Archives for posts with tag: police

This case is a bizarre set of allegations of a conspiracy against petitioner by DHS and other government agencies (*FBI Ninja Sharpshooters*).

WILFREDO TORRES, Plaintiff,
-against-
DEPARTMENT OF HOMELAND SECURITY, Defendant.

09 Civ. 8640 (RJS)(KNF)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

2010 U.S. Dist. LEXIS 120353

Decided by
KEVIN NATHANIEL FOX, UNITED STATES MAGISTRATE JUDGE.
THE HONORABLE RICHARD J. SULLIVAN, UNITED STATES DISTRICT JUDGE.
November 2, 2010

Because this case is a bizarre pro se fact pattern, here is quoted the entirety of the background facts from Judge Fox’s opinion:

The gravamen of Torres’ complaint is that, since 1980, DHS has been involved in a large-scale conspiracy, with various government and private entities, to “persecute []” him and his family. Among the entities with which DHS has allegedly conspired are: (1) the New York City Police Department; (2) American Airlines; (3) the plaintiff’s landlord, Bellevue South Associates; (4) a Mafia gang operating in midtown Manhattan; (5) the Drug Enforcement Administration; (6) the Puerto Rico Police Department; (7) the New York State Department of Motor Vehicles; (8) Zurich American Insurance Company; (9) Independence Bank; (10) White Rose Food; (11) the New York City Administration for Children Services; (12) “Krasdale Foods, Benfica Trucking [] and the Teamsters Union”; (13) Beth Israel Medical Center; and (14) the United States Postal Service. None of these entities is named as a defendant in this action.

The plaintiff alleges that DHS, as part of its conspiracy, has, inter alia: (1) falsely arrested him on at least three occasions; (2) placed his name on an airline passenger list, describing him as a “terrorist”; (3) caused flooding in his apartment; (4) “derailed” at least two lawsuits he initiated; (5) instructed gang members to harass him; (6) drained “thousands of dollars” from his bank account; (7) “arbitrarily end[ed]” the parental rights of an unnamed third party; and (8) denied medical services to a critically-ill relative. Torres makes no allegations about when each act, noted above, and committed in furtherance of the conspiracy, occurred.

In addition to his conspiracy claim, Torres alleges that, on an unspecified date, “DHS agents recklessly crashed their vehicle against the one that [he] was driving, causing [Torres] serious bodily injury.”

As a result of DHS’ alleged conduct, Torres claims he has suffered “psychological” injuries, “[a] broken bone, detention, incarceration, loss of income . . . [and] mental anguish.” In his prayer for relief, Torres requests that the Court order the defendant to “make public” the “existing list” and “all records concerning the death of Filiberto Ojeda.” [FN1] Moreover, Torres seeks “new elections in Puerto Rico” and a “refund” of the legal fees paid by “former Puerto Rico governor Anibal Acevedo, and his assistant Luisa Inclan” in defending against “their false prosecution” by the United States. [FN2]

**Footnotes**
FN 1 According to the plaintiff, “the United States has a list which includes most Arab-Americans as well as most American political dissidents.” Torres alleges that, since September 11, 2001, the United States has subjected those on the list to “intense and brutal” persecution, like “Puertorrican [sic] opposition leader Filiberto Ojeda,” who was shot by “Ninja-unit sharpshooters of the Federal Bureau of Investigation.”

FN 2 Torres requests further that the Court “designate David Rankin, Esq. . . . as counsel to prosecute this case.” On February 23, 2010, the Court denied the plaintiff’s request for appointment of counsel. See Docket Entry No. 7.

Then analysis leading to the conclusion:

For the reasons set forth above, I recommend that the defendant’s motion to dismiss the complaint, Docket Entry No. 11, be granted. I recommend further that the plaintiff be denied leave to replead.

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This is a case of a police raid. Summary judgment is granted on some counts but other counts survive. The police SWAT team is described as ninja-clad and using flash bombs.

FELICIA MARTINEZ, et al., Plaintiffs,
v.
TRACEY McCORD, et al., Defendants.

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION
Case No. 1:06-cv-636-WKW [wo]
2008 U.S. Dist. LEXIS 37881

Opinion by: US District Court Judge W. Keith Watkins, decided May 8, 2008:

This case arises out of searches of two mobile homes for methamphetamine, currency, and drug paraphernalia under a Houston County, Alabama search warrant dated January 17, 2006. (Doc. # 84-3.) One of the mobile homes was occupied by Plaintiffs Felicia Martinez (“Martinez”) and her two minor children.

Juvenal is the estranged husband of Martinez.

Methamphetamine, currency, drug paraphernalia, and a handgun were seized at 81 Pitts Drive, and Juvenal Martinez was arrested.

But at the other address:

Martinez and her minor children, ages five and seven, were watching television at 7:00 p.m. when the Daleville Police Tactical Team, also known as the Special Weapons and Tactics (“SWAT”) Team, made an explosive entry into her home, located at 43 Pitts Drive, and secured the premises for the drug task force to conduct the search. (Martinez Decl. P 1; McCord Decl. at 3.) During the initial entry to the home, a “flash-bomb” or other explosive device was thrown through the window, exploding in front of one of the children watching television. (Martinez Decl. P 2.) Officers with masks, assault garb, and drawn weapons entered the mobile home by breaking down a door. (Id. P 4.) Weapons were pointed at Martinez and her minor children, and they were required to lie on the floor face-down and were not permitted to move. (Id. P 5.) Other officers, also unidentified, made a coordinated and simultaneous entry into the other mobile home located nearby [footnotes omitted]

The case here is particularly about the liability for Officers’ McCord [the commander of the Houston County narcotics unit] and Williamson;

At the time of entry into Martinez’s home, McCord was on duty watching the perimeter of the entry at 81 Pitts Drive. (Id.) At that same time, Williamson was waiting in a vehicle down the road. (Williamson Aff. P 9.) After the premises of the mobile homes were secured, Williamson entered the plaintiffs’ residence and searched the kitchen, bedroom, and the laundry room for items pursuant to the warrant, (Williamson Aff. PP 10-12), and McCord entered the residence at 81 Pitts Drive where he spent over two hours searching for evidence and interviewing the individuals found inside. (McCord Decl. at 4-5.) Methamphetamine, currency, drug paraphernalia, and a handgun were seized at 81 Pitts Drive, and Juvenal Martinez was arrested.

McCord then walked the short distance to 43 Pitts Drive. (McCord Decl. at 5.) Although McCord describes his entry of the plaintiffs’ home as merely a “quick walk through” that lasted five to ten minutes, (McCord Decl. at 5), Martinez alleges that McCord and other officers involved in the search “look[ed] in every drawer in every room of her house,” “tore the front off [her] VCR,” and “caused damage to [her] car during the search.” (Martinez Decl. P 7.) Martinez also claims McCord told her that she was going to jail. (Id. P 18.) The actions of McCord and other officers “extremely distressed” Martinez and caused her to worry “that there was something in the explosive device that caused [her children] to sleep.” (Id.)

On July 18, 2006, the plaintiffs filed this action against multiple defendants, some of whom have already been dismissed as parties. In their most recent complaint, the plaintiffs allege eleven counts against McCord and Williamson for unlawful entry, unlawful search and seizure, excessive force under 42 U.S.C. § 1983, conspiracy to violate her civil rights under 42 U.S.C. § 1985, failure to prevent the violation of her civil rights under 42 U.S.C. § 1986, and six state tort claims. [footnotes omitted]

The Court decides,

due to the lack of discovery, Rule 56(f) prevents the court from reaching a judgment on the motion for summary judgment at this time with respect to Williamson for three of the tort claims.

But,

Despite Rule 56(f), there are two tort claims against Williamson that fail as a matter of law, and further discovery on these claims would be pointless. Count Seven alleges the tort of assault and battery. (Third Am. Compl. PP 95-98.) The complaint states that “the defendants touched Ms. Martinez in rudeness, in anger, or in a hostile manner, by touching her person and pointing a firearm at her head.” (Id. P 95.) Despite lumping all defendants into this claim, earlier in the complaint the plaintiffs admit that Williamson was not part of the initial, violent entry of their home during which time the alleged assault occurred and firearms were drawn. (Id. PP 20-21.) The complaint states that “[f]ollowing the assault on Plaintiffs’ (sic) and their home, the Ninja-clad officers left, to be replaced by . . . Williamson and other, presently unknown, officers.” (Id.) It is clear the assault and battery claim is directed at the officers who initially entered the plaintiffs’ home and not the officers who subsequently searched the home. Because the plaintiffs acknowledge Williamson was not one of the initial officers, and they do not allege that he ever touched the plaintiffs, the assault and battery claim against him fails.

Count Nine asserts a claim for intentional infliction of emotional distress (i.e., outrage) against Williamson. However, in Alabama, the tort of outrage is only recognized in three areas: “(1) wrongful conduct within the context of family burials; (2) an insurance agent’s coercing an insured into settling an insurance claim; and (3) egregious sexual harassment.” Stabler v. City of Mobile, 844 So. 2d 555, 560 (Ala. 2002). None of these situations is remotely applicable to the situation at hand, and thus the plaintiffs have not alleged a viable claim of outrage. Therefore, Williamson’s summary judgment motion is due to be granted as to both Count Seven (assault and battery) and Count Nine (outrage).

Those dismisses, other claims survived, including alleged “violations of various constitutional rights under 42 U.S.C. § 1983: unlawful entry in violation of the Fourth and Fourteenth Amendments, unlawful search and seizure in violation of the Fourth and Fourteenth Amendments, and excessive force in violation of the Fourth Amendment.” To be decided another day (presumably by settlement negotiations).

In this 2003 case, “Ninja” is a gang nickname (in 1988) for someone who was going to sell or give guns (“artillery” or “jammies”) to the convicted criminal conspirators. The crime is the execution-style murder of a police officer.

PHILIP COPELAND, Petitioner, – against – HANS G. WALKER, Superintendent, Auburn Correctional Facility, Respondent.
97-CV-2082 (ERK)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
258 F. Supp. 2d 105;

Decided – April 15, 2003

Opinion by Judge Edward R. Korman explains:

In the early morning hours of February 26, 1988, a young, newly appointed New York City Police Officer, Edward Byrne, sitting in his patrol car outside the home of a witness he was assigned to protect, was shot five times in the head from a distance of two feet. Officer Byrne died instantly. The killing was apparently meant to send a message to law enforcement authorities from Howard “Pappy” Mason, one of two Queens drug lords who were incarcerated at the time. Petitioner, Philip Copeland, was convicted by a jury sitting in New York State Supreme Court of carrying out this crime along with his co-defendants Todd Scott, David McClary, and Scott Cobb. Howard “Pappy” Mason was convicted his for his role in the offense.

And:

Petitioner’s role in the planning of this execution-style murder was firmly established through the testimony of Darrell Newby and Martin Howell, who were both members of the drug gang known as the “Beebos,” to which petitioner also belonged (T. 362-63, 527-28, 746, 754). Howell and Newby testified that on February 25, 1988, the night before Officer Byrne was killed, they attended a meeting in an apartment along with petitioner, Todd Scott, and Scott Cobb (T. 369, 370-71, 379). Prior to petitioner’s arrival, Howell heard Scott announce that “the boss had put out an order to hit a cop” (T. 532, 589-90, 591, 593). Scott assured that anyone who participated would receive $ 8,000 in return and would not get caught because “the guy sleeps on the job and it would be easy” (T. 532, 593). Upon petitioner’s arrival at the apartment, Newby (petitioner’s cousin), overheard Todd Scott tell petitioner and Cobb “that we have to kill a police officer regarding a witness” (T. 372, 481-82). Newby then observed both petitioner and Cobb nod their heads “up and down” in response to Scott’s remark (T. 374, 460, 464). Howell also overheard petitioner ask Scott if he had the “jammies,” or guns (T. 602, 664, 717, 727). Scott replied that he was going to get the “artillery” from “Ninja” (T. 603). Howell then heard petitioner say to Cobb, “We’re going to use your car” (T. 537, 603).

Petitioner’s complicity in the conspiracy to murder Officer Byrne is further evidenced by statements made both before the planning session and after the killing. Howell testified that earlier on February 25, petitioner declared to him that “the [*120] Boss [Pappy Mason] was very pissed off and he wanted to see it on TV while he was on Riker’s Island that a cop got iced” (T. 763-64, 770). In addition, the morning following the shooting Scott Cobb confessed to Newby that “We killed the cop” (T. 508, 521). That same day, Cobb told Howell, in petitioner’s presence, how two cars had been used in the “hit” — one car was “dumped” while the other was used to take the participants to a party in Manhattan after the killing (T. 576, 740-41). Howell also heard petitioner tell Cobb that he did not want to hear anymore about “the situation” (T. 577, 665, 743). On the Monday following the crime, Newby also overheard Scott Cobb confess to a third person that he had pulled up behind the police officer’s car and shot him (T. 508-09). Finally, on the Saturday following the shooting when some money was missing from the profits of drug sales, petitioner warned Howell and others that “if you all want to end up like that MF-ing cop, then that money better turn up” (T. 764-65).

In addition to this testimonial evidence, the prosecution also presented physical evidence linking petitioner to the crime. Specifically, petitioner’s fingerprint was found on an Econo-Lodge scratch pad, which was recovered from the yellow car used by the perpetrators (T. 942, 1490, 1732). Based on this evidence, a rational juror could certainly conclude that petitioner was guilty of intentional murder.

The Court here denies the petition for habeas corpus and denies certificate of appealability.

Recall also, this is the second time we’ve seen Ninja as a gang member’s nickname in Federal Court.

In 1999, the 6th circuit heard a case about a police officer who sued after he was put on 20 day suspension for writing an anonymous newsletter about police department practices. The appeals court majority decided to reverse the decision of the district court and grant qualified immunity to the police department. They decided that the newsletter topics were not a matter of public concern, but merely personal grievances.

PATRICK BUCKLEY, Plaintiff-Appellee, v. CITY OF PORTAGE, RICHARD J. WHITE, Chief of Police, Individually and in his official capacity as Chief of Police of the Portage Police Department, jointly and severally; MICHAEL L. STAMPFLER, City Manager, Individually and in his capacity as Portage City Manager, jointly and severally, Defendants-Appellants.

No. 98-1783
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
1999 U.S. App. LEXIS 23254

September 16, 1999, Filed

Judge David Nelson for the Majority:

A qualified immunity defense asserted by the police chief and city manager was rejected by the district court. The present interlocutory appeal followed.

The appeal turns on the issue of whether the plaintiff’s speech addressed matters of “public concern,” one of the prerequisites to recovery under § 1983 in a case of this sort. We conclude that the newsletters in question do not address matters of public concern. The denial of qualified immunity will therefore be reversed.

Explaining:

Patrick Buckley, the plaintiff, has been a City of Portage police officer for 25 years. In 1992 Mr. Buckley began anonymous publication of a newsletter, The Lookout, devoted largely to internal police department matters. Copies of the newsletter were distributed to Portage police officers and to individual members of the public, as well as to Western Michigan University, the Kalamazoo Gazette, and others. Central to this cause of action are issues 80 and 81 of The Lookout, published in March of 1997.

Issue 80 contained, among other things, two articles that discussed police chief Richard White’s policy of allowing officers to earn overtime pay for attending committee meetings, notwithstanding that overtime pay was not authorized for the performance of street patrol duties. One article questioned whether “the citizens of Portage are getting short changed.” Issue 81 resumed the challenge to Chief White’s policy regarding overtime pay, adverting this time to the availability of overtime pay for a physical fitness testing program. The article complained that because of the unavailability of overtime pay for street patrol work, patrol officers often worked with only four officers on the street.

Issue 81 also contained a report of a deputy police chief’s alleged mishandling of a purse retrieved from a fire scene. The deputy chief took possession of the purse at the direction of the fire chief. Upon returning to the police station, the deputy chief gave the purse to a junior officer with instructions to store the purse for safe-keeping. The junior officer placed the purse in a file cabinet and forgot about it. The officer was off work for the next three days; upon return to work, he remembered the purse and turned it over to another officer. The article on this incident implied that the deputy chief’s handling of the purse was highly improper. The article questioned why the deputy chief never told anyone that he took the purse, whether anything was missing from the purse, and whether the fire department (which is the agency in charge of a fire scene) was aware of the removal of the purse.

Another article in Issue 81 suggested that a newly hired female officer received her position only because of her friendship with the deputy chief. The article questioned whether proper procedures were followed in hiring the female officer, and it suggested that the deputy chief lacked integrity.

Issues 80 and 81 led to two internal investigations at the Portage police department. The firefighters’ union expressed outrage about the alleged mishandling of property at a fire scene, and this prompted Chief White to retain an independent investigator to look into the matter. The independent investigator exonerated the deputy chief, concluding that the deputy chief had fulfilled his duty by turning the purse over to a junior officer.

Chief White initiated another investigation to determine whether the junior officer had acted improperly in handling the purse. As a result of this investigation, two officers were disciplined for failing to follow proper procedures for safeguarding property.

Although Chief White had previously surmised that Officer Buckley was the author of The Lookout, the chief’s suspicions were confirmed after the internal investigations. Chief White initially concluded that Buckley should be fired for insubordination and defamation. After meeting with City Manager Michael Stampfler, however, Chief White ultimately decided to suspend Buckley for 20 days. A written notice of suspension informed the officer that he was being disciplined for his insubordination and criticism of department members and policies and for spreading rumors and gossip. The officer responded by filing the present lawsuit.

Still the Court does not see this as public concern:

When Mr. Buckley’s articles are read in context, it is clear that his complaints center on Chief White’s allocation of department funds for overtime pay. This is a matter of workplace concern, but in and of itself it is not a matter of public concern. See Barnes v. McDowell, 848 F.2d 725, 734 (6th Cir. 1988) (“The mere fact that public monies and government efficiency are related to the subject of a public employee’s speech do not, by themselves, qualify that speech as being addressed to a matter of public concern.”) Buckley does comment that the citizens of Portage are getting short-changed, but he does so only after noting that fewer patrol officers on the street means that only half the officers can take a lunch break. The passing reference to the citizens of Portage, as Rahn teaches, is not enough to transform a beef about internal department funding allocations into comment on a matter of public concern.

Mr. Buckley also maintains that his articles on the deputy chief’s alleged mishandling of the purse and his alleged role in the hiring of the female officer address matters of public concern. Again we disagree.

In pieces entitled “Integrity: Part Deux” and “Integrity: My Ass,” Mr. Buckley essentially complains that the deputy chief failed to follow proper internal procedure. This failure, the articles conclude, evinces the deputy chief’s lack of integrity, morals, and scruples. Referring to the deputy chief, Mr. Buckley writes,

“This is the fair haired boy. This guy can do no wrong. Unlike the rest of us, he has no faults and he has managed to convince certain folks of this. He has proven time and again that he has no morals or scruples but you’ve got to admit, he has chutzpah. And he believes he has integrity.”

Although we are mindful that complaints of corruption and illegal behavior are matters of public concern, we do not believe that every slighting reference by a government employee to an alleged lack of character and indifference to internal operating rules on the part of the top brass amounts to a matter of public concern.

But writing in diseent, Judge Nathaniel Jones:

The majority reverses the district court’s denial of qualified immunity to the defendants in this case because it concludes that topics such as lack of overtime pay for police patrolling, improper hiring practices by a public agency, and mishandling of evidence taken from a fire scene are not “matters of public concern,” but rather “matters only of personal interest” to Buckley. Because I cannot agree with the majority, I dissent.

Continuing:

it should be emphasized that “if any part of an employee’s speech, which contributes to the discharge, relates to matters of public concern, the court must conduct a balancing of interests test as set forth in Pickering v. Board of Education, 391 U.S. 563, 20 L. Ed. 2d 811, 88 S. Ct. 1731 [1968].” Rahn v. Drake Ctr., Inc., 31 F.3d 407, 411 (6th Cir. 1994) (emphasis added). Indeed, “the entire speech of the employee does not have to address matters of public concern, as long as some portion of the speech touches upon matters of public concern.” Id. at 412. As the majority conducts on such balancing test, it necessarily concludes that nothing in Issues 80 and 81 of the Lookout touched upon public concern.

Contrary to the majority’s view, I believe that Buckley’s speech clearly consisted of at least three matters of public concern. First, as recognized by the majority, Buckley criticizes the allocation of funds for overtime pay for police officers. Specifically, Buckley faulted the policy of allowing overtime pay for police officers when they serve on internal committees, but not when they go to “Ninja training” (which officers were requested to do on their off-days), or when they perform patrol duties longer than normal hours. The relevant portion of the speech reads as follows:

RULES CHANGE AGAIN

What’s my point? The administration (Blinkin) asks an officer to change his days off so he can go to Ninja training without being paid overtime. Being a person of tremendous integrity[,] this dutiful officer agrees. Uh oh! They forgot that we have 50 or 60 people out with varying injuries and sickness so they realize that by giving this integrity filled officer Saturday as a day off that only four officers would be scheduled. How many months ago was it said that we wouldn’t work with just four officers? O.K., so they didn’t really mean it. The command officers were told that in no way, shape or form would overtime be paid. Not only that but they realized there would only be four officers the following Saturday also. Too bad guys. Suck it up. So what if only 2 of the 4 got lunch breaks. Who really cared that two of the 4 were early cars so for a time period we really only had two officers out there. We can’t afford the overtime.

Concluding:

There are several flaws in the majority’s conclusions. First, it is a hallmark principle that speech does not lose First Amendment protection merely because others find it offensive. See, e.g., Texas v. Johnson, 491 U.S. 397, 105 L. Ed. 2d 342, 109 S. Ct. 2533 (1989) (flag burning); Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 99 L. Ed. 2d 41, 108 S. Ct. 876 (1988) (parody advertisement); Cohen v. California, 403 U.S. 15, 29 L. Ed. 2d 284, 91 S. Ct. 1780 (1971) (jacket bearing words “Fuck the Draft”).

Second, the majority disregards Rahn’s rule that “the entire speech does not have to address matters of public concern, as long as some portion of the speech touches upon matters of public concern.” Rahn, 31 F.3d at 412 (citing Connick, 461 U.S. 138 at 149). While Buckley does attack the character and integrity of his superiors in the articles, it is indisputable that he is doing so within the context of raising matters of public concern–lack of patrol officers, evidence mishandling, and improper hiring practices. As I explained, I believe that any of these charges qualifies as a matter of public concern and should come within the First Amendment’s ambit.

Finally, it is error for the majority to characterize Buckley’s speech as “unflattering,” or to infer that Buckley’s criticisms of his superiors were disproportionate to the alleged improprieties when determining whether the matters constituted public concerns. Such considerations are only relevant in the Pickering balancing test.

For the above reasons, I dissent. I would affirm the district court’s denial of qualified immunity to the defendants and let the case proceed to trial.

The Supreme Court agreed with the Majority by denying cert, Buckley v City of Portage, 530 U.S. 1262 (2000).

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

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.

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.

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.