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Title: Casebolt, McKinney, and Legal Liability
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Published: Jun 11, 2015
Author: nolu chan
Post Date: 2015-06-11 19:03:17 by nolu chan
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Views: 3338
Comments: 29
Casebolt, McKinney, and Legal Liability nolu chan Numerous sources cite the initial report being about a group of teens lacking permission to be at the pool and refusing to leave. Reportedly, they later received a call about a fight. The only reported physical altercation is the one depicted on video showing it was three females. What crime was Casebolt responding to? What evidence did he have? He arrived and detained exclusively Blacks, and almost exclusively black males. No male was engaged in the reported physical altercation. United States v. Cortez, 449 U.S. 411, 418 (1981) That is the requirements for a Terry stop, short-term detention short of arrest. What particularized and objective basis did Casebolt have for suspecting the particular black males of criminal activity? How did he identify them as criminal suspects? How did he identify exclusively black criminal suspects? According to Casebolt's attorney, "Casebolt viewed the teenagers leaving the pool as potential assault suspects who were fleeing." He should know better than to B.S. his attorney. There were no male assault suspects. Who did Casebolt identify as a victim of male assault? Casebolt's attorney asserted that he was not targeting minorities and that he had also detained a white girl not seen in the video. Again, he should not B.S. his attorney. As reported in the news, "[t]hat teen, Grace Stone, was handcuffed by another officer...." Casebolt's attorney asserted he "attempted to investigate the report of violent assault by interviewing as many people as he could to determine who was involved and that he believed those who ran could have been possible suspects." His notes of these alleged "interviews" must be interesting. As Snopes states, "McKinney Police later learned of a video that was taken at the scene by an unknown party." On video, Casebolt exhibits a unique method of interviewing as many people as he could. Many have noted that he hit the ground running. Who knew that he was conducting interviews? Casebolt's attorney said Casebolt made the decision to resign after meeting with the department's Internal Affairs unit to review possible charges he could face. Casebolt's story fell apart. At the website for the Dallas Morning News we find, "A woman accused of starting the physical altercation has been placed on administrative leave by her employer, CoreLogic." At the scene, she seemed to be invisibly white, as was the videographer. The police chief stated that Casebolt was out of control and his actions were not supported by McKinney PD policies, training and practice. To translate that, he said that Casebolt was not acting within his job parameters and the city does not want the legal liability for his actions. https://casetext.com/case/rogers-v-black-mountain As a general rule "the master is not responsible if the wrong done by the servant is done without his authority, and not for the purpose of executing his orders, or doing his work. So that if the servant, wholly for a purpose of his own, disregarding the object for which he is employed, and not intending by his act to execute it, does an injury to another not within the scope of his employment, the master is not liable." Howe v. Newmarch, 94 Mass. 49. See Dickerson v. Refining Co., 201 N.C. 90,159 S.E. 446; Robertson v. Power Co., 204 N.C. 359, 168 S.E. 415; Jeffrey v. Mfg. Co., 197 N.C. 724, 150 S.E. 503. To state it in another way, the general rule is, that where a servant steps aside from the business of his master for some purpose of his own which is beyond the scope of his employment, the relation of master and servant is thereby temporarily suspended, and the master is not liable for his acts during the period of such suspension. Walker v. Manson, 222 N.C. 527, 23 S.E.2d 839; Smith v. Moore, 220 N.C. 165, 16 S.E.2d 701; Creech v. Linen Service, 219 N.C. 457, 14 S.E.2d 408; Parrott v. Kantor, 216 N.C. 584, 6 S.E.2d 40; Van Landingham v. Sewing Machine Co., 207 N.C. 355,177 S.E. 126. The Chief's statement serves to establish that Casebolt was not acting within the scope of his employment. It serves to show that the doctrine of respondeat superior does not apply, and the employer is not liable for the wrongful acts of the employee. Casebolt faces potential personal liability. Litigation may depend on what assets he has and if they are worth going after. What wrongful acts? What liability. With Casebolt's videotaped "interviews" resulting in his resignation, the liability comes from the acts of detaining people in violation of the 4th Amendment. Casebolt needed to "have a particularized and objective basis for suspecting the particular person stopped of criminal activity." He will have extreme difficulty justifying his detentions based on information developed by his alleged "interviews." If the detentions cannot be legally justified, neither can the hip tosses, face mashes, and other acts of physicality. There is also potential civil rights action. It will be very difficult to explain and justify the exclusive detaining of black suspects, predominantly male. The city saw the potential liability, disowned his actions, and cut him loose. Hannah Stroud, Dajerria Becton's attorney, cites treatment that was "inappropriate, excessive and without cause." She notes that Becton "was invited and was not trespassing." Stroud also asserts her certainty that Becton's civil rights were violated. She indicated suing Casebolt, not the city of McKinney. The detention without cause could be claimed by others. As for Casebolt retiring and keeping his pension, note: crimeblog.dallasnews.com/...sebolts-resignation.html/ McKinney uses the Texas Municipal Retirement System for its officers. After five years of service, an officer becomes vested. An officer can officially retire with the system after 20 years of service or if they turn 60 after five or 10 years of service. If Casebolt doesn’t work as an officer again, he can either leave his pension funds in the system until he turns 60, or get a refund of the money he put in and the interest accrued. Or, he could roll the account over into a private IRA account. SOURCES: Reporting from numerous sources state that the police were dispatched in response to a call that a group of teens who did not have permission to be at the pool were there and refusing to leave. crimeblog.dallasnews.com/...why-he-was-arrested.html/ www.nbcdfw.com/news/local...estigation-306696581.html m.snopes.com/2015/06/08/m...y-pool-party-controversy/ On June 5, 2015 at approximately 7:15 p.m., officers from the McKinney Police Department responded to a disturbance at the Craig Ranch North Community Pool. The initial call came in as a disturbance involving multiple juveniles at the location, who do not live in the area or have permission to be there, refusing to leave. McKinney Police received several additional calls related to this incident advising that juveniles were now actively fighting. First responding officers encountered a large crowd that refused to comply with police commands. Nine additional units responded to the scene. Officers were eventually able to gain control of the situation. McKinney Police later learned of a video that was taken at the scene by an unknown party. This video has raised concerns that are being investigated by the McKinney Police Department. At this time, one of the responding officers has been placed on administrative leave pending the outcome of this investigation. fox6now.com/2015/06/07/of...n-on-teens-at-pool-party/ kfor.com/2015/06/07/texas...-teens-during-pool-party/ Later, police say they received calls that some of the teens were fighting. www.theguardian.com/us-ne...s-police-officer-casebolt Bishkin said that Casebolt viewed the teenagers leaving the pool as potential assault suspects who were fleeing. She insisted that “he was not targeting minorities” and that he also detained a white female. “With all that happened that day he allowed his emotions to get the better of him. Eric regrets that his conduct portrayed him and his department in a negative light,” said Bishkin. “He apologises to all who were offended … the prior suicide calls put him in an emotional place that he would have preferred not to be in.” www.nytimes.com/2015/06/0...e-officer-suspension.html New York Times to the similar effect. - - - - - - - - - - Numerous sources quote the police chief as stating that Casebolt came into the incident out of control, that McKinney PD policies, training and practice to not support Casebolt's actions, and that his actions on the video were indefensible. www.nydailynews.com/news/...-police-article-1.2252485 abcnews.go.com/US/mckinne...ke-pool/story?id=31649084 "Our policies, our training, our practice do not support his actions," he added. www.khou.com/story/news/l...y-video-resigns/70997364/ - - - - - - - - - - A woman accused of starting the physical altercation has been placed on administrative leave by her employer, CoreLogic. crimeblog.dallasnews.com/...why-he-was-arrested.html/ “CoreLogic does not condone violence, discrimination or harassment and takes conduct that is inconsistent with our values and expectations very seriously,” her employer, CoreLogic, said in a statement Tuesday. “As a result of these pending allegations, we have placed the employee in question on administrative leave while further investigations take place.” - - - - - - - - - - Casebolt's lawyer admitted, "he allowed his emotions to get the better of him." The Union official stated, "in this instance [Casebolt] was placed in a high-stress environment that he was not fully prepared for." Both defended Casebolt on one point. Each stated that Casebolt's actions were not racially motivated. www.wfaa.com/story/news/c...ideo-speaks-out/71016170/ [...] The attorney said Casebolt apologizes to anyone who may have been offended during the pool party incident, and said his actions were not racially-targeted. She said he arrested a white girl who was at the scene, but she isn't shown in the video. She added that he never meant to mistreat anyone. www.wfaa.com/story/news/c...ideo-speaks-out/71016170/ www.nbcdfw.com/news/local...Statements-306799061.html Bishkin said Casebolt was not targeting minorities and that he had also detained a white girl not seen in the video. She added that his attempt to gather information was "hampered by some teenagers who are instructing others to defy police instructions." This dog just will not hunt. At no time on the video is Casebolt seen interviewing anybody. His written notes of these interviews should be interesting. Nor did Casebolt "arrest" or handcuff the white teen, Grace Stone. newsone.com/3121343/eric-...tion-mckinney-pool-party/ - - - - - - - - - Dajerria Becton's attorney, Hannah Stroud states a case for excessive use of force and civil rights violation. www.nbcdfw.com/news/local...Statements-306799061.html Stroud mentioned previous news conferences by both McKinney Chief of Police Gary Conley on Tuesday and Casebolt's lawyer, Jane Bishkin, on Wednesday, asserting that neither of them indicated her client had done anything wrong before being subdued by the officer. "Miss Becton attended a pool party to which she had been invited. She was not trespassing in any shape or form. She left the scene when she was asked to by the police officer. When she asked for her bag so that she could call for her aunt, who is her legal guardian, she was pushed to the ground, grabbed by her head and her face was shoved into the ground. She was then handcuffed, she was never arrested and she's not been charged with any wrongdoing or with any offense," Stroud said. The attorney quoted Conley from his news conference the day before, agreeing that Casebolt's actions were indefensible, but took it further to say that she believed his actions were excessive. "That's really why we're here. Because ultimately the manner in which Miss Becton was treated was inappropriate, excessive and without cause. I would not expect to be treated, and have never been treated, by any police department or any police officer, the way that Miss Becton was. And I would doubt that any parent or reasonable person would expect their child to be treated in the same way," Stroud said. Becton's lawyer said that while the information provided by Casebolt's attorney on the calls he answered before the disturbance at the pool give an insight into his mental state, it is not a defense for what occurred. crimeblog.dallasnews.com/...sebolts-resignation.html/ “The manner in which Ms. Becton was treated was inappropriate, excessive and without cause,” Stroud said, noting that Casebolt’s voluntary resignation Tuesday should not be the end of the investigation. Stroud said Becton attended a pool party Friday to which she was invited and was not trespassing. When she was told to leave by police, she asked for her bag so she could call her aunt. That’s when she was pushed to the ground, grabbed by the hair and had her face shoved into the ground, Stroud said. The attorney said she’s not sure whether her client will file a formal complaint against Casebolt. And although she’s certain Becton’s civil rights were violated, she can’t say whether race was a factor when the white officer confronted her black client. “I’m certainly not going to condemn a man before I do my due diligence,” she said. crimeblog.dallasnews.com/...sebolts-resignation.html/ McKinney uses the Texas Municipal Retirement System for its officers. After five years of service, an officer becomes vested. An officer can officially retire with the system after 20 years of service or if they turn 60 after five or 10 years of service. If Casebolt doesn’t work as an officer again, he can either leave his pension funds in the system until he turns 60, or get a refund of the money he put in and the interest accrued. Or, he could roll the account over into a private IRA account. - - - - - - - - - -
June 11, 2015 Courts have used a variety of terms to capture the elusive concept of what cause is sufficient to authorize police to stop a person. Terms like “articulable reasons” and “founded suspicion” are not self-defining; they fall short of providing clear guidance dispositive of the myriad factual situations that arise. But the essence of all that has been written is that the totality of the circumstances — the whole picture — must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity. See, e.g., Brown v. Texas, supra at 443 U. S. 51; United States v. Brignoni-Ponce, supra at 422 U. S. 884.
It is elementary that the master is responsible for the tort of his servant which results in injury to another when the servant is acting in the course of his employment, and is at the time about the master's business. D'Armour v. Hardware Co., 217 N.C. 568, 9 S.E.2d 12; Barrow v. Keel, 213 N.C. 373, 196 S.E. 366; Roberts v. R. R., *122122143 N.C. 176, 55 S.E. 509. It is equally well established that the master is not liable if the tort of the servant which causes the injury occurs while the servant is acting outside the legitimate scope of his authority, and is then engaged in some private matter of his own. Tribble v. Swinson,213 N.C. 550, 196 S.E. 820; Snow v. DeButts, 212 N.C. 120,193 S.E. 224; Parrish v. Mfg. Co., 211 N.C. 7, 188 S.E. 897; Bucken v. R. R., 157 N.C. 443, 73 S.E. 137.
5. He gets to keep his pension — kind of
A fight broke out when a white resident allegedly swore at a black resident and told her to return to public housing. A group of uninvited guests also jumped the fence and confronted a security guard, who called police.
McKinney officers were dispatched to the Craig Ranch North Community Pool early Friday night after a fight and general disturbance were reported. The disturbance included several teens who did not have permission to be at the pool and who refused to leave, officials said.
On 7 June 2015, the McKinney Police Department issued a statement about the growing controversy over the pool party raid via Facebook. Among their assertions were that police responded to a disturbance call about the pool party, party attendees were not cooperative with officers, and the police seen in the video have since been placed on administrative leave while the actions captured in the clip are investigated:
Pool Party Incident:
CBS11 reports neighbors called police on Friday evening, June 5th to report multiple juveniles at a home who apparently didn’t live in the area or have permission to be there, and they were apparently refusing to leave.
Police say they were dispatched to a community pool after a caller said several teenagers were in the area who did not live there or have permission to be there and were refusing to leave.
She [Casebolt's attorney, Jane Bishkin] said that when the initial report of a disturbance at the pool came in it was billed as a possible trespassing and Casebolt had not wanted to attend a simple-sounding incident, “given what he had just been through”. Then it was upgraded to a potential assault and Casebolt felt it was his duty to respond, she said.
"He came into the incident out of control, and as the video shows, was out of control during the incident " Conley said Tuesday at the news conference broadcast on CBS DFW. "I had 12 officers on the scene, and 11 of them performed according to their training.
McKinney Chief of Police Greg Conley said this evening that Casebolt's actions on the cell phone recording of the incident were "indefensible."
Casebolt made the decision to resign after meeting with the department's Internal Affairs unit to review possible charges he could face, said lawyer Jane Bishkin, who represents law-enforcement personnel in the Dallas area including the Dallas County Peace Officer's Association.
The woman who is accused of starting the fight that led to the pool party confrontation had also been placed on administrative leave at her job at a data analysis and technology support company.
The attorney started the press conference by saying Casebolt let his emotions get the best of him before he answered the disturbance call at the Craig Ranch community pool.
The attorney said Casebolt apologizes to anyone who may have been offended during the pool party incident, and said his actions were not racially-targeted. She said he arrested a white girl who was at the scene, but she isn't shown in the video. She added that he never meant to mistreat anyone.
Casebolt's lawyer said he attempted to investigate the report of violent assault by interviewing as many people as he could to determine who was involved and that he believed those who ran could have been possible suspects.
His lawyer also called the claims of racist behavior untrue, pointing out that he detained a young White girl on the scene. That teen, Grace Stone, was handcuffed by another officer when she tried to explain the situation to law enforcement.
Dajerria Becton's attorney, Hannah Stroud, gave a news conference Wednesday afternoon saying that the officer's resignation should not mean the end of the investigation into what she said was an excessive use of force.
Hannah Stroud, who represents Dajerria Becton, said her 15-year-old client has rarely left the home she shares with her aunt since last week’s confrontation with McKinney police Cpl. Eric Casebolt.
5. He gets to keep his pension — kind of
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#1. To: nolu chan (#0)
A telling statement but I'm not sure it shields the PD from liability. Perhaps if they can demonstrate Casebolt violated long-established crowd control policy, that he was trained on such procedures, etc. Interestingly, the chief made particular note that 11 responding officers performed according to their training and one (Casebolt) did not. He praised the other 11 for their adherence to their training. At the time he made the statement, it struck me how much it sounded like a lawyer wrote parts of it. Interesting thread you wrote. Hopefully, it will get posted around some of the usual sites.
Wow, Good work. I am impressed with the volume of your research.
Question: why do you go to your article's extent to support a thesis?
They were running. One of them came behind him to taunt him.
I actually posted this in another thread, but I feel that is also belongs on this thread as well:
I read on a thread somewhere yesterday that they arrested a white person also. I can't seem to find it now. I don't know if that was disinfo or true.
Adrian Martin, a black 18-year-old, was the only person arrested at a now-infamous June 5 pool party in the Craig Ranch neighborhood of McKinney, Texas. https://www.colorlines.com/articles/video-teen-arrested-mckinney-pool- party-tells-his-side-story
Nolu's post above indicates that "another officer" arrested, or at least detained, a white female. This is beyond the point I was trying to make, but thank you for bringing that up. Many commentators will get hung up on the fact that these teens may not be the instigators of the original altercation, but they made it a point to be involved in the ruckus afterwards, including taunting an officer and possibly interfering with his duty like the young bikini teen was doing with her entourage. [I am not considering the person who is capturing video an instigator because they seem to be respectful enough and attempting to avoid interfering.] As for the whole "whitevsblack" thing, this is mostly a narrative. If the whole party was black and no whites around, outside commentators would still drive home the fact that the officer only detained black teens. Notice that there are not any "white teens" standing around... Hard to get arrested for causing a disturbance when you are not around to get arrested. I am not trying to insult the intelligence of the remaining teens, but their continued presence when it was obvious that they were "free to go" (or "get your asses out of here") is indicative of a certain teenage naievity or just plain stupidity.
I like you am not someone who particularly like the cops. In fact I was beaten by the cops in Kentucky a little over 2 years ago. I will side with the officer in this case. They aren't robots.
Notice his statements were not along the lines of - "I was interfering with a police officer and he did the minimal necessary to help me understand that it was NOT OK to approach an officer from behind in an aggressive manner." Yes, the officer could have yelled the teen again to get back, but they weren't exactly following those commands. The young man did understand the gun being drawn and left the scene post-haste. I would consider that stupid and potentially dangerous. I wouldn't even do that to a neighbor if he was obviously and conspicuously armed. Of course, kids do stupid things. If he would have grabbed or bumped into the officer, would that have been excused?
I see it the same way. Thanks for your comment.
Their statement infers that Casebolt did wrong without stating what it was. They infer he was not acting within the scope of his employment without specifically stating why. They are not volunteering legal liability if that claim fails. Detaining people in violation of their 4th Amendment rights creates legal liability. The public statements of Casebolt's lawyer about her client's alleged actions can only reasonably be attributed to Casebolt claims to her. It is not unreasonable to believe these claims will also be shown in initial after-action statements of Casebolt. The statement of interviewing potential suspects might have created quite a problem with internal affairs.
Force of habit.
The excuse comes too late. Restraint of locomotion is the detention. Just ordering people to the grass area, to sit down and stay put is seizure of their person. At the time that Casebolt hit the ground, as some say "running," he put the 4th Amendment into play. He appears to immediately start detaining people prior to making any investigative assessment of the situation. That precedes the incident of which you speak. As for the incident, on the big screen with frame by frame advance, it is clear that Casebolt drew his weapon as the guy who had advanced to the side of the action, or rear of Casebolt, had already started to retreat and was behind the guy in the light shirt before Casebolt raised his weapon. I can see where Casebolt had a reasonable fear at the time.
He's been banned so he can't answer you.
“Political correctness is a doctrine, fostered by a delusional, illogical minority, and rapidly promoted by mainstream media, which holds forth the proposition that it is entirely possible to pick up a turd by the clean end.”
It was in the sources I provided above. http://newsone.com/3121343/eric-casebolts-apologizes-acted-out-of-emotion-mckinney-pool-party/ "Arrest" has a specific legal connotation and all official claims assert the "arrest" of only one person, the one who got near Casebolt, then ran, and was apprehended by other officers without resistance. Charges were dropped and he was released. Grace Stone was not arrested but was detained. She reportedly was not detained by Casebolt as originally claimed by his attorney.
In other words, he seized their persons. He brought the 4th Amendment to bear when he ordered them to talk, or to shut up and sit down. It was at the initial point, and not later, that he needed a particularized and objective basis for suspecting each detained individual of criminal activity. As far as the physical altercation, that was three women. As far as unlawful presence, he apparently only had particularized knowledge that his purported suspects were black. The one he hip-tossed was reportedly an invited guest and lawfully on the premises. The other officers were conducting friendly voluntary conversations, not involving detention of the person being interviewed. Casebolt's actions required, at a minimum, "a particularized and objective basis for suspecting the particular person stopped of criminal activity." That is the standard for a Terry, stop. It is short of arrest but does invoke some legal rights. Whatever they do after the unlawful detention cannot make the detention lawful.
The neighborhood was predominantly White, not Black. But let us assume that Casebolt only encountered Blacks. How did Casebolt establish his particularized and objective basis for suspecting individually that each of the persons he detained had engaged in some criminal activity? Did he do it on the basis of his "interviews" or on the basis of their skin color, or on no basis at all? The 4th Amendment problem is the same whether they are white or black. The all-Black selection raises additional civil rights problems. It appears highly unlikely that Casebolt could testify without being shredded. The instant after-action investigation started before the video became public knowledge or came to police knowledge. Below is from a recent Maryland case delving into the different aspects of a consensual encounter, an arrest, and a Terry stop (intestigative stop). This is relevant to the Baltimore case. That case is distinguishable by the claim that Gray was fleeing in a high crime area which established the particularized suspicion of criminal activity required for a Terry stop. See at page 32: "From the beginning, the accosting cases undertook to disabuse bench and bar of the notion that the police need special Fourth Amendment justification even to approach and to talk to citizens. There has never been a suggestion that a police officer enjoys a greater than ordinary right to approach and talk. The message, rather, is that the police officer enjoys no less a right. The officer possesses the same privilege as anyone else to approach a stranger and to ask, 1) 'What time is it?', 2) 'How do I get to Camden Yards?', or 3) 'Would you like to buy a ticket to the Policeman's ball?'" (Emphasis supplied). To that extent, the police officer is not disenfranchised. Our analytic point of departure is that a police officer, in talking to people, enjoys the same prerogative as does every other citizen, neither more nor less. He enjoys no special or additional authority arising out of the fact that he is a police officer. The fundamental character of a mere accosting is that it is egalitarian and not authoritarian. The citizen addressed is free to ignore the officer and to walk away. If the citizen does not feel free to do so, the encounter, by definition, loses its character as a voluntary and consensual one. [My boldface added above.] Below is an extensive quote with all emphasis as provided by the Court. http://www.mdcourts.gov/opinions/cosa/2015/0897s14.pdf REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 0897 September Term, 2014 ANDREW J. PYON Kehoe, Friedman, Moylan, Charles E., Jr. (Retired, Specially Assigned) JJ. Opinion by Moylan, J. Filed: April 6, 2015 Should the Fourth Amendment be implicated in this case, it was not satisfied. The dispositive threshold question before us, therefore, is whether the Fourth Amendment was even implicated. An encounter between a law enforcement official and a private citizen is a phenomenon that is, like Caesar's Gaul, divided into three parts. Such encounters, of course, actually cover a wide spectrum embracing infinite factual variations. For purposes of Fourth Amendment analysis, however, that wide spectrum has been conveniently sectioned off into three constitutional categories, two of which involve the Fourth Amendment and one of which does not. Before we presume to examine the specimen at hand, we must be sure we are using the proper microscope. It behooves us briefly to survey the respective microscopes. Three Levels of Police-Citizen Encounters As a teaching aid, the 24-karat opinion is Swift v. State, 393 Md. 139, 899 A.2d 867 (2006). Judge Raker, 393 Md. at 149-51, there set out the three levels on which a police- citizen encounter may occur. "It is well established that the Fourth Amendment guarantees are not implicated in every situation where the police have contact with an individual. ... Many Courts have analyzed the applicability of the Fourth Amendment in terms of three tiers of interaction between a citizen and the police. ... The most intrusive encounter, an arrest, requires probable cause to believe that a person has committed or is committing a crime. ... The second category, the investigatory stop, is less intrusive than a formal custodial arrest and must be supported by reasonable suspicion that a person has committed or is about to commit a crime and permits an officer to stop and briefly detain an individual. -1- - - - - - "The least intrusive police-citizen contact, a consensual encounter, ... involves no restraint of liberty and elicits an individual's voluntary cooperation with non-coercive police contact." (Citations omitted). An Arrest of the Person The most coercive of the police-citizen encounters is that involved when the officer actually places the citizen under arrest. Self-evidently the Fourth Amendment applies and self-evidently the Fourth Amendment must be satisfied. The Fourth Amendment justification required for such a severe Fourth Amendment seizure of the person has always been nothing less than probable cause. Swift v. State, 393 Md. at 150. The Supreme Court spoke of the standard in Dunaway v. New York, 442 U.S. 200, 208, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979): "The standard of probable cause thus represented the accumulated wisdom of precedent and experience as to the minimum justification necessary to make the kind of intrusion involved in an arrest 'reasonable' under the Fourth Amendment." See also Florida v. Royer, 460 U.S. 491, 499, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). The present case does not remotely involve this highest level of police-citizen encounter. During that phase of the encounter pertinent to our present analysis, the appellant was clearly not under arrest and the issue of probable cause as a justification is utterly immaterial. Our exclusive concern is with the lower two levels of police-citizen encounter. - 2 - - - - - - A Terry Stop (An Investigative Stop) The intermediate level of police-citizen encounter is generally referred to as a Terry stop (from the seminal "stop and frisk" case of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)), although frequently it is described as an "investigative stop." It is a lesser Fourth Amendment intrusion than a full-scale arrest. Because it is a Fourth Amendment intrusion upon a citizen's otherwise unfettered freedom, however, it accordingly requires a Fourth Amendment justification, albeit a lesser justification than is required for an arrest. Swift, 393 Md. at 150, described both its coercive attributes and its required justification: "A police officer may engage in an investigatory detention without violating the Fourth Amendment as long as the officer has a reasonable, articulable suspicion of criminal activity. ... A Terry stop is limited in duration and purpose and can only last as long as it takes a police officer to confirm or to dispel his suspicions. ... A person is seized under this category when, in view of all the circumstances surrounding the incident, by means of physical force or show of authority a reasonable person would have believed that he was not free to leave or is compelled to respond to questions. Factors that might indicate a seizure include a threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person, the use of language or tone of voice indicating that compliance with the officer's request might be compelled, approaching the citizen in a nonpublic place, and blocking the citizen's path." (Emphasis supplied) (citations omitted). The above two levels of police-citizen encounter involve, respectively, greater and lesser Fourth Amendment seizures of the person. Both levels, therefore, require Fourth - 3 - - - - - - Amendment justification in order to qualify as reasonable, probable cause in the one case and Terry-level reasonable articulable suspicion in the other. A Mere Accosting (A Consensual Encounter) A mere accosting, by dramatic contrast, falls below the Plimsoll line of Fourth Amendment applicability. It is simply the police-citizen subset of the voluntary and consensual social intercourse that occurs regularly between citizen and citizen. It is beneath the Fourth Amendment radar. If one citizen may approach another and engage in conversation, a police officer is self-evidently free to do no less. Lest he attract the scrutiny of the Fourth Amendment, however, he must be careful to do no more. Swift, 393 Md. at 151, described this sub-constitutional level of police-citizen encounter: "Encounters are consensual where the police merely approach a person in a public place, engage the person in conversation, request information, and the person is free not to answer and walk away. The guarantees of the Fourth Amendment are not implicated in such an encounter unless the police officer has by either physical force or show of authority restrained the person's liberty so that a reasonable person would not feel free to decline the officer's requests or otherwise terminate the encounter." (Emphasis supplied) (citation omitted). In Ferris v. State, 355 Md. 356, 373 n.4, 735 A.2d 491 (1999), the Court of Appeals had similarly described the consensual encounter as: "[S]imply the voluntary cooperation of a private citizen in response to noncoercive questioning by a law enforcement official. Because an individual is free to leave at any time during such an encounter, he is not 'seized' within the meaning of the fourth amendment." (Emphasis supplied) (citations omitted). - 4 - - - - - - In Graham v. State, 146 Md. App. 327, 366, 807 A.2d 75 (2002), this Court spoke in a similar vein: "The classic Supreme Court opinions explicating the phenomenon of accosting are Immigration and Naturalization Service v. Delgado, 466 U.S. 210, 104 S. Ct. 1758, 80 L.Ed. 2d 247 (1984); Florida v. Royer, 460 U.S. 491, 103 S. Ct. 1319, 75 L.Ed.2d 229 (1983); and United States v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870, 64 L.Ed.2d 497 (1980). From the beginning, the accosting cases undertook to disabuse bench and bar of the notion that the police need special Fourth Amendment justification even to approach and to talk to citizens. There has never been a suggestion that a police officer enjoys a greater than ordinary right to approach and talk. The message, rather, is that the police officer enjoys no less a right." (Emphasis supplied). It is, moreover, clear that a mere accosting or consensual encounter, should it stay scrupulously within its limits, does not implicate the Fourth Amendment and does not, therefore, require any Fourth Amendment justification. See, Swift, 393 Md. at 151. A Border Line Is Not a Border Zone The present case lies perplexingly close to the line between the Terry-stop and the mere accosting. That line is in this case the dispositive boundary between Fourth Amendment applicability and Fourth Amendment inapplicability. It is frequently, as it is in this case, a line that can be factually ambiguous. Nonetheless, it is a line and not a zone. The Fourth Amendment is either applicable or inapplicable. There is no halfway. The State will not, therefore, be heard to say, "Even if we lacked full Terry-level reasonable suspicion, we had some suspicion. We came close. Therefore, it was not unreasonable to enjoy at least some police prerogatives beyond the ordinary, even if not the full complement thereof." In - 5 - - - - - - a decision that must, of doctrinal necessity, be binary, the Fourth Amendment applies either in full measure or not at all. Except in horseshoes, close does not count. The threshold of Fourth Amendment applicability, moreover, is a legal question calling for a de novo determination. As to it, we are not deferential. As we straddle this elusive border between a mere accosting and an investigative stop, we encounter a not uncommon instance of police behavior that seeks to exploit the benefits of being on both sides of the border at the same time. We spoke of this creative shape-shifting in Graham v. State, 146 Md. App. 327, 337, 807 A.2d 75 (2002): "[T]here emerges with unmistakable clarity a picture of a police procedure that is ... a wolf in sheep's clothing. The innocuous surface trappings are all those of a mere accosting, something long sanctioned by the Supreme Court as an everyday occurrence that does not even catch the eye of the Fourth Amendment. The underlying reality, however, is a borderline investigative procedure whereby the police seek to enjoy the full Fourth Amendment benefits of ... a Terry-stop ... without paying the attendant Fourth Amendment dues." (Emphasis supplied). [...] -6- - - - - - Bracketing the Target Our concern in this case is with a very narrow window of time. Our focus is on the status of the encounter between Officer Kimmett, on the one hand, and the appellant and Chinham, on the other, between the moment that Officer Kimmett parked her cruiser cater-corner to the Honda and the moment that she detected the smell of marijuana emanating from the passenger side of the vehicle. The significance of what happened before and what happened afterward is not subject to serious dispute. Our exclusive concern is whether, during that brief interval, we are looking at a Terry-stop, subject to Fourth Amendment - 13 - - - - - - conditions, or at a voluntary and consensual exchange of conversation free of all such barnacles. Before zeroing in on that ultimate target, however, it behooves us briefly to dispose of the "before" and the "after," pointing out why neither is the occasion for any serious dispute. No Fourth Amendment Justification First, the "before." In terms of what Officer Kimmett knew as she parked her police cruiser cater-corner to the Honda in which the appellant was seated, it is beyond dispute that she had no Terry-level reasonable suspicion that the Honda and its occupants had committed, were then committing, or were about to commit any crime generally or any traffic offense specifically. Absent that predicate, there was no basis for any Fourth Amendment intrusion of the most minimal sort. In terms of a traffic offense, there was no evidence that the Honda had even been driving, let alone evidence that it had been involved in any traffic infraction. For all we know, the Honda was legally parked and its two occupants were sitting quietly inside it. There was, moreover, no evidence of any structural defect - no excessively tinted windows, no hanging tail pipe, no loose or missing license tag, etc. As far as the traffic laws were concerned, the Honda and its occupants were clean. As far as more generic crimes were concerned, the Honda and its occupants were also untouchable. - 14 - - - - - - If the Honda and its occupants were subjected to any official restraint, the Fourth Amendment was thereby implicated. The Fourth Amendment fountainhead, of course, is Terry v. Ohio. At the most fundamental level, the gears of the Fourth Amendment are engaged "whenever a police officer accosts an individual and restrains his freedom to walk away[.]" 392 U.S. at 16. Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 135 L.Ed.2d 911 (1996), described the reasonable suspicion standard that must be satisfied to justify such restraint: "We have described reasonable suspicion simply as 'a particularized and objective basis' for suspecting the person stopped of criminal activity[.]" United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981), was emphatic not only about the Terry standard but about the fact that it applies to all seizures of the person, including those involved in brief investigatory stops. "The Fourth Amendment applies to seizures of the person, including brief investigatory stops such as the stop of the vehicle here. An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." (Emphasis supplied) (citations and footnote omitted). United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989), described the standard for a Terry-stop: "The officer, of course, must be able to articulate something more than an 'inchoate and unparticularized suspicion or "hunch."' [Terry v. Ohio, 392 U.S. 1] at 27, 88 S.Ct., at 1883. The Fourth Amendment requires 'some minimal level of objective justification' for making the stop." - 15 - - - - - - (Citation omitted). The question is whether Officer Kimmett had any Terry-level justification as she first approached the Honda. A Worthless Tip Pointing In The Wrong Direction What had been communicated to Officer Kimmett's mind as she drove to 6518 Overheart Lane that night was sketchy in the extreme. The so-called radio dispatch was of "drug activity in the area." Officer Kimmett then knew absolutely nothing about the provenance of the tip: "[DEFENSE COUNSEL]: Why were you asked to go there? "A. We received a call for drug activity in the area. "Q. Do you know where that call came from? "A. I'm not sure the exact person but it came through Howard County Dispatch. "Q. Did you get the name of the person who reported the call? "A. I did not." (Emphasis supplied). The Supreme Court has made it abundantly clear that an anonymous tip, unverified by independent police observation, is not a credible basis for a Fourth Amendment intrusion. The tip that was dismissed as woefully inadequate in Florida v. J.L., 529 U.S. 266, 271, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), was no more insubstantial than the one given to Officer Kimmett in this case: - 16 - - - - - - "The tip in the instant case lacked the moderate indicia of reliability present in White and essential to the Court's decision in that case. The anonymous call concerning J.L. provided no predictive information and therefore, left the police without means to test the informant's knowledge or credibility. That the allegation about the gun turned out to be correct does not suggest that the officers, prior to the frisks, had a reasonably basis for suspecting J.L. of engaging in unlawful conduct: The reasonableness of official suspicion must be measured by what the officers knew before they conducted their search. All the police had to go on in ths case was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about J.L. If White was a close case on the reliability of anonymous tips, this one surely falls on the other side of the line." (Emphasis supplied). See generally, Carter v. State, 143 Md. App. 670, 678-80, 795 A.2d 790 (2002). [...] -17- - - - - - The reason for recognizing a police officer's prerogative to ask questions of citizens is clear. The officer is a citizen as well as an officer. He enjoys the same rights as do other citizens. In his concurring opinion in Terry v. Ohio, 392 U.S. at 32, Justice Harlan wrote of "the liberty (again, possessed by every citizen) to address questions to other persons[.]" In - 31 - - - - - - his separate concurring opinion, Justice White, 392 U.S. at 34, referred to the same general right inhering in all citizens: "There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets. Absent special circumstances, the person approached may not be detained or frisked but may refuse to cooperate and go on his way." (Emphasis supplied). This Court spoke to this very point in Graham v. State, 146 Md. App. 327, 366, 807 A.2d 75 (2002): "From the beginning, the accosting cases undertook to disabuse bench and bar of the notion that the police need special Fourth Amendment justification even to approach and to talk to citizens. There has never been a suggestion that a police officer enjoys a greater than ordinary right to approach and talk. The message, rather, is that the police officer enjoys no less a right. The officer possesses the same privilege as anyone else to approach a stranger and to ask, 1) 'What time is it?', 2) 'How do I get to Camden Yards?', or 3) 'Would you like to buy a ticket to the Policeman's ball?'" (Emphasis supplied). To that extent, the police officer is not disenfranchised. Our analytic point of departure is that a police officer, in talking to people, enjoys the same prerogative as does every other citizen, neither more nor less. He enjoys no special or additional authority arising out of the fact that he is a police officer. The fundamental character of a mere accosting is that it is egalitarian and not authoritarian. The citizen addressed is free to ignore the officer and to walk away. If the citizen does not feel free to do so, the encounter, by definition, loses its character as a voluntary and consensual one. This parity between the officer and the ordinary citizen may be helpful to remember when - 32 - - - - - - we assess, on an ad hoc basis, whether an officer on a given occasion may have strayed beyond the boundaries of a mere accosting. "Both parties to such mutual and voluntary exchanges stand as equals of each other. Neither is in a dominant role. It is inconceivable that one civilian would ever approach another and ask, 'Can you tell me how to get to Camden Yards, and, by the way, would you mind if I frisk you before you begin to tell me?' It is inconceivable that one civilian would approach another and ask, 'Can you, please, tell me what time it is and, by the way, would you mind sitting down there on the curb before you tell me? I don't want you suddenly to run away.'" 146 Md. App. at 366. (Emphasis supplied). To Run with the Hare and Hunt with the Hounds Particularly in the unsettled borderland of police-citizen encounters, the police, quite understandably, would like to enjoy the prerogatives of Fourth Amendment authority without having to pay their Fourth Amendment dues. They naturally want the best of all possible worlds. They desire, simultaneously, to run with the hare and hunt with the hounds. [...] -33- - - - - -
This is absolutely and provably false. The video is absolute proof that a white teen was just standing around in the scene and within sight and earshot of Casebolt.
Good evening Mr. Chan. Quick question for you that I think relates. You're walking down the street. On one side of the street is 5 black guys. On the other side of the street is 5 white guys that just got out of church. Which side of the road do you walk on? Remember it is late at night.
I still have his e-mail address somewhere, I could always send him another logon and password to help keep you guys busy...
“Political correctness is a doctrine, fostered by a delusional, illogical minority, and rapidly promoted by mainstream media, which holds forth the proposition that it is entirely possible to pick up a turd by the clean end.”
You don't need to. He is already posting here under other screen names and has a couple dozen more he actives once or twice a year for a few posts. Anyway, Big Shot, I have more than you do. I have his email address, his business email address, his home address and phone number.
Just for 2 days.
Which side of the road do you walk on? Remember it is late at night. Whatever side I happen to be walking on. I'm too lazy and stubborn to go out of my way to change sides and I am originally from NYC.
You probably just know karate. :)
Yeah, I know Karate. Joe Karate. He shined shoes outside the main gate of the Norfolk Naval Base. (very old Navy joke)
Just for 2 days. Well I'm glad of that I would have missed his wit. I know he lacks couth (like I do) and can get a bit overboard sometimes but he has a knack for dealing with the Gay Canary Posse Peanut Gallery that amuses me. “Political correctness is a doctrine, fostered by a delusional, illogical minority, and rapidly promoted by mainstream media, which holds forth the proposition that it is entirely possible to pick up a turd by the clean end.”
What!! No... You're slipping in your "supposed" old age... I see you still like to think you can "one up" someone... LOL So is this where I'm supposed to say I'm glad that I never donated to LP?? Or that this reminds me of a thread on LP relating to people who had their real identities revealed over there?? Hmmmmm... “Political correctness is a doctrine, fostered by a delusional, illogical minority, and rapidly promoted by mainstream media, which holds forth the proposition that it is entirely possible to pick up a turd by the clean end.”
The Chief's statement serves to establish that Casebolt was not acting within the scope of his employment. It serves to show that the doctrine of respondeat superior does not apply, and the employer is not liable for the wrongful acts of the employee. Casebolt faces potential personal liability. Litigation may depend on what assets he has and if they are worth going after.
#2. To: nolu chan (#0)
#3. To: nolu chan (#0)
#4. To: nolu chan (#0)
What particularized and objective basis did Casebolt have for suspecting the particular black males of criminal activity? How did he identify them as criminal suspects?
#5. To: nolu chan (#0)
(Edited)
I didn't see the entire video until this posting of it. Now that I watched the entire clip, I can kind of understand what was happening and where the officer was coming from.
He looked a little wound up, but he was trying to control a crowd. As he was trying to get several teens to sit down and shut up, and a group of teens, mostly girls, were standing around when he asked/told them to leave. It is unknown the exact reason why he is telling them to leave, but it is obvious that they are causing some sort of problem.
He continues to tell them to leave, and then the bikini-clad teen continues to mouth off. I believe he was going to lead her to the others sitting down. Instead, she resists. Most rational people understand that once the police have their hands on you, it is in your best interest to do as they say. They may not be in the right, but they will use force.
As he uses her momentum of pulling away to push her to the ground, the teen in the blue is moving in from behind. No matter what his motive was, the teen was getting too close and the officer responded by escalating to show of force. Once the kid moved back and around, the officer then told another officer to pursue the running teen, then holsters while turning back to the girl.
In another thread by "nolu chan", the emphasis of the article that was posted was that he was detaining only black teens. A question that comes to my mind is: "If the one officer out of twelve responding happens to be covering an area that has only black teens around, wouldn't that be the only racial group that is detained by the officer, if any?" I do see that all of the teens that he is working with are black, but what is unknown is the total racial makeup of the group, and all around this officer is only black teens. One cannot say that he is only detaining black teens when they do not know if there were any white teens hanging around and causing a scene yet being ignored by the officer.
What I can determine is that is that if the teens were dispersing like the police instructed them to, especially since they were called because they wouldn't leave earlier, most of this would not have happened. They definitely did not help by hanging around and taunting the officer. I think the young lady may not have needed to be detained, but she could have also prevented the follow-on events.
This will be one of my very rare comments in support of an officers actions instead of normal excessive use of force claims that are much more warranted. Notice now that since no one was actually injured, the "excessive use of force" claims can trumpeted by those who usually cheer when the suspect "gets what comming to them"...
libertysflame.com/cgi-bin...gi?ArtNum=40068&Disp=9#C9
#6. To: TheFireBert, nolu chan (#5)
In another thread by "nolu chan", the emphasis of the article that was posted was that he was detaining only black teens.
#7. To: A K A Stone (#6)
#8. To: A K A Stone, nolu chan (#6)
I read on a thread somewhere yesterday that they arrested a white person also.
#9. To: TheFireBert, nolu chan (#8)
#10. To: Gatlin (#7)
#11. To: TheFireBert (#10)
#12. To: TooConservative (#1)
A telling statement but I'm not sure it shields the PD from liability. Perhaps if they can demonstrate Casebolt violated long-established crowd control policy, that he was trained on such procedures, etc.
#13. To: buckeroo (#3)
Question: why do you go to your article's extent to support a thesis?
#14. To: A K A Stone (#4)
What particularized and objective basis did Casebolt have for suspecting the particular black males of criminal activity? How did he identify them as criminal suspects?
They were running. One of them came behind him to taunt him.
#15. To: nolu chan (#13)
#16. To: A K A Stone (#6)
I read on a thread somewhere yesterday that they arrested a white person also.
His lawyer also called the claims of racist behavior untrue, pointing out that he detained a young White girl on the scene. That teen, Grace Stone, was handcuffed by another officer when she tried to explain the situation to law enforcement.
#17. To: TheFireBert (#5)
As he was trying to get several teens to sit down and shut up, and a group of teens, mostly girls, were standing around when he asked/told them to leave.
#18. To: TheFireBert, A K A Stone, TooConservative (#5)
In another thread by "nolu chan", the emphasis of the article that was posted was that he was detaining only black teens. A question that comes to my mind is: "If the one officer out of twelve responding happens to be covering an area that has only black teens around, wouldn't that be the only racial group that is detained by the officer, if any?"
This Court spoke to this very point in Graham v. State, 146 Md. App. 327, 366, 807 A.2d 75 (2002):
Pyon v State, 2015 Md App LEXIS 50 (April 6, 2015)
v.
STATE OF MARYLAND
#19. To: TheFireBert (#8)
Notice that there are not any "white teens" standing around...
#20. To: nolu chan (#18)
The neighborhood was predominantly White, not Black. But let us assume that Casebolt only encountered Blacks. How did Casebolt establish his particularized and objective basis for suspecting individually that each of the persons he detained had engaged in some criminal activity?
#21. To: CZ82, GrandIsland (#15)
#22. To: Gatlin (#21)
#23. To: CZ82 (#22)
#24. To: CZ82 (#15)
He's been banned so he can't answer you.
#25. To: A K A Stone (#20)
You're walking down the street. On one side of the street is 5 black guys. On the other side of the street is 5 white guys that just got out of church.
#26. To: nolu chan (#25)
#27. To: A K A Stone (#26)
You probably just know karate.
#28. To: A K A Stone, buckaroo (#24)
He's been banned so he can't answer you.
#29. To: Gatlin, buckaroo, Dead Culture Watch, Liberator, Deckard (#23)
Anyway, Big Shot, I have more than you do. I have his email address, his business email address, his home address and phone number.
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