It’s Jama v. United States (W.D. Wash. Mar. 2, 2010):
This controversy stems from a July 2006 raid of Plaintiff’s residence by federal and local law enforcement authorities. Officials were searching for evidence relating to the importation and distribution of khat, a leafy herb indigenous to the Horn of Africa and the lower Arabian Peninsula, where residents have long chewed the plant’s leaves for its stimulative effects. Khat itself is legal in the United States, but the plant’s stimulative effects come from cathonine and cathine, which are classified as Schedule I and IV drugs, respectively. Khat is typically consumed fresh, because the cathinone breaks down into cathine within two to three days after harvesting. When a person ingests cathonine by consuming fresh khat, he is therefore violating American drug laws….Plaintiff was not a suspect, and was not indicted by the grand jury. Because one of the suspects shared her apartment, however, her residence was among those be searched: Plaintiff’s uncle Abdigafar Ali Hassan had picked up one package believed to contain khat at a local FedEx facility on May 18, 2006, and a second package on July 13, 2006….
The search was conducted in the early-morning hours of July 26, 2006…. Plaintiff was in her bedroom when police entered her home. She “heard a crash and they barged into my home.” Dressed in a night gown without a bra or underwear beneath, she walked out of her bedroom, and saw men in black running up the stairs toward her with their guns drawn. Plaintiff states that she “did not hear the people say they were police officers or why they were there.” Officers forced her to the ground and tied her hands behind her back. At some point, it was made clear to Plaintiff that her home had been entered by law-enforcement officers.
Officers detained a total of five individuals, including Plaintiff, while they searched Plaintiff’s apartment for evidence relating to khat distribution. The other four detained individuals were men, and two of them were not members of Plaintiff’s family. This caused Plaintiff distress because her Muslim faith prohibits her from appearing in a state of undress or from appearing without a head scarf before unrelated males. Plaintiff is not a fluent English speaker, so she asked her uncle Mr. Hassan, who was also detained, to request a cover for her hair and body from police officers. Defendant Smith refused Plaintiff’s requests for modest clothing, and photographed her in the nightgown and without a head scarf. After taking the photographs, Defendant Smith placed a loose piece of cloth over Plaintiff’s head. Approximately one hour after the officers entered Plaintiff’s apartment, they moved the detainees outside. Plaintiff was still wearing nothing more than her nightgown. Because Defendant Smith had failed to secure the piece of cloth, it fell off Plaintiff’s head as she was walking outside. Plaintiff, whose hands were still tied behind her back, was unable to grab the cloth and cover herself.
Officers instructed Plaintiff and the male detainees to move outside and sit on the ground, from which position they were visible to neighbors. Mr. Hassan again explained to police officers that Plaintiff’s religion forbade her from appearing uncovered before unrelated men, and asked that she be allowed to remain inside the apartment, or at least behind the building, where she would not be visible to neighbors. Officers refused the request. Plaintiff remained outside for several hours, uncovered except for the night gown, while officers searched her apartment for evidence relating to khat. They found none….
This Court follows the emerging trend of legal authority in holding that Defendants Hacket and Smith are entitled to assert qualified immunity [against the plaintiff’s Religious Freedom Restoration Act claim]. See Rasul v. Myers, 563 F.3d 527, 533 n.6 (D.C. Cir. 2009) (“[D]efendants are entitled to qualified immunity against the plaintiffs’ RFRA claim.”); Keen v. Noble, 2007 WL 2789561, at *9 (E.D. Cal. 2007) (“Plaintiff’s RFRA claim …is dismissed because the defendants are entitled to qualified immunity”); Wong v. Beebe, 2007 WL 1170621 (D. Or. 2007) (“[Defendant] is entitled to summary judgment on the [RFRA claim] ….”)….
Assuming arguendo that the issue of qualified immunity in the context of a claim under the Religious Freedom Restoration Act comes before this Court as a matter of first impression, Plaintiff’s argument … fails. The same competing public interests — on the one hand, holding public officials accountable when they exercise power in an illegal manner, and on the other hand, protecting public officials from harassment and distraction when they perform their functions reasonably — apply to RFRA claims as to Bivens claims and claims under the Civil Rights Act. Moreover, the seminal language from the Supreme Court suggests that the defense is equally available against claims arising from the Constitution and against those claims arising from statute. See Pearson v. Callahan, 129 S.Ct. 808, 815 (2009) (“The doctrine of qualified immunity protects government officials 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.” (emphasis added).
The Religious Freedom Restoration Act provides that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability[.]” 42 U.S.C. § 2000bb-1(a). The Act creates an exception, however, allowing the Government to “substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person (1) is in the furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”
Plaintiff argues that Defendants Hacket and Smith violated her rights under the Act by refusing her requests for a headscarf and for clothing that was more modest than her nightgown, and by forcing her to remain in her relative state of undress in the presence of unrelated males. Plaintiff argues that these refusals represent a substantial burden of her statutory rights because her Muslim beliefs require that she dress more modestly in the presence of unrelated males. According to Plaintiff, no compelling governmental interest justified the burden once all the suspects inside her apartment had been detained and the apartment itself secured. As Plaintiff argues, “[She] and her family repeatedly informed Defendant Hacket, Defendant Smith, and the other officers of the religious importance of proper clothing and a head scarf, after her apartment and all persons inside had been secured.”
Defendants focus most of their attention on whether Plaintiff’s allegations constitute the deprivation of a statutory right that was clearly established at the time of the search. As Defendants state, “Plaintiff has not pointed to even one case in which a court has applied RFRA to a situation in which an individual was detained by law enforcement and, during the detention, was prevented by law enforcement from engaging in the free exercise of his or her religion.” Plaintiff disagrees with Defendants’ characterization of the relevant case law, citing Hall v. Griego, 896 F. Supp. 1043 (D. Colo. 1995), and Luckette v. Lewis, 883 F. Supp. 471 (D. Ariz. 1995). In each case, prison guards prohibited prisoners from wearing certain headcoverings that the prisoners claimed their religious beliefs required them to wear. In Hall, the trial judge denied the federal defendants’ motion for summary judgment. Hall, 896 F. Supp. at 1048. In Luckette, the trial judge ordered prison officials to “meet with the plaintiff and … agree on an appropriate headcovering which will not present safety concerns,” but left open the possibility that prison-safety requirements might preclude the plaintiff “from wearing …duly designated dangerous headcoverings.”
Those cases are clearly distinguishable from this case, however. Both dealt with long-term deprivations of a person’s religious practices in a place of long-term custody. In a prison setting, public officials have the responsibility of creating and maintaining procedures and facilities that allow prisoners to exercise their religious beliefs. No such obligation exists while police are performing searches and making arrests. In both of the cases that Plaintiff cites, prison officials prohibited prisoners from wearing their headcoverings throughout the day, while eating meals, enjoying air with other prisoners, and generally passing time. In Plaintiff’s case, she was only prohibited from wearing her head scarf for approximately four hours, while officers performed a search of her apartment.
In short, the cases are sufficiently distinguishable that this Court must grant the motion for summary judgment of Defendants ….. The Court cannot say that the purported right of a person to wear religious covering during a search of … her home was “clearly established” at the time of the search. The Court therefore declines to reach the issue of whether Plaintiff has alleged the violation of a constitutional or statutory right. See Pearson (holding that a trial court can properly refuse to consider whether a plaintiff has alleged the violation of a plaintiff’s constitutional or statutory rights if the court concludes that those rights were not clearly established at the time of the alleged deprivation).
DangerMouse says:
You know, whether this was the right approach or not, something has to be done about cops that apparrently are incapable of common decency. There’s something really wrong with parading a handcuffed, near-naked girl around in public. What the heck would’ve been wrong with covering her up more?
March 5, 2010, 2:59 pmthirdeblue says:
DangerMouse,
We treat people with decency and the terrorists and drug-runners win…or something. I’m just glad the police where there to protect us WASPs from…what exactly???
March 5, 2010, 3:02 pmBored Lawyer says:
What in the world does this mean? Khat is legal, except it’s illegal? I may sell khat but not ingest it?
March 5, 2010, 3:05 pmSeaDrive says:
What if plaintiff were literally naked?
On the other hand, “Heavy-handed drug raid against low value target yields nothing.” Not news.
March 5, 2010, 3:12 pmgrey says:
It’s pretty great to see the argument made that prisoners are entitled to greater deference than free persons.
Love these types of cases. Really screw with the heads of those who believe free exercise problems are mostly “to intinct or not to intinct?”
March 5, 2010, 3:20 pmKirk Parker says:
I’m with Bored Lawyer: if “khat itself is legal in the United States”, then what on earth was the justification of a raid looking for a shipment? Only a raid looking for people in the act of consuming fresh khat would seem to qualify as reasonable.
March 5, 2010, 3:29 pmJMA says:
Bad manners are bad manners–not religious persecution.
I fail to understand why she’s suing about a little public exposure instead of the stolen goods. Not that I figure she would have any more success in getting her property back…
March 5, 2010, 3:40 pmOrenWithAnE says:
What judge approved this as a nighttime raid anyway? My understanding is that warrants are generally served during ‘normal business hours’ unless there is a compelling reason to do otherwise.
March 5, 2010, 3:47 pmSlow says:
Our drug war is just insane and ridiculous at this point right?
March 5, 2010, 3:57 pmDavid M. Nieporent says:
You’re kidding, right? You need to read more Radley Balko. The WoD is always a “compelling reason,” to drug warriors.
March 5, 2010, 4:10 pmSteve says:
Seems exactly right to me. While I feel police officers ought to respect people’s religious needs if they can reasonably do so, they shouldn’t have to worry about potential legal repercussions if they fail to do so in the middle of an arrest. The prison cases are indeed distinguishable, not because prisoners have more rights, but because the situation gives the authorities sufficient time to evaluate the request for religious accommodation, whereas the cops have to make a decision on the spot with many other things to think about.
March 5, 2010, 4:16 pmMike P Wagner says:
I will have to send this out to my old Peace Corps buddies – for a while I was allegedly the 1st RPCV (Returned Peace Corp Volunteer) to have bought and chewed ghat in the States.
I chewed a lot of fresh ghat when I was a Volunteer in Yemen (then North Yemen).
For those who who don’t know, ghat is a very, very mild stimulant. It’s effects – even when fresh – are more or less like strong coffee. And by “fresh”, I mean within a couple hours of being picked.
It’s an odd drug to go after – I can’t imagine it’s related to much crime. It’s almost unheard of outside of Yemen and Ethiopia. The ghat I bought in the back room of a restaurant in Brooklyn was “Habashi” – from Ethiopia.
Thanks for the story – it reminds me of many relaxed Thursday afternoons chewing ghat in Yemen. On time, a group of Volunteers and Yemenis rented the “mufraj” (living room) at the very top of Dar Al Hajr for a chew:
http://upload.wikimedia.org/wikipedia/commons/f/f4/Dar_al-Hajar_rock_house-Yemen.jpg
Mike
March 5, 2010, 4:20 pmJerome says:
No-knock entries (often done at night) are often approved and conducted if it can be shown that an “exigent circumstance” exists – a fear that a suspect may destroy evidence in the course of the raid is an exigent circumstance. In Hudson v. Michigan, the Court noted that the presence of running water alone could qualify as an exigent circumstances in drug raids.
March 5, 2010, 4:22 pmMike McDougal says:
That’s the man! The one masticulating behind the shed!
March 5, 2010, 4:35 pmathEIst says:
My neighborhood is overrun by khat addicts robbing raping and killing. I will sleep soundly knowing our law enforecement personnel are fighting this scourge.
March 5, 2010, 4:36 pmDilan Esper says:
Allow me to add my voice to the chorus. This was an outrageous abuse of law enforcement power.
March 5, 2010, 4:41 pmDavid Nieporent says:
Middle of an arrest, middle of a pointless raid for a harmless substance that didn’t actually find any of the substance… you say tomato, I say tomato.
March 5, 2010, 4:54 pmJohn D says:
I would just like to note that my religion forbids my being searched.
Or arrested.
Or charged.
Or tried.
Or convicted.
Or sentenced.
Or jailed.
And you wouldn’t want to violate my deeply held religious beliefs, wouldja?
March 5, 2010, 4:56 pmsubpatre says:
Jama’s problem is knowingly allowing Hassan to maintain (his drivers license for instance) a residence —whether real or not— at her residence; so the search is valid. A case could possibly have been made (but wasn’t) of the court was imposing its own moral judgement; ie what if she was naked, half naked, not clothed, etcetera.
The case is brought on by rudeness and arrogance. I cannot see why the DEA couldn’t have provided her a hijab or covering as she wished once the people and scene were secured, five minutes at most. From of a four-hour search.
More troubling than DEA treatment during the search is Judge Coughenour’s ‘reasoning’ on p 12:
He authorizes the presumption of armed force for any illegal or non-legal act or possession. Your kid got ‘illegal’ music? Stick a gun in their face until the search is over, according to Coughenour. Wow!
March 5, 2010, 5:04 pmJPG says:
Look at it more as a reasonable accommodation issue. You can not reasonably argue one’s religious beliefs allows believers to evade penal and criminal law. The question raised here is whether or not detectives could or should have accomodated the plaintiff with proper clothing without jeopardizing the ongoing operation. It seems to me the defendant made an effort to do so, were these efforts too loose to achieve accomodation?
March 5, 2010, 5:21 pmKirk Parker says:
So now I’m agreeing with Dilan! Wow, can Arthur Kirkland be far behind?
March 5, 2010, 5:28 pmDave N. says:
Kirk,
I’m agreeing with Dilan too. The police acted outrageously.
March 5, 2010, 5:39 pmWilliamP says:
That might be a compelling argument if we were discussing the immediate circumstances of an arrest. We aren’t. The suspects had already been detained and secured. They were already physically bound by armed officers who likely outnumbered them. Once the suspects posed no reasonable threat, then yes, the officers certainly do need to begin considering the possible legal repercussions of their behavior. What we’re talking about is the loss of several minutes of one officer’s time during a four hour search in which multiple officers participated. A head scarf and modest clothing could have been obtained, searched, and handed to the woman in a trivial amount of time and she could have been observed putting them on and then resecured. It would have put no one in danger, posed no danger to the (evidently imaginary) evidence, taken very little time and cost virtually nothing. The only reason to refuse such a basic concession is out of spite or disregard.
March 5, 2010, 5:40 pmArthur Kirkland says:
The drug war has (and has had) exceedingly little to do with practicality, morality or crime (other than generating plenty of it). Instead, it is the product of repressed people afraid that someone, somewhere, is in danger of having some fun. I have found that “drug warrior” is a reliable, but not foolproof, indicator of a spot on the jerk end of the personality continuum. Jerk + gun + badge + sovereign immunity = bad news in every direction. (Add a robe and you have an unrestrained boob such as Judge Coughenour.)
I would favor giving this woman a shot at a jury verdict against the officers and their municipal sponsor.
And may the great libertarian-liberal alliance overcome the conservative nanny-staters’ war on drugs.
March 5, 2010, 5:54 pmBama 1L says:
Keep in mind Coughenour is the judge who sentenced Ahmed Ressam to only 22 years and got reversed by the Ninth Circut.
March 5, 2010, 6:13 pmwlpeak says:
Filed under Khatkaesque.
“Khat itself is legal in the United States…a federal grand jury indicted eighteen individuals for conspiracy to import and distribute khat…results of a court-authorized wiretap of the ringleader’s cellular telephone…more than one thousand conversations relating to khat…”
Sooo, a bureaucrat adds mildlystimulatingstuff (MSS) to a schedule. Some legal to possess plant (LP) can be used to derive MSS. And some guys are talking about getting LP on a wire.
Cops assume they will have guns to protect themselves because MSS is sorta druggish, because the bureaucrat says so.
So cops have to use dangerous force and humiliate this woman because the guys might have guns because they might have MSS because they might have LP. (Oh and shoot some dogs if ya see any.)
How soon until endorphins are scheduled and we all become conspirators?
March 5, 2010, 6:13 pmOrenWithAnE says:
Either that or it wasn’t even approved as a nighttime raid in the first place.
March 5, 2010, 7:01 pmOrenWithAnE says:
Once a warrant is lawfully granted, the merits of the underlying statute are no longer relevant.
The behavior in question would be just as wrong if they were searching for evidence of murder — common decency required the police to fetch a blanket and put it the plaintiff.
March 5, 2010, 7:05 pmptt says:
Khat, schmat. I’m a dogh person.
March 5, 2010, 7:08 pmpete says:
You left out incompetence.
I agree with the general tone of the comments here in that the police were being jerks, not that they violated her religious rights. Anyone in the circumstance described here should have been allowed to get dressed before being taken outside.
March 5, 2010, 8:02 pmOwen H. says:
I’m still confused about the justification for the raid; the plant is legal to possess and import, but a part of it isn’t?
March 5, 2010, 8:14 pmJon says:
I wonder if she’d identified herself as ‘Christian’ and simply asked for a robe and a scarf – would she have been treated any differently?
Regardless, it does seem this legal opinion is similar to the opinions my grandma told me about. You know, the kind everybody has.
March 5, 2010, 8:22 pmsardonic_sob says:
She should just be glad she didn’t have a kitten. She got off light.
March 5, 2010, 9:17 pmLeopold Stotch says:
@Mike Wagner,
A friend of mine who spent six months in Djibouti a few years ago had a very different experience. He said that a couple hours after the daily khat delivery at the international airport in Djibouti City, a significant part of the population becomes semi-catatonic, and stays that way for several hours. Maybe you just didn’t chew enough. (BTW: based on his description, the delivery process — which involves a dilapidated plane and a pilot with questionable credentials — sounds like something worth seeing. From a distance.)
Regardless, the drug war’s stupid and these cops are, at minimum, boorish louts.
March 5, 2010, 9:41 pmJohn Herbison says:
The qualified
impunityimmunity doctrine itself is pernicious–cut from whole, judicial activist cloth. If the Congress wanted to recognize or create immunities from the scope of the various statutes authorizing suits in federal courts, it would have written appropriate language into those statutes.I find it anomolous that many, who in other contexts decry judicial activism, are strangely silent on this question.
March 5, 2010, 10:10 pmeyesay says:
I agree with DangerMouse!
March 5, 2010, 11:52 pmAnonymous EE student says:
It’s true that neither “khat” nor its botanical name are in the Controlled Substances Act, but it usually contains one or two listed substances, cathonine and/or cathine. You can legally possess/import khat only if it doesn’t contain any cathonine or cathine. If you want to see the distinction teased out in detail, see, e.g., United States v. Hassan, 578 F.3d 108, (2nd Circuit, 2009).
March 6, 2010, 12:03 amMark30339 says:
Law enforcement training should include random, no knock, door busting, 3am searches of police, prosecutor and judicial families. Clearly these people need something to create a better sense of proportion and propriety in setting targets among citizens who are entitled to a presumption of innocence (but apparently, not to a presumption of dignity).
March 6, 2010, 12:51 amBill Poser says:
To me the overriding question is why the police have any authority to interfere with the activities of an occupant of a location being searched beyond what is necessary to to effect the search safely and without fear of contamination or destruction of evidence. As far as I can see, the police can legitimately restrict the movements of the occupants within the search area and search them for weapons and/or restrain them to the extent necessary for the safety of the police. It is hard to see what basis the police have for any further constraint on their activities. I can see no justification for preventing this lady from dressing, or for that matter, from doing pretty much anything else she wished to so long as she did not interfere with the search or assault the police. How is the idea that police engaged in a search have complete control even over non-suspects consisted with the limitation on the powers of government that pervades the US Constitution?
March 6, 2010, 4:16 amReligious Accommodation and US Law | Crossroads Arabia says:
[...] Interesting Religious Accommodation Case Eugene Volokh It’s Jama v. United States (W.D. Wash. Mar. 2, 2010): This controversy stems from a July 2006 raid of Plaintiff’s residence by federal and local law enforcement authorities. Officials were searching for evidence relating to the importation and distribution of khat, a leafy herb indigenous to the Horn of Africa and the lower Arabian Peninsula, where residents have long chewed the plant’s leaves for its stimulative effects. Khat itself is legal in the United States, but the plant’s stimulative effects come from cathonine and cathine, which are classified as Schedule I and IV drugs, respectively. Khat is typically consumed fresh, because the cathinone breaks down into cathine within two to three days after harvesting. When a person ingests cathonine by consuming fresh khat, he is therefore violating American drug laws…. [...]
March 6, 2010, 8:31 amSeaDrive says:
How do we blame this on a stimulant? And is there some other “stimulant” responsible for the Spanish custom of siesta>
March 6, 2010, 8:57 amgasman says:
Regarding the respect for an individual’s dignity:
Police behavior coarse and insensitive to those whom they serve, yes.
A constitutional affront, no.
The plaintiff trying to elevate this to some sort of religious accommodation claim, shear bullshit.
March 6, 2010, 9:08 amFormer Army MP says:
Once anyone is cuffed they stay cuffed until they are in the detention center with locked doors behind them. It only takes seeing what happens once when the police, usually a new one, wants to be nice and ‘adjust a too tight cuff’ or let the arrestee put a coat on, and they fight or try to flee–even with 4 cops standing there. People get crazy when they see their free life slipping away.
As for putting a covering on her body, NO WAY. That is an instant complaint of ‘he tried to feel me up’ even with lots of witnesses and a camera running. Women love to submit a complaint they got felt up–hoping the charges go away in return for her withdrawing her story.
Women even file complaints on women cops. Crying sex assault is cheap, easy, and sometimes effective.
Once a woman is cuffed up, and patted down by two women cops, you only grab her by the cuff chain. Even with that, the complaints will come in.
March 6, 2010, 9:17 amLaura(southernxyl) says:
Gasman, are you a Muslim?
…Former Army MP, since the woman here is in fact complaining, I’d say their not covering her was an ineffective way to avoid having a complaint. I also call BS on “That [draping something over her] is an instant complaint of ‘he tried to feel me up’ even with lots of witnesses and a camera running. Women love to submit a complaint they got felt up–hoping the charges go away in return for her withdrawing her story.” What I see here is a person who justifies acting like a jerk to women by asserting that they deserve it.
March 6, 2010, 10:01 amMnZ says:
Laura, the difference between that one charge is levied at all police officers while the other is levied at a particular police officer. I know several police officers who live in fear of being named specifically in a lawsuit because they reason that an individual police officer is easy to throw under the bus.
While IMO the police should have draped something over her, I am a little surprised by people who suggest that the woman be allowed to “get dressed.” Doesn’t anyone see a problem with allowing a suspect to rummage around in a draw/closet in their home? Similarly, uncuffing the suspect in their home is dangerous too because the police don’t know if the suspect is hiding a weapon nearby.
March 6, 2010, 10:16 amDavid Nieporent says:
You’re confused. She wasn’t arrested. They were just incidentally harassing her because she happened to be unlucky enough to share an address with someone they actually wanted to harass.
March 6, 2010, 10:21 amLaura(southernxyl) says:
Oh, sure. But nothing stopped them from pulling a blanket off her bed, did it, and draping it over her as she was cuffed? Or hell, put her in the back of a police car so everybody couldn’t stare at her.
If the cops can’t stand the possibility of people accusing them of things, maybe they’re in the wrong business. This woman was subjected to a very distressing experience at the hands of cops, because she was accused of something. Remember, no evidence of what they were looking for was found. I don’t think you get to act like an a-hole because you might be accused of something, in the process of accusing somebody else.
March 6, 2010, 10:22 amDavid Nieporent says:
First, neither she nor anybody else suggested that she be allowed to “rummage around” unsupervised anywhere. All she asked was that they cover her head and/or that they don’t parade her around in front of the neighbors while uncovered and in a nightgown.
Second, I reiterate: she wasn’t a suspect. People need to read the opinion. Her only crime was living with someone whose only “crime” was allegedly selling qat. “Plaintiff was not a suspect, and was not indicted by the grand jury. Because one of the suspects shared her apartment, however, her residence was among those be [sic] searched…”
March 6, 2010, 10:44 amOrenWithAnE says:
David, you keep harping on the merits of the underlying offense. I cannot fathom why the search out to be conducted differently based on the crime for which evidence is sought or why respect for the plaintiff ought to hinge on whether the law in question makes sense.
(And by the way, it is a crime not a “crime”, much as I personally disagree with it and would vote to repeal it if I were a legislator — that is black letter law. Projecting your own disapproval as if it erases this is just about as silly as a law banning khat.)
March 6, 2010, 11:16 amDavid M. Nieporent says:
Oren who isn’t Orin: you think police should approach all suspects the same way, whether they’re accused of not wearing a seatbelt or serial killing? You don’t think a slightly more forceful approach might be called for in the latter situation than the former?
I reiterate that she wasn’t a suspect at all, though, which makes the issue even starker: you don’t think a violent crime suspect should be approached more forcefully than an innocent bystander not even suspected of a crime?
Because if your answer is no, that they should all be treated identically, then I guarantee that it doesn’t mean that police will be courteous and gentle with everyone; it means the police will treat every person they come into contact with as though those people are potentially Osama Bin Laden.
March 6, 2010, 11:45 amhattio says:
MnZ says
In addition to the facts that she was not a suspect, and that no one is suggesting allowing her to rummage around in her “draw/closet” there’s another objection to this statement. Just because police claim something is dangerous doesn’t mean we ignore all other laws and allow them to do or not do whatever it is they object to.
March 6, 2010, 1:18 pmBrett Bellmore says:
Point of terminology: Unless they actually provided some evidence of this, (I mean, something you couldn’t obtain at a good costume shop.) the phrase should be, “At some point, the home invaders alleged that they were law-enforcement officers.”
March 6, 2010, 3:41 pmpete says:
You do understand they weren’t taking her to a detention center and she was never actually arrested right? They could have left her handcuffed inside the apartment half dressed and done their search without any extra danger. I have no problem with police who actually arrest someone not letting them get dressed, but there was no officer safety need to take her out of her apartment when she was not dressed.
March 6, 2010, 3:50 pmtheobromophile says:
My knowledge of the Muslim religion is not very good, but I’m missing the part in it wherein it states that being in a state of undress around many, many unrelated males for four hours is acceptable, but is not acceptable in the long term.
Last time I checked, most religions say that the duration of wrongdoing is a matter of degree, not of kind; this court claims that it is matter of kind, not degree.
Beyond the religious issue, most women I know would be horribly uncomfortable to be outside, in the cold, in their nightgowns, in front of the neighbours, without panties. That falls so squarely under “basic common sense” that I’m struggling to see how a court could conclude that the officers would not have been on notice of that.
March 6, 2010, 6:08 pmmariner says:
The real problem here is that cops bashed in someone’s door in the middle of the night, ostensibly looking for something that is LEGAL.
March 6, 2010, 7:39 pmJohn Herbison says:
There is no indication from the district court’s order that the plaintiff raised any Fourth Amendment claim that the officers who executed the search warrant did so in an unreasonable manner or exceeded the scope of the warrant. I wonder whether the warrant authorized the seizure of this plaintiff’s person. If not, where was the probable cause to seize her? (Her uncle, having been indicted, was likely the subject of a capias, whether the search warrant did or did not authorize the seizure of his person.
March 6, 2010, 8:01 pmKirk Parker says:
theobromophile,
Huh? This isn’t complicated–next time she’ll be a little more reluctant to
engage in criminal behaviorfail to report her housemate’s criminal behaviorfail to report her housemate’s perfectly legal posessionAh, crap, I give up…
March 6, 2010, 8:15 pmJohn Herbison says:
It’s a minor point, but I doubt that this woman was “outside, in the cold”. Not in July, even in Washington state.
March 6, 2010, 8:18 pmCricut Tote says:
I love scrapbooking! It’s one of my favorite ways to relax. Thank the Lord for my cricut tote. It sure makes getting together with my fellow scrappers a lot better!
March 6, 2010, 8:33 pmNI says:
I have a different question about qualified immunity. The judge seems to be saying that in order for a right to be “clearly established” there must be caselaw on point. Well, what about the plain language of the statute? I don’t see how, under the plain language of the RFRA, there is any possible conclusion other than that her clearly established rights were violated. Or do statutes not really mean what they say until there’s a case directly on all fours about it?
Though I also agree with the earlier comment that qualified immunity can’t be squared with 42 USC 1983, so maybe the plain language of statutes is irrelevant.
March 6, 2010, 9:30 pmBrett Bellmore says:
That seems to be the position a lot of lawyers take with respect to ANY written law, whether statute or constitution: After all, if written law had meaning before case law, you’d have to take seriously the possibility that case law could be wrong.
March 7, 2010, 7:36 amrjs says:
The issue is not whether a law exists generally prohibiting certain conduct but how that law has been applied to specific factual situations. The issue of qualified immunity “must be undertaken in light of the specific context of the case, not as a broad general proposition.” Saucier v. Katz, 533 U.S. 194, 201 (2001). “[T]here is no doubt that Graham v. Connor . . . clearly establishes the general proposition that use of force is contrary to the Fourth Amendment if it is excessive under objective standards of reasonableness. Yet that is not enough. Rather, we emphasized in Anderson that the right the official is alleged to have violated must have been ‘clearly established’ in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Id. at 201-02 (citation and quotation marks omitted).
March 7, 2010, 10:45 amOrenWithAnE says:
First, we aren’t talking about that “approach” here, we are talking about what the officers did after they secured the scene. I would expect them to put a blanket on anyone, irrespective of the charge — no further ‘force’ in the approach is necessary after the suspects are in cuffs, period.
Who said anything about approached? The only wrong alleged in the complaint was the RFRA and 4A violations concerning things that happened far after the approach — the question you want me to answer has nothing to do with the case.
I never suggested anything as ridiculous, only that their treatment after they are in cuffs ought to be materially the same (within reasonable security concerns, which quite plainly did not preclude throwing a blanket over the plaintiff here).
Does your local costume shop sell search warrants (complete with affidavit) signed by a USMJ? That would be awesome!
For Fourth Amendment purposes, a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted. Michigan v. Summers.
March 7, 2010, 1:00 pmLaura(southernxyl) says:
It doesn’t have to be awesome.
Joe Blow or Jane Doe, wakened in the middle of the night by strangers holding guns, standing barefoot in their nightclothes, have a piece of paper thrust at them while said strangers are barking orders and binding their hands behind their backs. Joe and Jane have never crossed paths with law enforcement before. On a scale of one to ten, how do you rate the probability that they would be able to discern the authenticity of that piece of paper? Or even, under the circumstances, that they would even know what the hell it is? Remember that the plaintiff here doesn’t even have good English. You think she immediately grasped what that search warrant was?
March 7, 2010, 2:14 pmLaura(southernxyl) says:
I’ll add that I don’t think I’m a stupid person. I have no idea what a search warrant would look like, the format it would be in, the signatures I should expect to see. It ought to have a date, an address, what’s being looked for, and a signature of a judge – I guess? I don’t know the names of judges around here who might reasonably be expected to sign these things, so a stranger off the sidewalk could sign as judge – I wouldn’t know the difference. If the police broke into my home looking for drugs, how long would they give me to scrutinize this warrant?
We really scrupulously law-abiding people aren’t really protected by warrants, you know. We’re protected by the fact that wrong addresses and wrong identities don’t happen very often. They do happen, though.
March 7, 2010, 2:17 pmBrett Bellmore says:
No, for that you need a few minutes with a good word processor. A quick web search will let you see the format, and how many people are going to recognize on sight the local judge’s signature?
Seriously, it was “made clear to her” that police had entered her home. I’m simply inquiring as to whether they actually bothered to PROVE this, or “made clear” means nothing more than “claimed to be”. Letting her call the station to ask if they had sent somebody to search her house would be proof. Wearing a uniform anybody can rent, is not.
My point here is that the legal system seems to have a bit of concern about making sure police actually obtain the right to conduct a search. They seem to have precious little concern with making sure the subject of the search is given any reason to believe the police have done that, or are even really police.
March 7, 2010, 2:23 pmMichelle Obama’s Racist, Racist Email About First Lady Stings Tenn. Exec | Internet articles and article directory service says:
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March 7, 2010, 11:08 pmYankev says:
I’ve never been to Washington State, but I can assure you that July nights in northern Wisconsin, up around Manito-Wish or even Rhinelander can be very chilly.
March 8, 2010, 9:11 amChris Travers says:
Laura: I agree that the police acted like jerks here. I am not sure what the answer is, but this isn’t the way police should operate.
March 8, 2010, 11:45 amOrenWithAnE says:
Entirely irrelevant. Of course, had the piece of paper actually been inauthentic, the officers would be both individually (Bivens) and professionally (S1983) liable, the city would certainly be on the hook for training/supervising.
Let me turn this around — do you think that officers with an authentic search warrant are required to teach basic civics to the subject of that warrant? In foreign languages? The mind reels. Either they are authorized to kick the door down or they are not — the opinion of those inside cannot possibly matter.
[ Of course, I stand by my original assertion that they were obligated, within a few minutes of securing the scene, to provide defendant with a blanket out of basic human decency. For some reason David and Laura want to argue the search warrant ab initio and I'm not at all sure why. ]
None. Your scrutiny is irrelevant — the warrant exists or it doesn’t and you can litigate that fact (and a Franks hearing, if you think it was based on reckless or intentional falsehood) to your hearts content.
Do you know what kind of hell will rain down on a police agency that allows officers to forge a search warrant? It’s unheard of because the sanctions (not to mention a contempt hearing in front of the judge whose signature you forged) would be enormous. You’d probably draw a Federal criminal investigation for conspiracy to violate constitutional rights aside from the contempt hearing, the massive civil liability (that would certainly be settled out of court — no one would bring that to a jury) and almost certain dismissal from the force.
What they believe it irrelevant. I’m sure a guy on PCP might believe that the police are aliens sent from the mothership to steal his plans for the energy ray weapon that was embedded in his brains. Requiring the SWAT team to explain the actual facts (probably starting with an overview of our system of justice) is not merely unreasonable but likely impossible.
Now, the police should be courteous and explain things to the best of their ability out of a sense of duty and professionalism. That doesn’t mean they must nor does it mean they must hire translators and psychiatrists for that purpose.
March 8, 2010, 12:20 pmBrett Bellmore says:
.
Irrelevant? Look, OwithaE, if the cops have a legit warrant, they’ve got the right to search my home. But how am I to know they have that right, if I haven’t seen that warrant? You’re neglecting the original purpose of a search warrant: To tell the person being searched that they have a legal obligation to submit to the search.
I have a legal right to defend my home against invasion, with lethal force if necessary. When the police invade somebody’s home without showing them the warrant, they set up a situation where, though they might have the right to enter, the homeowner has the legal right to RESIST that entry.
It’s a very dangerous right to exercise, but it is a right. People have killed cops and gotten away with it, because of not being shown warrants.
And, you’re conspicuously ignoring the point that criminals DO, sometimes, pretend to be police. Which is among the reasons police ought not to be so stubborn about not proving their identities.
March 8, 2010, 12:54 pmOrenWithAnE says:
Because they have badges and because you know that hell will rain down on them if they intentionally enter your house absent a warrant (see, e.g. Bivens).
Only against unlawful force, not against lawful-force-that-you-haven’t-been-convinced-is-lawful-force. Tracy Ingle is serving 18 years for resisting the lawful (warranted) invasion of his house — you are free to join him if you like.
I am unaware of any court affirming a legal right to resist lawful-in-fact entry.
Cite?
You misread me entirely. In my mind, we ought to return to presumption that the police may not break down the door until the residents have been notified and given the chance to surrender peacefully. That is not, alas, the state of the law as it exists today.
March 8, 2010, 6:51 pmLaura(southernxyl) says:
Here’s why.
March 8, 2010, 7:33 pmLaura(southernxyl) says:
(I hate that you can’t edit formatting.)
March 8, 2010, 7:35 pmOrenWithAnE says:
Do you really think that police can provide a search warrant with sufficient anti-counterfeiting marks that can prevent the blue light rapist from reproducing them? The problem of criminals impersonating the police is the same as with criminals everywhere — finding and punishing them severely for the crimes they have committed. It makes no difference to the victim whether a rapist waved a badge and a piece of paper or a gun and a taser.
March 8, 2010, 7:37 pmLaura(southernxyl) says:
Right. So we are back full circle: the plaintiff did not understand, and should not be assumed to have understood, that it was the police breaking into her apartment and dragging her outside undressed.
March 9, 2010, 9:14 amOrenWithAnE says:
And we are back to what I said originally, that the police certainly were obligated to throw a blanket on her (a few minutes after they secured the house) and make an effort to explain the situation to her. They are obligated by the FCP to leave a copy of the warrant (IIRC) as well.
What I reject with is the notion that they must either explain it to her satisfaction (as Brett seems to imply) or that, worse still, they must explain it to her satisfaction before securing the premises. That strikes me as absurd – a citizen properly subject to a lawful-warrant-in-fact has no lawful right to delay the performance of the warrant.
March 9, 2010, 11:28 amLaura(southernxyl) says:
We live in a police state now, do we?
March 9, 2010, 4:23 pmOrenWithAnE says:
Let me just be exactly clear on your claim: an LEO acting pursuant to a warrant signed by a neutral magistrate upon sworn application detailing probable cause, and this is a police state simply because the officer does not want to argue the finer points of 4A law with the occupants? His authority to use force is either lawful-in-fact or it’s not and that cannot be changed merely by the officer wishing it were so (when it’s not) or the defendant refusing to admit it (when it is).
Moreover, a requirement to ‘explain’ the situation is hardly conducive to the conclusion that there is not a ‘police state’ either — one can clearly imagine a situation in which the government has the lawful power to search any home for any reason and conducts that power in accordance with your suggestion. That is, the polite police officer knocking on the door and patiently explaining that the 35th amendment to the US Constitution authorizes him to search the home is most certainly an agent of a police state irrespective of his good manners.
March 9, 2010, 8:22 pmyankev says:
While standing shackled in the rain awaiting transport to prison, Oscar Wilde observed “If this is how Her Majesty treats her prisoners, she doesn’t deserve to have any.”
Unlike the lady in this case, Mr. Wilde had been convicted of a felony.
March 10, 2010, 3:42 pmJohn D says:
I’ve been meaning to clarify my (snarky) comment above. I’m generally in favor of religious accommodation, but I think there needs to be a line between free exercise and religious claims being used as a catchall.
So, providing appropriate food to people, allowing incarcerated individuals to pray according the the rules (and schedules) of their religions. I’m all for that. Since this a clothing issue, I want to add the prisoners whose religions require that their hair be covered should be accommodated.
The woman in question wasn’t a prisoner though. She was at home. The police did not force her into this clothing, rather, it was the attire she had freely chosen earlier. If she is truly concerned that her nightgown is too revealing, she should be wearing more chaste bed clothing. Further, if her hair must be covered, then she should sleep in a kerchief.
Why would you be wearing clothing that you honestly felt contravened your religion?
March 10, 2010, 6:18 pmDavid M. Nieporent says:
Uh, she wasn’t. The clothing doesn’t contravene her religion; wearing it in public (or, more precisely, in front of unrelated males) does. But she didn’t wear it in public; she wore it to bed, in her own bedroom. Then the police kicked down her door and dragged her in front of the public.
March 10, 2010, 6:55 pmyankev says:
It would be dignifying that comment to call it silly. By your logic, she should also shower fully clothed. And drape a large poncho over herself while using the bathroom.
And it defies logic to say she was not a prisoner. She could not choose to leave — her freedom of movement was restrained. That’s an arrest. For crying out loud, she could not even move her hands. By any logic, she was then in the custody of government agents until they released her. Had she released her, they would have used force to recapture her, and she could have been charged for fleeing. Had someone tried to release her, is there any doubt the agents would have used force, up to and including deadly force, to retain custody?
By what logic should someone in custody who has not been convicted or even charged be treated more harshly than a convicted felon? Neither logic nor morality supports your position.
Think of your wife or mother being exposed to the view of the neighborhood in nothing but a nightgown and you may gain a new perspective. Apart from religious accommodation, simple human decency required the agents to act with greater consideration.
March 11, 2010, 9:33 amyankev says:
That should have read “had she tried to flee”
March 11, 2010, 9:34 amyankev says:
After reading your two comments, why do I come away with the feeling that whatever your religious needs or beliefs, none of them would particularly inconvenience you?
March 11, 2010, 9:45 amOrenWithAnE says:
Custody yes, detained yes, arrested no, prisoner, no. These are technical terms of art with precise meanings (see, e.g. Michigan v. Summers).
It’s not that your point isn’t well-taken, it’s that it’s a mistake to analogize detention during a search of a house with an arrest or a custodial sentence. They are different animals.
March 11, 2010, 12:25 pmJohn D says:
Yankev, you’re quite right that I belong to a liberal religious group that does not make any particularly stringent ritual demands. Oh, I have to be nice to people and fair and just. No rules on eating or clothing though. I could walk outside in my jammies without violating the rules of my religion.
I am sympathetic to those whose religions prescribe limitations on food and dress. Orthodox Jews should be given kosher food in prison (and so on with all dietary limitations). Women whose religions require head coverings should be allowed to wear them in prison.
But you went for the “think of your wife or mother” argument in another comment. Well, if you recollect some of my prior posts, I don’t have a wife. I have a husband (but that’s another comment thread). I do have a mother (and a father too).
Now I’m to imagine my mother in her nightgown. Mom likes the kind of nightgowns that cover neck to wrists and ankles. She’s really quite a modest woman. She might not want to sit outside in such clothing, but if there were an emergency and she had to leave her house after bedtime, she certainly would do so.
Do we think the plaintiff in this case, if her house were on fire, would wait to put on something more appropriate? Or would she prefer to burn to death in her immodest night wear? Or would she go out and then sue the firemen for obliging her to leave her house in immodest clothing?
As I said, I’m generally supportive of religious accommodation, but I’ve seen many examples recently where “accommodation” is a substitute for something else. I think this is the situation here.
March 12, 2010, 3:25 pm