Archives for category: law enfocement

In this case about privately run prisons in Texas, inmates alleged abused in procedures, untrained staff, invasive strip searches and beatings. The Court refers to the sheriff’s terminology “ninja squad” as a reference to emergency response teams.


Kesler v. King (1998)

JAMES T. KESLER, ET AL., v. BRAZORIA COUNTY SHERIFF KING, ET AL.
CIVIL ACTION NO. G-96-703
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, GALVESTON DIVISION
29 F. Supp. 2d 356

Decided – December 7, 1998

Opinion by Samuel B. Kent:

The first group of Missouri inmates arrived at the CCRI facility on September 16, 1996. Upon their arrival, according to testimony, the inmates began acting in a “boisterous” manner. Shortly after they arrived, Sheriff King called Warden Crawford into his office to find out why the inmates were being so loud. Crawford responded that he hoped they would settle down, but that if he had to go in and settle them down, he would need assistance from the Sheriff’s Office because he did not have enough experienced personnel to handle the task. King responded somewhat cryptically, instructing Crawford that he should tell the inmates to settle down or they would face his “Ninja Squad.” Crawford relayed the message; later, he personally responded to reports of unruly conduct by the inmates and settled them down peacefully.

In concluding to dismiss some of the claims, the Court is mindful of the atrocity of the claims and the competing state and private interests:

The Court understands that overseeing and working within a jail or prison environment is a difficult task.

The injection of profit-seeking into the prison environment complicates this inherent difficulty.

Plaintiffs have produced evidence that they were kicked, bitten, and shocked. They have produced evidence that they were forced to strip naked in groups and subjected to full cavity searches, many of them conducted in full view by prison staff with absolutely no training or experience in executing such searches. They have produced evidence that at least a dozen inmates suffered vicious and unprovoked beatings at the hand of CCRI personnel and that grievances filed in every single instance with Brazoria County officials produced no response. Evidence such as this paints a grim picture of the actions of Defendants. If Defendant Brazoria County and its officials choose to farm out a portion of their jail to some quack private prison corporation in return for substantial profits for housing another state’s inmates, that is a matter between them and their citizens. If, however, there is evidence that those Defendants have utterly abandoned their duty to safeguard the essential human rights of these inmate commodities, that is a matter between them and this United States District Court.

However, the Court finds that Defendant Brazoria County is entitled to sovereign immunity with respect to Plaintiffs’ state law intentional tort and negligence claims

Here again we see another instance of correctional response teams called ninja. This seems to relate to both their attire and their tendency toward excessive force.

KENNETH CLARK, Plaintiff, -v- WESTCHESTER COUNTY, WESTCHESTER COUNTY DEPARTMENT OF CORRECTION, WESTCHESTER COUNTY DEPARTMENT OF CORRECTION MEDICAL DEPARTMENT, OFFICER WILLIS, SERGEANT SIMMONS, # 107, T.A.C. TEAM, aka “Ninja Turtles”, and JOHN DOES # 1 THROUGH # 4, Defendants.

96 CIV. 8381 (DLC)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
1998 U.S. Dist. LEXIS 6086

Decided – April 30, 1998

Opinion written by District Judge Denise Cote:

On November 7, 1996, Kenneth Clark (“Clark”) commenced this action as a consequence of the brutal mistreatment that he alleges he received while a pretrial detainee at the Westchester County Jail in Valhalla, New York, during two incidents on November 12, 1995 and February 3, 1996. Clark’s original complaint named two individual defendants, Officer Peter Willis (“Willis”) and Sergeant Ronnie Simmons (“Simmons”), as well as Westchester County, the Westchester County Department of Corrections, and the Westchester County Department of Corrections Medical Department. The initial pleading also listed four John Doe defendants who were part of a prison response team Clark identified as the “Ninja Turtles.” Two matters are before the Court at this time: first, in a motion to amend dated January 6, 1998, Clark seeks to add as individual defendants those John Does he has now identified by name; second, the defendants have moved for summary judgment and have opposed the motion to dismiss. For the following reasons, the motion for summary judgment is granted in part and in part denied, and the motion to amend is denied.

And:

At a March 7, 1997 conference, the parties agreed to, and the Court set, a discovery cut-off of October 17, 1997. Through his First Request for Production of Documents, Clark asked for documents that would identify the so-called “Ninja Turtles” by March 28, 1997. Pursuant to this Court’s direction, the defendants supplied — in a May 31 Response that plaintiff’s counsel says he received at latest in mid June — the names of those officers working on the “S.S.T.” team during the relevant shifts.

Of course, this is not the first Federal Court case to mention the Ninja Turtles but I think it is the first time we see “ninja turtles” as a reference to excessive force by a prison response teams. This is similar to previous cases about DEA agents in ninja outfits and masked police accused of excessive force. But here the “ninja turtle” reference applies not only to black attire but also to the riot gear padding and hard helmets of Correctional Emergency Response Teams.

ninja turtles

Previous NinjaLaw cases about Ninja Turtles:

First mention of TMNT in Federal Courts
Sun Dun v Coca Cola – August 15, 1991

Teenage Mutant Ninja Turtles again – Retromutagen Ooze
Monarch v. Ritam – June 12, 1992

Ninja Turtles and Hollywood’s Horizontal Conspiracy
El Cajon v. AMC – October 23, 1992

First mention of Ninja Turtles in F.Ct. where it’s actually about them
Mirage Studios v. Weng et.al. – April 29, 1994

Burger King Kids Club with Mutant Ninja Turtles – multi-ethnic path to Glee and Celebrity Apprentice
CK Company v. Burger King – September 29, 1994

Ninja Turtles again, this time with FASA’s BattleTech, ExoSquad, RoboTech and Playmates
Fasa v. Playmates – June 19, 1995
(WITH POWER RANGERS)

Spam vs Spa’am with Splinter from TMNT and Pumbaa from Lion King
Hormel Foods v. Jim Henson Productions – September 22, 1995

Ring Pops not utilitarian so trademark protects after patent expired
Topps Company v Verburg – December 12, 1996

This 1997 Florida case in Federal Court is about a strip club claiming that the local government is violating its rights with a new ordinance, the Jacksonville Adult Entertainment and Services Code.

WHITE’S PLACE, INC., d/b/a The Gold Club, Plaintiff,
v.
NATHANIEL GLOVER, in his Official Capacity as Sheriff of Jacksonville, THE CITY OF JACKSONVILLE, a Florida Municipal Corporation, and THE HONORABLE CHARLES O. MITCHELL, Jr., in his Official Capacity, Defendants.

White’s Place v. Glover
Case No. 97-930-Civ-J-20C
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA, JACKSONVILLE DIVISION
975 F. Supp. 1333

Decided – August 27, 1997

Judge Harvey Schlesinger writing for the Court explains:

With respect to Plaintiff’s argument that arrests were conducted by officers in Ninja masks, the Defendants have explained that these were worn by undercover vice officers whose identities would have been disclosed but for the masks.

The Court finds that Plaintiff is not likely to prevail and refuses to order a preliminary injunction.

This is not the first case of masks being called ninja masks, nor of police wearing them.

Three years later, the 11th circuit vacated and remanded (222 F.3d 1327, August 2000), because, as a corporation, White’s Place lacks standing to challenge the ordinance.

Meanwhile, twelve years later, the Gold Club is still currently operating at the same location as during this litigation: 320 General Doolittle Drive in Jacksonville, Florida – but it looks like maybe White’s Place Inc. sold to South East Show Clubs ?

After his conviction for possession of burglary tools, Mark Thomas sued Nebraska Police Officers (particularly Officer Griss) for planting the evidence. Thomas was arrested for not paying his hotel bill and so theft of services from the hotel. He was arrested in the hotel lobby. Evidence obtained from a bag taken from the hotel room included:

a Pickmaster lock kit containing lock-picking equipment, a lock pick gun, toe nail clippers, a Swiss army knife, a black ninja hood, a pair of black leather gloves, and other items.

MARK C. THOMAS, Plaintiff/Appellee, v. DALE HUNGERFORD, Individually and in his official capacity as police officer for the city of Kearney, Nebraska; MICHAEL KIRKWOOD, Individually and in his official capacity as police officer for the city of Kearney, Nebraska, Defendants, JEFF GRISS, Individually and in his official capacity as police officer for the city of Kearney, Nebraska, Defendant/Appellant.
No. 93-3232
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
23 F.3d 1450

Filed – May 11, 1994

Thomas’s amended complaint as stating a cause of action against Griss on two grounds: that Griss had conducted an inventory search of Thomas’s duffel bag that was not in accordance with established procedures, and that Griss had planted the black ninja hood and the “o” ring in the duffel bag. The district court denied Griss’s motion for summary judgment, and this appeal followed.

Noting in footnote #1:

Although the denial of a summary judgment motion is not a final judgment, a district court’s denial of a qualified immunity claim is an immediately appealable “final decision” within the meaning of 28 U.S.C. § 1291.

Reversing:

The order denying Griss’s summary judgment motion is reversed, and the case is remanded to the district court for entry of judgment dismissing the complaint.

Explaining about the planted evidence:

The district court also denied Griss’s motion for summary judgment on Thomas’s claim that Griss planted a black ninja hood and an “o” ring in Thomas’s duffel bag. The magistrate judge construed Thomas’s complaint to allege that because the hood and “o” ring did not appear on Ward’s inventory form, Griss must have planted the items. Griss argues that he is absolutely immune from this claim because the allegation that he planted evidence is simply an assertion that he committed perjury when he testified at Thomas’s trial about the events surrounding Thomas’s arrest. Thomas concedes that Griss would be entitled to absolute immunity on such a claim, for officers are absolutely immune from liability under 42 U.S.C. § 1983 for damages arising out of their alleged perjurious testimony at trial. Briscoe v. LaHue, 460 U.S. 325, 342, 75 L. Ed. 2d 96, 103 S. Ct. 1108 (1983). Thomas argues, however, that Griss did more than perjure himself, contending that Griss planted some of the evidence that the prosecutor used against him. Although absolute immunity may not shield Griss against such a claim, the district court should nevertheless have granted Griss’s summary judgment motion.

The inventory search was also found acceptable and not a violation of the Fourth Amendment, at least in part because the defendant himself asked to have the contents of the bag inventoried.

I think an “o” ring is a metal piece from a lock (in this case “a Kawneer-brand lock”) that can be used for breaking glass like car windows (see similarly Ninja rocks which will be mentioned in future case). But what makes a “black ninja hood” different from a mere black hood or black hood mask, this is not entirely clear to me, other than to further implicate that the defendant’s possessions are burglary tools. As if the tools themselves have intent, and this hood intended to be ninja.

On March 9, 1992, a District Court in Texas decided the case of US v. One 1984 Kawasaki Ninja Motorcycle. The case is about assets seized by the government as part of a drug related offense.

1984 kawasaki ninja

Before the Court is Petitioner United States of America’s motion, filed on November 4, 1991, entitled Motion for an Order of Interlocutory Sale And For Substitution of the Res. This motion concerns specifically the Respondent 1984 Kawasaki Ninja Motorcycle, [among other property]

The issue:

various motions and pleadings present two main issues for determination:

(1) whether the United States may summarily sell the seized items; and,

(2) the proper procedure to be applied in seeking and performing such a summary sale.

The Court concludes:

In summation, the United States may proceed under the Supplemental Rules and 28 U.S.C. sections 2001-2004 in judicial forfeiture proceedings to the extent that such rules and laws are not inconsistent with the relevant portions of the Drug Control Act.

After reviewing all of the pleadings in the file, the Court is of the opinion that the Respondent Vehicles should be sold by the United States Marshal or any other person authorized to do so pursuant to Rule E(9)(c) of the Supplemental Rules and 28 U.S.C. section 2004.

This case also involved US Customs rules and Supplemental Rules for Certain Admiralty and Maritime Claims creating confusion over what could be sold but the Court ultimately ordered that the vehicles could be sold at auction for a price no less than 2/3rd of appraised value.

On February 28, 1992 the US Court of Appeals for the Fifth Circuit decided the case of Charlene Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit (“TCNICU”). On further appeal, the Leatherman family tragedy was heard at the US Supreme Court in 1993.

Judge Goldberg writing for the Fifth Circuit, described the horror:

This civil rights case arose out of two separate incidents involving the execution of search warrants by law enforcement officers with the Tarrant County Narcotics Intelligence and Coordination Unit. One incident involved Charlene Leatherman, her son Travis, and her two dogs, Shakespeare and Ninja. Ms. Leatherman and Travis were driving in Fort Worth when they were suddenly stopped by police cars. Police officers surrounded the two of them, shouting instructions and threatening to shoot them. The officers informed Ms. Leatherman that other law enforcement officers were in the process of searching her residence. The officers also informed her that the search team had shot and killed their two dogs. Ms. Leatherman and Travis returned to their home to find Shakespeare lying dead some twenty-five feet from the front door. He had been shot three times, once in the stomach, once in the leg, and once in the head. Ninja was lying in a pool of blood on the bed in the master bedroom. He had been shot in the head at close range, evidently with a shotgun, and brain matter was splattered across the bed, against the wall, and on the floor around the bed. The officers found nothing in the home relevant to their investigation. Rather than departing with dispatch, they proceeded to lounge on the front lawn of the Leatherman home for over an hour, drinking, smoking, talking, and laughing, apparently celebrating their seemingly unbridled power.

This story is horrific. Not only are the dogs killed but note that “Ninja” was on the bed. And then the police “apparently celebrating” in the front lawn. Just horrible.

But alas, Judge Goldberg writes that he is “constrained” and “must politely decline” to hear this case because of so-called “heightened pleading requirement” rules. Judge Goldberg writes the opinion but also files a special concurrence of his own, almost begging the Supreme Court to examine this case and review the “heightened pleading” law. And so these dogs do get their day in Supreme Court. Though not mentioned by name in the Supreme Court opinion, the Leatherman’s dogs win at SCOTUS and the cases is reversed and remanded for further proceedings.

Justice Rehnquist wrote the Supreme Court opinion:

This action arose out of two separate incidents involving the execution of search warrants by local law enforcement officers. Each involved the forcible entry into a home based on the detection of odors associated with the manufacture of narcotics. One homeowner claimed that he was assaulted by the officers after they had entered; another claimed that the police had entered her home in her absence and killed her two dogs. Plaintiffs sued several local officials in their official capacity and the county and two municipal corporations that employed the police officers involved in the incidents, asserting that the police conduct had violated the Fourth Amendment to the United States Constitution. The stated basis for municipal liability under Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978), was the failure of these bodies adequately to train the police officers involved. See Canton v. Harris, 489 U.S. 378 (1989).

The United States District Court for the Northern District of Texas ordered the complaints dismissed, because they failed to meet the “heightened pleading standard” required by the decisional law of the Court of Appeals for the Fifth Circuit. 755 F. Supp. 726 (1991). The Fifth Circuit, in turn, affirmed the judgment of dismissal, 954 F. 2d 1054 (1992), and we granted certiorari, 505 U. S. —- (1992), to resolve a conflict among the Courts of Appeals concerning the applicability of a heightened pleading standard to § 1983 actions alleging municipal liability. Compare, e. g., Karim Panahi v. Los Angeles Police Dept., 839 F. 2d 621, 624 (CA9 1988) (“a claim of municipal liability under section 1983 is sufficient to withstand a motion to dismiss even if the claim is based on nothing more than a bare allegation that the individual officers’ conduct conformed to official policy, custom, or practice”) (internal quotation marks omitted). We now reverse.

Hooray for the dogs. Hooray for the rights of people invaded by search warrants. But unfortunately, that’s as far as the win would go. After the Supreme Court win, the Leatherman’s case was dismissed again at the District Court level on a motion for summary judgement and that dismissal was affirmed again by the Fifth Circuit in 1994, thus ending the Leatherman’s legal saga. Leatherman could not prove that the officers had not been sufficiently trained in how to execute search warrants or that the search warrant had been issued with prejudice. Specific odors associated to drugs were the basis of the search warrant and despite no evidence being found in the search, the warrant was issued properly. There were no material issues of fact and insufficient evidence to proceed and without specific discovery requests the court deemed the case a “fishing expedition”.

It was an anti-climactic end to a long legal fight that had successfully made Supreme Court law. We can thank the dogs, Shakespeare and Ninja, for eliminating the Fifth Circuit’s heightened pleading requirement on civil suits against municipalities. It was a big win and at least the dogs’ deaths were not completely in vain. Still, the issue of heightened pleading requirements remains a hot topic and actively debated – See 2007 case, Bell Atlantic v. Twombly, upholding heightened pleading on Sherman Act anti-trust claims. And in 2011, a Federal Court ruled that heightened pleading applies to false marking claims of false advertising.

In this 1992 case, ninja is used to refer to the attire of law enforcement personnel. Recall this previous case of DEA agents in ninja outfits. This case arises with allegation of excessive force, which will become a common theme for future cases involving ninja law enforcement.

MITCHELL L. POPE, Plaintiff, v. CRAIG KLEMENS; SGT. PAT WILSON; DON KNECHTEL; PATTY LUCIANO; CLYDE SMITH; PAUL WEIDNER; and MARK BURNS, All City of Lansing, Michigan Police Officers, Defendants.
File No. 5:90-CV-55
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN
1992 U.S. Dist. LEXIS 8686

Decided – February 18, 1992

The case arises from the search of an apartment where the police had previously made a purchase of cocaine (but not from the Plaintiff):

According to plaintiff, the following occurred during the search. The police entered the residence and yelled, “police search warrant.” Two search warrants were put on the counter. Plaintiff states that he thought it was a joke, but when he rounded the corner into the kitchen, he saw a “person with a mask on in a ninja suite [sic] holding a pistol. This was the first person in the door. This person came towards me, and put the pistol at my face with the light on for the sites. This person backed me up a sort [sic] distance till my rear came to the table, and I was there with my hands up and had this gun at my face, pointed between my eyes. . . . This person kicked me in the chest, while I had my hands over my head. He kicked at me while he had me at gun point. And kicked with intent to do grate [sic] bodily harm.”

Based on that,

Plaintiff accuses all defendants of violating his fourth amendment rights on the grounds that there was no probable cause to justify the search and seizure. Plaintiff also states a claim for excessive force against the person allegedly camouflaged in a “ninja” suit who, while pointing a gun at plaintiff, allegedly kicked plaintiff in the chest.

Plaintiff seeks $ 300,000.00 in compensatory damages and the return of all arrest cards and other incriminating information.

Dismissing the claim, the Court writes:

Plaintiff has provided no evidence of any injury or corroborating evidence by any of the other witnesses. Allegations supported by only a scintilla of evidence are insufficient to demonstrate a genuine issue of fact. Accordingly, I find in favor of defendants on plaintiff’s fourth amendment excessive force claim.

US Court of Appeals for the Eighth Circuit decided US v Collins and US v Streeter in a consolidated opinion filed, June 29, 1990. At issue was the validity of the police officer’s search and also of the court’s sentencing. The Court here decides that the search and police conduct were proper but vacates the sentence of defendant Collins because of a misapplication of the Drug Quantity Table. His case is remanded for resentencing.

United States of America, Appellee, v. Ernest R. Streeter, Appellant. United States of America, Appellee, v. Robert Jay Collins, Appellant
Nos. 89-5217SD, 89-5247SD
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
907 F.2d 781

Despite finding no police misconduct the Court refers to D.E.A. as ninja:

a search warrant was served upon the Collins residence, and an arrest warrant was served upon Collins by four D.E.A. agents dressed in black fire-proof “ninja” outfits.

This particular case has been criticized, distinguished and superseded in subsequent cases; there is continuing dispute over how to weigh whole marijuana plants and federal sentencing guidelines.

But this case is an important case for NinjaLaw because it reveals two common language functions of “ninja” in Federal Court opinions. First, it describes attire. Second and more interestingly, it describes law enforcement personnel. Both of these attributes are trends we will see again in future NinjaLaw cases.