3d Cir., 2-1, no QI for police officer who slammed an unarmed eighteen year-old into a wall and then the ground when he argued back over being stopped on suspicion of underage purchase of tobacco. www2.ca3.uscourts.gov/opinarch/18285…
Couple things here. First, as noted in the above pic, the dashcam video was so important to this outcome because it established the facts beyond doubt. And still it wasn't enough for the dissenting judge.
Second, once again we have a police-public interaction that should never have happened in the first place. Here's the timeline of the twenty-minute event:
(1) Officer is surveilling store.
(2) The young men decline to talk to her. This mere decision not to talk with her *heightens her suspicion enough* that she sits them down on the sidewalk and makes them turn out thier pockets.
(3) No contraband discovered.
(4) Now, though, her blood is up, and one of the young men doesn't have his ID, but he does have tobacco. Huzzah for the officer, now she can say she's worried about underage purchase of tobacco.
(5) She throws down his ID and steps on it to prevent his brother form picking it up. WTF?
(6) Things are getting heated. One brother is arguing with the newly-arrived backup that this is harassment. (He's right.)
(7) Two steps forward, and he's slammed to the wall and pavement.
You're imagining it. The fact is that more people are covering qualified immunity cases than used to.
Dissenting Judge Phipps argues that the relevant right here not to be taken to the ground during an investigative stop was not clearly established bc there hasn't been a sufficiently analogous case.

He also would define the right with more specificity:
Hmm, yes, I am rather having a hard time finding a "shoved backward into a vertical structure while not losing his footing" case . . .

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More from @gabrielmalor

31 Aug
DC Cir., en banc, rejects Mike Flynn's petition for mandamus, which would have required Judge Sullivan to dismiss the case.

Also rejects Flynn's request for reassignment to a different judge. drive.google.com/file/d/1wbNhRw…
As I previously wrote, there was non way the en banc court could let Judge Rao's panel majority decision stand because it would allow parties to seek mandamus any time they thought a judge wasn't going to rule the way they want on a motion—even though appeal is an option.
When ordinary appellate review is available, the writ of mandamus is not.

This is foundational stuff.
Read 15 tweets
27 Aug
State v. Rittenhouse was filed todaay. He is charged with reckless homicide (Rosenbaum), recklessly endangering safety (McGinnis), intentional homicide (Huber), attempted homicide (Grosskreutz), and recklessly endangering safety (unknown male). drive.google.com/file/d/1m9sDjY…
There are lots of interesting new details in here, but keep in mind that this is merely a preliminary statement of what the police believe happened. The facts have not been established by a court, and defendant is presumed innocent until proven guilty beyond a reasonable doubt.
With that IMPORTANT disclaimer, let's look at the new information.

McGinnis was much more involved than I realized. One of the charges is about endangering McGinnis' safety.
Read 8 tweets
20 Aug
Bizarre attempt to rewrite the events of Berman's shady replacement, in which, because Berman resisted his firing-via-Twitter, he prevailed in having his strong right arm, Audrey Strauss, installed as acting US Att'y rather than let Barr pick an outsider to take over SDNY.
I mean, let us count the ways that Berman's replacement wasn't on the level.
(1) Berman finds out that he's agreed to resign in a tweet. (He hadn't.)
(2) Berman pushes back. So Barr offers him chairman of the SEC, an independent agency!
(3) Barr says Trump fired Berman.
(4) Trump tells the press had nothing to do with it.
(5) So later, Barr comes up with a letter saying that Trump really did fire Berman this time.
(6) But that means Audrey Strauss became acting USA rather than Craig Carpenito, Barr's choice.
Read 7 tweets
6 Aug
9th Cir. upholds the dismissal with prejudice of the indictments against Cliven Bundy, two of his sons, and sixteen others after prosecutors began disclosing Brady violations after trial began. cdn.ca9.uscourts.gov/datastore/opin…
This is the one where prosecutors said the Bundys had deceitfully claimed to have been under surveillance and surrounded by snipers in order to encourage others to join them.

And then said they were on a "fishing expedition" when they sought information for their defense.
And then prosecutors withheld evidence that they were in fact under surveillance and there had been officers in tactical gear deployed in overwatch positions near the ranch.
Read 6 tweets
24 Jul
Fed. judge issues a TRO enjoining DHS in Portland from using force against or arresting journalists and legal observers. courtlistener.com/recap/gov.usco…
(Twitter appears to be having trouble with pics right now, but the link to the decision works just fine.)
Here's the major points:

1. Fed. defendants cannot require journalists or legal observers to disperse, nor can they be arrested for failing to disperse.

2. Fed. defendants cannot require journo/LO to stop photographing, recording, or observing a protest.
Read 10 tweets
26 Jun
Fed. judge enjoins New York Gov. Cuomo and NYC Mayor de Blasio's COVID-19 orders restricting indoor religious activities to a greater degree than non-religious business activities. drive.google.com/file/d/1y5Xb0T…
Fed. judge also enjoins Cuomo and de Blasio from enforcing any limitation for outdoor gatherings so long as participants in such gatherings follow social distancing requirements.

The basis of this part of the ruling was the favoritism Cuomo and de Blasio gave to BLM protesters.
This is a preliminary injunction.

The judge's ruling is that the parties, two Catholic priests and the leaders of an Orthodox Jewish group, are likely to prevail at trial because the COVID-19 restrictions on religious practice run afoul of the free exercise clause.
Read 9 tweets

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