What did police not see?

An interesting case was mentioned on the ABA Journal’s website recently.  The case concerns litigation against the US Federal government for failing to identify that the perpetrator of the Charlestown massacre was not able to purchase a firearm.

The article notes that

A federal appeals court has ruled that the federal government can be sued for failing to uncover information about the Charleston, South Carolina, church shooter during a background check that would have barred him from being able to buy a gun from a licensed dealer before the mass shooting. …

The review was run by the FBI’s National Instant Criminal Background Check System. … The government reviewer contacted the wrong police department for records of Roof’s arrest because of a misstatement in a government database. …

If the government reviewer had been using discretion and decided against obtaining the arrest report, the government would be immune, the 4th Circuit said. But the examiner instead was required to get the report from the arresting agency under internal operating procedures that remove any discretion from reviewers. “The government can claim no immunity in these circumstances,” the 4th Circuit said.

This poses an interesting light on the broad principle that the state has only a limited duty to detect and prevent crime.  The law has traditionally been unwilling to be an armchair-quarterback to decisions made by police in exercising their discretion as to discharging their role: see Hill v Chief Constable of West Yorkshire [1989] AC 53.  In this case, however, there was expressly no discretion and so the failure by the reviewer would have lacked a common law immunity.  As a result, one can infer that the more prescriptive a government (or police force) is about its members’ duties, the less likely it is that a court may need to adopt the wide approach to liability taken by (say) South African law in Van Eeden v Minister of Safety and Security, 2003 (1) SA 389 (SCA).

Bad weather can be murder

What happens when a civilian is conscripted into police work?

On 13 March 2011 Kristine Constantino phoned the California Highway PAtrol from her home in Kettenpom, California.  She whispered “help me” and that she lived at the end of the Kettenpom airstrip.  The dispatcher formed the impression that she was trying to avoid being overheard.  The message was passed to the dispatcher of Trinity County Sheriff’s Office, who tried to call Constantino without success.  The call for help was passed to the Office’s Corporal Ron Whitman.

Christopher Richardson and Kristine Contantino (Image from here)

Apparently because Kettenpom is a remote town, Whitman called Norma Gund who lived near the airfield.  He asked her to do a welfare-check on Constantino.  He said that Constantino has called 911 for help, which probably related to bad weather.  He did not advise her that the caller was whispering or trying not to be overheard.  Gund and her husband went to Constantino’s home.  Constantino and her partner Christopher Richardson had immediately before been murdered by Tomas Gouverneur, who was still at the scene and attacked the Gunds, causing significant injuries (the full sequence of events is detailed in an article from radio station KMUD).

The Gunds sued Trinity County as Whitman’s employer.  Thye alleged that he had negligently misrepresented that the call for help was likely weather related and did not suggest a crime in progress.  The County applied to dismiss the claim  On the grounds that the Gunds’ only remedy was in workers’ compensation: Labour Code §3602.  California’s Labour Code §3366 provides that:

… each person engaged in the performance of active law enforcement service as part of the posse comitatus or power of the county, and each person … engaged in assisting any peace officer in active law enforcement service at the request of such peace officer, is deemed to be an employee of the public entity that he or she is serving or assisting in the enforcement of the law, and is entitled to receive compensation from the public entity in accordance with the provisions of this division.

The trial court agreed and dismissed the claim: Gund v County of Trinity (Trinity County Superior Court, Scheuler J, 27 April 2014, unreported).  The Gunds appealed.

The trial court’s decision was affirmed by the Third District Court of Appeal.  The Court noted that if Corporal Whitman had responded to Constantino’s call for unspecified ‘help’, he would have been engaged in active law enforcement because

any 911 call seeking unspecified help presents a risk of criminal activity.  Since the deputy would have been engaged in active law enforcement had he responded, plaintiffs were engaged in active law enforcement when they responded to the 911 call on his behalf — regardless of the deputy’s misrepresentations to plaintiffs that the call was likely weather-related and omission of facts that the caller whispered for help, was disconnected, and did not answer a return call. Even though plaintiffs were unaware of the facts suggesting potential criminal activity and felt lulled into a false sense of security by the deputy’s misrepresentations and omissions, plaintiffs still knew they were responding to a 911 call for help, the nature of which was not certain.

It followed that §3366 applied.  Because the Gunds could claim workers compensation, they had no common law damages claim.

Gund v County of Trinity (2018) __ Cal.App.4th __.

The Thought Police are terrible bores

Book Review: John Douglas and Mark Olshaker, Mindhunter (Arrow Books: London 1997)

I finished ‘reading’ Mindhunter on the train from Euroa to Melbourne the other night.  I say ‘reading’ with caution.  It’s not a great read, thanks to Douglas’ monotone prose style.  It’s better treated as a catalogue of the more interesting serial murders of the late twentieth-century.

Image from here

You can largely skip most of the discussion of criminal profiling, given that the entire discipline seems to be based on some very wobbly science.  It’s also probably best to try and ignore the authorial voice as much as you can, since Mr Douglas largely impresses as an insufferable know-it-all.  At one stage he imagines himself as a Lone Ranger, riding into town to dispense justice beyond the capacity of the knuckle-draggers in the local police force (an attitude which must have made the FBI popular among law enforcement) [pp.279 and 361].  In one of the closing chapters he over-reaches when he describes himself furiously telling a psychiatrist how the latter ought to be conducting assessments.  The tale ends with him saying: “He [the psychiatrist] didn’t have an answer” [p.336].  Actually, he was probably too polite to say it: that he was significantly better qualified to assess criminals than the combination of cop and snake-oil salesman who was his interlocutor.

Shorn of its faults, then, this 375-page book would condense to a neat 40 pages or so giving the basics of some interesting true crime.  My recommendation?  Skim it in an afternoon and then look up the more interesting bits on Wikipedia.  Wikipedia’s editorial standards are higher.

Bringing a knife to a … dammit.

An old country song cautions against taking your guns to town.  That advice applies prudently to other weapons.

dont take guns
Image from here

On 11 June 2017 a man went to attend a rally by an Australian neo-Nazi group known as the True Blue Crew.  Victoria Police, anticipating conflict, had declared the area to be a “designated area”, giving them expanded search powers.  The Control of Weapons Act 1990 (Vic.), §10G(1) states that –

A police officer may, without a warrant, stop and search a person, and search any thing in the possession of or under the control of the person for weapons, if the person and, if applicable, the thing are in a public place that is within a designated area.

The accused’s car was searched, with a flick-knife and knuckledusters being found.  The report is slightly unclear but is appears he was charged with possessing a prohibited weapon in breach of §5AA of the Act.

The defendant pleaded guilty in the Dandenong Magistrates Court, claiming to have forgotten the weapons were in his vehicle.

Vandersteen M noted that the defendant suffered from a psychiatric condition, but also noted that he had a prior weapons conviction and was attending a rally by a racist organization.  The defendant was sentenced to a 12 month good behaviour bond with a condition that he continue to receive psychiatric treatment.

Police v Martin (2018), Endeavour Hills, Hallam and Doveton Star-Journal, 23 April 2018, p.3

Gatecrasher gets crashed!

In case you’re wondering, simply being in uniform won’t get you immunity.


On 31 December 2009 Dillon Bracken gatecrashed a party at a hotel in Honolulu.  Kinchung Chung, a police officer, had been hired by the venue as a “special duty officer”.  While he wore his uniform and this work was approved by the police department, he was paid by the hotel directly and was considered to be off-duty from the police force.  Chung and a number of bouncers confronted Bracken.  A scuffle broke out between Bracken and the bouncers (not including Chung) in which Bracken was injured.

Bracken sued Chung for violating his rights to due process by failing to intervene and stop the alleged assault by the bouncers.

Every person who, under color of any [law] … of any State … subjects, or causes to be subjected, any … person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured … for redress: 42 USC §1983.

The US District Court dismissed the claim, finding that Chung was immune from suit and the claim in any event lacked merit.  Bracken appealed.

The appeal was upheld by the Ninth Circuit Court of Appeals.  It was accepted that Chung acted under colour of State law by invoking the authority of his uniform and badge.  However, he was not entitled to immunity from suit: There was no tradition of immunity for off-duty police acting as private security guards.  He was not carrying out public duties or doing the work of government [although one may wonder, then, why the Honolulu Police Department allowed “special duty” policing in the first place].

The Court of Appeal also considered that Bracken’s claim had merit.  While in general the State was not liable for failing to prevent a person coming to harm, a police officer was obliged to intervene where he had placed a person in danger.  Here, although it was foreseeable that Bracken would be injured by the bouncers, Chung had prevented him leaving.

The case was returned to the District Court for further proceedings.

Bracken v Chung (2018), Ninth Circuit Court of Appeals, 23 August 2017

Bringing a Lawbook to a Gunfight

An interesting case came out of the US Supreme Court ten days ago.  In May 2010 three officers of the University of Arizona Police Department responded to a callout regarding a woman [Amy Hughes] acting erratically (hacking a tree with a knife).  On scene they found the woman’s housemate [Sharon Chadwick] on the other side of a chainlink fence.  Hughes came and stood about six feet from her, still holding the knife.  She ignored officers’ demands to drop the weapon and was shot four times by officer Andrew Kisela.

U AZ Police

Hughes sued Kisela on the basis that he had used excessive force, violating her Fourth Amendment rights:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The US District Court for Arizona summarily dismissed the claim.  The Ninth Circuit Court of Appeals reversed the District Court and remanded the matter for further proceedings.  The defendant appealed to the US Supreme Court.

The Supreme Court expressed doubt that Hughes’ rights had been violated but in any case bypassed the question.  It concluded that Kisela was immune from being sued.  In essence, a police officer will be immune from suit where their action did not violate clearly established rights of which a reasonable person would have known.  The existence of the right must be well established and should not be defined at a very general level: defining a right very generally would empty the immunity of value.

Where constitutional guidelines seem inapplicable or too remote, it does not suffice for a court simply to state that an officer may not use unreasonable and excessive force, deny qualified immunity, and then remit the case for trial on the question of reasonableness.

On the undisputed facts it was not obvious that a competent police officer would have known that shooting Hughes to protect Chadwick would breach Hughes’ Fourth Amendment rights.

Kisela v Hughes, 584 US ___ (2018)