Archives for posts with tag: fourth amendment

Police warrants on protest groups before the Republican National Convention – implicates the rights to associate and protest and rights of search and seizure. The warrants were for bomb-making materials, but at one plaintiff’s address they found ninja foot spikes. This is the decision on motions for summary judgments.

SCOTT DEMUTH, ALEXANDER LUNDBERG, CELIA KUTZ, NATHAN CLOUGH, VINCENT COLLURA, and ANDREW FAHLSTROM, individuals, Plaintiffs,
v.
ROBERT FLETCHER, individually and in his official capacity as Ramsey County Sheriff, INSPECTOR SAMEC, individually and in his official capacity as Deputy of the Ramsey County Sheriff’s Department, COMMANDER RICH CLARK, individually and in his official capacity as Deputy of the Ramsey County Sheriff’s Department, COMMANDER SOMMERHAUSE, individually and in his official capacity as Deputy of the Ramsey County Sheriff’s Department, COUNTY OF RAMSEY, a Minnesota municipal entity CERTAIN UNKNOWN AND UNNAMED SAINT PAUL POLICE OFFICERS, CITY OF SAINT PAUL, CERTAIN UNKNOWN AND UNNAMED CITY OF MINNEAPOLIS POLICE OFFICERS, and CITY OF MINNEAPOLIS, a Minnesota municipal entity, Defendants.

Civil No. 08-5093 (JRT/LIB)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MINNESOTA

2011 U.S. Dist. LEXIS 34638

Decided March 31, 2011

Opinion by US District Judge John R. Tunheim:

Defendants Robert Fletcher, Tony Samec, Dale Sommerhause, and Rich Clark (“defendants”) executed search warrants at various locations in August 2008 in relation to alleged illegal activity undertaken by members of a group known as the Republican National Convention Welcoming Committee (“RNCWC”). Defendants seized a large quantity of documents and other items, some of which allegedly belongs to plaintiffs Scott Demuth, Alexander Lundberg, Celia Kutz, Nathan Clough, Vincent Collura, and Andrew Fahlstrom (“plaintiffs”).

Plaintiffs are alleged co-owners of various materials seized by police officers during a raid of several buildings in 2008, prior to the Republican National Convention (“RNC”). Kutz, Fahlstrom, and Clough were members of a collective known as the RNCWC which raised funds to rent space to congregate, share ideas, and organize various protest activities related to the RNC. The RNCWC provided space and tables to allow the distribution of their own literature, as well as the literature of other groups and activists. The RNCWC intended to shut down the RNC to prevent it from occurring, and to prevent delegates from arriving at the RNC’s location.

The documents include statements such as “EVERYTHING YOU NEED TO KNOW TO BE SMART AND DANGEROUS DURING THE RNC BEFORE YOU ASK,” and explicit instructions for making a Molotov cocktail.

On August 29, 2008, Inspector Tony Samec, Commander Dale Sommerhause, and Commander Rich Clark of the RCSO applied for and received a warrant to search for assembled and unassembled bombs and materials to construct bombs, documents, and other materials at the Convergence Center. The application and resulting warrant described a variety of weapons and materials the affiants believed would be found there, including “[a]ssembled improvised incendiary devices . . . [i]gnitable liquids . . . [s]moke bombs . . . [and] [m]anuals, books and/or instructions for the construction of Molotov cocktails, bombs and other direct action techniques[.]”

One of the addresses searched:

D. 3500 South Harriet Avenue

On August 30, 2008, at 8:00 am, officers executed a search warrant at 3500 South Harriet Avenue. (Incident Report 3500 S. Harriet Ave., Samec Aff. Ex. A, Docket No. 56.) Officers located several weapons, including “ninja foot spikes,” a slingshot, and documents relating to the RNC. (Id. at 4-5.) Plaintiff Vincent Collura alleges that after entering the house, police ordered him to lie on the floor, where he was handcuffed and searched, then was unbound and taken outside approximately a half-hour later.

Collura testified that he resided at the residence at the time of the search, and shared a bedroom with Max Specktor. Collura also asserts ownership of a two-page address and phone list, from which he was transferring phone numbers into a new cell phone, that was seized by officers effectuating the warrant. Collura testified that the raid had a chilling effect on his desire to participate in the planned protests of the RNC for fear of further interactions with the police. (Collura Dep. 54:5-7, Apr. 30, 2010, Angolkar Aff. Ex. P.)

A whole bunch of legal analysis – concluding:

Based upon all the files, records and proceedings herein, IT IS HEREBY ORDERED that:

1. Defendants’ Motion for Summary Judgment [Docket No. 53] is GRANTED in part and DENIED in part;

a. The motion is GRANTED as to plaintiffs’ claims for conspiracy, failure to prevent, and claims under Monell;

b. The motion is GRANTED as to claims against any unknown officers. The “certain unknown and unnamed Saint Paul Police Officers, including officers John Doe and Jane Roes 1 thru 100” and “certain unnamed and unknown City of Minneapolis Police Officers, including officers John Doe and Jane Does 1 thru 100,” are DISMISSED with prejudice.

c. The motion is DENIED in all other respects.

2. Plaintiffs’ Motion for Partial Summary Judgment [Docket No. 51] is DENIED.

DATED: March 31, 2011

at Minneapolis, Minnesota.

/s/ John R. Tunheim

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In this unpublished opinion of the Fourth Circuit Court of Appeals, a police officer was entitled to qualified immunity after he conducted a warrantless search and seizure based on the mistaken belief that a “ninja keychain” was an illegal weapon in Virginia.


JOHN ASFOUR, Plaintiff-Appellant, v. C. M. COSSLETT, Defendant-Appellee.
No. 96-2132
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

1997 U.S. App. LEXIS 26879
Decided – September 29, 1997

The Court explains:

Asfour was driving a van on Interstate 95 when Trooper Cosslett stopped him for speeding. In plain view on the console of Asfour’s van was a “ninja keychain,” a metal shaft with two blunt-end spikes protruding from the shaft. In his affidavit, Asfour admits that a ninja keychain may be used as a weapon by gripping the device in a fist so that the two spikes protrude on either side of the middle finger, extending about one inch beyond the fingers.

ninja keychain

When he saw the keychain, Trooper Cosslett informed Asfour that it was an illegal weapon in Virginia. He then conducted a search of the van, seizing the keychain and two firearms concealed in the van. Criminal charges against Asfour ultimately were dismissed.

Concluding:

The dispute in this case centers on whether a reasonable officer in Trooper Cosslett’s position would have believed the ninja keychain to be contraband. The relevant in the case.statute makes it illegal to possess various items, including “brass or metal knucks . . . or like weapons.” Va. Code Ann. § 18.2-311 (Michie 1996). Asfour asserts that the keychain is so obviously different from brass knucks that it does not fall under the statute and that a reasonable officer would have recognized this. He cites no authority in support of his argument.

We disagree with his position. The ninja keychains are just the sort of “like weapons” contemplated by § 18.2-311. Asfour himself admits in his affidavit that such keychains are weapons, and he describes how they are used. Like brass knucks, they are held in the fist and meant to inflict more harm than an ordinary fist could cause. This certainly qualifies them as “like weapons” under the statute.

A reasonable officer in Trooper Cosslett’s position would have believed the ninja keychain to be contraband under Virginia law. Trooper Cosslett therefore was entitled to qualified immunity in connection with the search of the van and the seizure of the keychain and guns. Accordingly, we affirm the district court’s order. We dispense with oral argument because the facts and legal contentions are adequately presented in the material before the court and argument would not aid the decisional process.

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.