HOW TRUMP JUDGES ARE ABETTING

Police Misconduct
& Criminal Justice

AFJ Action Campaign is tracking the votes of every senator up for reelection in 2020 on Trump’s worst of the worst judges. Each senator who voted to confirm these judges owns the decisions—these decisions are harming people every day. See how your senator voted for some of the worst of the worst judges here.

In Howse v. Hodous, Sixth Circuit judge Amul Thapar, over a dissent, upheld a lower court’s decision to dismiss a lawsuit against a police officer who violently arrested a man on the front porch of his home even though he had done nothing wrong, and he and his mother had assured the officers that he lived there. Thapar agreed the arrest for obstruction of justice was permissible because Howse protested the arrest. The dissent countered that responding to police questions with a “smart mouth” was not a crime.


In Ahmed v. Weyker, Eighth Circuit Judges David Stras and Ralph Erickson dismissed Hawo Ahmed and Hamdi Mohamud’s claims against Heather Weyker, a police officer who lied to other officers and to a judge in order to protect a cooperating witness from arrest after the witness assaulted Ahmed and Mohamud. As a result, the two women, one of whom was a minor, were arrested and held in custody for over two years. The judges argued that despite being unlawfully and egregiously arrested, the women could not raise their claim because the circumstances of their arrest were “meaningfully different” from past cases and because there was no “direct causal chain” between Weyker’s actions and their arrest. As the dissent noted, this argument misstated Supreme Court precedent that allows these types of claims following an unlawful arrest and flat out ignored the fact that even if Weyker did not personally arrest the women, her lies to the officer on the scene were the direct cause of Ahmed and Mohamud’s unlawful arrest.


In Sears v. Pulaski County Detention Center, et. al, Kentucky district court judge Robert E. Weir dismissed a case brought against staff of the Pulaski County Detention Center by a former inmate who alleged excessive force. The inmate alleged multiple instances of violence, including one instance in which he was pepper sprayed, kicked in the knee, and punched in the throat as part of an attempt to subdue him after suffering an epileptic seizure in the shower. Weir argued that there was no evidence to support the inmate’s claim that staff should have recognized he was suffering from a medical condition.


In Black Lives Matter D.C. et. al, v. Trump et. al,  D.C. district court judge Dabney L. Friedrich ruled against Black Lives Matter in a lawsuit seeking the identities of federal officers who violently dispersed protesters from Lafayette Park using tear gas and rubber bullets so that Trump could cross street for a photo-op with a Bible. The peaceful protest was in response to the murder of George Floyd.


In Reynolds v. Hepp, Seventh Circuit Judge Barrett cast the deciding vote to rule against a plaintiff who brought a lawsuit against his lawyer after he failed to pursue an appeal on the plaintiff’s behalf due to a conflict of interest. The court found that the conflict of interest did not change the ultimate outcome of the trial. Judge Diane Wood dissented, writing that “If the lawyer puts his or her interests first, the client is the loser.”


In U.S. v. Muskett, Tenth Circuit Judge Allison Eid refused to vacate a conviction even though a Supreme Court decision had ruled that the definition of the crime at issue was unconstitutionally vague.


In Cooper v. Chapman, Sixth Circuit Judge John Bush upheld the conviction of Wilbern Woodrow Cooper even though the government admitted to relying on a confession that police officers had secured by violating Cooper’s Fifth Amendment right against self-incrimination. Cooper had made the confession after stating three times that he did not want to answer any more questions.


In Birkeland v. Jorgenson, Eighth Circuit Judges Ralph Erickson and David Stras reversed a district court and granted qualified immunity to two police officers who shot and killed John Birkeland. The officers had been sent to check on Birkeland after neighbors had called to report loud noises coming from his apartment. When they arrived at his apartment, Birkeland said he was fine but refused to let the officers inside. They knocked down his door and sent a police dog in to find him. The dog bit Birkeland and Birkeland responded by stabbing it with a knife. Within seconds of this, the officers shot and killed Birkeland.


In In re Gibbons, Third Circuit judges Stephanos Bibas, David Porter, Peter Phipps, and Paul Matey refused to rehear a case that reversed a district court and granted qualified immunity to a state trooper who had shot and killed a Black man. Judges Porter and Phipps had issued the original decision in favor of the state trooper.


In Wood v. Showers, Third Circuit Judge Peter Phipps upheld the exclusion of expert evidence that could have helped demonstrate excessive use of force by police. The lawsuit was brought by Thomas Wood after a Pennsylvania state troopers knocked him to the ground after he had overdosed on insulin and resisted getting into an ambulance. Wood broke his ankle and required multiple surgeries as a result of the fall. Phipps ruled that Wood could not introduce testimony from an expert criminologist who would have explained, based on International Association of Chiefs of Police (IACP) and National Institute of Justice (NIJ) standards, that the trooper “ignored widely accepted p0lice procedures [by] using physical force before attempting to de-escalate the situation” in such a non-criminal medical-assist situation.


In Kohorst v. Smith, Eighth Circuit Judges Ralph Erickson and David Stras upheld a district court decision granting qualified immunity to two police officers accused of using excessive force during an arrest. Police had been called to the scene after reports of two intoxicated men wandering the streets. The lawsuit was brought after Brett Kohorst was thrown to the ground by two police officers, tazed three times, and then pulled out of the police car and dropped on the pavement after he had been placed in handcuffs. As a result, Kohort suffered a concussion, retrograde amnesia, bruises, a split chin and facial lacerations.


In Quintana v. Santa Fe County Board of Commissioners, Tenth Circuit Judge Joel Carson cast the deciding vote to rule that county jail officials could not be held accountable for failing to treat a man’s opioid withdrawal, which led to his death. After being arrested and detained for stealing a handbag, Ricardo Jose Ortiz appeared “severely ill” and began vomiting blood, however, he did not receive medical care. He was found dead four days later.


In Kidis v. MoranSixth Circuit judge Chad Readler reduced a $200,000 verdict to $50,000 after a jury concluded that a Detroit police officer used excessive force against Nikos Kidis. Kidis had initially tried to run away from police officers after he hit another car, but when he changed his mind and tried to surrender, an officer punched and choked him, and struck him with his knee.


In Reed v. Francis Bernard Arraignment Court Magistrate Judges, Third Circuit judge Peter Phipps cast the deciding vote to reverse a lower court decision and prevent recording audio of bail hearings. The lawsuit was brought by the Philadelphia Bail Fund as part of its effort to collect information about bail hearings for public reporting purposes and make the proceedings more transparent. Judge Cheryl Ann Krause, an Obama appointee, wrote a 41-page dissent that accused the majority of ignoring Supreme Court precedent and eviscerating First Amendment Rights.


In Bey v. Falk, Sixth Circuit judge Joan Larsen overruled a lower court’s decision to deny qualified immunity to four police officers who followed a Black man around Walmart and then questioned him in a parking lot after he lawfully purchased several items. The dissent wrote that the man was guilty of nothing more than “shopping while Black.”


In Goffin v. Ashcraft, Eighth Circuit judge Jonathan Kobes wrote the majority opinion ruling that a police officer could not be held liable for shooting a Black man in the back as he ran away, even though the officer had conducted a pat-down search and found no weapons on him.


In Allen v. Batts, Sixth Circuit judge Chad Readler voted to uphold a lower court decision rejecting William Allen’s claim that African Americans were systematically excluded from grand juries at the time of his indictment for murder in 1968. In dissent, Judge Moore noted that “between 1958 and 1971 Davidson County’s criminal court judges selected fewer than 26 African Americans to serve as grand jurors,” and that “the odds that the judges would have randomly selected as few African-American grand jurors as they did are approximately 1,000,000,000 to 1.”


In Jones v. County of York, Pennsylvania district court judge Jennifer P. Wilson dismissed a lawsuit brought by an African American man who was arrested and subjected to cavity searches and medical scans at a hospital against his will. The searches did not uncover any contraband.


In Mitchell v. LaRose, Sixth Circuit judge Amul Thapar cast the deciding vote, over a scathing dissent, to reject a claim that an African American was excluded as a juror in the case of another African American.


In Reich et. al v. City of Elizabethtown, Sixth Circuit judge Amul Thapar upheld a lower court order dismissing a woman’s claim that police improperly used excessive force in shooting and killing her fiancé, whom she was driving to a mental health treatment facility.


In Walker v. U.S., Sixth Circuit judge Amul Thapar joined an opinion that reinstated an erroneous sentence of James Walker, a 65-year-old man who was convicted of possessing thirteen bullets that he had found in a rooming house he managed and removed for safekeeping. The 15-year sentence was based on mistaken interpretation of the Armed Career Criminal Act that resulted in sending Walker to prison for seven years longer than the law required. When Walker requested a rehearing, the five other Trump judges on the Sixth Circuit, Joan Larsen, John Bush, Chad Readler, John Nalbandian, and Eric Murphy, joined Thapar in refusing to reconsider the decision, despite a strongly worded dissent by George W. Bush-appointed judge Kethledge, who called on the court to “correct our own mistakes.”


In Carter v. Allen, Eleventh Circuit judge Britt Grant voted to uphold a decision that denied a prisoner the right to seek damages after he was touched in a sexually inappropriate manner by a prison guard and then placed in segregation when he threatened to file a complaint.


Although not in the majority, in Winzer v. Kaufman County, Sixth Circuit judges James Ho, Kurt Engelhardt, and Andrew Oldham would have denied the family of a 25-year-old innocent Black man the chance to prove that police unlawfully killed their son.


In Schmidt v. Foster, Seventh Circuit judge Amy Coney Barrett dissented from a decision that held that a state trial judge had denied a man his Sixth Amendment right to counsel after the judge ordered the defendant’s lawyer to not participate in a pre-trial hearing while the man was questioned by the judge.


In Cole v. Carson, Fifth Circuit judges Don Willett, James Ho, Andrew Oldham, and Kyle Duncan dissented from an August ruling by the full court that a permanently injured teenager and his parents receive a trial on their claims that police officers used excessive force in shooting him. After Ryan Cole, a 17-year-old, pointed a gun at his own head during an acute suicidal moment, two police officers shot him multiple times. As a result, Cole now suffers permanent “cognitive impairment, partial paralysis, and other serious mental and physical injuries.”


In Smart v. City of Wichita, Tenth Circuit judge Allison Eid would have dismissed a case involving the killing of Marquez Smart, who had done nothing wrong, was unarmed, and like the rest of the crowd around him, was running away from gunfire when officer Lee Froese shot him.


In Small v. Brock, Sixth Circuit judge Amul Thapar would have upheld the dismissal of a prisoner’s claim that a guard had “brandished a knife” and threatened to kill him on multiple occasions. According to Thapar, the guards repeated threats did not violate the Constitution. A majority of the court disagreed, holding that “unprovoked and repeated threats to a prisoner’s life, combined with a demonstrated means to immediately carry out such threats,  constitute conduct” that violates the Constitution.


In Rodriguez-Penton v. U.S., Sixth Circuit judge Amul Thapar dissented from an opinion that held in part that the failure of a defendant’s lawyer to advise him on the risk of deportation stemming from his criminal plea agreement constituted ineffective assistance of counsel. Thapar’s dissent minimized the impact of effective assistance of counsel in plea agreements.


In Davenport v. Maclaren, Sixth Circuit judge Chad Readler would have upheld the conviction of a man who was forced to wear handcuffs and shackles around his ankles and waist, without any stated justification, during his trial. As the majority held, however, “the Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to the jury” unless there is a specific justification for using restraints.


In Graves v. Malone, Sixth Circuit judge Joan Larsen dissented from a ruling that three police officers were not entitled to qualified immunity after they shot a schizophrenic man who was in a state of “severe” psychosis, and then tasered him, even though, as one of the officers later admitted, he was unresponsive after being shot. As a result of the incident, the man is now “completely blind in his right eye. His face is severely disfigured. He no longer has a right cheekbone and his sinus cavity is exposed … His nose remains broken, and his right nostril has caved in and will not permit air to flow to his lungs. He suffers from headaches and constant jaw pain.”


In McCottrell v. White, Seventh Circuit judge Amy Coney Barrett dissented from a ruling that denied summary judgment to prison guards who fired their weapons over a crowded prison dining hall during a fight between inmates, striking several inmates with buckshot and causing significant injuries. Based on the record in the case, the majority explained, Barrett’s view that there was no evidence that the guards “shot into the crowd” was simply “incorrect.”


In United States v. Uriarte, Seventh Circuit Judges Amy Coney Barrett, Michael Scudder, and Michael Brennan would have ignored the First Step Act’slower mandatory minimum sentences in the case of Hector Uriarte, who had been unlawfully sentenced before the Act passed and was now being re-sentenced. The judges argued that the mere existence of a previous sentence—even one vacated due to legal error—meant the First Step Act should not apply. This interpretation would have resulted in a mandatory additional 25 years’ imprisonment for Uriarte.


In Dean v. McKinney, Fourth Circuit Judge Julius Richardson would have granted immunity to a police officer who, when responding to a non-emergency call, skidded onto the wrong side of the road while driving nearly double the posted speed limit and struck Janel Harkness, causing her severe orthopedic and neurological injuries. The majority of the Court held that such reckless driving in a non-emergency situation may have been so egregious and unconscionable that it amounted to deliberate indifference and a violation of Ms. Harkness’s constitutional rights. But in dissent, Judge Richardson instead argued that it could not be “clearly established” that the officer’s illegal activity violated Ms. Harkness’s constitutional rights, and so would have granted the officer immunity from liability.


In Marvaso v. Sanchez, Sixth Circuit Judge Nalbandian, in dissent, would have granted qualified immunity to fire and police officials who launched an unfounded arson investigation against the Marvaso family after a fire at their restaurant led to the death of a firefighter. A prior investigation by the state had concluded that the death resulted, at least in part, from the Fire Department’s own “multiple violations of health and safety regulations,” so the officials had planned a counter-investigation to distract attention from their own culpability for the firefighter’s death.


In Schmidt v. Foster, Seventh Circuit Judge Barrett dissented from a decision that held that a state trial judge had denied a man his Sixth Amendment right to counsel after the judge ordered the defendant’s lawyer to not participate in a pre-trial hearing while the man was questioned by the judge. A panel of the Seventh Circuit determined that this “unprecedented” closed session was a denial of the man’s rights, that a “silenced lawyer’ is practically the same as an “absent lawyer” and was “not compatible with the American judicial system.” Nevertheless, Barret dissented.


In Sims v. Hyatte, Seventh Circuit Judge Barrett dissented from a panel decision reversing the denial of habeas corpus in a case where a prosecutor withheld from both the defendant and the jury the fact that the only eyewitness’s testimony was hypnotically induced, even though under the Fifth Amendment’s Due Process clause, criminal defendants are entitled to know of any evidence the government has that may be favorable to their case.


In U.S. v. Curry, Fourth Circuit Judges Julius Richardson, Marvin Quattlebaum, and Allison Rushing argued in dissent that police should be allowed to stop an African American man without reasonable suspicion by virtue of the fact that he was in a “high crime” area. As the majority wrote, allowing police to “bypass the individualized suspicion requirement based on the information they had here—the sound of gunfire and the general location where it may have originated—would completely cripple a fundamental Fourth Amendment protection and create a dangerous precedent.”

 


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