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Split Decisions

Written by Joe Devanney

Most court decisions involving questions of constitutional law and the police deal with “on the scene” situations where the issue revolves around search, seizure, brutality, or other matters related to an immediate arrest. Two separate and recent federal court decisions in non-criminal matters, however, might be viewed as critical to law enforcement interests. In one case, the police received a favorable ruling, but, in the other case, the decision went against them.

The first case, where law enforcement won, began in early 2000 in Austin, Indiana. Austin is a small town of about 4,500 people. No member of its police department had received training in hostage negotiations or tactical combat weapons use.

On the morning of February 28, 2000, Austin officer Lonnie Noble responded to reported gunfire at an elementary school. As was subsequently learned, Gregory Miller had fired at his estranged wife as she took their children to school. He then collided his car with other vehicles at an intersection near a liquor store.

Noble, who was not wearing a bulletproof vest, arrived on the scene just as Miller was exiting from his car with a raised weapon. Armed with a shotgun, Noble ordered Miller to drop his gun, but Noble did not fire for fear of hitting bystanders. Miller then entered the liquor store, where he took manager Kenneth Ross hostage.

The police next phoned the liquor store and talked to Miller. He demanded to speak with his wife. Although this was allowed, their conversation degenerated into a heated argument. The police then heard a gunshot. Upon entering the store, they found that Miller had killed both himself and Kenneth Ross.

Tamra Ross, Kenneth’s wife, subsequently sued Austin and its sheriff, Marvin Richey. She alleged that the failure to provide officer Noble with training in tactical combat and hostage negotiation was a violation of her husband’s Due Process rights under the Fourteenth Amendment. Tamra’s reasoning was that, if such training had occurred, Noble would not have “channeled” Miller into the liquor store and would have been better able to obtain a peaceful resolution to the hostage situation.

Tamra Ross had her case dismissed in the federal District Court and appealed to the Seventh Circuit Court of Appeals. The Seventh Circuit, however, also ruled against her. In a September 2003 opinion, the court held that Due Process did not impose a requirement upon municipalities to provide police officers with advanced, specialized training.

The United States Supreme Court, the judges noted, has ruled that liability only occurs “where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact.” The court added that it would be “an untenable burden” to impose such standards against police. This case shows how some courts are willing to take a restrictive interpretation of Due Process claims. The text of the decision is at 343 Federal Reporter Third, page 915.

Police authorities were not so fortunate, however, in a May 2003 decision from the federal District Court in Seattle. This case involved a challenge by William Sheehan, the owner of a website dedicated to police accountability, against a recent Washington statute barring any person or group from selling, publishing, releasing or otherwise giving out the residential addresses, home phone numbers, birthdays, or social security numbers of any law enforcement officer, corrections officer, or court-related employee or volunteer.

Sheehan (although he was not charged with any violation of the law) brought a federal court action, arguing that his right to freedom of speech under the First and Fourteenth Amendments was violated.

The District Court ruled in Sheehan’s favor in a pre-trial motion for Summary Judgment and determined that the law was on his side without even having to go to trial. The reasoning of the court derived from its interpretation of several aspects of First Amendment law. Initially, the court noted that the Washington statute did not address the type of “true threat” that is unprotected by the Constitution. It did not draw the necessary distinction between speech leading to imminent violence and speech that may advocate violence, but does not lead to immediate harm.

In this light, the court held, the statute was overbroad. This analysis was especially relevant in light of the fact that Sheehan’s website was of a political nature. Sheehan professed, for example, that his website was intended to assist in such police accountability subjects as service of process, the research of criminal record backgrounds and the organization of informational picketing.

In addition, it is settled law from the United States Supreme Court that any statute specifically restricting content-based speech or barring specific types of statements especially has to be narrowly drawn. In this respect, the District Court believed the statute to be too sweeping, writing that “[The law] would grant the government a dangerous tool to proscribe any speech based solely on the government’s speculation as to what harms might result from its utterance.”

Finally, the court considered that the law might not even serve a compelling state interest. “[A]ny third party wishing to actually harm or intimidate [police, corrections, or court officers],” the court wrote, “could freely acquire the personal identifying information from myriad public and private sources, including for-profit commercial entities, without entering the scope of the statute.”

Unless reversed on appeal, this decision, although binding only in the jurisdiction of the District Court, could be precedent against similar laws in other states that seek to limit dissimulation of personal information about officers. As such, it should be of interest to police and related personnel everywhere. The decision can be found at 272 Federal Supplement Second, page 1135.

Joe and Diane Devanney can be reached via e-mail at joedevanney@cs.com.


Published in Law and Order, Mar 2005

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