. 3utla=" *%9 (. SuBB. 2d 732 I4.D. N.C. 2++9;. , Bro0ecutor>0
di0cretion i0 0u<Ject to con0titutional con0traint09 the deci0ion =hether to Bro0ecute ma- not <e <a0ed
on an unJu0ti.ia<le 0tandard 0uch a0 race" religion" or other ar<itrar- cla00i.ication. 5.S. v. KeanBierre"
*3* (.3d 41* I$th Cir. 2+11;. , de.endant ma- <ring a 0elective Bro0ecution claim <a0ed 0olel- on
the race o. hi0 victim9 to e0ta<li0h a di0criminator- e..ect in a raceWo.WtheWvictim ca0e" he mu0t 0ho=
that 0imilarl- 0ituated individual0 =ho0e victim0 =ere o. a di..erent race =ere not Bro0ecuted.
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Belmonte0 v. 8ood.ord" 3%+ (.3d $*1 I9th Cir. 2++3;. &he di0criminator-'e..ect element in a ca0e
alleging 0elective en.orcement o. the la= reAuire0 a credi<le 0ho=ing that a 0imilarl- 0ituated
individual o. another race could have <een" <ut =a0 not" 0toBBed or arre0ted .or the o..en0e .or =hich
de.endant =a0 0toBBed or arre0ted. 5.S. v. ,lcaraO',rellano" 441 (.3d 12%2 I1+th Cir. 2++*;. ,.rican
,merican inmate0 =ho =ere indicted .or alleged a00ault on Native ,merican inmate .ailed to 0ho=
that 0imilarl- 0ituated individual0 o. another race =ere not Bro0ecuted" a0 reAuired to 0ho=
di0criminator- e..ect .or BurBo0e0 o. o<taining 0elective'Bro0ecution di0cover-" =here government
e)Blained at di0cover- hearing that it al0o intended to Bro0ecute Native ,merican inmate0 =ho
allegedl- a00aulted ,.rican ,merican inmate .ollo=ing .ir0t alleged a00ault" government indicted
Native ,merican inmate0 a.ter Di0trict Court ruled on di0cover- motion" dela- in indictment o.
Native ,merican inmate0 did not nece00aril- indicate the- =ere treated
more .avora<l-" and a<0ence o. videotaBe o. latter alleged a00ault reAuired more BreBaration .or trial.
5.S.C.,. Con0t.,mend. %. 5.S. v. De<err-" 43+ (.3d 1294 I1+th Cir. 2++%;. See 5nited State0 v
Kohn0on I1991" DC Colo; 7*% ( SuBB *%$" S 12. &o Brove di0criminator- e..ect in raceW<a0ed
0elective en.orcement claim" de.endant mu0t either ma?e credi<le 0ho=ing that 0imilarl- 0ituated
individual o. another race could have <een 0toBBed .or tra..ic violation" <ut =a0 not" or de.endant
mu0t 0ho= di0criminator- e..ect through u0e o. 0tati0tical evidence. 5.S. v. 6ind0e-" 2$$ (. SuBB. 2d
119* ID. @an. 2++3;. , Bro0ecutor>0 di0cretion i0 0u<Ject to con0titutional con0traint09 the deci0ion
=hether to Bro0ecute ma- not <e <a0ed on an unJu0ti.ia<le 0tandard 0uch a0 race" religion" or other
ar<it' 4% ,.6.!. (ed. 732 /age 4$ 4% ,.6.!. (ed. 732 I3riginall- Bu<li0hed in 1979; \ 2+12
&hom0on !euter0. No Claim to 3rig. 5S :ov. 8or?0. rar- cla00i.ication. 5.S. v. Sha-gan" *%2 (.3d
1297 I11th Cir. 2+11;. (act that =hite inmate" 0entenced to death .or commi00ion o. aggravated
murder0 during 0ame Bri0on riot in =hich ,.ricanW,merican de.endant committed murder0 =ith
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=hich he =a0 charged" ?illed <oth other inmate0 and Bri0on guard0" =hile de.endant ?illed onl- other
inmate0" did not mean that =hite inmate =a0 not 0imilarl- 0ituated =ith de.endant" .or BurBo0e0 o.
anal-0i0 o. de.endant>0 claim that he =a0 imBroBerl- 0ingled out .or caBital Bro0ecution <a0ed on
race. State v. 6a4ar" 2++2'3hio'212$" 9% 3hio St. 3d 1$1" 7*7 N.E.2d 1** I2++2;. onviction0 .or
.irearm0 violation0 =ould <e a..irmed" de0Bite de.endant>0 contention that he had <een 0u<Jected to
vindictive Bro0ecution" 0ince vindictive Bro0ecution u0uall- involve0 retaliator- imBo0ition o.
additional Benaltie0 again0t de.endant =ho e)erci0e0 legal right" and de.endant did not allege that
indictment0 had <een .iled to di0courage him .rom" or Buni0h him .or" e)erci0ing con0titutional"
0tatutor-" or common la= right. 5nited State0 v 4c8illiam0 I19$4" C,9 Cal; 73+ (2d 121$.,.ter
rever0al <- Court o. ,BBeal0 o. conviction o. immigration in0Bector on .our count0 o. .orging
immigration document0" uBon reindictment o. de.endant on original .our count0" Blu0 additional
count o. con0Birac- to .orge document0" trial court BroBerl- di0mi00ed con0Birac- count on <a0i0 o.
Bre0umBtion o. vindictivene00 0ince 0uBer0eding indictment" o<tained immediatel- a.ter de.endant>0
0ucce00.ul aBBeal o. .ir0t conviction" created aBBrehen0ion o. retaliation again0t de.endant .or
e)erci0ing right to aBBeal and Bro0ecution .ailed to di0Bel aBBearance o. vindictivene00 <- e)Blaining
increa0ed charge0 <- re.erence to ne=l-'di0covered .act0 or evidence. 5nited State0 v @reOdorn
I19$3" C,% &e); 71$ (2d 13*+" cert den I5S; 79 6 Ed 2d 742" 1+4 S Ct 141*. DD, Zach 7oung"
E0A. clearl- had a hi00- .it =hen De.endant Coughlin 0erved him =ith a N!C/ 11 21 da- 0a.e har<or
0anction0 4otion. (urther" =hile D/D :oodnight ha0 told Coughlin N!C/ 11 doe0 not aBBl- in
criminal 0etting0" D/D :oodnight Auoted the Hnot <a0ed in .act or la= languageH .rom N!C/ 11
<ac? to Coughlin in citing hi0 Ju0ti.ication .or .ailing to .ile 0ome HBro0ecutorial mi0conductH motion
or charge again0t D/D 7oung.
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Due to D/D>0 :oodnight" 2-lin" and 6e0ie aBBroach" De.endant Coughlin i0 <eing denied hi0 Si)th
,mendment !ight to Coun0el" though all three o. tho0e gentleman are not <eing denied their health-
Ba-chec?0 in an- =a-" nor their <ene.it0 Bac?age0.
S&3/ ,ND (!1S@ I1N#ES&1:,&1#E DE&EN&13N;: 41D6E#E6
C3N&,C&
I1; &2E &E!!7 C,SE ,ND NE#,D, S&,&5&ES:
1n 19*$ the 5.S. SuBreme Court 0aid in &err- v. 3hio" 392 5.S. 1 I19*$; that
Bolice could 0toB Iconduct an inve0tigative detention =here the 0u0Bect =a0 not .ree to
leave; a Ber0on <a0ed on Harticula<le and rea0ona<le 0u0BicionH that the Ber0on Hi0
committing" ha0 committed or i0 a<out to commit a crime"H even =here there i0 not
Bro<a<le cau0e .or an arre0t.
1. there i0 rea0ona<le 0u0Bicion in addition to that =hich Ju0ti.ie0 the 0toB =hich
cau0e0 -ou to <elieve the 0u0Bect ma- <e armed" -ou can Bat do=n clothing .or =eaBon0.
Ku0t <ecau0e H0toBH i0 legal and <a0ed on rea0ona<le 0u0Bicion doe0n>t automaticall- mean
that H.ri0?H i0 3@ too. Si<ron v. Ne= 7or?" 392 5.S. 4+ I19*$;.
&err- i0 codi.ied in N.!.S. 171.123 a0 .ollo=0:
171.123 &emBorar- detention <- Beace o..icer o. Ber0on 0u0Bected o. criminal
<ehavior: 6imitation0.
1. ,n- Beace o..icer ma- detain an- Ber0on =hom 0uch o..icer
encounter0 under circum0tance0 =hich rea0ona<l- indicate that 0uch
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Ber0on ha0 committed" i0 committing or i0 a<out to commit a crime.
2. &he o..icer ma- detain 0uch Ber0on onl- to a0certain the
identit- o. 0uch Ber0on and the 0u0Biciou0 circum0tance0 0urrounding hi0
Bre0ence a<road. ,n- Ber0on 0o detained 0hall identi.- him0el." <ut ma-
not <e comBelled to an0=er another inAuir- o. an- Beace o..icer.
3. No Ber0on ma- <e detained longer than i0 rea0ona<l- nece00ar-
to e..ect the BurBo0e o. thi0 0ection" and in no event longer than *+
minute0. Such detention 0hall not e)tend <e-ond the Blace or the
immediate vicinit- o. the Blace =here the detention =a0 .ir0t e..ected.
I19*9" B.%3%9 1973" B.%97" 197%;.
171.1232 Search to a0certain Bre0ence o. dangerou0 =eaBon9 0eiOure o. =eaBon or
evidence.
1. 1. an- Beace o..icer rea0ona<l- <elieve0 that an- Ber0on =hom
he ha0 detained or i0 a<out to detain Bur0uant to N!S 171.123 i0 armed
=ith a dangerou0 =eaBon and i0 a threat to the 0a.et- o. the Beace o..icer
or another" the Beace o..icer ma- 0earch 0uch Ber0on to the e)tent
rea0ona<l- nece00ar- to a0certain the Bre0ence o. 0uch =eaBon. 1. the
0earch di0clo0e0 a =eaBon or an- evidence o. a crime" 0uch =eaBon or
evidence ma- <e 0eiOed.
&he Aue0tion ari0e0 a0 to =hether the Bolice" during a M&err- t-Be 0toBN can
la=.ull- reAuire that the Ber0on identi.- him or her 0el.. 1n ,dam0 v. 8illiam0" 4+7 5.S.
143 I1972; =here the court .ound that a 0eiOure o. the Ber0on had occurred" the court
imBlied that Aue0tioning a0 to the Ber0onP0 identit- and a reAue0t .or identi.ication =ere
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not in violation o. the 4th ,mendment.
1n Bro=n v. &e)a0" 443 5.S. 47 I1979; the Bolice arre0ted Bro=n =hen he
re.u0ed to identi.- him0el.. 2o=ever" the Court noted that the inve0tigative 0toB o.
Bro=n =a0 invalid <ecau0e Bolice had no rea0on to 0toB him. &he reAue0t .or
identi.ication" re.u0al and arre0t =ere M.ruit0 o. the Boi0oned tree.N 1n @olander v.
6a=0on" 4*1 5.S. 3%2 I19$3; a Cali. 0tate la= reAuired a Ber0on la=.ull- 0toBBed <-
Bolice to Broduce a Mcredi<le and relia<le id.N &he Court held that thi0 language =a0
uncon0titutionall- vague. Neither ca0e held that it =a0 uncon0titutional .or Bolice to
reAuire identi.ication .rom a Ber0on in a la=.ul M&err- StoB.N
1n 4artinelli v. Cit- o. Beaumont" $2+ (.2d 491 I9th Cir. 19$7; the court ruled
that o..icer0 had rea0ona<le 0u0Bicion to 0toB the Ber0on" <ut the Cali.. Statute allo=ing
arre0t i. the Ber0on re.u0ed to identi.- him0el. =a0 uncon0titutional. &he 9th Circuit Court
erroneou0l- con0trued the 5.S. SuBreme CourtP0 deci0ion in @olander v. 6a=0on to
Ju0ti.- thi0 ruling even though it i0 clear that the 5.S. SuBreme Court ha0 never decided
thi0 Aue0tion.
1n ,l<right v. !odrigueO" %1 (.3d 1%31 I1+th Cir. 199%; the court ruled that i.
Bolice made a valid &err- 0toB" and the Ber0on re.u0ed to identi.- him0el." and i. there
=a0 a 0tate 0tatute =hich allo=ed Bolice to arre0t .or .ailure to identi.-" then the reAue0t
.or identi.ication" re.u0al and arre0t =a0 con0titutionall- valid.
1n State v. (l-nn" 2$% N.8. 2d 71+ I8i0c. 1979;" cert. denied 449 5.S. $4* the
Court noted language in ,dam0 v. 8illiam0 a 0toB and .ri0? ca0e =here the SuBreme
Court 0aid that the o..icer in a <rie.Ivalid; 0toB Min order to determine Ithe 0u0BectP0;
- 161 -
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identit-..ma- <e mo0t rea0ona<le.N &he (l-nn court noted that unle00 the o..icer i0
entitled to a0certain the identit- o. the 0u0Bect" the &err- 0toB can 0erve no u0e.ul
BurBo0e. Same ruling in 5.S. v. Ba0e-" $1* (.2d 9$+ I%th Cir. 19$7;" State v. 6andr-"
%$$ So.2d 34%I6a. 1991;.
1n 5.S. v. #anicromanee" 742 (.2d 34+ I7th Cir. 19$4; the Court held that mere
detention i0 not an arre0t9 a Bolice o..icer ma-" 0hort o. an arre0t" detain an individual
<rie.l- in order to determine hi0 identit- momentaril- =hile o<taining more
in.ormation i. the o..icer ha0 articula<le .act0 0u..icient to give ri0e to !CS that the Ber0on
had committed or i0 committing a crime.
&he Nevada SuBreme Court ha0 not ruled on thi0 i00ue although a reAuirement .or
identi.ication i0 in N!S 171.123. &he ca0e0 o. Bro=n v. &e)a0 and @olander v
6a=0on do not rule on the identit- reAuirement in N!S 171.123 I0ee detailed e)Blanation
in ,l<right v. !odrigueO;.
5ntil the Nevada SuBreme Court rule0 on thi0 i00ue" Bolice o..icer0 0hould <e
0elective in arre0ting .or .ailure to 1D =ith .actor0 0uch a0 the 0trength o. the articula<le
0u0Bicion .or the 0toB and the t-Be o. crime 0u0Bected. (or e)amBle i. Bolice 0ee a Ber0on
continuou0l- hanging around a grade 0chool =ith minor children Bre0ent. a &err- 0toB i0
valid. 1. the Ber0on ha0 a Brior record .or mole0tation o. minor children it =ould <e
deva0tating .or the communit- i. the Bolice o..icer =a0 not Bermitted to reAue0t
identi.ication.
, related i00ue a<out Bolice o<taining identi.ication during a valid &err- StoB i0
=hether Bolice can Bat do=n or 0earch the Ber0on .or documenta<le 1D 0uch a0 driverP0
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licen0e. &he ca0e0 in thi0 area are .e= and the validit- o. the Bractice i0 uncertain.
1n /eoBle v. 6ong" 2%4 Cal. !Btr. 4$3 I19$7;" the o..icer had !CS to 0toB 6ong in
a <ar =here he =a0 =ith an under aged girl. &he o..icer a0?ed .or 1D and 6ong 0tated hi0
name <ut 0aid he didnPt have an- 1D. &he o..icer noted a =allet 0iOed <ulge in hi0 rear
Bant0 Boc?et" again a0?ed .or =ritten 1D and 6ong 0aid he had none. &he o..icer directed
6ong to loo? through hi0 =allet" =hich 6ong did" and the o..icer 0a= 0ome Bla0tic
<aggie0 containing drug0. &he Court uBheld the o..icerP0 demand .or =ritten 1D" citing
(l-nn and ,dam0 v. 8illiam0. Same ruling in /eoBle v. 6oudermil?" 194 Cal. ,BB.3d
447 I19$7; =here an o..icer had !CS to 0toB a Ber0on 0u0Bected o. .iring a gun. /at do=n
.elt =allet <ut Ber0on re.u0ed to 1D" and in 2arBer v. State" %32 So. 2d 1+91 I(la. 19$$;.
1n State v. (raOier" 31$ N.8. 2d 42 I4inn. 19$2; an o..icer 0toBBed a Ber0on and
too? her Bur0e and reached in to get 1D and .ound a gun. &he gun =a0 0uBBre00ed
<ecau0e the court ruled that 0uch a 0earch =a0 uncon0titutional =ithout giving the
detainee an oBBortunit- to voluntaril- Broduce 1D.
I2; 82,& C3NS&1&5&ES , HS&3/H ,S 3//3SED &3 MN3NSE1Z5!EDN
&he 2odari D. ca0e and the Bo0tic? ca0e de.ine the Bre'0toB or Bre'0eiOure area.
!emem<er a H&err- 0toBH i0 a .orm o. 0eiOure ' the Ber0on i0 not .ree to go. Dra=ing the
line <et=een a HBo0tic? encounterH and a H&err- 0toBH ha0 to <e done on a ca0e <- ca0e
<a0i0. !emem<er" the de.en0e la=-er =ill tr- to Bu0h the time o. the H&err- 0toBH a0
earl- a0 Bo00i<le in the contact =hen the o..icer ha0 le00 articula<le 0u0Bicion" hoBing to
Ber0uade the court that -ou made an illegal &err- 0toB and i. 0o" =iBing out -our ca0e
=ith a .ruit o. /.&. argument.
C,SE EZ,4/6ES:
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1. 5. S. v. :arcia" $** (.2d 147 I*th Cir. 19$9;" an imBortant .actor in
di0tingui0hing 0eiOure0 .rom ca0ual contact0 i0 =hen the Ber0on i0 a0?ed to accomBan-
the Bolice to a Blace =here the Ber0on had not Blanned to go. ,n o..icer ma- aBBroach a
traveler in an airBort and a0? to 0Bea? to him" and continue that conver0ation until a
rea0ona<le Ber0on =ould no longer .eel that the Ber0on =a0 .ree to go. 3nce that Boint
ha0 <een reached" the o..icer mu0t have a rea0ona<le articula<le 0u0Bicion" or el0e the
0toB or detention i0 illegal" and .ruit0 o. that 0earch mu0t <e 0uBBre00ed. :arcia =a0 not
0eiOure <ecau0e Hthere =ere onl- t=o agent0 Bre0ent" no =eaBon =a0 di0Bla-ed" he =a0
not Bh-0icall- touched " and the agent0 did not rai0e their voice0 or threaten him in an-
=a-.H
2. 5.S. v. :la00" 12$ (.3d 139$ I1+th Cir. 1997; ha0 0ome .actor0 that court0 u0e
in determining =hether a Bolice'citiOen contact i0 a 0eiOure. &he0e .actor0 include:
Ia; &elling a Ber0on that he i0 a 0u0Bect .or a Barticular t-Be o. crime
I<; &he num<er o. o..icer0 that are Bre0ent
Ic; 4oving the conver0ation .rom Bu<lic to Brivate Blace or =hether the contact
43
i0 in a Bu<lic or Brivate Blace
Id; 8hether the Ber0on i0 told that he need not tal? to the o..icer0
Ie; 8hether the Ber0onP0 egre00 =a0 <loc?ed
3. 5.S. v. @im" 27 (.3d 947 I3rd Cir. 1994; utiliOing e00entiall- the 0ame .actor0
in the :la00 ca0e =hich had <een related in earlier 5S Circuit Court ca0e0 held that none
o. the0e .actor0 alone i0 determinative regarding =hether a 4th ,mendment 0eiOure o. the
Ber0on occur0.
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4. , .e= .ederal ca0e0 IBre Bo0tic?; gave 0trong =eight in their anal-0i0 o.
0eiOure to a Bolice o..icerP0 a0?ing directl- incriminating and .ocu0ed Aue0tion0" almo0t to
the Boint o. Ber 0e rule ma?ing 0uch contact0 a 0eiOure. 5. S. v. Nunle-" $73 (.2d 1$2
I$th Cir.19$9; 5.S. v. Karamillo" $91 (.2d *2+ I7th Cir.19$9; 2o=ever" Nunle- =a0
modi.ied <- 5.S. v. /erdue" 9*1 (.2d 723 I$th Cir. 1992; and Karamillo =a0 rever0ed <-
5.S. v. 3rnela0'6ede0ma" 1* (.3d 714 I7th Cir. 1994;IBoth Bo0t Bo0tic? ca0e0;.
%. 5.S. v. CardoOa" 129 (.3d * I10t Cir 1997; De.endant =a0 not H0eiOedH =ithin
meaning o. (ourth ,mendment <e.ore Bolice 0a= him =ith contra<and" even though
Bolice crui0er turned =rong =a- uB one'=a- 0treet" ma?ing clear o..icer>0 intent to come
into contact =ith him" and o..icer0 a0?ed him =hat he =a0 doing out at that time9
rea0ona<le Ber0on =ould not have concluded that he =a0 not .ree to leave" a0 o..icer0 did
not u0e .la0hing light0 or 0iren0" and o..icer0 did not a0? de.endant to 0toB" or even to
aBBroach Batrol car. &he re0ult" there.ore" Mi0 the directive that Bolice conduct" vie=ed
.rom the totalit- o. the circum0tance0" mu0t o<Jectivel- communicate that the o..icer i0
e)erci0ing o..icial authorit- to re0train the individual>0 li<ert- o. movement <e.ore =e
can .ind a 0eiOure occurred.N
*. 5.S. v. !odrigueO'(ranco" 749 (.2d 1%%% I11th Cir. 19$%;" held that 1NS
agent0 aBBroached a grouB o. H2i0Banic loo?ingH Ber0on0 in a mall and a0?ed Aue0tion0
a<out citiOen0hiB and a0?ed Inot commanding; t=o Ber0on0 to 0teB over to a <ench there
=a0 no &err- 0toB. I&hi0 t-Be o. Bolice Brocedure might argua<l- have <een imBroBer
had it <een done <- other than 1NS agent0. See the ne)t ca0e;.
1n 6oBeO v. :arriga" 917 (.2d *3 I10t Cir. 199+; an 1NS agent a0?ed Aue0tion0 o.
Ber0on0 <e.ore <oarding airline0 in /uerto !ico. &he Court held that 1NS agent0 at an
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airBort gate ma-" =ithout violating the Con0titution" inAuire a<out a Bro0Bective
Ba00enger>0 citiOen0hiB and de0tination. &he mere Bo0ing o. Aue0tion0 <- a government
o..icial i0 not con0idered to <e a 0eiOure. &he Court noted that under .ederal la=" the 1NS
ha0 authorit- to a0? Aue0tion0 o. a Ber0on the- thin? ma- <e violating immigration la=0.
7. 3Ohu=an v. State" 7$* /.2d 91$ I,la0?a" 199+;" held that a &err- 0toB
occurred =hen an o..icer Bartiall- <loc?ed a Ber0on>0 car =ith the Bolice car =hile
activating the overhead light0.
$. 5.S. v. 8a0?al" 7+9 (.2d *%3 I11th Cir. 19$3;" held that a &err- 0toB occurred
=hen Bolice 0Bo?e to a Ber0on in an airBort and too? hi0 tic?et and a0?ed him to go to a
44
near<- o..ice =ithout returning the tic?et.
9. 5.S. v. &avolacci" $9% (.2d 1423 ID.C. Cir. 199+;" held no &err- 0toB =here
an o..icer ?noc?ed on a door to a Ber0on>0 train comBartment" a0?ed Bermi00ion to a0?
Aue0tion0 and reAue0ted and received a train tic?et and Ber0onal identi.ication" then
BromBtl- returned them.
1+. 5.S. v. &orre0':uevara" 147 (.3d 12*1 I1+th Cir. 199$; 3..icer0
encountered the de.endant at an airBort and a0?ed .or and received her identi.ication and
an airline tic?et. &he o..icer0 loo?ed at the0e item0 returned them immediatel- and told
her 0he =a0 not under arre0t and could leave.
&he o..icer0 never touched or re0trained the =oman <ut a0?ed her t=ice .or
con0ent to 0earch .or drug0. 8hen the o..icer again a0?ed .or Bermi00ion to 0earch her 0he
did not re0Bond. &he o..icer a0?ed her again and 0he again did not re0Bond. &he o..icer
then told her i. 0he had drug0" 0he 0hould turn them over.
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,nother o..icer" a0?ed H-ou have drug0" don>t -ouDH 8hen 0he But her head do=n
in0tead o. an0=ering" he a0?ed: Hdon>t -ouDH She re0Bonded:H-e0.H /olice detained her
and had a .emale Bolice o..icer 0earch her and .ound the drug0
&he Court ruled that thi0 =a0 a non'0eiOure encounter 0tating that a0?ing
incriminating Aue0tion0 doe0 not Ber 0e ma?e thi0 an inve0tigative 0toB although
accu0ator- and Ber0i0tent Aue0tioning" di0Bla- o. =eaBon0" or commanding or threatening
tone o. voice =ould amount to an inve0tigative detention.
I3; 82,& C3NS&1&5&ES H!E,S3N,B6E S5S/1C13NDH
H!ea0ona<le 0u0BicionH i0 a term li?e HBro<a<le cau0eH =hich evade0 Breci0e
de.inition. ,lthough the rule0 .or Bolice'citiOen contact0 are <a0ed on o<Jective
0tandard0" a deci0ion <- a court that rea0ona<le 0u0Bicion e)i0t0 deBend0 on the oBinion
<- that Judge Ior in the ca0e o. an aBBellate court ' a grouB o. Judge0;. &he 0ame
articula<le .actor0 =hich might <e no more than a HhunchH in one court>0 mind ma-
amount to over=helming rea0ona<le 0u0Bicion in another court>0 mind. &hi0 i0 a human
.actor =e all have to live =ith.
(or e)amBle" read the Ca0e o. 5.S. v. 4endenhall" 44* 5.S. %44 I19$+;"
involving an encounter <et=een Bolice and a 0u0Bected drug courier at an airBort. &hree
SuBreme Court Ku0tice0 thought that the contact <et=een the Bolice and 4endenhall =a0
a non'0eiOure contact reAuiring no Ju0ti.ication. &hree other Ku0tice0 thought it =a0 a
&err- 0toB" <ut that rea0ona<le 0u0Bicion e)i0ted. &hree other Ku0tice0 thought it =a0 a
&err- 0toB" <ut =a0 illegal <ecau0e there =a0 not !CS.
3..icer0 0hould ?no= the vie= o. the va0t maJorit- o. court0 a<out the .actor0 that
ma- indicate !CS and .actor0 =hich have little or no 0uBBort .or !CS or /CC.
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NE!#35SNESS
I1; 1n 5.S. v 8ood" 1+* (.3d 942 I1+th Cir 1997; the Court ruled" M8e have
4%
reBeatedl- held that nervou0ne00 i0 o. limited 0igni.icance in determining rea0ona<le
0u0Bicion and that the government>0 reBetitive reliance on the nervou0ne00 o. either the
driver or Ba00enger a0 a <a0i0 .or rea0ona<le 0u0Bicion Hin all ca0e0 o. thi0 ?ind mu0t <e
treated =ith caution.N
N1t i0 common ?no=ledge that mo0t citiOen0" =hether innocent or guilt-" =hen
con.ronted <- a la= en.orcement o..icer =ho a0?0 them Botentiall- incriminating
Aue0tion0 are li?el- to e)hi<it 0ome 0ign0 o. nervou0ne00.H Same ruling on nervou0ne00 in
5.S. v. /eter0" 1+ (.3d 1%17" 1%21 I1+th Cir.1993; and 5.S. v. Bec?" 14+ (.3d 1129 I$th
Cir. 199$;. See 5.S. v. 4c!ae" $1 (.3d 1%2$ I1+th Cir. 199*; holding that nervou0ne00
along =ith other o<Jective .actor0 ma- contri<ute to !CS.
!E(5S,6 &3 C33/E!,&E
I2; 1n (lorida v. Bo0tic?" 111 S.Ct. 23$2 I1991; in addition to holding that the
Bolice contact =a0 non' 0eiOure" the Court al0o 0tated that the 0u0Bect>0 re.u0al to
cooBerate =ith Bolice Ii.e.: an0=er Aue0tion0 andCor con0ent to 0earch; =ould not have
given the Bolice rea0ona<le 0u0Bicion let alone Bro<a<le cau0e to 0eiOe the 0u<Ject or
0earch hi0 luggage. Same deci0ion <- all (ederal and State Court0: 5.S. v. (letcher" 91
(.3d 4$ I$th Cir. 199*;" 5.S. v. &orre0" *% (.3d 1241 I4th Cir. 199%;" @arne0 v.
S?rut0?i" *2 (.3d 4$% I3rd Cir. 199%; and :a0ho v. 5nited State0" 39 (.3d 142+ I9th Cir.
1994;.
&!,1NED 3BSE!#,&13NS
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I3; Several 5S Circuit court ca0e0 hold that" M=hen u0ed <- trained la=
en.orcement o..icer0" o<Jective .act0" meaningle00 to the untrained" can <e com<ined =ith
Bermi00i<le deduction0 .rom 0uch .act0 to .orm a legitimate <a0i0
.or 0u0Bicion.H 5.S. v. Sholola" 124 (.3d $+3 I7th Cir. 1997; and 5.S. v. 6uJan" 1$$ (.3d
%2+ I1+th Cir. 1999;.
I4; 5.S. v. CorteO" 449 5.S. 1 I19$1;" dealt =ith an inve0tigation <- the Border
/atrol into 0muggling alien0. 3ver 0everal month0" o..icer0 0a= 0et0 o. .ootBrint0" one o.
=hich had a uniAue Battern" coming acro00 the <order and ending uB near a high=a-
=hich ran Barallel to the <order. &he trac?0 led into o<0tacle0 =hich =ould have <een
vi0i<le during the da-. &he trac?0 turned ea0t=ard at the high=a-" then di0aBBeared a.ter
a 0hort di0tance.
&he o..icer0 0et uB a vantage Boint at night" a<out 27 mile0 ea0t o. the location
=here mo0t o. the .ootBrint0 di0aBBeared into the high=a-. &he- e0timated it =ould ta?e
a<out 1 [ hour0 .or a vehicle to Ba00 their location" go to the Bic?uB Boint and return to
their location. &he- 0toBBed a Bic?uB =ith a camBer 0hell =hich =ent Ba0t and then
returned in that time .rame.
&he 5.S. SuBreme Court held: rea0ona<le 0u0Bicion did e)i0t on the0e .act0 to
Ju0ti.- a 0toB o. the truc?. /ro0ecutor0 0hould read and cite thi0 ca0e o.ten. 1t contain0
language telling court0 that even HinnocentH action0 =hen vie=ed <- Bolice o..icer0 =ho
have ?no=ledge o. the mode0 or Battern0 o. certain t-Be0 o. criminal activit- can give
!CS. H, trained o..icer dra=0 in.erence0 .rom data that might =ell elude an
4*
untrained Ber0on.H H&he te0t .or rea0ona<le 0u0Bicion i0 not in =eighed in term0 o.
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li<rar- anal-0i0 <- 0cholar0.H
I%; 5.S. v. 6ender" 9$% (.2d 1%1I4th Cir.1993; o..icer0 o<0erved .our or .ive
men Hhuddled on a cornerH in a ?no=n drug area. 3ne o. the men Hhad hi0 hand 0tuc? out
=ith hi0 Balm uB" and the other men =ere loo?ing do=n to=ard hi0 Balm.H 8hen the
grouB 0a= the Bolice " the- H<egan to di0Ber0e" and the de.endant =al?ed a=a- .rom the
o..icer0 =ith hi0 <ac? to them.H Ba0ed on the hour o. the da-" the grouB>0 di0Ber0al uBon
0eeing the o..icer0" the ?no=n character o. the neigh<orhood" and the o..icer0> Bractical
e)Berience in recogniOing drug tran0action0" the court uBheld the 0toB.
I*; 5.S. v. 4attarlo" 191 (.3d 1+$2 I9th Cir. 1999; 6ate at night" an o..icer =a0
on a dar? 0ecluded countr- road and 0a= a Bic?uB truc? in the drive=a- o. a .enced
con0truction 0torage area" =ith the gate clo0ed. &he truc? le.t the drive=a- =ith a three.oot
0Auare crate in the <ac?. ,t that hour there =a0 no <u0ine00 activit-. &he o..icer
0toBBed the de.endant.
&he Court held" M&he o..icer ha0 an o<Jective <a0i0 .or hi0 0u0Bicion0 <a0ed on all
the circum0tance0. 1t i0 not a matter o. hard certaintie0" <ut o. Bro<a<ilitie0. &hi0
reAuire0 more than an o..icer>0 hunch" <ut a BreBonderance o. the evidence to 0ho= Broo.
o. =rong doing i0 not reAuired at thi0 0tage. !CS there.ore can ari0e .rom in.ormation
di..erent in Aualit- and content and even le00 relia<le than that reAuired .or the
e0ta<li0hment o. Bro<a<le cau0e. &he o..icer>0 training and e)Berience are .actor0 to
con0ider in determining i. the o..icer>0 0u0Bicion0 =ere rea0ona<le.
See 0ection on Ba0i0 .or (ri0? .or other Bart o. 4attarlo ca0e
I7; 5.S. v. Xuinn" $3 (.3d 917 I7th Cir. 199*; ,n o..icer 0a= three men on a
0treet corner in a high drug crime area. 5Bon 0eeing the o..icer" one thre= a Bla0tic <ag
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do=n and the- 0Blit uB and <egan to =al? a=a-. 3ne man =ent one =a- and the other
t=o =ent in the oBBo0ite direction. &he o..icer ordered Xuinn to 0toB and 0a= that he =a0
carr-ing a leather Jac?et H=added uB in hi0 arm0.N
2e ordered Xuinn to accomBan- him <ac? to the Bolice car and to Blace the
Jac?et on the car. ,0 he did 0o" the o..icer heard a HthudH 0ound. 2e did a Bat'do=n
0earch .inding no =eaBon0 then Batted the Jac?et and .elt a hard o<Ject in0ide and
removed a .22 ri.le 0a=ed'o.. and modi.ied into a handgun. 2e arre0ted Xuinn then =ent
to the corner to retrieve the 0u0Bected crac? cocaine.
&he Court held the Bolice action la=.ul" Mthe de.endant>0 Bre0ence in a high crime
area i0 an in0u..icient ground I<- it0el.; to 0toB or 0earch. 2o=ever" court0 ma- con0ider
the de.endant>0 Bre0ence in a high crime area a0 Bart o. the totalit- o. circum0tance0
con.ronting the o..icer at the time o. the 0toB.
DE(1N1N: !E,S3N,B6E S5S/1C13N
I$; 5.S. v. /errin" 4% (.3d $*9 I4th Cir. 199%; the court held Mrea0ona<le
0u0Bicion i0 a le00 demanding 0tandard than Bro<a<le cau0e not onl- <ecau0e !CS can <e
e0ta<li0hed =ith in.ormation that i0 le00 in Auantit- than that reAuired to 0ho= /CC" <ut
al0o .rom in.ormation that i0 le00 relia<le than needed .or /CC.N
47
I9; 5.S. v. 2en0le-" 1+% S.Ct. *7% I19$%;" i0 imBortant .or at lea0t t=o Boint0.
&he 5nited State0 SuBreme Court held that the H.ello= o..icerH rule aBBlie0 to &err- 0toB0
0o that the o..icer actuall- ma?ing the 0toB could rel- on a H=anted .or inve0tigationH .lier
i00ued <- Bolice in another 0tate 0o long a0 the i00uing Bolice had rea0ona<le 0u0Bicion.
,l0o" thi0 ca0e e)tended the authorit- to ma?e a &err- 0toB <e-ond rea0ona<le 0u0Bicion
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that Hcriminal activit- =a0 a.ootH Ii.e." a Bre0entl- occurring crime; to a 0eriou0 crime
Iarmed ro<<er-; that had occurred =ee?0 earlier.
I1+; 1n 3rnela0 v. 5.S." 11* S.Ct. 1*%7 I199*; Bolice in 4il=au?ee =ho =ere
trained in drug interdiction 0a= a 19$1 3ld0mo<ile =ith Cali.ornia Blate0 in a motel
Bar?ing lot in Decem<er. &he Bolice chec?ed the regi0tered o=ner through di0Batch and
then learned .rom the DE, that the !C3 =a0 in N,DD1S IDE, comButer; a0 a
M0u0BectedN drug tra..ic?er. /olice learned .rom the motel manager that 3rnela0 and
another man chec?ed in at 4am =ithout re0ervation0. /olice al0o ?ne= that older model
:4 car0 had large 0Bace0 in the door0 and other location0.
&he 5.S. SuBreme Court 0aid that the0e .act0 con0tituted !CS. &he Court 0aid that
although the mo0aic =hich i0 anal-Oed .or !CS or /CC i0 multi .aceted and one
determination =ill 0eldom <e u0e.ul Brecedent .or another a court 0hould loo? at all the
Brecedent0 in ma?ing a deci0ion. &he court 0hould determine the Mhi0torical .act0N Iie:
the 0Beci.ic .act0 o. the ca0e; and then ma?e a legal deci0ion a0 to =hether the .act0
0ati0.- the con0titutional 0tandard.
I11; 1n State v. Sonne.eld" 114 Nev. *31 I199$; the Court ruled that a deBut-
0heri.. had rea0ona<le 0u0Bicion 0u..icient to ma?e inve0tigator- 0toB o. vehicle <a0ed on
hi0 corro<oration o. <artender>0 detailed tiB to di0Batcher that ine<riated cu0tomer had le.t
<ar and =a0 driving under in.luence9 <artender Brovided color o. car" de0criBtion o.
di0tingui0hing roo. rac?" licen0e Blate num<er" Bh-0ical de0criBtion o. driver and
direction in =hich vehicle =a0 heading" all o. =hich =ere con.irmed <- the o..icer
there<- e0ta<li0hing !CS.
I12; 3ther Nevada ca0e0 are 8right v. State" $$ Nev. 4*+ I1972;" Kac?0on v.
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State" 9+ Nev. 2** I1974;" Nel0on v. State" 9* Nev. 3*3 I19$+;" and 1del.on0o v. State" $$
Nev. 3+7 I1972;. ,ll o. the0e reAuired ver- little in term0 o. Marticula<le .act0N to 0ho=
!CS.
,N3N7435S ,ND 3&2E! &1/S
I13; ,la<ama v. 8hite" 11+ S.Ct. 2412 I199+;" held that an anon-mou0 tiB that a
.emale =ould leave a Barticular aBartment comBle) at a Barticular time" =ould drive a
certain de0cri<ed car" =ould go to a certain de0tination and =ould <e carr-ing drug0 =a0
enough .or rea0ona<le 0u0Bicion =hen Bolice corro<orated the detail0 o. the tiB and
0toBBed the car a0 it neared the de0tination. 1t made no di..erence that all the action0
o<0erved <- the Bolice =ere Hinnocent.H 40. 8hite>0 0u<0eAuent con0ent to 0earch"
=hich turned uB the doBe" =a0 not the .ruit o. an unla=.ul &err- 0toB.
I14; 1n 5.S. v. /rice" 1$4 (.3d *37 I7th Cir. 1999;" the /olice received an
4$
anon-mou0 tiB 0tating that a =hite 4ercur- Cougar" =ith a licen0e Blate containing the
letter0 H(6K"H =ould <e delivering one ?ilogram o. cocaine to a 0Beci.ic re0idence in
4il=au?ee. &he tiB0ter told the Bolice that the car had le.t She<o-gan at a<out 9:++ B.m.
I ,<out *+ mile0 .rom 4il=au?ee.; and al0o 0tated that the car =ould contain t=o <lac?
=omen" Charlene and /atricia " and one <lac? man named Calvin Ial0o gave la0t name0;
/olice arrived at the vicinit- o. the 0u0Bect re0idence in an unmar?ed car at around 1+:4%
B.m.. &he o..icer0 did not veri.- =ho lived at the re0idence" and did not Ber.orm record
chec?0 o. three BeoBle named <- the tiB0ter.
,t aBBro)imatel- 11:2+ B.m." a =hite 4ercur- Cougar arrived containing t=o
<lac? =omen and t=o <lac? men. &he driver dou<le'Bar?ed the car and le.t the engine
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running. &he licen0e Blate contained the letter0 H:K6.H ,ll .our occuBant0 got out and
aBBroached the re0idence. /olice 0toBBed them at the 0ide=al? and indicated that the-
=ere inve0tigating a narcotic0 comBlaint. Several o. the occuBant0 Broduced 1D
con.irming the name0 given <- the in.ormant. 6ater" narcotic0 =ere .ound. &he Court
held that the 0toB =a0 <a0ed on !CS.I ,la<ama v. 8hite.;.
I1%; 1n 5.S. v. Bell" 1$3 (.3d $4* I$th Cir. 1999; /olice acted on a tiB .rom 40.
2arri0" =ho Brovided detailed in.ormation that criminal activit- =a0 a.oot.
M2arri0 =a0 a clo0e acAuaintance o. Bell =ho had Breviou0l- Brovided accurate
in.ormation a<out him. 2arri0>0 tiB''that Bell and 1ngram =ere driving to 6ittle !oc? to
Bic? uB crac? cocaine .rom 6inda Bee''=a0 con0i0tent =ith in.ormation received .rom
other 0ource0 le00 than a month earlier and =ith more recent in.ormation that Bell and
1ngram =ere 0elling drug0 at 2314 Kean Street.
&he tiB =a0 .urther corro<orated =hen the o..icer0 0a= a car matching the
de0criBtion 2arri0 had Brovided traveling on 5.S. 2igh=a- *% in the direction o. /ine
Blu... M Con0idering the totalit- o. the circum0tance0" =e agree =ith the di0trict court that
the 0toB did not violate Bell>0 (ourth ,mendment right0.N
1ND1#1D5,6 S5S/1C13N
I1*; 7<arra v. 1llinoi0" 1++ S.Ct. 33$ I1979;" =a0 a ca0e =here Bolice had a 0earch
=arrant .or a tavern and the <artender" <a0ed on Bro<a<le cau0e" that he =a0 0elling drug0
at the <ar. /olice entered the tavern during <u0ine00 hour0 to 0erve the 0earch =arrant"
and Batted do=n the Batron0. 3ne o. the Batron0 =a0 7<arra =ho had doBe in hi0 Boc?et
=hich =a0 0eiOed. &he 5nited State0 SuBreme Court held: illegal 0earch ' no rea0ona<le
0u0Bicion that 7<arra =a0 engaged in criminal activit- andCor that he might have a
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=eaBon" Ju0t <ecau0e he =a0 in the <ar. !ea0ona<le 0u0Bicion and Bro<a<le cau0e mu0t
<e individualiOed.
I17; , recent ca0e demon0trate0 the rule that rea0ona<le 0u0Bicion mu0t <e
individualiOed. &he di..erence =a0 =hether the !CS did or did not cover more than one
Ber0on. 1n 5.S. v. Kohn0on" 17+ (.3d 7+$ I7th Cir. 1999; Bolice =ere aBBroaching a
re0idence .or a M?noc? and tal?.N ,0 the- arrived" a Ber0on e)ited the re0idence and =a0
&err- 0toB detained <- Bolice. &he detention and Bat do=n =ere held to <e unla=.ul
<ecau0e there =a0 no individualiOed 0u0Bicion a0 to that Ber0on.
49
!E,S3N,B6E 41S&,@E 3( (,C&S
&=o ca0e0 0ho= that rea0ona<le 0u0Bicion can <e .ound in a ca0e =here the Bolice
=ere mi0ta?en a<out the .act0 Ju0ti.-ing the detention" <ut the .act0 <elieved <- the Bolice
=ere .ound to <e rea0ona<le Iie: the Bolice had no rea0on to <elieve that the .act0 =ere
incorrect =hen the 0toB =a0 made.
I1$; 1n the ca0e o. Stuart v. State" 94 Nev. 721 I197$;" the o..icer noticed that the
trun? loc? on the vehicle =a0 mi00ing. ,.ter the 0toB =a0 e..ected" the o..icer detected
the odor o. mariJuana and noticed =hat aBBeared to <e mariJuana 0eed0 on the .loor in the
.ront 0eat o. the vehicle. &he court 0aid H&he o..icer" in thi0 ca0e" had o<0erved the
mi00ing trun? loc?" and" <a0ed uBon training he had received at the 2igh=a- /atrol
,cadem-" in.erred that the vehicle might <e 0tolen. 5nder the0e circum0tance0" =e
<elieve the o..icer>0 conclu0ion =a0 rea0ona<le and he =a0 Ju0ti.ied in 0toBBing the
vehicle .or routine Aue0tioning and inve0tigation.H
Since the o..icer had la=.ull- attained the Bo0ition .rom =hich he o<0erved the
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mariJuana in oBen vie=" and it =a0 in a vehicle =hich could <e 0earched =ithout a
=arrant he had a right to 0eiOe it and the mariJuana =a0 BroBerl- admitted into evidence.
N3&E: &he vehicle =a0 not actuall- 0tolen.
I19; 5.S. v. ,lvareO" $99 (.2d $33 I9th Cir. 199+;" an unidenti.ied caller told
Bolice that tall 2i0Banic male =ould ro< certain <an? =ithin 1+ minute0 and had
e)Blo0ive0 in trun? o. =hite 4u0tang. /olice 0a= =hite 4u0tang <ac?ed into Bar?ing
0Bace .acing <an? =ith 2i0Banic driver. Car Bulled out =hen Bolice arrived. /olice
0toBBed car and Batted do=n driver. (ound gun then 0earched car and .ound gun0 and
drug0 in trun?. Be.ore trial" caller =a0 identi.ied and it =a0 0ho=n that hi0 Hro<<er-
BlanH claim =a0 .al0e. 2eld: Bolice action 3@. Even anon-mou0 tiB can Brovide /CC or
!CS .or &err- 0toB =here Bolice can corro<orate all detail0 o. tiB. (act that all o.
0u0Bect>0 action0 =ere HinnocentH ma?e0 no di..erence. /olice didn>t ?no= tiB =a0
.al0e'Bolice had o<Jectivel- rea0ona<le articula<le <a0i0 .or 0toB.
I2+; But ' -ou mu0t <e care.ul a<out a 0toB <a0ed on =rong in.ormation. 1. the
o..icer>0 Ior Bolice deBartmentP0; negligence cau0e0 or Broduce0 the incorrect in.ormation
=hich" on the 0ur.ace" Ju0ti.ie0 the 0toB ' later on the court =ill Bro<a<l- 0a- 0toB i0 no
good. (or e)amBle: 0toB no good =here Bolice o..ice called in =rong licen0e num<er" or
el0e di0Batcher heard it =rong and told o..icer Blate0 didn>t match. 6ater determined that
Blate0 did match. Evidence .rom the 0toB =a0 tainted. 5nited State0 v. De6eon'!e-na"
$9$ (.2d 4$* I%th Cir. 199+; ' 0ame re0ult in 3tt v. State" *++ ,.2d 111 I4d. 1992;.
INote: thi0 i0 0till true even a.ter the deci0ion in ,riOona v" Evan0 I0ee 0ection on MBolice
mi0ta?e0; <ecau0e there the error =a0 done <- the court cler?P0 o..ice not <- the Bolice
deBartment;.
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5N/!3#3@ED (61:2& (!34 /361CE
I21; 1n 1llinoi0 v. 8ordla= Idecided Kanuar- 2+++; the maJorit- o. the 5.S.
%+
SuBreme Court held that" although a Ber0on 0tanding in an area ?no=n .or heav-
narcotic0 tra..ic?ing" <- that .act alone i0 not 0u<Ject to a &err- 0toB. 1. the Ber0on .lea0
.rom the Bolice Bre0ence =ithout Brovocation" that Ber0on can <e &err- 0toBBed. /olice
did 0o9 did a Bat'do=n <ecau0e" in the o..icerP0 e)Berience it =a0 common .or =eaBon0 to
<e around drug tran0action0" and .ound a =eaBon on 8ordla=" =hich =a0 held
admi00i<le.
&=o .ollo=ing ca0e0 hold that although unBrovo?ed .light .rom Bolice alone i0
not enough .or !CS" that the .light along =ith other .actor0" can 0uBBort !CSC
I22; State v. Stinnett" 1+4 Nev. 39$ I19$$;" Bolice =ere on Batrol in area =ith
high incidence o. drug crime0 and 0a= 0everal men huddled in .ront o. a<andoned
re0idence. 3ne o. the grouB noticed the Bolice" he ran to=ard the <ac? o. the re0idence
cha0ed <- the Bolice. , .e= minute0 later" Bolice entered the a<andoned home and .ound
0u0Bect huddled in a clo0et =ith drug0 near<-. 2eld: &he 0u0Bect =a0 not detained =hen
he ran .rom the Bolice. 8hen the 0u0Bect =a0 .ound in0ide the a<andoned hou0e" he =a0
detained" <ut all the circum0tance0 including hi0 unBrovo?ed .light Ju0ti.ied an
inve0tigative detention.
I23; 1n 5.S. v. Kac?0on" 17% (.3d *++ I$th Cir. 1999; the Court ruled that 1t =a0
rea0ona<le .or o..icer to tac?le de.endant to e..ect inve0tigative 0toB =hen o..icer0 =ere
re0Bonding to call that 0hot0 had <een .ired at addre00 in high'crime neigh<orhood"
de.endant =a0 <ehind area =here 0hot0 =ere .ired and nervou0l- <egan to .lee =hen
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o..icer0 aBBroached in mar?ed 0Auad car" o..icer0 noticed that de.endant aBBeared to <e
clutching 0omething at hi0 0ide a0 he ran" and continued to .lee a.ter o..icer0 announced
that the- =ere o..icer0 and told de.endant to 0toB.
I4; M/!3(161N:N
Xuite a <it o. con.u0ion e)i0t0 in Bolice circle0 concerning MBro.ilingN <ut modern
ca0e0 ma?e the correct legal con0eAuence0 Auite clear. 1n a nut0hell" =hen o..icer0
ma?e a 0toB <a0ed on Bro.iling" the .act that Bro.iling =a0 u0ed ha0 no legal
0igni.icance at all. 1t doe0nPt helB or hurt the validit- o. the 0toB. &hi0 =a0 the holding
o. the 5. S. SuBreme Court in So?olo=.
1. 1n 5nited State0 v. So?olo=" 1+9 S.Ct. 1%$1 I19$9;" DE, agent0 0toBBed the
0u0Bect at 2onolulu ,irBort <ecau0e I1; he had Baid L2"1++ ca0h .or airline tic?et0" I2; he
traveled under a name that did not match the name under =hich the Bhone num<er he
u0ed =a0 li0ted" I3; hi0 de0tination had <een 4iami =hich =a0 a H0ource cit-H" I4; he
0ta-ed in 4iami onl- 4$ hour0" I%; he aBBeared nervou0 and I*; he had no chec?ed
luggage. DE, .ound 1 ?ilo o. cocaine in hi0 carr-'on luggage a.ter a trained drug
0ni..ing dog alerted on the luggage and DE, o<tained a 0earch =arrant. 2eld:
!ea0ona<le 0u0Bicion .or a &err- 0toB e)i0ted. ,lthough each .actor ta?en alone =a0
in0u..icient to Ju0ti.- a 0toB" =hen ta?en together the- amount to rea0ona<le 0u0Bicion.
&he HBro.ileH .actor0 0ho=n here are HBro<ativeH and amount to rea0ona<le 0u0Bicion
even though none o. them are HcriminalH. &he .act that the Ber0on .it a HBro.ileH did not
in and o. it0el. eAual rea0ona<le 0u0Bicion.
%1
2. 1n @arne0 v. S?rut0?i" *2 (.3d 4$% I3rd Cir. 199%; the Court ruled that Hthe
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drug courier Bro.ile ha0 little meaning indeBendent o. the o<Jective .act0H Bre0ented <-
the la= en.orcement o..icer a0 0u..icient to demon0trate rea0ona<le 0u0Bicion. 1n other
=ord0" the .actor0 that the la= en.orcement o..icer u0e0 to e0ta<li0h /CC or !CS mu0t <e
articulated Iie: 0Beci.ied; <a0ed on the circum0tance0 o. each ca0e. &he Bro.ile it0el. doe0
not Brovide an- additional 0uBBort .or .inding /CC or !CS. Same ruling in 5.S. v.
4alone" $$* (.2d 11*2 I9th Cir. 19$9;" 5.S. v. 4oore" 22 (.3d 241 I1+th Cir. 1994; and
5.S. v. L%3"+$2 in 5S Currenc-" 9$% (.2d 2$% I*th Cir. 1993; a0 =ell a0 numerou0 0tate
0uBreme court ca0e0.
3. See the 0ection on M/rete)t StoB0N in thi0 manual. &he modern la= <a0ed on
the 8hren ca0e .rom the 5.S. SuBreme Court and :ama ca0e .rom the Nevada SuBreme
Court ma?e it clear that a0 long a0 an o..icer ha0 an- o<Jective <a0i0 .or ma?ing a 0toB"
the o..icerP0 internal motive0 are irrelevant. &hi0 mean0 that an o..icer can ma?e a 0toB
<a0ed on a MBro.ileN <ut onl- 0o long a0 there i0 0ome other <a0i0 .or the 0toB. &here i0 no
longer an- 0uch thing a0 an illegal Brete)t 0toB.
4. 50e o. indicator0 0uch a0 mem<er0hiB in certain racial grouB0 in drug courier
Bro.iling ha0 <een 0harBl- challenged. MDe.endantP0 nationalit- I4e)ican; and hi0
.riend0P u0e o. SBani0h cannot 0uBBort rea0ona<le 0u0Bicion o. 0muggling drug0N
according to 5nited State0 v. :arcia" 23 (.3d 1331 I$th Cir. 1994;.
I%; 82,& (3!4S &2E B,S1S &3 (!1S@ D
&he right to .ri0? i0 not generall- automatic =ith a valid M0toB.N
1. 1n Si<ron v. Ne= 7or?" 392 5.S. 4+ I19*$; and 7<arra v. 1llinoi0" 444 5.S.
$% I1979; the 5.S. SuBreme Court 0aid that the general rule i0 that a M.ri0?N i0 not al=a-0
Ju0ti.ied <ecau0e the M0toBN i0 Ju0ti.ied. &he o..icer ha0 to <e a<le to Boint to Barticular
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.act0 that made him thin? the 0u0Bect Mma- <eN armed.
2. 1n 4inne0ota v. Dic?er0on" 113 S.Ct. 213+ I1993;" the HBlain .eelH ca0e"
Ku0tice Scalia>0 concurring oBinion ma?e0 it clear that the right to H.ri0?H doe0 not
automaticall- accomBan- the right to H0toB.H I&hi0 i0 the oBBo0ite o. H0earch incident to
arre0tH rule =hich doe0 automaticall- accomBan- an- la=.ul cu0todial arre0t.;.
3. ,dam0 v. 8illiam0" 4+7 5.S. 143 I1972;" held that =here a relia<le in.ormant
told an o..icer that a Ber0on 0itting in a Bar?ed car had a concealed =eaBon. &he o..icer
a0?ed the Ber0on to 0teB .rom the car" <ut in0tead ,dam0 rolled do=n the =indo=. &he
o..icer reached in the =indo= to hi0 =ai0t<and and .elt" then 0eiOed" a gun. &hi0 =a0
enough rea0ona<le 0u0Bicion .or a 0toB and .ri0?.
4. 1n 5.S. v. 4attarolo" 191 (.3d 1+$2 I9th Cir. 1999; the Court ruled that an
o..icer ma- conduct a limited Brotective 0earch .or concealed =eaBon0 i. there i0 a rea0on
to <elieve the 0u0Bect ma- have a =eaBon. &he o..icer mu0t choo0e <et=een <eing 0ure
that the 0u0Bect i0 not armed and JeoBardiOing hi0 o=n 0a.et-. ,n o..icer ma?ing a 0toB
%2
under the 0u0Biciou0 circum0tance0 o. the Bre0ent ca0e =ho .ailed to Batdo=n the 0u0Bect
.or =eaBon0 =ithin the limited 0coBe o. &err- could <e ta?ing 0u<0tantial and
unnece00ar- ri0?0.N Di0tingui0hing an earlier ca0e" the Court that the 0toB in that ca0e
=a0 in a <an? Bar?ing lot during the da-light hour0" not on a remote 0ection o. road at
midnight. &he Ber0on 0toBBed =a0 a 0u0Bected counter.eiter" not a 0u0Bect caught
Bo00i<l- in the act o. committing a nighttime <urglar- and there.ore more li?el- to <e
armed.
1n 4attarolo" the de.endant got out o. hi0 car 0=i.tl- and =al?ed Auic?l- to=ard
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the 0Auad car <e.ore the o..icer had the chance to get out o. hi0 car. &hi0 cau0ed the
o..icer to get out o. hi0 0Auad car Auic?l- 0o a0 not to <e traBBed =ith the mean0 o.
Brotecting him0el. con0eAuentl- limited. :iven the totalit- o. the circum0tance0" the
Batdo=n 0earch =a0 .ull- Ju0ti.ied and a Brovident Brocedure to .ollo=.
%. 1n 5. S. v. Sinclair" 9$3 (.2d %9$ I4th Cir. 1993; the Court held that Mthe
o..icerP0 rea0ona<le <elie. ma- derive a0 much .rom hi0 e)Berience0 in 0imilar ca0e0 a0
.rom hi0 ?no=ledge o. the dangerou0 BroBen0itie0 o. the 0u0Bect at hand.N
*. 1n 5. S. v. :i<0on" *4 (.3d *17 I11th Cir. 199%; the Court 0aid that =here the
o..icer had corro<orated ever- item o. in.ormation .rom an anon-mou0 tiB0ter a<out a
certain 0u0Bect" the o..icer had rea0on to <elieve the tiB0terP0 0tatement that the 0u0Bect
=a0 armed.
7. 1n 5.S. v. &a-lor" 1*2 (.3d 12 I10t Cir. 199$; the Court ruled that 1n.ormant>0
tiB that occuBant0 o. automo<ile =ere in Bo00e00ion o. crac? cocaine and =eaBon0 and
=ere delivering narcotic0 e)hi<ited 0u..icient indicia o. relia<ilit- to Ju0ti.- inve0tigator-
0toB o. automo<ile and .ri0? o. the occuBant09 in.ormant had Brovided relia<le
in.ormation in the Ba0t" tiB included 0uch detail0 a0 ma?e and color o. car and de0criBtion
o. it0 occuBant0" and tiB =a0 corro<orated in 0igni.icant a0Bect0 <- the o..icer.
$. 1n 5.S. v. CamB<ell" 17$ (.3d 34% I%th Cir. 1999; the Court ruled it =a0 not
unrea0ona<le .or Bolice o..icer to dra= hi0 =eaBon" order armed <an? ro<<er- 0u0Bect to
lie on ground" handcu.. 0u0Bect =ith hi0 hand0 <ehind hi0 <ac?" and .ri0? 0u0Bect during
cour0e o. inve0tigator- 0toB" even though 0u0Bect comBlied =ith o..icer>0 order0 and
ro<<er- had occurred aBBro)imatel- 3+ hour0 Brior to 0toB9 0u0Bect matched de0criBtion
o. armed <an? ro<<er and he =a0 getting into driver>0 0ide o. automo<ile matching
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de0criBtion o. geta=a- car" there =ere other BeoBle in area during 0toB" and there =ere
onl- three o..icer0 to control three 0u0Bect0.
!E4E4BE! ' , (!1S@ C,N 3N67 BE D3NE (3! 8E,/3NS" N3& (3! ,N7 3&2E!
1&E4S 3! C3N&!,B,ND. 238E#E!" 1( &2E (!1S@ 1S D3NE 81&2 !CS &2,& ,
8E,/3N
1S /!ESEN&" B5& ,(&E! !E43#1N: &2E 1&E4 &2,& M(E6& 61@EN , 8E,/3N" &2E
/361CE (1ND &2,& 1& 8,S N3& ,C&5,667 , 8E,/3N" &2E SE,!C2 G SE1Z5!E 1S
S&166 #,61D
9. 5.S. v. !a-mond" 1%2 (.3d 3+9 I4th Cir. 199$; /olice 0toBBed a car .or
0Beeding. !a-mond =a0 a Ba00enger and the Bolice ordered him out o. the car. 2e got
out clutching hi0 0tomach. &he o..icer Batted him do=n and .elt a large di0c li?e o<Ject
=hich he thought might <e a =eaBon. 1t turned out to <e a 7H roc? cocaine di0?. &he
%3
court ruled that the circum0tance0 gave ri0e to an articula<le 0u0Bicion that he might have
<een armed =ith a =eaBon. &here =a0 a rea0ona<le <a0i0 .or conducting a Batdo=n
0earch <a0ed on hi0 0trange e)it .rom the car" a0 i. he =ere attemBting to conceal
0omething under hi0 Jac?et" and the a=?=ard =a- in =hich he leaned again0t the car
=hile tal?ing to Bolice.
1+. 5.S. v. !ahman" 1$9 (.3d $$ I2d Cir. 1999; the Court held that 0eiOure o.
.orged Ba00Bort0 <- agent0 =a0 rea0ona<le" =here agent0 learned that vehicle u0ed in
<om<ing o. o..ice <uilding in Ne= 7or? Cit- had <een rented <- Ber0on li0ting hi0
addre00 a0 0u0Bect>0 addre00" agent0 o<tained =arrant to 0earch 0uch addre00" agent0
o<0erved 0u0Bect returning to the <uilding at accelerated Bace =hen the- entered to
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0earch" 0u0Bect re0i0ted <eing .ri0?ed" and agent0 .elt .irm rectangular o<Ject in hi0 Boc?et
that the- could have rea0ona<l- e)Bected =a0 an e)Blo0ive device" <ut turned out to <e
enveloBe containing Ba00Bort0.
11. 5.S. v. Ed=ard0" %3 (.3d *1* I3rd Cir. 199%; the Court ruled Bolice =ere
Ju0ti.ied in conducting &err- Brotective Batdo=n .or =eaBon0 and oBening enveloBe
.ound in Boc?et o. Jac?et on de.endant>0 laB. /olice re0Bonded to reBort o. credit card
.raud in Brogre00" and =ere Ju0ti.ia<l- concerned that 0mall'cali<er handgun could <e
concealed in enveloBe" =hich mea0ured .our <- 0i) inche0 and .elt .rom out0ide a0 i. it
held hard" <ul?- o<Ject.I.ound 0tolen credit card0'3@;.
12. 5.S. v. Strahan" 9$4 (.2d 1%% I*th Cir. 1993; the Court recogniOed the rule
that =here an o..icer i0 doing a la=.ul M.ri0?N and .eel0 an o<Ject that rea0ona<l- aBBear0
to <e 0ome 0ort o. =eaBon" the o..icer can remove that item" and i. it turn0 out that it =a0
not actuall- a =eaBon" <ut i0 contra<and" the 0eiOure o. the contra<and i0 la=.ul. IBulge
and hard item turned out to <e mone- cliB;
13. 1n 5.S. v. Bro=n" 1$$ (.3d $*+ I7th Cir. 1999; the Court ruled that 3..icer
had articula<le ground0 .or !CS that Ber0on in a tra..ic 0toB might <e armed and
dangerou0" to Ju0ti.- an initial Bat'do=n 0earch9 circum0tance0 included o..icer>0
?no=ledge o. (B1 0urveillance o. the vehicle a0 a Bo00i<le Bart o. a large'0cale drug
oBeration" the 0mell o. mariJuana 0mo?e .rom the car" driverP0 ver- nervou0 demeanor"
hi0 .ailure to ma?e e-e contact" hi0 glancing <ac? to the vehicle" =here the other
occuBant0 rolled do=n the tinted =indo=0 during the tra..ic 0toB" and the .act that the
0toB occurred in a high crime area =here there =a0 gang and drug activit- and had <een
recent 0hooting0.
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Nervou0ne00" re.u0al to ma?e e-e contact or high crime area alone =ill not Ju0ti.-
a &err- 0toB and Bat'do=n" <ut 0uch <ehavior ma- <e con0idered a0 a .actor in the totalit-
o. circum0tance0.
&he Court Ju0ti.ied a Bat'do=n 0earch .ollo=ing tra..ic 0toB =hich di0clo0ed a
hard o<Ject a<out the 0iOe o. a Bing'Bong <all in 0u0Bect>0 groin area. M 1t =a0 rea0ona<le
.or o..icer to thin? o<Ject =a0 the <utt o. a gun" even i. o..icer =ould have <een more
rea0ona<le to thin? the o<Ject =a0 drug0.N
14. 5.S. v. CamB<ell" 17$ (.3d 34% I%th Cir. 1999; Court held removal" during
%4
cour0e o. inve0tigator- 0toB" o. content0 o. 0u0Bected armed <an? ro<<er>0 Boc?et =a0
rea0ona<le and =ithin 0coBe o. Bermi00i<le &err- .ri0?" =here Bolice o..icer had not ruled
out Bo00i<ilit- that large <ulge" .ormed <- over L1"4++ in currenc- and card<oard <o)
containing gold chain" =a0 a =eaBon.
Note: 3..icer0 0hould <e a=are that an item encountered and la=.ull- removed
during a M.ri0?N doe0 not generall- give the right to oBen the item unle00 it might
rea0ona<l- contain a =eaBon. 3ther=i0e" i. it i0 oBened" evidence =ill <e 0uBBre00ed
unle00 there =a0 Ju0ti.ication. I!emem<er: !CS i0 enough to get =eaBon0 <ut /CC U
con0ent or a SC8 i0 needed to get contra<and or evidence. Be=are o. a Brete)t arre0t to
get authorit- to 0earch; M&he need to di0cover =eaBon0 cannot Ju0ti.- oBening the
match<o)N/ace v. Beto" 4*9 (.2d 13$9 I%th Cir. 1972" 0ame ruling regarding 0mall
Bouch /eoBle v. 4artineO" $+1 /.2d %42 IColo. 199+; and cigarette ca0e in C.2. v.
State" %4$ So.2d $9% I(lorida" 19$9;
/lea0e re.er to the M/lain #ie=N 0ection in thi0 manual under 0u<Ject o. M1mmediatel- aBBarent"N .or
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00578
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di0cu00ion on M0ingle BurBo0eN container0.
&he theoretical di0tinction <et=een H0toB0H and H.ri0?0H Ithat each reAuire0 it0
0eBarate Ju0ti.ication; i0 0ometime0 <lurred" although the courtP0 deci0ion i0 correct" .or
e)amBle:
1%. 1n !u0ling v. State" 9* Nev. 77$ I19$+;" a Bolice o..icer 0a= a Ber0on =ith a
car Bar?ed in the road" trun? and door oBen" =al? acro00 the 0treet to a truc? =here a
ru<<er ho0e led .rom the ga0 tan? to a ga0 can. &he 0u0Bect .led and the o..icer <roadca0t
a de0criBtion. ,nother o..icer 0toBBed the 0u0Bect I<a0ed on matching de0criBtion and
location; a<out one hour later. &he 0u0Bect =a0 Batted do=n and a gun =a0 .ound.
De.endant =a0 charged =ith Bo00e00ion o. a .irearm <- e)'.elon. 3n the Bat do=n i00ue"
the court 0aid:
H&he o..icer need not <e a<0olutel- certain that the individual i0 armed I&err-;.
&he o..icer had rea0ona<le ground0 to anticiBate danger to him0el. or the other o..icer.
&he 0u0Bect met the de0criBtion o. one =ho =a0 Bo00i<l- engaged in auto the.t. &he
0u0Bect .led and =a0 hiding. &he 0toB occurred late at night. ,ll the0e .actor0 led the
o..icer to conclude rea0ona<l- that the 0u0Bect =a0 involved in criminal conduct.
&here.ore" it =a0 not imBroBer .or him to in.er the Bo00i<ilit- o. a concealed =eaBon.H
Certain &-Be0 o. Crime Do Ku0ti.- an MautomaticN (ri0?
4an-" <ut not all" court0 hold that certain t-Be0 o. criminal activit- are commonl-
a00ociated =ith =eaBon0" there<- Ju0ti.-ing a .ri0? .or =eaBon0 i. there i0 rea0ona<le
0u0Bicion o. that t-Be o. criminal activit-.
(or e)amBle" Mhigh levelN drug dealing ha0 <een vie=ed thi0 =a- in the .ollo=ing
ca0e0: 5.S. v. Bro=n" 9+3 (.2d %4+ I$th Cir. 199+;" /eoBle v. 6ee" 24+ Cal. !Btr. 32
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00579
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I19$7;" 5.S. v. /ea-" $$% (.SuBB. 1 IDC D.C. 199%;" 5. S. v. 4c4urra-" 34 (.3d 14+%
%%
I$th Cir.1994; and 5.S. v. Sala0" $79 (.2d %3+ I9th Cir. 19$9; 5.S. v. /rice" 1$4 (.3d *37
I7th Cir.1999;.
#iolent dome0tic di0Bute0 can Auali.-" /eoBle v. Bar<er" %37 N.E.2d 1171 I1ll.
19$9;" State v. #a0AueO" $+7 /.2d %2+ I,riO. 1991;.
,rmed ro<<er-: 5.S. v. ,<o?hi" $29 (.2d *** I$th Cir.19$7; and 5.S. v. 6ang"
$1 (.3d 14+% I$th Cir. 1994;.
Burglar-: 5.S. v. 8al?er" 924 (.2d 1 I10t Cir. 1991;" 5.S. v. 4oore" $17 (.2d
11+% I4th Cir. 19$7;.
I*; M/6,1N (EE6N
4inne0ota v. Dic?er0on" 113 S.Ct. 213+ I1993;" i0 the 0o'called HBlain .eelH ca0e.
5ni.ormed Bolice =ere on Batrol at night near an aBartment <uilding ?no=n to them a0 a
hot<ed o. drug dealing0. /olice had 0erved 0everal drug 0earch =arrant0 at that <uilding
and had citiOen comBlaint0 o. drug0 <eing 0old in the hall=a-0. Dic?er0on =a0 o<0erved
leaving the <uilding and =al?ed to=ard the mar?ed Bolice car. 5Bon 0eeing the Bolice"
he turned and a<ruBtl- =al?ed the other =a- and entered an alle-.
&he o..icer0 made a H&err- 0toBH on Dic?er0on and al0o H.ri0?edH him. 8hile
H.ri0?ingH Dic?er0on" one o..icer .elt 0omething in hi0 Boc?et =hich the o..icer 0lid
around and maniBulated" then removed a Bla0tic <ag containing 1C% gram o. roc? cocaine.
I&he legalit- o. the H0toBH and the deci0ion to H.ri0?H =ere not an i00ue <e.ore the 5nited
State0 SuBreme Court. 1t =a0 a00umed" <ut not directl- held <- the Court" that the- =ere
valid.; &he i00ue i0 =hether and =hen HBlain .eelH =ould allo= o..icer0 to legall- 0eiOe
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item0 other than 0u0Bected =eaBon0.
&he Court held a0 .ollo=0: a00uming that there i0 a legal 0toB and a legal .ri0?"
and during the .ri0? the o..icer .eel0 an item that i0 not a 0u0Bected =eaBon" then i. it i0
immediatel- aBBarent .rom the ma00 and contour that the item i0 Bro<a<l- contra<and" the
o..icer can legall- 0eiOe it I=ithout having to arre0t the Ber0on and rel- on 0earch incident
to arre0t;.
1n Dic?er0on" the Court ruled that the roc? cocaine =ould have to <e 0uBBre00ed"
<ecau0e the o..icer continued .eeling and .ri0?ing a.ter the o..icer alread- concluded no
=eaBon =a0 in the Boc?et ' i.e." Blain .eel mean0 immediatel- aBBarent.
1n 5.S. v. /roctor" 14$ (.3d 39 I10t Cir. 199$; Bolice had la=.ull- entered a
Bremi0e0 and 0eiOed a large Bac?age o. mariJuana. ,<out 1% minute0 later. &=o Ber0on0
?noc?ed on the door and =ere admitted entr-. &he o..icer Batted them do=n and .elt
=hat he thought =a0 a Bla0tic <ag containing mariJuana. &he Court uBheld the .ri0? and
al0o the 0eiOing o. the mariJuana <a0ed on the o..icerP0 e)Berience and the .act that the
Ber0on0 entered a drug hou0e Ju0t a.ter the drug0 arrived.
1n State v. Conner0" 11* Nev. FFFF" 994 /2d 44 I(e< 4" 2+++; an o..icer la=.ull-
0toBBed and .ri0?ed Satan !enee Conner0. ,.ter ruling out a =eaBon the o..icer changed
hi0 griB on a Boc?et to determine =hat an o<Ject =a0 and removed a 0mall vial o.
methamBhetamine. &he item =a0 0uBBre00ed <a0ed uBon the Dic?er0on ruling.
8e0tla= comButer re0earch di0clo0e0 that man- .ederal court0 have .ollo=ed the
%*
rule e0ta<li0hed <- 4inne0ota v. Dic?er0on and that more than 9+Y o. State SuBreme
Court0 =hich have dealt =ith the i00ue have adoBted the 0ame rule.
- 187 -
00581
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I7; 82,& 6141&S EZ1S& 3N &2E SC3/E ,ND 1N&ENS1&7 3(
&2E S&3/D
&he :eneral !ule
1n 5.S. v. SharBe" 1+% S.Ct. 1%*$ I19$%;" a DE, agent develoBed rea0ona<le
0u0Bicion that one o. t=o vehicle0 traveling in tandem on a high=a- =a0 0muggling
drug0. &he agent got helB .rom a 0tate trooBer and a Ba00enger car =a0 Bulled over. &he
Bic?uB truc? 0u0Bected to contain the drug0 could not <e Bulled over .or 0everal mile0.
&he Bolice unit0 lo0t radio contact and the Bic?uB truc? and it0 driver =ere detained a<out
1% minute0 <e.ore an agent arrived" 0melled mariJuana and develoBed Bro<a<le cau0e.
&he criminal claimed that thi0 time dela- converted the H0toBH into an Harre0tH and 0ince
there =a0 onl- rea0ona<le 0u0Bicion and not Bro<a<le cau0e" he claimed there =a0 an
unla=.ul arre0t. &he Court held: no arre0t until a.ter the 0ni.. o. mariJuana ' 0coBe o.
&err- 0toB =a0 3@. &he Court 0aid a &err- 0toB =a0 a temBorar- detention Ia0 oBBo0ed
to an arre0t; and that the 0coBe =a0 la=.ul a0 long a0 the Bolice diligentl- Bur0ued a
mean0 o. inve0tigation that =a0 li?el- to con.irm or di0Bel their 0u0Bicion0 Auic?l-.
N3&E: 1n So?olo=" the 5nited State0 SuBreme Court held that the inve0tigative mean0
u0ed <- Bolice to con.irm or di0Bel 0u0Bicion do not have to <e the lea0t intru0ive mean0
Bo00i<le ' onl- that the- <e Hrea0ona<leH mean0.
5.S. v. 3=en0" 1*7 (.3d 739 I10t Cir 1999;%+ minute detention o. driver and Ba00enger
a.ter 0toB o. automo<ile .or 0Beeding =a0 not 0o long a0 to convert inve0tigative 0toB into
de .acto arre0t. 6ength o. detention =a0 rea0ona<le under the circum0tance0: driver did
not have valid driver>0 licen0e" need to determine =hether Ba00enger had authorit- to
drive the automo<ile" and o..icer0> diligent Bur0uit o. mean0 o. inve0tigation that =ould
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00582
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di0Bel their 0u0Bicion0.
M&he Bermi00i<le 0coBe o. the detention deBend0 on the .act0 and circum0tance0 o.
each ca0e" <ut in ever- ca0e it mu0t <e temBorar- and la0t no longer than nece00ar- to
e..ectuate the BurBo0e o. the 0toB.N 5.S. v. Sandoval" 29 (.3d %37 I1+th Cir.1994;.
&hi0 rule i0 the 0ame a0 0et .orth in Nevada 6a=. But" note that Nevada Blace0 an
a<0olute limit o. *+ minute0 .or a &err- 0toB. See al0o 8a0hington v. State" 94 Nev. 1$1
I197$;.
N.!.S. 171.1231. ,rre0t i. Bro<a<le cau0e aBBear0. ,t an- time a.ter the on0et
o. the detention Bur0uant to N!S 171.123" the Ber0on 0o detained 0hall <e arre0ted i.
Bro<a<le cau0e .or an arre0t aBBear0. 1." a.ter inAuir- into the circum0tance0 =hich
BromBted the detention" no Bro<a<le cau0e .or arre0t aBBear0" 0uch Ber0on 0hall <e
relea0ed.
1." in the cour0e o. the detention" .urther in.ormation come0 to the ?no=ledge o.
%7
the o..icer =hich amount0 toH/CCN to arre0t Ii.e." more .act0 than needed .or rea0ona<le
0u0Bicion;" then -ou can arre0t. 1n reBort =riting" <e 0ure to di..erentiate initial 0toB a0
inve0tigator- detention and =hen and ho= it e0calated into an arre0t.
Non'Search E)amination
1n 5.S. v. 4artin" $+* (.2d 2+4 I$th Cir. 19$*;" =here an o..icer loo?ed through
the =indo= o. a 0u0Bect>0 Bic?uB truc? and 0a= machine gun Bart0 '' he could 0eiOe them
=ithout =arrant" or in &e)a0 v. Bro=n" 4*+ 5.S. 73+ I19$3;" =here Bolice 0hined a
.la0hlight into a Ber0on>0 car =hich =a0 0toBBed at a routine tra..ic chec? Boint and 0a=
=hite Bo=der and <alloon0.
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00583
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&hi0 rule =a0 aBBlied in State v. 2er<ert 8right" 1+4 Nev. %21 I19$$;.
&emBorar- SeiOure o. 1tem0
!ea0ona<le 0u0Bicion can 0uBBort a temBorar- 0eiOure I=ithout a 0earch; o.
Ber0onal item0 0uch a0 the 0u0Bect>0 0uitca0e in 5. S. v. /lace" 4*2 5.S. *9* I19$3;
Ialthough in /lace" the 9+'minute detention o. the 0uitca0e =a0 too long .or an
inve0tigative 0eiOure =ith !CS" <ut =ithout Bro<a<le cau0e;.
,n o..icerP0 removal o. a 0uitca0e .rom a <aggage area conve-or <elt" 0AueeOing
the <ag and then 0ni..ing the <ag =a0 neither a 0earch nor a 0eiOure. 5.S. v. :arcia" 42
(.3d *+4 I1+th Cir. 1994; M&he temBorar- moving o. unattended luggage .rom one area o.
a <u0 to another to .acilitate a dog 0ni.. i0 not a 0eiOure.M 5.S. v. :raham" 9$2 (.2d 273
I$th Cir. 1992; M&he de.endantP0 onl- intere0t =a0 that the airline =ould Blace hi0 luggage
on the ne)t airBlane. &he Bolice Broce00 o. ta?ing the luggage .rom a cart to an o..ice
and having the dog 0ni.. it =a0 comBleted Brior to the time the luggage =ould have <een
Blaced on the airline. &here =a0 no 0eiOure o. the luggage until a.ter the dog alerted.N
5.S. v. (uru?a=a" 99 (.3d 1147 I9th Cir.199*; Same re0ult in 5.S. v. 8ard" 144 (.3d
1+44 I7th Cir. 199$;.
Conducting a one'on'one at the 0cene or el0e=here.
N3&E: N!S 171.123 0a-0 in Nevada the Hone on oneH mu0t <e at Blace =here
0u0Bect detained.
,lthough no emergenc- e)ceBtion i0 li0ted in Nevada 0tatute0" Bro<a<l- it =ould
<e 3@ to tran0Bort the 0u0Bect Ia00uming !CS; to the victim i. the victim couldn>t <e
tran0Borted.
, 39'minute detention o. 2 0e)ual a00ault 0u0Bect0" including tran0Bortation to a
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00584
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ho0Bital to <e vie=ed <- the victim" =a0 valid =here <a0ed on !CS. ,t lea0t 2% minute0 o.
the detention =a0 due to comBletion o. the victim>0 treatment at the ho0Bital <e.ore
vie=ing the 0u0Bect0. /olice =ere acting diligentl- to Bur0ue a mean0 o. inve0tigation"
namel-" di0Bla- o. the de.endant0 to the victim =hile her memor- =a0 0till .re0h" =hich
=a0 li?el- to con.irm or di0Bel their 0u0Bicion Auic?l-" and thi0 mean0 o. inve0tigation
%$
o<viou0l- reAuired the rea0ona<le detention o. the de.endant0.H State v. 4itchell" %+7
,.2d 1+17" Conn.19$*;.
I$; 5SE 3( 8E,/3NS 3! 2,NDC5((S 1N DE&EN&13N
Numerou0 ca0e0 have held that di0Bla- o. =eaBon or handcu..ing 0u0Bect doe0 not
in and o. it0el. convert a HdetentionH into an Harre0tH Ialthough the0e thing0 tend to Bu0h
in the direction o. arre0t'0ee Mlevel0 o. contactN .actor0; <ut -ou mu0t <e a<le to
articulate =h- the0e mean0 =ere emBlo-ed Ithing0 0uch a0 0u0Bicion directed at crime o.
violence" detection occurred at night" i0olated area" o..icer alone" ri0? o. .light;.
2andcu..0 o?a-" 5. S. v. Bauti0ta" *$4 (.2d 12$* I9th Cir. 19$2;. Same re0ult in 5.S. v.
Blac?man" ** (.3d 1%72 I11th Cir. 199%; and al0o in 5.S. v. &ilmon" 19 (.3d 1221 I7th
Cir. 1994;
/lacing 0u0Bect in Bolice car did not eAual an arre0t. State v. Bra)ton" 49% ,.2d
273 I19$%;. Same re0ult in 5.S. v. Cannon" 29 (.3d 472 I9th Cir. 1994;.
1n 5. S. v. 4erritt" *9% (.2d 12*3 I1+th Cir. 19$2;" the Court held that Bointing a
gun at a 0u0Bect 0toBBed on a rea0ona<le 0u0Bicion o. criminal activit- doe0 not
nece00aril- turn the encounter into an arre0t reAuiring Bro<a<le cau0e. , Bic?uB truc?
<elieved to contain a murder .ugitive and 2 other Ber0on0 =a0 0urrounded <- at lea0t 12
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o..icer0" and a0 man- a0 three Bointed gun0 at the 0u0Bect0.
&hi0 0ho= o. .orce =a0 not unrea0ona<le" con0idering the Botential danger .aced
<- the o..icer0. 3ne o. the Ber0on0 <elieved to <e in the truc? =a0 =anted .or murder"
and the Bolice had <een advi0ed that he =a0 dangerou0 and heavil- armed. ,l0o" the
Bolice had Ju0t <een to a hou0e =here the 0u0Bect =a0 thought to re0ide" and o<0erved a
large a00ortment o. deadl- =eaBon0 and ammunition. &he 0ame circum0tance0 0uBBorted
a H.ri0?H o. the Bic?uB truc? .or =eaBon0.
4erritt ha0 <een .ollo=ed in numerou0 other ca0e0: 5. S. v. 2ardnett" $+4 (.2d
3%3 I*th Cir. 19$*;ICC1 0aid 4 armed men =ere in car;9 5. S. v. !oBer" 7+2 (.2d 9$4
I11th Cir. 19$3; I<ail JumBer;9 5. S. v. /erate" 719 (.2d 7+* I4th Cir. 19$3;9 5. S. v.
Kone0" 7%9 (.2d *33 I$th Cir. 19$%;9 5. S. v. &rullo" $+9 (.2d 1+$ I10t Cir. 19$7;" 5.S. v.
,lvareO" $99 (.2d $33 I9th Cir. 199+; IBo00i<le <an? ro<<er- and e)Blo0ive0;9 5.S. v.
&a-lor" $%7 (.2d 21+ I4th Cir. 19$$; I!CS 0toB and Bolice ?ne= Ber0on had <een
convicted .or a00ault =ith intent to murder and ro<<er-;9 5.S. v. &ilmon" 19 (.3d 1221
I7th Cir. 1994; I!CS 0toB o. <an? ro<<er =ho threatened u0e o. e)Blo0ive09 5.S. v. Cole"
7+ (.3d 113 I4th Cir. 199%; IBolice 0u0Bected car occuBant0 had a large amount o. drug0
and might <e armed;.
1n 2ou0ton v. Clar? Count-" 174 (.3d $+9 I*th Cir. 1999; the Court held that it
=a0 valid .or the o..icer" a.ter a !CS 0toB to handcu.. a 0u0Bect in a 0eriou0 violent crime"
<ut the length and manner o. the o..icerP0 conduct mu0t <e related to the initial <a0i0 .or
the 0toB9 Same ruling in 5.S. v. CamB<ell" 17$ (.3d 34% I%th Cir. 1999; valid .or o..icer
I=ith !CS .or the 0toB; to dra= gun and handcu.. the 0u0Bect =ho =a0 in a car =ith the
licen0e num<er o. a recent armed ro<<er-.
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1n 5.S. v. Navarrete'Baron" 192 (.3d 7$* I$th Cir. 1999; the Court held that
%9
Bolice o..icer0 did not e)ceed 0coBe o. &err- 0toB =hen the- handcu..ed occuBant0 o.
automo<ile and Blaced them in 0eBarate Batrol car0 =hile o..icer0 0earched automo<ile9
there =ere t=o 0u0Bect0 and onl- t=o o..icer0 at 0cene" detention did not la0t .or
unrea0ona<l- long time" and in light o. dangerou0 nature o. 0u0Bected crime o. drug
tra..ic?ing and good Bo00i<ilit- that driver or Ba00enger had =eaBon" their con.inement
=ith handcu..0 in <ac? o. Batrol car0 during 0earch =a0 rea0ona<l- nece00ar- to maintain
0tatu0 Auo" Brotect o..icer0" and allo= them to conduct 0earch immediatel- and =ithout
inter.erence.
1n 5.S. v. 4aOa'Corrale0" 1$3 (.3d 111* I9th Cir. 1999; Drug en.orcement
agent0> temBoraril- detaining de.endant =ith the u0e o. handcu..0 .or 1% to 3+ minute0
=hile Aue0tioning him" =a0 rea0ona<le and did not e0calate into a .ull'<lo=n arre0t" given
relativel- 0mall num<er o. o..icer0 Bre0ent at 0cene" .act that =eaBon0 had <een .ound
and more =eaBon0 Botentiall- remained hidden" .leeing Ber0on0 =ere on the loo0e"
uncooBerative Ber0on0 =ere in0ide the re0idence" an armed loo?out =a0 out0ide and <le=
a car horn =hen DE, came.
&he Court held that Mintru0ive and aggre00ive Bolice conduct =ill not <e deemed
an arre0t in tho0e circum0tance0 =hen it i0 a rea0ona<le re0Bon0e to legitimate 0a.et-
concern0 on the Bart o. the inve0tigating o..icer0. 8hen =e ma?e 0uch Judgment0"
common 0en0e and ordinar- human e)Berience rather than <right'line rule0 0erve a0 our
guide" and =e recogniOe that H=e allo= intru0ive and aggre00ive Bolice conduct =ithout
deeming it an arre0t in tho0e circum0tance0 =hen it i0 a rea0ona<le re0Bon0e to legitimate
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0a.et- concern0 on the Bart o. the inve0tigating o..icer0.H
See 0ame ca0e in MBrotective 0=eeBN 0ection immediatel- .ollo=ing
I9; EZ&END1N: &2E (!1S@ &3 , !ES1DENCE
1t 0hould <e noted that all court0 hold that a Ber0on>0 home ha0 an e)tremel- high
e)Bectation o. Brivac- and =arrantle00 entrie0 are vie=ed diml-. ISee .ollo=ing 0ection0
on emergenc- and 0earch =arrant0.; 2o=ever" in 0ome limited circum0tance0 a
HBrotective 0=eeBH o. a Bremi0e0 can <e made on rea0ona<le 0u0Bicion.
1n 4ar-land v. Buie" 11+ S.Ct. 1+93 I199+;" the court allo=ed Bolice to ma?e a
Brotective 0=eeB o. a re0idence a.ter la=.ul entr- =ith an arre0t =arrant a0 long a0 there
=a0 rea0ona<le 0u0Bicion o. danger to Bolice to Ju0ti.- the Brotective 0=eeB. 1tem0 in
Blain vie= during the Brotective 0=eeB could <e 0eiOed. &hi0 authorit- i0 in addition to
the right to conduct a .ull 0earch o. area immediatel- adJoining area o. arre0t. IS1&,;.
5. S. v. 2o-o0" $*$ (.2d 1131 I9th Cir. 19$9;" 1n thi0 ca0e 2o-o0 attemBted to
e0caBe arre0t <- entering the hou0e. ,l0o" the o..icer0 =ere a=are that 0everal 0u0Bect0
had not -et <een arre0ted and could Bo00i<l- <e in the area o. the re0idence.
&he Court ruled that the Brotective 0=eeB e)ceBtion to the reAuirement o. a 0earch
=arrant to enter a re0idence ma- aBBl- i. the arre0t occur0 out0ide. M&hi0 i0 not 0urBri0ing
<ecau0e the di0tinction i0 logicall- un0ound. 1. the e)igencie0 to 0uBBort a Brotective
0=eeB e)i0t" =hether the arre0t occurred in0ide or out0ide the re0idence doe0 not a..ect
*+
the rea0ona<lene00 o. the o..icer>0 conduct. , <ullet .ired at an arre0ting o..icer 0tanding
out0ide a =indo= i0 a0 deadl- a0 one that i0 BroJected .rom one room.N
5.S. v. 2enr-" 4$ (.3d 12$2 IDC Cir. 199%; /olice acted rea0ona<l- in
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00588
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conducting Brotective 0=eeB o. de.endant>0 aBartment a.ter hi0 arre0t Ju0t out0ide
aBartment>0 oBen door" =here Bolice in.ormant had Breviou0l- advi0ed o..icer0 that
de.endant =ould have =eaBon0 and that de.endant>0 H<o-0H might <e =ith him in
aBartment9 0=eeB did not violate de.endant>0 (ourth ,mendment right0.
M&he o..icer0> a=arene00 that 2enr- had a Breviou0 =eaBon0 conviction and could
<e dangerou0 did not it0el. directl- Ju0ti.- the 0=eeB. 3nce 2enr- =a0 in cu0tod-" he no
longer Bo0ed a threat to the Bolice. But the in.ormantP0 advice couBled =ith the arre0t Ju0t
out0ide the oBen door" =a0 0u..icient to lead a rea0ona<l- Brudent Boliceman to .ear that
he =a0 vulnera<le to attac?.
8hile it i0 true that the o..icer0 could not <e certain that a threat e)i0ted in0ide the
aBartment" thi0 doe0 not imBugn the rea0ona<lene00 o. their ta?ing Brotective action. 1t i0
enough that the- Hhave a rea0ona<le <a0i0 .or <elieving that their 0earch =ill reduce the
danger o. harm....H
1n 5.S. v. 4eOa'Corrale0" 0uBra" the Court held that 5.S. Drug En.orcement
agent0 had Ju0ti.ication to conduct their initial Brotective 0=eeB Ia 0earch =arrant had not
-et <een o<tained; o. de.endant>0 re0idence to en0ure that no Botentiall- dangerou0
Ber0on0 =ere hiding in0ide re0idence. ISee .act0 o. ca0e;
M4eOa'Corrale0>0 argument that Bridge0>0 0ounding o. the horn o. the BlaOer" the
di0cover- o. loaded handgun0" and the 0ighting o. .leeing BeoBle" all had a<0olutel- no
connection =ith =hat =a0 going on in0ide the re0idence and =ith the BeoBle =ho lived
there" 0imBl- <ecau0e the- all Bh-0icall- occurred out0ide the re0idence" i0 Batentl-
ridiculou0.N
1n 2a-e0 v. State" 1+* Nev. %43 I199+;" Bolice arre0ted 0u0Bect out0ide o. hi0
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00589
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re0idence. Su0Bect 0houted to in0ide o. hou0e Hthe coB0 are hereH and Bolice had 0ome
rea0on I.rom CC1; to <elieve the arre0tee had gun0 around. &he court 0aid the Brotective
0=eeB I=hich di0covered doBe in Blain vie=; =a0 unla=.ul 0ince in the court>0 oBinion
the Bolice could have =ithdra=n =ith the 0u0Bect =ho =a0 arre0ted .or a non'violent
.elon-. &he court did recogniOe and agree =ith the 4ar-land v. Buie conceBt" <ut held
that the .act0 in 2a-e0 =ere not 0u..icient to allo= 0uch a 0=eeB. &hi0 =a0 a 0Blit deci0ion
<- the Court.
1n 5.S. v. Burro=0" 4$ (.3d 11+1 I7th Cir. 199%; Bolice had an arre0t =arrant .or
Burro=0 =ho lived in a hou0ing BroJect having an e0ta<li0hed reButation .or violence.
&he arre0t =arrant =a0 .or a violent crime . 8hen Bolice arrived at hi0 aBartment" the-
0a= movement in an uB0tair0 =indo= and the occuBant0 re.u0ed to let the Bolice enter.
/olice entered =ith a Ba00 ?e- .rom the manager and .ound and arre0ted Burro=0 in one
room. &hen" <ecau0e there =ere other occuBant0 and the Breviou0l- 0tated circum0tance0"
the Bolice did a Brotective 0=eeB in le00 than % minute0" during =hich the- .ound a gun in
a clo0et. &he Court uBheld the Brotective 0=eeB under the0e .act0.
*1
3ther ca0e0 al0o uBheld Brotective 0=eeB0
5. S. v. !ichard0" 937 (.2d 12$7" 1291 I7th Cir.1991; Inoting that an Ham<u0h in
a con.ined 0etting o. un?no=n con.iguration i0 more to <e .eared than it i0 in oBen" more
.amiliar 0urrounding0H;.
5. S. v. Kame0" 4+ (.3d $%+ I7th Cir.1994; I.inding no 4th ,mendment violation
=here o..icer Auic?l- 0earched <edroom clo0et and Jac?et located therein. 3..icer0 had
encountered multiBle individual0 in the d=elling" arre0ted one 0u0Bect Ju0t out0ide the
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<edroom" and had .ound a 0emiautomatic ri.le in the <edroom.;
5. S. v. Bar?er" 27 (.3d 12$7 I7th Cir.1994; 2eld o..icer had rea0ona<le <elie.
that area 0=eBt har<ored dangerou0 individual0 <ecau0e a 0econd o..icer>0 Brior dealing0
=ith de.endant indicated that .irearm0 and multiBle individual0 could <e Bre0ent.
5. S. v. 4endoOa'Burciaga" 9$1 (.2d 192 I%th Cir.1992; noting that o..icer0"
=ho had arre0ted t=o narcotic0 cocon0Birator0 in high'0Beed cha0e and t=o more Ju0t
out0ide a hou0e" H=ould <e in great dangerH i. additional armed individual0 remained
in0ide the home" and .inding that o..icer0> =arrantle00 entr- and Brotective 0=eeB
con0tituted Hminimall- nece00ar- 0teB0 to 0ecure the hou0eH .or BurBo0e0 o. en0uring
0a.et- and 0a.eguarding evidence.
5. S. v. @immon0" 9*% (.2d 1++1I11th Cir.1992; 3?Pd 0=eeB in ca0e involving
<an? ro<<er- con0Birac- =here t=o BarticiBant0 =ere arre0ted a=a- .rom the Bremi0e0
and had ordered de.endant out o. hi0 hou0e and arre0ted him" <ut =ere un0ure o. the
=herea<out0 o. a .ourth cocon0Birator.
I1+; 82E!E 1S &2E 61NE BE&8EEN , MS&3/P ,ND ,N
M,!!ES&DN
1. 1n 2a-e0 v. (lorida" 47+ 5.S. $11 I19$%; the 5.S. SuBreme Court 0aid that
although there i0 no M<right line ruleN to an0=er thi0 Aue0tion" at 0ome Boint in the
inve0tigation Bolice Brocedure0 can <ecome 0o Aualitativel- and Auantitativel- intru0ive
regarding a 0u0BectP0 .reedom o. movement and Brivac- that an Marre0tN occur0. &he
Court 0aid thi0 occur0 =hen the Bolice" =ithout /CC or a =arrant" .orci<l- reAuire a
Ber0on to go to a Bolice 0tation =here he i0 detained even <rie.l- .or inve0tigation.
2. M&here i0 no <right line rule ... there.ore =hether an arre0t ha0 occurred
- 197 -
00591
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deBend0 on all the circum0tance0. /ointing a =eaBon" ordering him to lie on the ground"
handcu..ing and Blacing in a Bolice vehicle .or a <rie. Beriod o. time either 0ingl- or in
com<ination doe0 not al=a-0 convert a I&err-; 0toB into an arre0t reAuiring /CC ... Bolice
need not u0e the lea0t intru0ive mean0 o. re0Bonding to an e)igent 0ituation ... a0 long a0
their action0 are rea0ona<le.N ,llen v. Cit- o. 6o0 ,ngele0" ** (.3d 1+%2 I9th Cir. 199%;.
Same rationale in 5.S. v. &orre0' SancheO" $3 (.3d 1123 I9th Cir. 199*; and 5.S. v.
Blac?man" ** (.3d 1%72 I11th Cir. 199%;.
3. 1n 8a0hington v. 6am<ert" 9$ (.3d 11$1 I9th Cir. 199*; &=o <lac?
*2
<u0ine00men =ere 0een leaving a re0taurant <- a Bolice o..icer. &he o..icer thought the
t=o men matched the de0criBtion o. t=o armed ro<<er0 in multiBle ro<<erie0" although
the court noted that the actual 0iOe and =eight o. 8a0hington and 2ic?0 =ere 0everal
inche0 and %+ Bound0 di..erent .rom the 0u0Bect0. &he o..icer called .or a <ac?uB and
.ollo=ed the rental car to a hotel. , radio chec? 0aid the rental car =a0 not 0tolen. ,t the
garage in the hotel" the Bolice got out and one o. them Bointed a gun at the t=o men"
ordered them to But their hand0 uB and handcu..ed them" then 0earched their Ber0on0 and
the car. No =eaBon0 or contra<and =a0 .ound. &he t=o men 0ued the Bolice under 42
5.S.C. 19$3.
. &he Court held that Min determining =hether the u0e o. intru0ive techniAue0 turn0
a 0toB into an arre0t" =e e)amine the rea0ona<lene00 o. the Bolice conduct in light o. a
num<er o. .actor0" 0uch a0 1; =here the 0u0Bect i0 uncooBerative or ta?e0 action that
rai0e0 a rea0ona<le Bo00i<ilit- o. danger or .light" 2; =here the Bolice have in.ormation
that the 0u0Bect i0 currentl- armed" 3; =here the 0toB clo0el- .ollo=0 a violent crime and"
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4; =here the Bolice have in.ormation that a crime that ma- involve violence i0 a<out to
occur. Some com<ination o. the0e .actor0 ma- al0o Ju0ti.- the u0e o. aggre00ive Bolice
action =ithout cau0ing an inve0tigator- 0toB to turn into an arre0t.
1n the Bre0ent ca0e the Bolice action con0tituted an arre0t =ith no
Bro<a<le cau0e" Ial0o argua<l- no !CS to Ju0ti.- a &err- 0toB either; there<- ma?ing
the o..icer0 and Bolice deBartment lia<le .or damage0. 42 5.S.C. 19$3.
*3
(. ,!!ES&: &2E 21:2ES& 6E#E6 3( C3N&,C&
1t i0 imBortant to di0tingui0h arre0t .rom &err-'t-Be detention. I,rre0t i0 onl-
legal i. made on Bro<a<le cau0e;.
1. S&,&5&3!7 DE(1N1&13N
N!S 171.124 0a-0 -ou can arre0t .or .elon- or gro00 mi0demeanor =ith or
=ithout a =arrant" da- or night" i. Hrea0ona<le cau0eH to <elieve 0u<Ject ha0 committed a
.elon- or gro00 mi0demeanor.
2. &2E 5.S. S5/!E4E C35!& C,SE 6,8
&he 5.S. SuBreme Court 0a-0: HBro<a<le cau0eH i0 a term dealing =ith ever-da-
Bro<a<ilitie0" not legal technicalitie0. DraBer v. 5nited State0" 3%$ 5.S. 3+7I19%9;"
H=hether a man o. rea0ona<le caution =ould <elieve an o..en0e =a0 <eing or had <een
committedH '' not a Aue0tion o. the Hgood .aithH o. the o..icer <ut a need to articulate
.act0 cau0ing rea0ona<le <elie..
&he Ho<Jective te0tH i0 u0ed to determine =hether and =hen an arre0t occur0. ,
court ma- con0ider that there =a0 an arre0t even though the 0u0Bect =a0 not told H-ou are
under arre0tH. (actor0 0uch a0 0ho= o. authorit-" involuntar- re0traint or movement and
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Ba00age o. time are imBortant.
Duna=a- v. Ne= 7or?" 442 5.S. 2++ I1979;" Bolice lac?ed Bro<a<le cau0e to
arre0t '' =ent to 0u0Bect>0 neigh<orP0 home and a0?ed him in a comBul0ive =a- to go to
Bolice 0tation =here he =a0 Blaced in interrogation room '' =a0n>t told he =a0 .ree to go '
' the triB .rom the re0idence to the Bolice 0tation =a0 0everal mile0 and too? 1 hour ''
2eld '' although he =a0n>t told he =a0 under arre0t and =a0n>t <oo?ed '' thi0 =a0 0ame a0
an Harre0tH" <ecau0e the Bolice told him he needed to go to the Bolice 0tation" he
acAuie0ced" and the triB too? an hour and =ent man- mile0 .rom hi0 re0idence. 2i0
0u<0eAuent con.e00ion to a crime =a0 0uBBre00ed a0 a H.ruitH o. the Harre0tH =ithout
Bro<a<le cau0e.
(lorida v. !o-er" 4*+ 5.S. 491 I19$3;" Bolice 0u0Bected de.endant a0 drug
courier" aBBroached and a0?ed to 0Bea? to him and reAue0ted to 0ee hi0 tic?et and driver>0
licen0e''noted that name0 didn>t match '' a0?ed him to go to near<- room =hile retaining
hi0 tic?et and licen0e. 2eld '' thi0 con0tituted a H0eiOureH. 1% minute0 a.ter initial 0toB he
con0ented to 0earch o. 0uitca0e. Court ruled that thi0 Bolice conduct e..ectivel-
con0tituted an Harre0tH and reAuired Bro<a<le cau0e. Since there =a0 no /CC" Ialthough
there =a0 !CS; the illegal Harre0t tainted the con0ent.
3. NE#,D, C,SES
/ro<a<le cau0e to ma?e a =arrantle00 arre0t e)i0t0 i. the .act0 and
circum0tance0 ?no=n to the o..icer0 at the moment o. the arre0t =ould =arrant a Brudent
*4
man in <elieving that a .elon- had <een committed <- the Ber0on arre0ted. &homa0 v.
Sheri.." $% Nev. %%1 I19*9;.
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&he HBro<a<le cau0eH te0t i0 <a0ed on the totalit- o. the circum0tance0
?no=n to the o..icer. 4inor v. State" 91 Nev. 4%* I197%;.
4. S&,ND,!D (3! /!3B,B6E C,5SE
Ba0icall-" the 0ame 0tandard IAuantit- o. Broo.; i0 needed .or arre0t0 a0 .or
0earche0" 0o the 1llinoi0 v. :ate0" 4*2 5.S. 213 I19$3;" totalit- o. the circum0tance0 te0t
aBBlie0 ' i.e.: a .air Bro<a<ilit-" <ut not nece00aril- a certaint-.
1n 5.S. v. 3rnela0" 11* S. Ct. 1*%7 I199*; &he Court ruled: ,rticulating
Breci0el- =hat Hrea0ona<le 0u0BicionH and HBro<a<le cau0eH mean i0 not Bo00i<le. &he-
are common 0en0e" nontechnical conceBtion0 that deal =ith H >the .actual and Bractical
con0ideration0 o. ever-da- li.e on =hich rea0ona<le and Brudent men" not legal
technician0" act.> H ,0 0uch" the 0tandard0 are Hnot readil-" or even u0e.ull-" reduced to a
neat 0et o. legal rule0.H. 8e have de0cri<ed rea0ona<le 0u0Bicion 0imBl- a0 Ha
BarticulariOed and o<Jective <a0i0H .or 0u0Becting the Ber0on 0toBBed o. criminal activit-"
and Bro<a<le cau0e to 0earch a0 e)i0ting =here the ?no=n .act0 and circum0tance0 are
0u..icient to =arrant a man o. rea0ona<le Brudence in the <elie. that contra<and or
evidence o. a crime =ill <e .ound. 8e have cautioned that the0e t=o legal BrinciBle0 are
not H.inel-'tuned 0tandard0"H comBara<le to the 0tandard0 o. Broo. <e-ond a rea0ona<le
dou<t or o. Broo. <- a BreBonderance o. the evidence.
1n 5.S. v. Covarru<ia0" *% (.3d 13*2 I7th Cir.199%; the Court held that M/olice
have /CC to arre0t i. at the moment o. the arre0t the .act0 and circum0tance0 =ithin their
?no=ledge o. =hich the- had rea0ona<l- tru0t=orth- in.ormation =ere 0u..icient to
=arrant a Brudent Ber0on in <elieving that the 0u0Bect had committed an o..en0e. 8hile
/CC reAuire0 more than mere 0u0Bicion" =e do not reAuire it to reach the level o. virtual
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certaint-.N
1n Brinegar v. 5.S." 33$ 5.S. 1*+ I1949; the Court held" M/CC reAuire0 le00 than
Ithe amount o.; evidence that =ould Ju0ti.- a conviction <ut more than mere 0u0Bicion.N
and in SBinelli v. 5.S." 393 5.S. 41+ I19*9; the Court held that Monl- the Bro<a<ilit- and
not a Brima .acie 0ho=ing o. criminal activit- i0 the 0tandard o. /CC.N ,l0o" in :er0tein
v. /ugh" 42+ 5.S. 1+3 I197%;" in ruling on a magi0trateP0 determination o. /CC a.ter a
=arrantle00 arre0t" the Court held that Ma /CC determination doe0 not reAuire the .ine
re0olution o. con.licting evidence that a rea0ona<le dou<t or BreBonderance Imore than
%+Y Bro<a<ilit-; demand0.N
1n :reene v. !eeve0" $3+ (.3d 11+1 I*th Cir. 199*; Bolice arre0ted the Barent0 .or
Bromoting 0e)ual Ber.ormance0 <- a minor <a0ed on their 0ending o. a Bo0tcard =ith a
BhotograBh o. the genital area o. their unclothed minor daughter. &he Court uBheld the
arre0t 0tating that" M the /CC 0tandard doe0 not mean that the I evidence o. the 0u0Bected
criminal act; i0 more li?el- than not.N
*%
1n 5.S. v. 4athna-" $9% (.2d 141$ I9th Cir. 199+; H&he te0t .or Bro<a<le cau0e i0
=hether the .act0 and circum0tance0 =ithin the arre0ting o..icer>0 ?no=ledge are
0u..icient to =arrant a Brudent Ber0on to <elieve a 0u0Bect ha0 committed" i0 committing"
or i0 a<out to commit a crime.H , court ma- con0ider <oth the e)Berience and collective
?no=ledge o. all o..icer0 involved in the inve0tigation and their re0Bective level0 o.
e)Berti0e.. , court ma- al0o con0ider an- rea0ona<le in.erence0 dra=n .rom the o..icer0>
collective ?no=ledge.
1n 5.S. v. 3camBo" 937 (.2d 4$% I9th Cir. 1991; the Court held that M/CC
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evaluation deBend0 on the totalit- o. the .act0 Io. the ca0e; even though there i0 an
innocent e)Blanation .or each .act.N
Note: 1n &err- v. 3hio" 392 5.S. 1 I19*$; the Bolice detective =ith more than 2+
-ear0 e)Berience 0a= &err- and hi0 Bartner0 =al? .rom a 0treet corner to loo? in the .ront
=indo= o. a Je=elr- 0tore =ithout entering to 0hoB a<out a doOen time0 in t=elve
minute0. Even though thi0 action =a0 I0uBer.iciall-; innocent" the SuBreme Court agreed
that under all the circum0tance0 there =a0 !CS that the- =ere ca0ing the 0tore .or an
armed ro<<er-.
,lthough &err- involved !CS" 3camBo and numerou0 other ca0e0 hold that
Mo<viou0 criminalN <ehavior IBointing a gun at a victim;i0 not reAuired .or /CC.
%. S35!CES 3( /!3B,B6E C,5SE
!elia<le Con.idential 1n.ormant
See the 0ection in thi0 manual on 0earch =arrant0 to learn .actor0 that ma?e an in.ormant relia<le.
4cCra- v. 1llinoi0" 3$* 5.S. 3++ I19*7;. , 0trong Broven relia<le in.ormant =ith
.ir0t'hand in.ormation i0 enough .or Bro<a<le cau0e. H&he Court ha0 never reAuired a rule
o. comBul0or- di0clo0ure o. an in.ormant =here the i00ue i0 the Breliminar- one o.
Bro<a<le cau0e" and guilt or innocence i0 not at 0ta?eH Even an in.ormant o. le00er
relia<ilit- can <e enough i. the in.ormant Bredict0 .uture action0 and detail0. DraBer v.
5nited State0" 3%$ 5.S. 3+7 I19%9;.
1n 5. S. v. (i)en" 7$+ (.2d 1434"I 9th Cir." 19$*;" the Court held the arre0t =a0
la=.ul and <a0ed on /CC. H&he in.ormer" enli0ted <- the Bolice" met =ith the de.endant to
arrange deliver- o. 0ome cocaine9 he then told Bolice that the 0ource o. 0uBBl- =a0 a
6atin male .rom 6o0 ,ngele0. &he de.endant =a0 0urveilled traveling to 6o0 ,ngele0
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00597
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=here" in a 0erie0 o. move0 aBBarentl- de0igned to di0courage detection" he aBBeared to
o<tain a <ro=n BaBer <ag .rom a 6atin male. 5Bon hi0 arre0t" cocaine =a0 .ound in the
<ag.H ,lthough veri.ication o. .act0 .rom the in.ormer>0 0tor- =a0 largel- o.HinnocentH
<ehavior" credi<ilit- =a0 enhanced <- the accurac- and detail o. the in.ormation given.
:enerall-" BoliceCD, are not reAuired to di0clo0e in.ormantP0 identit-
De.endant0 al=a-0 =ant to ?no= the identit- o. an in.ormant .or o<viou0 rea0on0
**
0uch a0 threat0 to ma?e the in.ormant change hi0 0tor- or to lie a<out in.ormation given to
Bolice" and 0ometime0 more dra0tic mean0. &he .ollo=ing ca0e0 e)Blain the vie= o.
.ederal court0 on the i00ue o. in.ormant di0clo0ure.
1n 5.S. v. (i)en I0uBra; &he trial court re.u0ed identi.-ing the CC1 and the 9th
Circuit uBheld that ruling. H, BroBer <alance deBend0 on the Barticular circum0tance0 o.
each ca0e" con0ideration o. crime charged" Bo00i<le de.en0e0" Bo00i<le 0igni.icance o. the
in.ormer>0 te0timon-" and other relevant .actor0.H
,lthough the in.ormer>0 Brivilege mu0t give =a- =here the di0clo0ure o. the
in.ormant>0 identit- Hi0 relevant and helB.ul to the de.en0e o. an accu0ed" or i0 e00ential to
a .air determination o. a cau0e"H the <urden i0 on the de.endant to demon0trate the need
.or the di0clo0ure.
, trial court need not reAuire di0clo0ing the identit- o. a relia<le in.ormant =here
the 0ole ground .or 0ee?ing that in.ormation i0 to e0ta<li0h the e)i0tence o. Bro<a<le
cau0e .or arre0t. (i)en>0 reAue0t .or di0clo0ure e)Bre00e0 hi0 concern there ma- not have
<een an in.ormant or that Bolice lied a0 to the in.ormation related to them. ,n in camera
hearing I=ithout Bre0ence o. de.endant or hi0 la=-er; could have 0erved to alla- the0e
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00598
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.ear0:
&hrough di0clo0ure o. the in.ormer>0 identit- to the trial Judge" and 0uch
0u<0eAuent inAuirie0 <- the Judge a0 ma- <e nece00ar-" the :overnment can <e Brotected
.rom an- 0igni.icant" unnece00ar- imBairment o. 0ecrec-" -et the de.endant can <e 0aved
.rom =hat could <e 0eriou0 Bolice mi0conduct.
Nonethele00" a di0trict court need not conduct an in camera hearing =henever the
identit- o. an in.ormant i0 reAue0ted.
1n 5.S. v. :ordon" 173 (.3d 7*1 I1+th Cir. 1999; the court held that a de.endant
0ee?ing to .orce di0clo0ure o. an in.ormant>0 identit- ha0 the <urden to 0ho= the
in.ormant>0 te0timon- i0 relevant or e00ential to the .air determination o. de.endant>0 ca0e.
H8here it i0 clear that the in.ormant cannot aid the de.en0e" the government>0 intere0t in
?eeBing 0ecret the in.ormant>0 identit- mu0t Brevail over the de.endant>0 a00erted right o.
di0clo0ure.H
&he in.ormant>0 role in :ordon>0 arre0t =a0 e)tremel- limited. 2e did not detain
:ordon" and did not BarticiBate in or =itne00 :ordon>0 detention or the tran0action in
=hich :ordon BurBortedl- agreed to tran0Bort cocaine in e)change .or mone-. 8e have
re.u0ed di0clo0ure in 0imilar ca0e0 =here the in.ormant ha0 limited in.ormation" =a0 not
Bre0ent during commi00ion o. the o..en0e" and cannot Brovide an- evidence that i0 not
cumulative or e)culBator-.
1n 5.S. v. 2ic?man" 1%1 (.3d 44* I%th Cir. 199$; I!ever0ed on other ground0 in
179 (.3d 23+ I%th Cir. 199$;" the court held that it =a0 not nece00ar- to di0clo0e the
identit- o. an in.ormant.N&hi0 circuit ha0 cra.ted a three'Bart te0t to determine =hether
di0clo0ure o. a ICC1P0; identit- i0 nece00ar-. 8e e)amine: 1; the in.ormant>0 degree o.
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involvement in the crime9 2; the helB.ulne00 o. the di0clo0ure to the de.en0e9 and 3; the
:overnment>0 intere0t in non di0clo0ure. ,0 to the .ir0t Brong" =e have held that mere
HtiB0ter0H are not 0o clo0el- related to a crime a0 to reAuire the di0clo0ure o. their identit-.
*7
1n 5.S. v. 4angum" 1++ (.3d 1*4 IDC Cir. 199*; 4angum argued that he
needed to intervie= the ICC1; in order to determine =hether the CC1 might have Blanted
the gun in the ?naB0ac? in order to helB 0ecure an arre0t and curr- .avor =ith the
government. 2e never cited an- 0Beci.ic .act0 0uBBorting hi0 motion to di0clo0e the
identit- o. the in.ormant" <ut merel- =anted to intervie= the ICC1; <ecau0e the ICC1;
might Bo00e00 in.ormation that could e)culBate him.
&he court .ound that the de.endant =a0 not entitled to ?no= the ICC1P0; identit-
H<ecau0e there i0 no evidence in the record 0uBBorting the De.endant>0 0Beculation that
the ICC1; activel- BarticiBated in the o..en0e.H 2e .ailed to meet hi0 <urden <- H0ho=ing
that the in.ormant>0 te0timon- i0 nece00ar- to hi0 de.en0e 0o a0 to Ju0ti.- Blacing the
in.ormant>0 0a.et- in JeoBard-.H
M4ere 0Beculation that the ICC1; ma- Bo00i<l- <e o. 0ome a00i0tance i0 in0u..icient
to meet thi0 <urden. &o overcome the Bu<lic intere0t in Brotection o. the ICC1;"H the
de.endant mu0t 0ho= that the ICC1; =a0 Han actual BarticiBant in or a =itne00 to the
o..en0e charged"H and identit- i0 Hnece00ar- to the de.en0e.H
5.S. v. (ield0" 113 (.3d 313 I2d Cir. 1997; :overnment i0 not generall- reAuired
to di0clo0e the identit- o. ICC1P0;. 1t0 intere0t in Brotecting anon-mit- o. ICC1P0; =ho
.urni0h in.ormation regarding violation0 o. la= i0 0trong'' =ithholding a ICC1P0; identit-
imBrove0 the chance0 that the Ber0on =ill continue Broviding in.ormation and encourage0
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Botential ICC1P0; to aid the government.
&he de.endant <ear0 the <urden o. 0ho=ing the need .or di0clo0ure o. a ICC1P0;
identit-" and mu0t e0ta<li0h that" a<0ent 0uch di0clo0ure" he =ill <e deBrived o. hi0 right to
a .air trial.
Even i." a0 the de.endant0 claim" the in.ormant>0 in.ormation =a0 uncorro<orated
and con0tituted the <ul? o. the Bro<a<le cau0e uBon =hich the Bolice relied" the di0trict
court>0 in camera intervie= o. the ICC1;" conducted =ith a vie= to matter0 de.en0e coun0el
identi.ied in =riting a0 Botentiall- relevant" adeAuatel- Brotected de.endant0> right0. ,n in
camera intervie= o. a ICC1;that .ind0 no I0u<0tantial; incon0i0tenc- =ith Bolice te0timon-
can mitigate an- concern that the ICC1P0; te0timon- =ould in .act <e u0e.ul to the de.en0e
5.S. v. @ime" 99 (.3d $7+ I$th Cir. 199*;. @ime argue0 that the di0clo0ure o.
C1P0 identit- =a0 nece00ar- to te0t the veracit- o. hi0 or her in.ormation and the Auantum
o. Bro<a<le cau0e <ehind the a..idavit o..ered in 0uBBort o. the aBBlication .or the
interceBtion o. =ire and oral communication0. But @ime o..er0 no <a0i0 other than <ald
0Beculation .or hi0 a00ertion that 0uch a di0clo0ure and an oBBortunit- to intervie= C1'1
=ould allo= him to imBeach C1'1>0 a..idavit te0timon-. &he movant>0 <urden HreAuire0
more than mere 0Beculation that the te0timon- o. the in.ormant might Brove to <e helB.ul
to the de.en0e.H
1n.ormation .rom #ictim or 8itne00
:ate0" held that citiOen'in.ormant i0 Bre0umed relia<le unli?e a criminal C1
1n Ea0ton v. Cit- o. Boulder Colorado" 77* (.2d 1441I1+th Cir. 19$%;
&he Court held that M=hen e)amining in.ormant evidence u0ed to 0uBBort claim o.
*$
- 207 -
00601
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Bro<a<le cau0e .or =arrant .or arre0t" or =arrantle00 arre0t" 0?eBtici0m and care.ul
0crutin- u0uall- .ound in ca0e0 involving in.ormant0" 0ometime0 anon-mou0" .rom
criminal milieu" i0 aBBroBriatel- rela)ed i. in.ormant i0 identi.ied victim or ordinar-
citiOen =itne00.
Becau0e citiOen =itne00e0 are Bre0umBtivel- relia<le" the o..icer0 in thi0 0ituation
had no dut- to e)amine .urther the <a0i0 o. the =itne00> ?no=ledge or tal? =ith another
=itne00e0. &he BroBo0ition that Brivate citiOen =itne00e0 or crime victim0 are Bre0umed
relia<le doe0 not Hdi0Ben0e =ith the reAuirement that the in.ormant ... .urni0h underl-ing
.act0 0u..icientl- detailed to cau0e a rea0ona<le Ber0on to <elieve a crime had <een
committed and the named 0u0Bect =a0 the BerBetrator.H IKu0t a0 Bolice need to 0tate .act0
learned <- them to Ju0ti.- !CS or /CC;
5.S. v. Butler" 74 (.3d 91* I9th Cir.199*; Court held M-ou loo? at the totalit- o.
the circum0tance0 to determine /CC. M/CC can <e <a0ed on hear0a- ... or on in.ormation
rela-ed through o..icial Bolice channel0 ... and through the collective ?no=ledge o. Bolice
o..icer0 involved in an inve0tigation even i. 0ome o. thi0 in.ormation =a0 not ?no=n <-
the arre0ting o..icer Iand; i. an unAue0tiona<l- hone0t citiOen come0 .or=ard =ith a
reBort o. criminal activit- =hich i. .a<ricated =ould 0u<Ject him to criminal lia<ilit- =e
have .ound rigorou0 0crutin- o. the <a0i0 o. ?no=ledge unnece00ar-.N
&ang=all v. Stuc?e-" 13% (.3d %1+ I7th Cir. 199$; Court held that H8hen an
o..icer received hi0 in.ormation .rom 0ome Ber0on''normall- the Butative victim or e-e
=itne00''=ho it 0eem0 rea0ona<le to <elieve i0 telling the truth"> he ha0I/CC;.H No deeB0eated
logic or rationale underlie0 thi0 BrinciBle. I/CC; i0 a common 0en0e determination"
mea0ured under a rea0ona<lene00 0tandard.
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00602
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Sharrar v. (el0ing" 12$ (.3d $1+ I3rd Cir. 1997; Court held that MEven i. the
o..icer heard the victimP0 claim that another Ber0on attac?ed her it =a0 rea0ona<le .or the
o..icer to a00e00 her demeanor" .ind her 0tor- credi<le" and rel- on her 0u<0eAuent
identi.ication o. her hu0<and a0 the attac?er. 8hen an o..icer ha0 received a relia<le 1D
<- a victim o. hi0 or her attac?er" the Bolice have /CC to arre0t. Same ruling 6ee v.
Sand<erg" 13* (.3d 94 I2d Cir. 1997;.
3..icial Channel0
8hitle- v. 8arden" 4+1 5.S. %*+ I1971; I(ello= o..icer rule;. ,n o..icer =ho
doe0 not Ber0onall- Bo00e00 0u..icient in.ormation to con0titute Bro<a<le cau0e ma-
neverthele00 ma?e a valid arre0t i. he act0 uBon the direction or a0 a re0ult o. a
communication .rom a .ello= o..icer and the Bolice" a0 a =hole" Bo00e00 0u..icient
in.ormation to con0titute Bro<a<le cau0e. /eoBle v. (reeman" **$ /.2d 1371 IColo.
19$3;.
1n Doleman v. State" 1+7 Nev. 4+9 I1991;" Bolice arre0ted a murder 0u0Bect <a0ed
on in.ormation .rom an in.ormant and citiOen =itne00 I.act0 are 0ome=hat comBlicated;.
Even though the arre0ting o..icer ma- not have <een a=are o. each and ever- .act
included in the Bro<a<le cau0e" collectivel- he and the other o..icer0 involved in the
inve0tigation did Bo00e00 Bro<a<le cau0e and thi0 made the arre0t valid. &hi0 deci0ion
*9
e)tend0 the H.ello= o..icerH rule to it0 .ulle0t.
/er0onal 3<0ervation0 <- Bolice
&hi0 i0 the mo0t common ingredient o. Bro<a<le cau0e ' =hat -ou 0ee" hear" 0mell"
.eel or ta0te ma- give Bro<a<le cau0e <- it0el. or a0 corro<oration o. in.ormation received
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00603
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.rom in.ormant.
Di0creBanc- <et=een in.ormation received and 0u0Bect con.ronted
&hi0 doe0 not automaticall- mean that there i0 no Bro<a<le cau0e. Some
di0creBancie0 normal due to human nature. Bro=n v. 5. S." 3*% (.2d 97* ID.C. Cir.
19**;" =here Bolice had de0criBtion o. ro<<er a0 <lac? male" driving maroon 19%4 (ord
and a<out a mile a=a-" minute0 later" Bolice 0a= car =hich =a0 19%2 maroon (ord and
had occuBant =ith di..erent clothing and height =a0 *H o.. '' 2eld: Bro<a<le cau0e
e)i0ted" de0Bite the di0creBanc- to 0toB the car and arre0t occuBant.
5.S. v. &ilmon" 19 (.3d 1221 I7th Cir.1994; /olice had /CC to arre0t &ilmon .or
<an? ro<<er- once he 0teBBed out o. car and o..icer0 could comBare him =ith de0criBtion
o. ro<<er" due to .act that Bolice alread- identi.ied hi0 di0tinctivel- mar?ed car9 although
de.endant =ore di..erent clothe0 .rom tho0e de0cri<ed <- ro<<er- e-e=itne00e0" and t=o
hour0 had Ba00ed 0ince ro<<er-.
6allemand v. 5. !. 1. " 9 (.3d 214 I10t Cir. 1993; ,..idavit =hich 0et .orth
victim>0 ver0ion o. raBe and .ollo=ed it =ith de0criBtion o. victim 0electing arre0tee>0
BhotograBh .rom Bicture arra- and Bo0itivel- identi.-ing him a0 the man =ho raBed her
Brovided Bro<a<le cau0e .or arre0t" even though there =ere di0creBancie0 <et=een
arre0tee>0 aBBearance and de0criBtion o. the BerBetrator.
5.S. v. #aleO" 79* (.2d 24 I2nd Cir. 19$*; 3<0erving o..icer>0 de0criBtion o.
cocaine 0eller =a0 adeAuatel- detailed" de0Bite hi0 0ilence on matter o. 0eller>0 .acial hair"
and de.endant" =ho =a0 in immediate area o. drug tran0action" 0u..icientl- .it de0criBtion
to give another o..icer Bro<a<le cau0e to arre0t de.endant =ithin 0hort 0Bace o. time
.ollo=ing tran0action.
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*. N3 NEED &3 M/!ESE!#EN /!3B,B6E C,5SE
(reAuentl- an o..icer 0toB0 Ior arre0t0; a Ber0on .or a 0mall o..en0e and then
continue0 the inve0tigation and .ind0 /CC .or a maJor crime. 1n 0uch ca0e0" the o..icer
o.ten doe0nPt MchargeN the Ber0on =ith the initial" 0ometime0 Bett-" o..en0e. 1n the Ba0t
0ome Judge0 have ruled that thi0 ma?e0 the entire arre0t <ad <ecau0e the o..icer didnPt
MBre0erve the Bro<a<le cau0e.N &hi0 i0 not the la=. 1n Scott v. State" 11+ Nev. *22
I1994; the de.endant =a0 in a car 0toBBed .or an imBroBerl- a..i)ed licen0e Blate. ,.ter
the 0toB it =a0 determined that Scott =a0 an e)'.elon and had a gun. 2e =a0 arre0ted .or
that" <ut no citation =a0 i00ued. &he Nevada SuBreme Court 0aid thi0 made no di..erence
in the validit- o. the 0toB. 1n 5.S. v. 8ood-" %% (.3d 12%7 I7th Cir. 199%; the court 0aid"
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M,n arre0t ma- <e Ber.ectl- rea0ona<le even i. the Bolice o..icer ultimatel- doe0 not
charge the 0u0Bect =ith the o..en0e giving ri0e to the o..icerP0 Bro<a<le cau0e
determination.
7. 82EN 8,!!,N& NEEDED 1N ,!!ES& S1&5,&13N
&he SuBreme Court 0aid in 5. S. v. 8at0on" 423 5.S. 411 I197*;" that -ou don>t
need an arre0t =arrant .or a la=.ul arre0t in a Bu<lic Blace ''Bro<a<le cau0e i0 enough"
even i. -ou had time to get an arre0t =arrant. Same ruling in (lorida v. 8hite" %2* 5.S.
%%9 I1999;" 5.S. v. 6evine" $+ (.3d 129 I199*;" 5.S. v. Sno=" $2 (.3d 93% I1+th
Cir.199*;" and numerou0 other ca0e0.
M&he SuBreme Court ha0 re.u0ed to attach 0igni.icance to the .act that the Bolice
had amBle time to get an arre0t =arrant <ut declined to do 0o. (or an arre0t in a Bu<lic
Blace ... the onl- reAuirement i0 Bro<a<le cau0e.N 5.S. v. De4a0i" 4+ (.3d 13+* I10t
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Cir.1994;.
&here are t=o 0ituation0 =here a =arrant mu0t <e o<tained in arre0t 0ituation0
Iunle00 Bolice can Brove an emergenc- or con0ent e)ceBtion e)i0t0; <oth involving entr-
into Bremi0e0 to arre0t. &he0e are the H/,7&3N !56EH and the HS&E,:,6D
!56E.H
Ia; D1SC5SS13N 3N /,7&3N !56E
/a-ton v. Ne= 7or?" 44% 5.S. %73 I19$+;" the court held that Bolice cannot ma?e
a =arrantle00 non'con0en0ual entr- into a 0u0Bect>0 home to ma?e an arre0t unle00 e)igent
circum0tance0 e)i0t.
1n /a-ton" Bolice develoBed BCc to arre0t 0u0Bect .or murder occurring t=o da-0
earlier. /olice =ent to 0u0Bect>0 home =here light0 =ere on and mu0ic Bla-ing. 8hen
no<od- an0=ered ?noc? or door" Bolice made entr-. /a-ton =a0n>t home <ut 0hell ca0ing
to murder =eaBon =a0 in Blain vie= and =a0 0eiOed.
&he 5.S. SuBreme Court ordered thi0 evidence 0uBBre00ed 0tating that the Brivac-
intere0t in a home =a0 ver- high and Bolice needed either an arre0t =arrant .or /a-ton Ior
a 0earch =arrant .or hi0 home; to enter hi0 home.
,lthough the 5.S. SuBreme Court ha0 not decided all Bo00i<le 0u<'i00ue0 that
ari0e a.ter /a-ton ' the .ollo=ing rule0 have <een aBBlied <- high ran?ing State and
(ederal court0.
I1; 1. Bolice are other=i0e la=.ull- in a Ber0on>0 home" .or e)amBle" =ith a 0earch
=arrant" and Bro<a<le cau0e to arre0t aBBear0 it i0 3@ to arre0t =ithout arre0t =arrant.
4ahl<erg v. 4entOer" 9*$ (.2d 772 I$th Cir. 1992;" Kone0 v. Cit- o. Denver" $%4 (.2d
12+* I1+th Cir. 19$$;.
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00606
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I2; 1n /eoBle v. 8hite" %12 N.E.2d *77 I1ll. 19$7;"the court held that =hether a
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Blace i0 HhomeH deBend0 on thing0 li?e length o. 0ta-" regular u0e" relation0hiB to other
occuBant0" 0toring Bo00e00ion0 there and Ba-ment o. rent.
I3; &he /a-ton rule can <e violated even i. Bolice don>t Bh-0icall- enter the
home" 0o held in 8alter0 v. State" 1+* Nev. 4% I199+;. 8alter0 <ecame a 0u0Bect in a
murder ca0e. &he ne)t morning" =ithout o<taining a =arrant" Bolice u0ed a helicoBter
and <ullhorn and ordered him out o. hi0 home. 2e comBlied" =a0 arre0ted" and =a0 given
4iranda =arning0 and gave an incriminating 0tatement during the 1++ mile drive to the
Bolice 0tation. &he Court held the 0tatement 0hould <e 0uBBre00ed 0ince 8alter0 =a0
technicall- arre0ted in hi0 home I<- 0urrounding it =ith Bolice and ordering him out;
=ithout a =arrant and the con.e00ion =a0 the H.ruitH o. an illegal =arrantle00 arre0t.
INote: &hi0 =a0 overruled a.ter the 5.S. SuBreme Court deci0ion in Ne= 7or? v. 2arri0"
11+ S.Ct. 1*4+ I199+; holding that even a.ter /a-ton violation Bolice giving 4iranda
a=a- .rom re0idence or at Bolice 0tation 3@P0 interrogation;.
3ther court0 have ruled the 0ame in H0urroundH orH<ullhornH ca0e0. 5. S. v.
,OOa=-" 7$4 (.2d $9+ I9th Cir. 19$%;" 5. S. v. 4aeO" $72 (.2d 1444 I1+th Cir. 19$9;" 5.
S. v. 4organ" 744 (.2d 121% I*th Cir. 19$4;.
I4; &he /a-ton rule aBBlie0 to the 0u0Bect>0 Blace o. <u0ine00 a0 =ell a0 hi0 home.
I%; 4o0t court0 hold in addition to the =arrant reAuirement Bolice al0o need
Mrea0ona<le <elie.N Inot Bro<a<le cau0e; to <elieve a Barticular Bremi0e0 i0 that o. the
0u0Bect and that the 0u0Bect i0 HhomeH at the time o. Bolice entr-. 5.S. v. !i00e" $3 (.2d
212 I$th Cir. 199*;Ho..icer0 e)ecuting an arre0t =arrant mu0t have a >rea0ona<le <elie. that
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the 0u0Bect re0ide0 at the Blace to <e entered ... and have rea0on to <elieve that the 0u0Bect
i0 Bre0ent> at the time the =arrant i0 e)ecuted. &he 0u0BectP0 home mean0 he ha0 common
authorit- or 0ome other 0igni.icant relation0hiB to the Bremi0e0 even i. the Bremi0e0 i0
o=ned <- a 3rd Ber0onH M!ea0ona<le <elie.N ruling .ollo=ed in 5.S. v. 6auter" %7 (.3d
212 I2d Cir.199%; 5.S. v. 4agluta" 44 (.3d 1%3+I11th Cir.199%;5.S. v. !oute" 1+4 (.3d
%9I%th Cir.199*;.
1n #aldeO v. /heter0" 172 (.3d 122+ I1+th Cir. 1999; Court held that the BroBer
inAuir- i0 =hether there i0 a rea0ona<le <elie. that the 0u0Bect re0ide0 at the Blace to <e
entered ... and =hether the o..icer0 have rea0on to <elieve that the 0u0Bect i0 Bre0ent. 1n
5.S. v. Edmond0" %2 (.3d 123* I3d Cir.199%; although Hthe in.ormation availa<le to the
agent0 clearl- did not e)clude the Bo00i<ilit- that the 0u0Bect =a0 not in the aBartment"
the agent0 had rea0ona<le ground0 .or concluding that he =a0 there.
1n 5nited State0 v. ,l<re?t0en" 1%1 (.3d 9%1 I9th Cir.199$; the court recentl-
cited =ith aBBroval <oth !oute and !i00e .or the BroBo0ition that o..icer0 e)ecuting an
arre0t =arrant mu0t have H0ome rea0on to <elieve that the de.endant might live at and <e
Bre0ent =ithin the Bremi0e0H entered" ma?ing no mention o. an- higher 0tandard o.
?no=ledge.
I*; No need to have =arrant in hand. 8henever Bo00i<le o..icer0 0hould have a
coB- o. the arre0t =arrant" <ut a0 long a0 a .ello= o..icer con.irm0 that the =ritten 0igned
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=arrant i0 in e)i0tence thi0 i0 0u..icient. 5.S. v. 4unoO" 1%+ (.3d 4+1 I%th Cir. 199$;.
I7; 4i0demeanor =arrant0. 8henever Bo00i<le o..icer0 0hould not ma?e a .orced
home entr- to 0erve a mi0demeanor arre0t =arrant. 2o=ever" N!S 171.13$ aBBear0 to
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contemBlate a hou0e entr- to ma?e arre0t on a mi0demeanor =arrant. See al0o" Kone0 v.
State" %13 So. 2d $ I,la. 19$*;" 6-on0 v. State" 7$7 /.2d 4*+ I3?la. 19$9;. &he Nevada
SuBreme Court imBlied in 2atle- v. State" 1++ Nev. 214 I19$4;" that Bolice could ma?e
an in home arre0t on a mi0demeanor =arrant a0 long a0 it =a0 not a Brete)t to gain
evidence re.erence an unrelated .elon- inve0tigation.
I$; 50e o. !u0e. N3&E: 7ou cannot u0e a ru0e to gain entr- into a Bremi0e0 to
avoid the /a-ton =arrant reAuirement. 2o=ever" the maJorit- o. ca0e0 on thi0 i00ue hold
that -ou can u0e a ru0e to get the 0u<Ject =hom -ou =i0h to arre0t I=ithout a =arrant; to
e)it the re0idence.
&he rationale o. the0e ca0e0 i0 roc?'0olid. &he BurBo0e o. the /a-ton rule i0 to
Brevent =arrantle00 Bolice entrie0 into a re0idence to arre0t. Since Bolice can legall-
arre0t out0ide a re0idence =ith Bro<a<le cau0e and =ithout a =arrant" =hat di..erence
doe0 it ma?e i. Bolice u0e a ru0e to get the 0u0Bect to leave the Bremi0e0 in0tead o.
=aiting out0ide until the 0u0Bect le.t on hi0 o=nD &he an0=er i0 o<viou0 ' no di..erence
and no /a-ton violation.
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&he .ollo=ing ca0e0 uBheld u0e o. a ru0e to get Ber0on out o. Bremi0e0:
1n 5.S. v. !engi.o" $%$ (.2d $++ I10t Cir. 19$$; , government agent>0 teleBhone
call to de.endant0> motel room =arning them that there had <een HBro<lem0H =ith a
cocaine deliver- and that it =ould <e <e0t i. the- le.t the room and the area did not
imBroBerl- avoid reAuirement .or arre0t =arrant <- arti.iciall- creating e)igent
circum0tance.
CONCLUSION
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Ba0ed uBon the .oregoing the under0igned re0Bect.ull- reAue0t0 that thi0 Court 0et a0ide it0
3rder o. Decem<er 1*
th
" 2+11" Set ,0ide the Summar- ContemBt 3rder; and another relie. thi0
Court deem0 Ju0t. ,BBellant Declare0 under
Benalt- o. BerJur-" Bur0uant to N!S %3.+4%" that the a00ertion0 in thi0 document are true and correct.
AFFIRMATION PURSUANT TO NRS ./01-2/2
&he under0igned doe0 here<- a..irm that the Breceding document doe0 not contain the 0ocial
0ecurit- num<er o. an- Ber0on.
Dated: (e<ruar- 22" 2+12
CSC Zach CoughlinFFFFFFFF
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To: 1699ac9c-69131-4598-88f6-30dd36e From zachcoughl10 3-09-12 3:39pm p. 217 of 218
PROOF OF SERVICE
Pursuant to NRCP 5(b), I certify that I served a copy of the foregoing document upon the
following party by faxing, emailing, dropping Rf at their office, and placing a true and correct copy
of the foregoing document in the us mail. addressed tp:
John Kadlic, Esq.
Reno City Attorney's Office - Criminal Divisor;
P.O. Box 1900 Reno , NV 89505
Tel: 775-334-2050 Fax: 775-334-2420
robertsp@reno.gov
Attorney for City of Reno
Reno Municipal Courth
Date this February 22, 2012:
Zach Cou in, Plaintiff
217
NOTION TO 5LT A5IING ORDER AND NOTICE OF APPEAL OF SUMMARY CONTEMPT ORDER: and MOTION FOR RECUSAL OF JUDGE HOWARD;
NOTICE or INSUFFICIENT! OF RECORD ON APPEAL
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To: 1699ac9c-69b1-4598-08f6-30dd36e From: sacheoughlin 3-09-12 3:39pm p. 219 of 218
INDEX TO EXHIBITS
1, Exhibit 1: January 10
th
, 2012 email from lUvIC Interim Court Administrator Cassandra Jackson
with Attached December 16"
1
, 2011 Order of Judge Howard; Four (4) pages
and All emails from ZachCoughlin@hotmail.com to RenoMuniRecords@Reno.gov from 10/4/11 to
present; citing to attached pdf filings that should be included in the Record on Appeal, yt are not in
some instances; Forty Four (44) pages.
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M O T / 0101 TO SET ASIDE ORDER AND NOTICE or APPEAL Or SUMMARY CONTEMPT ORDER: and NOTION FOR RECUSAL OF JUDGE HOWARD;
NOTICE or INSUrrICIENTY Or RECORD ON APPEAL
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.....,11.1VVNI,
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Message left on 12/13/2011
From: Justin Roper (Roper)@reno.gov)
Sent: Wed 12/14/11 4:26 PM
I To: ZachCoughlin@hotmail.com
Mr. Coughlin,
I received your message that you left on my phone on December 13, 2011 in regards to a complaint against
Marshal Menzel. The Marshal Division takes all citizen complaints seriously and investigates all complaints
received in writing or verbally. However, I would need more information from you prior to moving forward with
an investigation. I encourage you to come to the court to obtain a statement form, or contact me directly should
you wish to pursue this matter. As to your request to obtain a copy of Marshal Menzel's personnel file, I am
unable to provide that to you without a valid subpoena or warrant.
You also stated you were attempting to obtain a copy of your Judgement of Conviction from Dept. 4, specifically
Veronica Lopez, you can reach her at 326-6673. I am aware that a copy of your Judgement of Conviction was
provided to you and booked into your property on the night you were arrested. You are entitled to another copy
should you wish.
Thank you,
Justin Roper
Chief Marshal/Department of Alternative Sentencing
775-334-1254
RE: Message left on 12/13/2011
Sent Wed 12/14/11 6:52 PM
To: roperj@reno.gov; fiskg@reno.gov; ballardd@reno.gov; renomunirecords@reno.gov
Dear Chief Marshal Roper, and the RMC,
Thank you for your quick reply. I actually requested a copy of some
documentation related to my complaints about both incidents with
Marshal Mentzel be placed in his employment or personnel file, not that
you provide me a copy of his file. I would like one, or a copy of any
complaints against any Marshals, but I realize a subpoena would likely
be required to have any chance at that. Negligent Training, Hiring,
Supervision.
I never received a copy of the Contempt Finding and Guilty
Verdict/Judgment/ORder or whatever from the 11 30, 2011 Trial before
Judge Howard in 11 CR22176 21, though "Veronica" (no one will tell
me her last name, but she works closely with the RMC Judges) said the
only "service" of those Orders that was ever attempted on me occured
while I was handcuffed, after which point some Marshalls (I did not
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catch their names and they manhandled me roughly into handcuffs,
refusing to even let me save my notes on my laptop at the sudden
conclusion of Judge Howards Order and Contempt finding. This is
truly reprehensible to not even let me save my damn notes and act like I
was some perp who just knocked of a god damn liquor store with a
firearm. Some people need to get a grip inside. Please place a copy of
this written complaint against whatever Marshals were involved in that
in their employment/personnel files as well. Please provide me a copy
of any complaints you have received against any Marshals.
I would like a copy of the 11 30, 2011 Order and the audio of the Trial.
I believe you have a duty to find out what those Marshals did with this
document that "Veronica" alleges they attempted to serve on me,
though, even 14 days after the Trial, the "docket" in the RMC filing
office still contains no Order, no mention of an Order, and certainly no
Proof of Service of anything of the sort, nor have they responded to any
of my documentation requests or a request of the audio of the Trial of
11 30, 2011, despite an exigent need for such to prepare Relief from
Judgment Motions that have deadlines of 10-20 days from "service" of
the "Order", and who knows how that will be measure. Why it was
necessary to cost the public a bunch of overtime pay for the 5 or so
Marshalls, and who knows how many court staff to stay until nearly
9pm on 11 30, 2011 to complete this "Trial", and how it was such a
damn emergency, especially where Richard Hill was able to get a
continuance because he was going to be on vacation in the trespass case
against me 11 CR 22185 21, despite the fact that Lew Taitel never
receive my consent to such a Motion for Continuance, and further Taitel
was arguably conflicted out of representing me considering his
"association" with Nevada Court Services and the torts the committed
against me, which resulted in a lawsuit being filed against them, or at
least an IPF Petition and Proposed Complaint in District Court, prior to
Taitel's appointment and representation. If the RMC can afford all that
damn overtime for everyone, why couldn't it appoint me a defense
attorney in RMC 11 CR 22176, especially where Judge Howard ruled,
not 20 minutes into Trial that he was finding me in Contempt of Court
and would decide the sentence (which obviously included a possibility
of incarceration) at the conclusion of the Trial?
Further M. Mentzel clearly bumped Donna Ballard out of the way in his
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zeal to establish dominance of me, a person who was providing
absolutely no resistance at the time. Mentzel went on to start order me
to leave the premises after my conversation with Ballard and the file
clerk was done. Duh, Mentzel, it was 5:00 pm or so "closing time"
what do you think I am going to do, hang out and chill with you guys?
Look at the Notice of Hearing or Docket in RMC 11 CR22176 21 (I am
also hereby requesting a copy of the audio or video of the hearing from
the RMC) and the hand written interlineations I made on the document
M. Mentzel provided me in court on 10 11, 2011, where I mention the
problems associated with asking questions about my Sixth Amendment
Right to Counsel where only the possibility of jail time exists. I asked
Mentzel at that time a question about the process and he got very angry,
threatening, and insulting with me, then later, criticized my appearance
before Judge Gardner, I believe he said I was "sarcastic" and or rude to
the Judge in the same way I had been to Mentzel himself. I submit that
citizens trying to access justice should not be taken as a personal affront
to RMC employees like Mentzel, and that he needs to strongly consider
how he comes across to the public when he acts the way he does, and
carries a firearm, color of law, a badge, and apparently, the blessing of
the RMC in carrying out behavior that seems more fitting for a
nightclub bouncer than a Marshal. Further, the video played at
arraignments is overly hostile and threatening in my opinion, especially
the parts where Judge Gardner makes statements on the "extremely"
poor choice it would be to represent one's self pro se and all these tones
and words used that make it sound like pro se defendants will be
punished for not either copping a plea or going with one of the "four
former prosecutors" who are now drawing a paycheck from the
RMC/Citizenry to fulfill the Sixth Amendment. I am something
completely other than impressed with the work done by Lew Taitel,
Esq. for me in RMC 11 CR 22185 21, in that regard. Why shouldn't
defendants in the RMC, after viewing the arraignment video and
receiving representation like that which I received from Taitel, feel like
lambs being led to slaughter? Baah, baaaaaaaaah! Two other Marshals
were there yesterday when Mentzel was berating me, I would like their
names, please.
Now, just awhile ago, "RMC Court Transcriptionist Pam Longoni"
called me on the phone ("while driving" according to Ms. Longoni) and
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informed me that the RMC must permit her access to the audio files,
and that, while she is linked into "their system" (meaning the RMC's),
the RMC must take some additional step to allow Ms. Longoni to
access the audio files and continue with the process of tending of a
request for a Transcript on Appeal. I was told by a female RMC
counter clerk that I would not ever be provided a copy of the audio
recording of the 11 30, 2011 Trial, but that I may purchase from Ms.
Longoni an official transcript, and that "appeal transcripts are billed at
$4.10 per page" etc. and that a substantial deposit would be required,
and that "No Transcript is considered to be official ordered, and
commencement of transcription will not begin, until receipt of the
required deposit..." I asked Ms. Longoni to inform me of everything I
must do or pay to have the transcript deemd officialy ordered and she
informed me that she could not tell me that, despite the apparent hard
and fast deadlines applied to ordering, officially, such a transcript, with
the RMC in an Appeal context, until the RMC allowed Ms. Longoni to
access the RMC "system" and view/hear the audio of the 11 30, 2011
Trial in 11 CR22176 21. Ms. Longoni angrily hung up the phone on me
and is now not returning my calls and has failed to respond to my
request that she inform me, in writing, as to where to send money or a
deposit or anything else required for the transcript. I have yet to receive
a fax from the RMC's "Veronica" (whose last name has repeatedly been
denied to me) despite her angry assurances on the phone on 12 12, 2011
that she would finally hae the RMC attempt to appropriately (or almost
appropriately) serve me a copy of the Contempt Finding and Guilty
Order stemming from the 11 30, 2011 Trial in RMC 11 CR 22176 21.
Please have this request and communication reiterated to whoever it
concerns at the RMC, and have such a copy of those documents
emailed, faxed, and mailed in the US Postal Service mail immediately.
Further, please do the same with respect to the audio of the 11 30, 2011
Trial in RMC 11 CR 22176 21, and of course I will pay a reasonable
cost for the cd to the extent my IFP is not granted. The RJC and
Washoe District Court charge about $30 per cd. The also provide
copies of the dockets in cases without demanding a subpoena force
them to first. Please ask the gentleman Ms. Ballard saw me working
with yesterday what he said in that regard about providing me a copy of
anything, much less the docket in either RMC 11 CR 22176 21 or RMC
11 CR 22185 21.
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I believe I am entitled to a copy of the audio recording quickly, whether
or not a transcript has been officialy ordered, for the purposes of appeal
or for any other purposes. I believe in something called "transparency"
in goverment. Sunshine.
Let me ask you a question: If a Judge told you to jump off a bridge,
would you? It is my belief that Judge Howard ordered everyone to
clear the courtroom, including a female, shortly after my 11 20, 2011
Trial began and it became clear that I was not going to lay down meekly
for the Court, or for Wal-Mart, or for the Reno City Attorney. 2 million
of my people starved to death during a "Great Famine" between 1848-
1850 in Ireland, despite being surrounded by water and fish, where the
English were arresting Irishmen who attempted to save their families
and their own live's by fishing. I will be fishing here, gentleman. Deal
with it. I want that recording, for, among many other reasons, to see if
Judge Howard merely asked those who might be called as witnesses to
leave or whether he demanded every member of the public leave before
he sent me off to Guantanamo, er, I mean the Washoe County Detention
Facility after the Military Tribunal, er, the Trial in RMC. Interestingly,
while at the Washoe County Detention Facility, I have been made to
strip naked while being videotaped, wear a green dress for days on end,
go without a toothbrush for days, refused any opportunity to make
phone calls to protect my clients cases from prejudice, forced to spread
apart my buttocks and allow an overly long look at my anus by Sheriffs
Deputies, and further, I was forced to submit to a position on my knees
in the immediate vicinity of two Sheriff's Deputies crotches in some
sadistic forced simulation of performing oral sex upon those men.
Rico/Negligent Hiring, Training, Supervision, 42 USC Sec. 1983
Deprivation of Civil Rights Under Color of State Law, etc., etc. Qui
Tam, Whistleblower. Mr. Roper, I doubt a Federal Court Judge would
require that I have come obtained a Statement From you to complain
about any Marshal's conduct. I am pretty sure this and my other
correspondences have placed you on notice.
Sincerely,
7arh few onhlin Fcn
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Reno, NV 89501
tel: 775 229-6737
fax: 949 667 7402
ZachCoughlinhotmail.com
Nevada Bar No: 9473
**Notice** This message and accompanying documents are covered by the electronic Communications Privacy
Act, 18 U.S.C, 2510-2521, and may contain confidential information intended for the specified individual (s)
only. If you are not the intended recipient or an agent responsible for delivering it to the intended recipient, you are
hereby notified that you have received this document in error and that any review, dissemination, copying, or the
taking of any action based on the contents of this information is strictly prohibited. This message is confidential,
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waiver of any attorney-client, work product, or other applicable privilege,
Date: Wed, 14 Dec 2011 16:26:47 -0800
From: Roper)@reno.gov
To: ZachCoughlin@hotmail.corn
Subject: Message eft on 12/13/2011
Mr. Coughlin,
I received your message that you left on my phone on December i 3, 2011 in regards to a complaint against
Marshal Menzel. The Marshal Division takes all citizen complaints seriously and investigates all complaints
received in writing or verbally. However, I would need more information from you prior to moving forward with
an investigation. I encourage you to come to the court to obtain a statement form, or contact me directly should
you wish to pursue this matter. As to your request to obtain a copy of Marshal Menzel's personnel file, I am unable
to provide that to you without a valid subpoena or warrant.
You also stated you were attempting to obtain a copy of your Judgement of Conviction from Dept. 4, specifically
Veronica Lopez, you can reach her at 326-6673. I am aware that a copy of your Judgement of Conviction was
provided to you and booked into your property on the night you were arrested. You are entitled to another copy
should you wish.
Thank you,
Justin Roper
Chief Marshal/Department of Alternative Sentencing
775-334-1254
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