IN THE SUPREME COURT OF THE UNITED STATES
UNITED STATES
Petitioner
v.
ROY CAMPBELL
Respondent
On Appeal
To the Supreme Court of the United States
From a decision of the Court of Appeals for the Thirteenth Circuit
BLUE
TEAM 654
BROOKLYN, NEW YORK
BRIEF FOR PETITIONER
TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................................... iii
JURISDICTIONAL STATEMENT ................................................................................................1
OPINIONS BELOW ........................................................................................................................2
STANDARD OF REVIEW .............................................................................................................3
STATEMENT OF THE ISSUES.....................................................................................................4
STATEMENT OF THE CASE........................................................................................................5
STATEMENT OF THE FACTS .....................................................................................................7
I.
The Traffic Stop ...............................................................................................................7
II.
Respondent’s Motion to Suppress Body Camera .............................................................8
III.
The Hate Crime Charge Against Respondent ..................................................................9
SUMMARY OF THE ARGUMENT ............................................................................................10
ARGUMENT .................................................................................................................................13
I.
PURSUANT TO KATZ V. UNITED STATES RESPONDENT HAS TO SHOW
THAT HE HAS A PRIVACY INTEREST IN AREAS SEARCHED AND
WHETHER SUCH INTEREST IS ONE THAT SOCIETY VIEWS AS
REASONABLE ...........................................................................................................13
II.
RESPONDENT DID NOT HAVE A REASONABLE EXPECTATION OF
PRIVACY IN THE LOCKER ASSIGNED TO HIM AT WORK..............................18
A. The Locker Area with the Department-Issued Lock in Respondent’s Workplace
was So Open to Fellow Employees That There Was No Reasonable Expectation
of Privacy ...............................................................................................................18
1. Given the Nature of His Employment, Respondent Did Not Have an
Expectation of Privacy ...............................................................................22
2. Respondent Could Not Have Had a Reasonable Expectation of Privacy
When He Used the Department-Issued Lock.............................................23
3. Respondent Could Not Have Had a Reasonable Expectation of Privacy
When He Used the Body Camera ..............................................................25
B. Even if the Reasonable Expectation of Privacy had been Established, The Search
Was Reasonable because the Incident Involved Exigent Circumstances ..............27
C. Even If an Expectation of Privacy Was Established, the Search Conducted Was
Still Reasonable Under the Special Situations Exception as Articulated in
O’Connor v. Ortega ...............................................................................................29
1.
The Search was Necessary to Preserve Police Integrity ....................31
i
2.
III.
Respondent Was On Notice of Potential Searches ............................33
THE COURT OF APPEALS ERRED IN REVERSING AND VACATING
OFFICER CAMPBELL’S HATE CRIME CONVICTION UNDER
18 U.S.C. § 249 ...........................................................................................................34
A. Although Police Officers Have Yet to Be Charged With Hate Crimes Under § 249
They Have Been Charged Under State Hate Crime Laws and Therefore Should Be
Charged Under § 249. ............................................................................................34
B. Police Officers’ Actions Are Analogous to Those of Civilians Who Are Charged
With Hate Crimes Under § 249. .............................................................................38
1. Respondent’s racial biases escalated during the traffic stop leading to
the shooting of Mr. Jennings. ...............................................................40
C. Respondent is Not Entitled to Qualified Immunity Because His Actions Meet
Both Prongs of the Applicable Two-Part Test. ......................................................42
1. Respondent used excessive force in violation of § 1983 when he fired
his gun upon Mr. Jennings. ..................................................................43
2. There is no public policy which permits a public official in this
situation to be immune from suit or liability. ......................................44
D. Studies of Race Relations Show that Respondent Had A Racial Animus and
Racial Biases that Caused Him to Shoot Mr. Jennings and They Were Evidenced
by Respondent’s Words. ........................................................................................45
CONCLUSION ..............................................................................................................................47
ii
TABLE OF AUTHORITIES
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. IV ...................................................................................................... 10, 13, 16
CASES
Abdoh v. City of Chicago, 930 F.Supp. 311 (N.D. Ill. 1996)........................................................ 37
Almeida-Sanchez v. United States, 413 U.S. 266 (1973) .............................................................. 30
American Postal Workers Union v. United States Postal Serv., 871 F.2d 556 (6th Cir. 1989).... 24
Auriemma v. Montgomery, 860 F.2d 273 (7th Cir. 1988)............................................................. 44
Biehunik v. Felicetta, 441 F.2d 228 (2d Cir. 1971) ................................................................ 21, 32
Cardoso v. City of Brockton, No. 12-10892-DJC, slip op. (D. Mass. signed Sept. 15, 2014)...... 42
Davis v. Peoria County, No. 08-cv-1118, 2009 WL 3258318 (C.D. Ill. Oct. 8, 2009) .... 35, 36, 44
Doe 20 v. Board of Educ. of Community Unit School Dist. No. 5, 680 F.Supp.2d 957 (C.D. Ill.
2010).......................................................................................................................................... 44
Dolan v. United States Postal Serv., 546 U.S. 481 (2006) ............................................................. 3
Drumgold v. Callahan, 707 F.3d 28 (1st Cir. 2013) ..................................................................... 42
Florida v. Jardines, 133 S. Ct. 1409 (2013) ..................................................................... 14, 15, 16
Franklin v. Village of Riverdale, 94 C 3493, 1995 WL 616678 (N.D. Ill. Oct. 19, 1995) ..... 37, 38
Georgia v. Randolph, 547 U.S. 103 (2006) .................................................................................. 27
Gossmeyer v. McDonald, 128 F.3d 481 (7th Cir. 1997) ......................................................... 28, 29
Hawkins v. United States, 469 F.3d 993 (Fed. Cir. 2006) .............................................................. 3
Hester v. United States, 265 U.S. 57 (1924) ................................................................................. 15
Hope v. Pelzer, 536 U.S. 730 (2002) ............................................................................................ 43
iii
Katz v.United States, 389 U.S. 347 (1967) ............................................................................. 13, 17
Kirkpatrick v. City of Los Angeles, 803 F.2d 485 (9th Cir. 1986) .......................................... 21, 25
Maglaya v. Kumiga, No. 14-cv-3619 (N.D. Ill. signed Aug. 3, 2015) ................................... 36, 37
Maldonado v. Municipality of Barceloneta, 682 F. Supp. 2d 109 (D.P.R. 2010) ........................ 14
Mancusi v. DeForte, 392 U.S. 364 (1968).................................................................................... 16
Mapp v. Ohio, 367 U.S. 643 (1961) .............................................................................................. 13
Maryland v. Buie, 494 U.S. 325 (1990) ........................................................................................ 13
Michigan v. Long, 463 U.S. 1032 (1983) ............................................................................... 15, 17
Minnesota v. Carter, 119 S. Ct. 469 (1998).................................................................................. 16
Minnesota v. Olson, 495 U.S. 91 (1990)....................................................................................... 14
Moss v. U.S. Secret Service, 675 F.3d 1213 (9th Cir. 2012)......................................................... 42
New York v. Burger, 482 U.S. 691 (1987) .................................................................................... 16
O’Connor v. Ortega, 480 U.S. 709 (1987) ....................... 10, 17, 18, 19, 20, 21, 22, 29, 30, 32, 33
Rakas v. Illinois, 439 U.S. 128 (1978) .................................................................................... 13, 16
Rawlings v. Kentucky, 448 U.S. 98 (1980) ................................................................................... 14
Sears, Roebuck & Co. v. Wholey, 139 Md. App. 642, 647 (Ct. of Spec. App. 2001) .................. 31
Shaffer v. Fields, 339 F. Supp. 997 (C.D. Cal. 1972) ................................................................... 25
Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920) .................................................. 13
Smith v. Maryland, 442 U.S. 735 (1979) ................................................................................ 15, 16
Terry v. Ohio, 391 U.S. 1 (1968) ............................................................................................ 13, 15
Texas v. Brown, 460 U.S. 730 (1983) ........................................................................................... 13
United States v. Albarado, 495 F.2d 799 (1974) .......................................................................... 17
United States v. Amen, 831 F.2d 373 (2d Cir. 1987) .................................................................... 23
iv
United States v. Anderson, 154 F.3d 1225 (10th Cir. 1998) ......................................................... 15
United States v. Cannon, 750 F.3d 492 (5th Cir, 2014).......................................................... 41, 42
United States v. Collins, 349 F.2d 863 (2d Cir. 1965) .................................................................. 22
United States v. Corral, 970 F.2d 719 (10th Cir. 1992) ............................................................... 15
United States v. Duprey, 895 F.2d 303 (7th Cir. 1989) ................................................................ 14
United States v. Ellis, 547 F.2d 863 (5th Cir. 1977) ............................................................... 23, 24
United States v. Johnson, 114 F.3d 435 (4th Cir. 1997) ................................................................. 3
United States v. Lochan, 674 F.2d 960 (1st Cir. 1982) ................................................................. 15
United States v. Maybee, 687 F.3d 1026 (8th Cir. 2012)........................................................ 39, 40
United States v. Miravalles, 280 F.3d 1328 (11th Cir. 2002) ....................................................... 14
United States v. Mitchell, 64 F.3d 1105 (7th Cir. 1995) ......................................................... 14, 16
United States v. Padilla, 508 U.S. 77 (1993) ................................................................................ 13
United States v. Plavack, 411 F.3d 655 (6th Cir. 2005) ............................................................... 27
United States v. Ramos, 12 F.3d 1019 (11th Cir. 1994) ............................................................... 14
United States v. Schmidt, 700 F.3d 934 (7th Cir. 2012) ............................................................... 13
United States v. Simons, 206 F.3d 392 (4th Cir. 2000) ........................................................... 25, 26
United States v. Speights, 557 F.2d 362 (3d Cir. 1977) .......................................................... 33, 34
United States v. Sturgis, 238 F.3d 956 (8th Cir. 2001) ................................................................. 15
W.C. v. Sec’y of Health and Human Servs., 100 Fed. Cl. 440 (2011) ...................................... 3, 17
STATUTES
18 U.S.C. § 249 (2012) ..................................... 4, 5, 6, 7, 10, 11, 12, 34, 35, 38, 40, 41, 42, 46, 47
18 U.S.C. § 2511(2)(c) (2006) ...................................................................................................... 23
28 § U.S.C. 1254 (2006) ................................................................................................................. 1
v
28 U.S.C. § 1291 (2012) ................................................................................................................. 1
28 U.S.C. § 1331 (2006) ................................................................................................................. 1
42 U.S.C. § 1983 ..................................................................................................................... 43, 44
OTHER AUTHORITIES
Andrew E. Taslitz, Condemning the Racist Personality: Why the Critics of Hate Crimes
Legislation Are Wrong, 40 B.C. L. Rev. 739 (1999). ......................................................... 46, 47
Gregory S. Parks & Shayne E. Jones, “Nigger”: A Critical Race Realist Analysis of the N-Word
Within Hate Crimes Law, 98 J. Crim. L. & Criminology 1305 (2008)............................... 45, 46
H. Marshall Jarrett, Searching and Seizing Computers and Obtaining Electronic Evidence in
Criminal Investigations, 46 (3d. ed. 2009).................................................................... 23, 25, 27
Supreme Court, 2009 Term: Leading Cases: I. Constitutional Law: A. Criminal Law and Proc.,
124 Harv. L. Rev. 179, 179 (2010) ........................................................................................... 18
vi
STATEMENT OF JURISDICTION
Officer Billy Roy Campbell (Respondent) was indicted under 18 U.S.C. § 249 as a result
of shooting an unarmed Black man during a minor traffic stop. R. 2-3. Respondent waived his
right to a jury, and the case was tried by the United States District Court of the Southern District
of Old York. R. 3. Respondent moved to suppress the body camera video he was wearing at the
time of the incident, alleging that to allow the video into evidence would be a violation of his
Fourth Amendment rights. R. 5. The United States District Court of the Southern District of Old
York denied Respondent’s motion to suppress the video from his body camera, and found that
Respondent was guilty of a hate crime under 18 U.S.C. § 249. R. 13. Jurisdiction was conferred
upon the United States District Court of the Southern District of Old York by 28 U.S.C. § 1331
(2006).
On October 20, 2015, Respondent filed a timely motion to the United States Court of
Appeals for the Thirteenth Circuit to appeal the judgement of the United States District Court of
the Southern District of Old York. R. 17. The United States Court of Appeals for the Thirteenth
Circuit reversed both decisions of the United States District Court of the Southern District of Old
York. R. 17. The United States Court of Appeals for the Thirteenth Circuit had jurisdiction under
28 U.S.C. § 1291 (2012).
The United States (Petitioner) filed a timely petition for a writ of certiorari to this Court.
This Court granted certiorari on November 3, 2015. This Court has jurisdiction under 28 §
U.S.C. 1254 (2006).
1
OPINIONS BELOW
The opinion of the Court of Appeals is unreported. It is reprinted at Pet. App. ___. The
District Court’s opinion is unreported. It is reprinted at Pet. App. ___.
2
STANDARD OF REVIEW
Respondent’s reasonable expectation of privacy in his locker at the police station should
be reviewed “de novo.” United States v. Johnson, 114 F.3d 435, 439 (4th Cir. 1997). Conversely,
whether the search of Respondents locker was reasonable under all of the circumstances should
be reviewed “for clear error….” Id.
In reviewing whether a police officer can be charged under § 249, it is a question of
statutory construction, which is a matter of law and must be reviewed de novo. W.C. v. Sec’y of
Health and Human Servs., 100 Fed. Cl. 440, 457 (2011) (citing Hawkins v. United States, 469
F.3d 993, 1000 (Fed. Cir. 2006)). Furthermore, “[s]tatutory interpretation requires courts to
‘read[ ] the whole statutory text, consider[ ] the purpose and context of the statute, and consult[ ]
any precedents or authorities that inform that analysis.’” Id. (quoting Dolan v. United States
Postal Serv., 546 U.S. 481, 486 (2006)).
3
STATEMENT OF THE ISSUES
1. Whether a police officer, under the Fourth Amendment, has a reasonable expectation of
privacy in his assigned locker at his place of work, particularly when he replaces the government
issued lock with his own.
2. Whether a police officer may be charged with a hate crime under 18 U.S.C. § 249 when he
pulls over an individual because of that person’s race and then shoots and severely injures that
person due to the officer’s racial biases against that person and his race.
4
STATEMENT OF THE CASE
On June 19, 2013, Officer Billy Roy Campbell (Respondent) saw Michael Jennings (Mr.
Jennings) driving a 2013 black Mercedes Benz and became suspicious. R. 3. He started
following Mr. Jennings, and in about one-half mile, Respondent pulled Mr. Jennings over for
changing lanes without signaling. R. 3. Respondent asked Mr. Jennings for his license and
registration and where he got the car. R. 3.
During the exchange, Mr. Jennings started to record the conversation with his cellphone.
R. 4. Respondent noticed and asked Mr. Jennings to stop recording. R. 4. Agitated, Respondent
opened Mr. Jennings’ car door, and asked Mr. Jennings to step out of the car. R. 4. Mr. Jennings,
however, refused and tried to drive away. But respondent grabbed the steering wheel through the
open window with his left hand, took out his gun with his right hand, and fired it. R. 4. Due to
Respondent’s actions, Mr. Jennings sustained a gunshot wound to his groin and was severely
injured. R. 4. These events were all recorded by Respondent’s Axon body camera. R. 4.
It is known that Respondent, a White police officer, is a member of organizations that
promote “racial purity.” R. 6. In addition, Respondent’s colleagues have heard him making
racially motivated comments. R. 6.
Respondent was indicted on federal criminal charges under 18 U.S.C. § 249 for shooting
an unarmed black teenager (Mr. Jennings) during a routine traffic stop. He waived his right to a
jury trial. R. 2.
Respondent was tried before the Honorable Clarence Marshall in the United States
District Court of the Southern District of Old York. R. 5. Prior to trial, Respondent moved to
suppress the Axon Body Camera found inside his government assigned locker. R. 5. This motion
was denied by the District Court. R. 5.
5
Respondent was found guilty of a hate crime under 18 U.S.C § 249. R. 13. On October
20, 2015, Respondent then filed a notice of appeal to the United States Court of Appeals for the
Thirteenth Circuit. R. 17.
In a decision issued on October 20, 2015, the Court of Appeals for the Thirteenth Circuit
reversed Respondent’s conviction and reversed the denial of his motion to suppress. R. 14, 17.
The Court of Appeals held that by changing the government issued lock with his personal lock to
secure his locker at the police department, Respondent manifested his intentions that the contents
of his locker would be private. R. 14. Additionally, the Court of Appeals held that there was not
enough evidence to show that Respondent was motivated by racial hatred when he shot Mr.
Jennings. R. 17.
Subsequently, the United States petitioned for a writ of certiorari to this Court. R. 18. On
November 3, 2015, this Court granted certiorari. R. 18.
6
STATEMENT OF THE FACTS
Respondent, a white police officer, shot and severely injured an unarmed black male, Mr.
Jennings, during a traffic stop. R. 2-3. Respondent was indicted on federal criminal charges
under 18 U.S.C. § 249, otherwise known as the Matthew Shepard and James Byrd, Jr. Hate
Crimes Prevention Act (HCPA). R. 2-3. The Respondent’s initial traffic stop was racially
motivated and further escalated into a confrontation and shooting. R. 2-6.
I.
THE TRAFFIC STOP
On June 19, 2013, Michael Jennings was driving a 2013 black Mercedes Benz that was
registered under his father’s name. R. 3. The Respondent was on patrol that day and saw Mr.
Jennings. He followed Mr. Jennings for one-half mile before pulling him over for failure to
signal before changing lanes. R. 3.
The Respondent asked Mr. Jennings for his license and registration. R. 3. Mr. Jennings
asked the officer why he was pulled over, but Respondent did not reply. R. 3. Instead,
Respondent asked Mr. Jennings where he got the car. R. 3. The teenager replied that it was a gift
from his father. R. 3. This fact was later confirmed with the vehicle's registration and by the
testimony of Mr. Jennings’ father. R. 3. At some point, Mr. Jennings started to record their
interaction on his cellphone. R. 4. As soon as the Respondent realized that he was being
recorded, he told Mr. Jennings to stop recording and to get out of the vehicle as he opened the
door. R. 4. However, Mr. Jennings closed the door, started his engine, and tried to drive, but the
car was not in gear. R. 4. The officer tried to stop him from leaving by reaching inside the car,
holding the steering wheel, and unbuckling Mr. Jennings’ seatbelt. R. 4. When Mr. Jennings
refused, Respondent took out his gun and fired it, shooting Mr. Jennings in his groin. R. 4-5.
7
The gunshot severely injured Mr. Jennings, causing him to lose control of his car. R. 4.
Subsequently, Mr. Jennings’ car rolled away until it hit a curb. R. 4. Due to his injuries, Mr.
Jennings may not be able to have children. R. 5.
II.
RESPONDENT’S MOTION TO SUPPRESS BODY CAMERA
Respondent was wearing a body camera that recorded most of the events that occurred at the
traffic stop. R. 4. Members of the New Jacksonville Police Department are required to have their
body camera while on duty. R. 4 n.6. But Respondent told investigators that he was not wearing
his body camera at the time of the incident. R. 7. After the incident, Respondent hid his body
camera inside his locker at the police station. R. 7. Nonetheless, Respondent was placed on desk
duty while he was being investigated for the shooting. R. 6. It is standard protocol for the police
department to investigate officer-involved shootings. R. 6.
At trial, Officer Graham testified that he became suspicious of the Respondent because he
changed his lock. R. 7. Therefore, he tried to access Respondent’s locker. R. 7. Officer Graham
was successful and found Respondent’s body camera inside his locker. R. 7. Immediately after
locating the camera, Respondent was suspended without pay pending criminal investigation. R.
6.
Respondent argued that by accessing his locker, Officer Graham violated his Fourth
Amendment rights. R. 5. Respondent indicated that he had a reasonable expectation of privacy in
his locker located in the department building because he replaced the government-issued lock
with his own personal lock.
However, the New Jacksonville Police Department has conducted an unannounced search
of all officer locker a year prior the Jennings incident. R. 9. The purpose of the search was to
weed out corruption in the department. R. 10. Since a random search has occurred just a year
8
before Respondent was hired, it means that he was on notice that the department could conduct
non-investigatory search at any time. R. 10.
Respondent argued that by accessing his locker, Officer Graham violated his Fourth
Amendment rights. R. 5. Respondent indicated that he had a reasonable expectation of privacy in
his locker located in the department building because he replaced the government-issued lock
with his own personal lock. R. 10.
III.
HATE CRIME CHARGE AGAINST RESPONDENT
Respondent is a member of the League of the South and Kingdom Identity Ministries. R.
6. These organizations are known for their racist ideals by promoting racial purity. R. 7. Officer
Randall Graham testified that he heard Respondent make derogatory comments against ethnic
minorities. R. 7. Furthermore, two officers testified that they heard Respondent say “one of them
won’t be able to breed,” pertaining to the groin injury he inflicted on Mr. Jennings. R. 6.
Moreover, Respondent testified that Mr. Jennings “just didn’t look right behind the wheel of that
car.” R. 3. It was hard for Respondent to believe that Mr. Jennings was driving such an
expensive car in an exclusive neighborhood. R. 3. This led Respondent to follow Mr. Jennings
for one-half mile until he was eventually pulled over for changing lanes without signaling. R. 4.
However, Mr. Jennings’ race was Respondent’s motivation to follow and pull him over. R. 3, 13.
9
SUMMARY OF THE ARGUMENT
Respondent’s motion to suppress should be granted because his Fourth Amendment
rights against search and seizure were not violated. Respondent did not have a reasonable
expectation of privacy in his government-assigned locker. Furthermore, the Court of Appeals
erred in reversing Respondent’s hate crime conviction under 18 U.S.C. § 249. Respondent’s
actions clearly manifested his racial hatred and bias against ethnic minorities, especially AfricanAmericans. The unfortunate target of Respondent’s innate hatred towards minorities was
Michael Jennings.
The Fourth Amendment affords protection against unreasonable searches and seizures.
U.S. Const. amend. IV. Pursuant to the Amendment and contrary to common belief, there is no
absolute bar against warrantless searches. Although the standard for expectation of privacy and
warrantless searches is reasonableness, Fourth Amendment claims in the workplace have to be
assessed in a case-by-case basis. Factors that the court considers in assessing privacy interests
include private versus public employer and government intrusion as opposed to a search by
supervisors.
In O'Connor v. Ortega, the Court discussed the “operational realities” of the workplace
and the balancing of government intrusion against the privacy interest under such “realities.” 480
U.S. 709 (1987). These “realities” would help a court determine when an employee’s expectation
of privacy is deemed unreasonable or reasonable. As such, Fourth Amendment protection might
not be available in areas that are accessible to almost all employees.
In this case, Respondent is seeking protection for his government assigned locker. In
police stations, lockers are commonly situated in a locker room, which is accessible to a number
of police officers. The locker room is easily accessible by Respondent’s colleagues affording him
10
no right to exclude others from the room. Furthermore, the police department gave officers
government-issued locks to keep their belongings secure. The locker and the locks are all
government property. The record did not state whether the lock allows officers to use a
combination. Respondent’s supervisor could easily access his locker with a master key.
Therefore, respondent should have expected that someone in the force could access his locker.
Police Officers, by the nature of their profession, are held on a much higher standard.
They are expected to maintain integrity and accountability, which reflects on the police force as a
whole. To uphold integrity, the force may conduct non-investigatory searches to weed out
misconduct. Here, Respondent was required to wear a body camera because his actions, while on
duty, are not considered his own private actions. Granted that the body camera is also for his
own protection, he still does not have a reasonable expectation of privacy on the camera and its
contents. Similarly, the body camera is government property, it is not for the Respondent to hide
or lose.
Respondent’s actions against Michael Jennings is a hate crime under 18 U.S.C. § 249.
Pursuant to the Federal Statute, a person is guilty if found to have willfully caused bodily injury
to another person because of his race, color, religion, or national origin. Although a police officer
has yet to be tried under 18 U.S.C. 249, it does not mean that they are allowed to commit acts of
violence driven by hatred against racial minorities.
In fact, a few States that have adopted and used the exact same language as 18 U.S.C. §
249 have tried and convicted police officers. In Illinois, the courts found that racial slurs,
offensive language, and derogatory comments, which all eventually lead to the assault and
battery of the victim, were sufficient evidence to show a violation of the hate crime statute.
11
If Michael Jennings was a White man driving an expensive car in an expensive
neighborhood, Respondent would not be suspicious of him. But because of Respondent’s innate
hatred towards racial minorities he used his authority to intimidate and harass Mr. Jennings.
Whether or not the initial traffic stop was legitimate, the incident quickly escalated into a
violent confrontation. Then, when Mr. Jennings asked why he was pulled over, Respondent
responded in a condescending and derogatory manner. Furthermore, there was nothing in the
evidence and testimonies that Mr. Jennings’ actions called for excessive force. Instead, there
were testimonies that Respondent was bragging about how he shot Mr. Jennings.
By shooting Mr. Jennings, Respondent willfully and intentionally caused bodily injuries
towards Mr. Jennings. Mr. Jennings sustained severe groin injuries and might not be able to
father children. There was no reason to shoot Mr. Jennings; however, Respondent had his own
personal reasons to do so. Respondent’s thoughts, statements, and actions evidences his racial
animosity, thus, satisfying all the requirements of 18 U.S.C. § 249.
12
ARGUMENT
I.
PURSUANT TO KATZ V. UNITED STATES RESPONDENT HAS TO SHOW
THAT HE HAS A PRIVACY INTEREST IN AREAS SEARCHED AND
WHETHER SUCH INTEREST IS ONE THAT SOCIETY VIEWS AS
REASONABLE
The Fourth Amendment protects individuals from “unreasonable searches and seizures”
U.S. Const. amend. IV. The preference for confiscating evidence starts by first obtaining a
warrant based on probable cause. See Texas v. Brown, 460 U.S. 730, 735 (1983). It has long been
established that evidence obtained unlawfully by the government is inadmissible in federal court.
See Silverthorne Lumber Co. v. United States, 251 U.S. 385, 391 (1920). However, the Court has
identified numerous exceptions to the warrant requirement. See United States v. Schmidt, 700
F.3d 934, 937 (7th Cir. 2012) (allowed warrantless search due to exigent circumstances);
Maryland v. Buie, 494 U.S. 325, 334 (1990) (allowed warrantless searches incident to arrest);
Terry v. Ohio, 391 U.S. 1 (1968) (permitting warrantless searches pursuant to reasonable
suspicion). What is rendered inadmissible is evidence obtained through unreasonable searches
and seizures. See Mapp v. Ohio, 367 U.S. 643, 654 (1961).
A criminal defendant is entitled to the Fourth Amendment protection if he or she has
standing. See Rakas v. Illinois, 439 U.S. 128, 135 (1978). The threshold requirement for standing
is whether the defendant has a reasonable expectation of privacy and whether the government
actor invaded such privacy. See United States v. Padilla, 508 U.S. 77, 80 (1993).
In Katz v. United States, the court set forth a two-part test in identifying an individual’s
reasonable expectation of privacy: “[F]irst that a person have exhibited an actual (subjective)
expectation of privacy and, second, that the expectation be one that society is prepared to
recognize as reasonable." 389 U.S. 347, 361 (1967) (Harlan, J., concurring). Once privacy rights
pursuant to the Fourth Amendment are established, the court looks at the government action in
13
question. See O’Connor v. Ortega, 480 U.S. 709, 719 (1987); see also United States v. Place,
462 U.S. 696, 703 (1983).
In a motion to suppress to exclude evidence, the defendant has the “burden of proving
legitimate expectations of privacy in areas searched.” United States v. Ramos, 12 F.3d 1019,
1023 (11th Cir. 1994). If the defendant fails to meet his burden, he will not be entitled to the
Fourth Amendment protection from unreasonable searches and seizures. See Rawlings v.
Kentucky, 448 U.S. 98, 104 (1980). The Court, therefore, would not move on to the second part
of the test because there was no Fourth Amendment right violation. Maldonado v. Municipality
of Barceloneta, 682 F. Supp. 2d 109, 137 (D.P.R. 2010). There would be no analysis as to
whether the government’s search and seizure, in warrantless searches, was reasonable. Id. To
meet his burden, the defendant must show the court a few factors that could establish his
reasonable expectation of privacy, such as:
1) whether the defendant had a possessory interest in the place searched; 2) whether
he had a right to exclude others from the place searched; 3) whether he exhibited a
subjective expectation that the place searched remain free from governmental
invasion; 4) whether he took normal precautions to protect his privacy; and 5)
whether he was on the premises legitimately.
United States v. Mitchell, 64 F.3d 1105, 1109 (7th Cir. 1995) (quoting United States v. Duprey,
895 F.2d 303, 309 (7th Cir. 1989)).
Some areas and places searched automatically exude an individual’s privacy interest.
Florida v. Jardines, 133 S. Ct. 1409, 1415 (2013) (holding that individual privacy rights in his
home included curtilage surrounding his home); Minnesota v. Olson, 495 U.S. 91, 99 (1990)
(holding that an individual, as an overnight guest, has a reasonable expectation of privacy).
Privacy interests in other areas are less obvious. United States v. Miravalles, 280 F.3d 1328 (11th
Cir. 2002) (averring that there are no individual expectations of privacy in common areas of an
14
apartment complex);United States v. Sturgis, 238 F.3d 956, 959 (8th Cir. 2001) (stating that
individuals do not have an expectation of privacy as visitors to a motel room); United States v.
Anderson, 154 F.3d 1225, 1235 (10th Cir. 1998) (discussing individual privacy rights in
commercial workplace). As such, an individual’s ability to exclude others is a strong indication
of the reasonableness of one’s privacy rights. See United States v. Lochan, 674 F.2d 960, 965
(1st Cir. 1982).
Once an individual’s expectation of privacy is established, the court conducts a balancing
test by placing government interest on one end and the individual’s privacy interest on the other.
See Terry, 392 U.S. at 22. The court’s approach in balancing the different interests of those
involved in warrantless searches depends on the areas being searched and the prevailing
circumstances that lead law enforcement officers to the warrantless search. See United States v.
Corral, 970 F.2d 719, 725 (10th Cir. 1992) (permitting seizure of closed containers in plain
view; however, a warrantless search could only be justified based on exceptions to the warrant
requirement); Michigan v. Long, 463 U.S. 1032, 1049 (1983) (allowing warrantless search of a
car, which law enforcement officer observed speeding prior to finding it crashed in a ditch);
Terry, 392 U.S. at 1 (1968) (allowing warrantless search of persons in public street based on
reasonable suspicion); Hester v. United States, 265 U.S. 57, 59 (1924) (allowing warrantless
search of “open fields” where suspect was found selling alcoholic beverages).
For example, an individual has the greatest expectation of privacy in his home, Florida v.
Jardines, 133 S. Ct. at 1409, 1415 (2013), and this is the subjective expectation of privacy that
society views as reasonable. Smith v. Maryland, 442 U.S. 735, 739 (1979) superseded by statute.
Accordingly, “[a]n expectation of privacy in commercial premises…is different from, and indeed
less than, a similar expectation in an individual's home.” New York v. Burger, 482 U.S. 691, 700
15
(1987) (quotations omitted); see also Minnesota v. Carter, 119 S. Ct. 469 (1998) (holding that
individuals have a lesser expectation of privacy in commercial spaces than in private homes or
spaces). Therefore, an expectation of privacy in the workplace is a different analysis.
This Court has addressed privacy concerns and government searches in the workplace in
Mancusi v. DeForte, holding that a union office employee has standing to invoke Fourth
Amendment rights even though the documents searched were owned by the union. 392 U.S. 364
(1968); see also Ortega, 480 U.S. at 709 (holding that a psychiatrist employed by the state have
reasonable expectations of privacy on his desk or file cabinets that he does not share with
anyone). The court in Ortega emphasized that an employee’s privacy interest is “addressed on a
case-by-case basis.” Id. at 718. The same Court also put forth a two-part test to determine an
employee’s privacy interest.
Unquestionably, the Fourth Amendment offers the highest level of protection on the
Respondent’s privacy interest in his home. Jardines, 133 S. Ct. at 1415. This is because
Respondent could clearly show his privacy interest, thereby giving him standing against
government intrusion. See Rakas, 439 U.S. at 135. Respondent could easily exclude others and
protect his dwelling from public eyes. Mitchell, 64 F.3d at 1109. Similarly, Respondent’s
personal effects are also protected by the Fourth Amendment but not at the same level afforded
his home. Smith, 621 F.2d at 488. For example, if Respondent has a bag then he has to show that
he owns it, that he exhibits dominion and control over it, that he took steps to protect it, and that
he was not careless as to its contents to establish his privacy interests. Mitchell, 64 F.3d at 1109.
In this example, Respondent had to present a more tedious explanation in establishing his
privacy interest as opposed to the privacy interest he has in his home. Id. It is because as the
areas considered in Fourth Amendment protection move further away from personal residences,
16
one’s expectation of privacy should also change. Long, 463 U.S. at 1049; United States v.
Taketa, 923 F.2d 665, 672 (1991); United States v. Albarado, 495 F.2d 799, 806 (1974).
However, the analysis does not change. If the Respondent invokes Fourth Amendment
protection, he must show that he has a subjective expectation of privacy, and such expectation is
one that society would accept and recognize as reasonable. Katz, 389 U.S. at 361.
Likewise, Respondent’s reasonable expectation of privacy in his home and personal
effects is not diminished because he is a police officer, but his privacy expectation in his work
place would change. O’Connor, 480 U.S. at 717. Arguably, Respondent, as a member of the
New Jacksonville Police Force, had a reasonable expectation of privacy in the police department
against non-members. However, privacy concerns against the public is not what the Fourth
Amendment is designed to address. Nonetheless, if he could establish privacy interest against the
public is a good indication that Respondent has met the objectiveness prong of Katz. 389 U.S. at
361.
Furthermore, Respondent was also rightfully and legitimately at the police department
and at the locker room area. As an employee, he was granted access to certain areas in the police
department including work space, offices, and locker rooms. Ortega, 480 U.S. at 721. Such areas
are otherwise prohibited to the general public, more specifically, to non-employees. However,
some of the areas of the police department are less accessible to certain police officers than to
others. For example, police officers holding supervisory position might have their own offices. If
the office is not regularly visited or easily accessed by other employees for no reason, then the
employee-occupant of the office has a reasonable expectation of privacy. McGregor v. Greer,
748 F. Supp. 881, 888 (D.C. Cir. 1990). Given all these new factors found in Respondent’s
17
workplace, he now has to consider his actions relative to his privacy interests against the public,
against his fellow officers, and against his supervisors. Ortega, 480 U.S. at 721.
II.
RESPONDENT DID NOT HAVE A REASONABLE EXPECTATION OF
PRIVACY IN THE LOCKER ASSIGNED TO HIM AT WORK
In O’Connor v. Ortega, the Supreme Court provided guidance on the scope of the Fourth
Amendment’s privacy protection for government employees in the workplace. 480 U.S. 709, 717
(1987); see also Supreme Court, 2009 Term: Leading Cases: I. Constitutional Law: A. Criminal
Law and Proc., 124 Harv. L. Rev. 179, 179 (2010). The Court in Ortega concluded that
government employees do not lose their constitutional rights when they go to work, but those
rights must be balanced against the realities of the employment context. Ortega, 480 U.S. at 721.
The Ortega Court, in a four-Justice plurality, held that a two-step analysis applies when
determining the proper standard for “delineating” an employee’s Fourth Amendment rights:
First, a court must consider the “operational realities of the workplace” to determine whether a
government employee’s constitutional rights were implicated in his or her specific government
office; and second, in situations where an employee does have a legitimate privacy expectation,
“public employer intrusions on the constitutionally protected privacy interests of government
employees for non-investigatory, work-related purposes, as well as for investigations of workrelated misconduct, should be judged by the standard of reasonableness under all the
circumstances.” Id. at 725-26. Leading, supra, at 179, n.2.
A. The Locker Area with the Department-Issued Lock in Respondent’s Workplace
Was So Open to Fellow Employees That There Was No Reasonable Expectation of
Privacy
Respondent’s locker was so open to fellow employees that there was no reasonable
expectation of privacy. In Ortega, a doctor employed by a state hospital had primary
responsibility for training young physicians in the psychiatric residency programs. 480 U.S. at
18
712. Hospital officials, including Dr. Dennis O’Connor, the Executive Director of the Hospital,
was concerned about possible improprieties on the doctor’s part. Id. This included the doctor’s
acquisition of a computer financed by the possibly coerced contributions of residents. Id. The
hospital officials were also concerned with charges that the defendant, Dr. Ortega, had sexually
harassed two female Hospital employees, and had taken inappropriate disciplinary action against
a resident. Id. On July 30, 1981, the hospital placed the doctor on paid administrative leave in
order to conduct an investigation of the charges. Id.
As part of the investigation, hospital officials searched the doctor’s office multiple times.
Id. The investigative team included an accountant, a physician, and a hospital security officer. Id.
at 713. The investigator did a thorough search, seizing several items from Dr. Ortega’s desk and
file cabinets, including a Valentine’s Day card, a photograph, and a book of poetry. Id. After the
investigation, the Hospital terminated Dr. Ortega’s employment. Id. at 712-13. Dr. Ortega,
brought suit against the officials under 42 U.S.C. 1983, alleging that the search of his office
violated the Fourth Amendment. Id. at 714. The District Court held that the search did not violate
the Fourth Amendment because there was a need to secure state property from Dr. Ortega’s
office. Id. The United States Court of Appeals for the Ninth Circuit reversed with respect to the
1983 claim, holding that the search was unreasonable because the doctor had a reasonable
expectation of privacy in his office. Id. The Court of Appeals said that the record justified a grant
of partial summary judgment for the doctor on the issue of liability for an unlawful search, and it
remanded the case for a determination of damages. Ortega, 480 U.S. at 714. On certiorari, this
Court reversed and remanded on the issues concerning Dr. Ortega’s rights under the Fourth
Amendment. Ortega, 480 U.S. at 711.
19
Further, this Court explained that certain operational realities of the workplace can make
some employees’ expectations of privacy unreasonable when an intrusion by a supervisor occurs.
Ortega, 480 U.S. at 717. Additionally, this Court stated that public employees’ expectations of
privacy in their offices, desks, and file cabinets may be reduced by virtue of actual office
practices and procedures, or by legitimate regulation. Id. This Court went on to explain that the
reasonable expectation of privacy that a public employee has must be addressed on a case-bycase basis. Id.
This Court concluded that Dr. Ortega did have a reasonable expectation of privacy in his
office for several reasons that substantially differ from facts of the instant case. Id. For example,
Dr. Ortega did not share his desk or file cabinets with any other employees. Id. In the instant
case, the “government offic[e]” was nonexistent. Id.; see also R. 7. There was no mention of
Respondent’s locker being inside of his own private office. R. 7. Presumably, in the instant case,
the lockers themselves were accessible to all of the police officers at any time. R. 7. Further,
Respondent’s locker was secured with a “department-issued lock.” R. 7.
Typically, lockers are set up next to one another and grouped into one locker-room.
Although not in the record, common sense would lead to the conclusion that Respondent, along
with all of the other New Jacksonville police officers, went to one room where all of the
employee lockers were located. This contrasts sharply with facts of Ortega, where Dr. Ortega not
only had his own, designated office, but had also occupied that same office for 17 years. Ortega,
480 U.S. at 718. The record does not indicate how long Respondent was employed at the police
department; however, the record did indicate that an unannounced search of all officers’ lockers
had occurred about a year before the events of this case, and at that time, Respondent was not
employed by the New Jacksonville police department. R. 9. Therefore, Respondent had been
20
employed with the police department for less than one year. R. 9. Whereas Dr. Ortega nearly
considered his office of 17 years his second “home”, Respondent had just begun using the locker
in the instant case, where he maintained very few personal and/or government-owned items.
Ortega, 480 U.S. at 718; see also R.14. In addition, the department-issued lock likely rendered
Respondent’s locker accessible by a master key, which is owned by police department. R. 7.
Therefore, when given a department-issued lock, it is highly unlikely that Respondent had a
reasonably expected any privacy in the locker at his place of work. R. 7.
In Ortega, only personal items were seized from Dr. Ortega’s office. Ortega, 480 U.S. at
714. There was no policy discouraging employees from keeping personal items in their desks or
file cabinets, so the Court held that Dr. Ortega did have a reasonable expectation of privacy in
his desk and file cabinets. Id. at 719. In applying the Ortega test to the instant case, Respondent
would not have a reasonable expectation of privacy in his locker at the police station because it
contained both government-related items and personal items. R. 14. Respondent is also
employed as a police officer. By the nature of his employment, Respondent is expected to uphold
the “appearance and actuality of police integrity,” Biehunik v. Felicetta, 441 F.2d 228, 230 (2d
Cir. 1971), as his actions would reflect on the police force. To uphold the integrity of police
officers, some departments impose random inspections and others, as here, have required officers
to carry body cameras while on duty. See Kirkpatrick v. City of Los Angeles, 803 F.2d 485, 488
(9th Cir. 1986). Respondent should have expected that if his supervisors and peers needed
Respondent’s body camera for a work-related purpose, they would have entered his locker with a
master key to retrieve it.
Additionally, Respondent had placed items in his locker for less than a year, contrasting
sharply with the office that Dr. Ortega occupied for 17 years, containing many of his personal
21
items. Ortega, 480 U.S. at 718; see also R. 14. There had also been an unannounced, random
search of all police officers’ lockers about a year before the incidents of the instant case. R. 9.
Although Respondent was not employed at the time of the random search, based on the fact that
Respondent’s locker was easily seen by employers and employees at the police department, and
the fact that the original lock on his locker was issued to him by his department, Respondent had
no reasonable expectation of privacy in his locker. R. 7, 9.
Justice O’Connor, writing for the plurality, stated that “public employers must be given
wide latitude to enter employee offices for work related, non-investigatory reasons.” Ortega, 480
U.S. at 723. This reality was evidenced by the department-issued lock in the instant case, making
it even clearer that the lockers were not meant as private cubicles in the instant case. R. 7.
Rather, it appears that the lockers in the instant case were meant as temporary, unsecured areas
where officers, if they had to, could place government owned or personal items for momentary
convenience. Under Ortega, Respondent could not have had any reasonable expectation of
privacy in his locker at the police station.
1. Given the nature of his employment, Respondent did not have an expectation of
privacy
Courts have recognized the “power of the Government as [an] employer, to supervise and
investigate the performance of [an employee’s] duties as [a government employee].” United
States v. Collins, 349 F.2d 863, 868 (2nd Cir. 1965). Officer Graham, who performed the search
of Respondent’s locker, was not Respondent’s employer. R. 7 n.11. However, the fact that
Graham was not Respondent’s employer does not have any effect on the fact that Respondent
had no expectation of privacy in his locker. Public employees are less likely to retain an
expectation of privacy against government searches at work than are private employees. See H.
22
Marshall Jarrett, Searching and Seizing Computers and Obtaining Electronic Evidence in
Criminal Investigations, 46 (3d. ed. 2009).
Further, consent to be searched can be implied from surrounding circumstances. United
States v. Amen, 831 F.2d 373, 378 (2d Cir. 1987). Under 18 U.S.C. § 2511(2)(c), “Consent may
be expressed or implied.” When individuals who have waived their rights are searched and
challenge the searches on Fourth Amendment grounds, courts typically focus on whether the
individual has eliminated his or her reasonable expectation of privacy against the search. Jarrett,
supra, at 26. Pursuant to United States v. Ellis, consent to a search may be inferred from an
individual’s conduct. 547 F.2d 863, 867 (5th Cir. 1977).
2. Respondent could not have had a reasonable expectation of privacy when he used the
department-issued lock
Consent to be searched can be implied from surrounding circumstances. United States v.
Amen, 831 F.2d 373, 378 (2d Cir. 1987). For example, in United States v. Ellis, the defendants
argued that a warrantless search of one of the defendant’s vehicles where twenty bags of
marijuana were found was obtained without his consent. 547 F.2d at 866. Defendant had
accepted and displayed a visitor’s pass in order to come onto the naval base. Id. at 865. The pass
that the defendant had displayed asserted the right of the naval base officers to inspect the
vehicle. Id. The court looked at whether the consent was “freely and voluntarily given” along
with “the totality of the circumstances” to determine if the defendant had voluntarily consented
to the search of his vehicle. Id. at 866. The defendant stated that he had read the pass; defendant
has also complied with its written requirement of display on his windshield, and also decided to
enter the base subject to the possibility of the search. Id.
23
The Fifth Circuit held that the warrantless search that revealed the marijuana was legal,
because the defendant should have realized that his actions in presenting his vehicle to the guard
carried with it the possibility of an inspection. Id.
In the instant case, Respondent was given a department-issued lock on his locker. R. 7.
There is nothing in the record that indicates whether or not the department-issued lock had a
private combination. Under Ellis, the visitor’s pass, acknowledging that he could be searched and
inspected at any time, is analogous to a department-issued lock on a locker. Ellis, 547 F.2d at
866. It was reasonable for Respondent to have expected that his employers would have access to
his locker through a “master” key to the lockers, thereby giving his implied consent to a
warrantless search. According to the record, the fact that Respondent switched the departmentissued lock with a personal lock was not something that Respondent’s supervisors were made
aware of. R. 7. Unless Respondent’s supervisors were made aware that he changed the lock,
there was always implied consent in a warrantless search of Respondent’s locker. Id.
Another example comes from American Postal Workers Union v. United States Postal
Serv., postal employees retained no reasonable expectation of privacy in the contents of
government lockers. 871 F.2d 556, 559-61 (6th Cir 1989). Those employees signed waivers
stating that the lockers were subject to inspection at any time, even though these lockers
contained personal items. Id. In the instant case, the record does not indicate whether waivers
were signed. However, the department issued locks could mean implied consent that the lockers
would be searched at any time. R. 7. Additionally, the department could conduct searches any
time for the sole purpose of maintaining the integrity of the police force. If this conclusion is
true, then it is similarly implied that the lockers were open to others.
24
3. Respondent could not have had a reasonable expectation of privacy when he used the
body camera
The body camera itself was another layer of implied consent that Respondent gave to his
employers. To compare, federal courts have held that users of computer systems may waive their
rights to privacy as a condition of using the systems. Jarrett, supra, at 26. A body camera is
analogous to a computer, because it records and stores information.
The day of the incident, Respondent was wearing a department-issued body camera that
was recording the event. R. 4. The New Jacksonville police department had a department policy
that required officers to wear the body cameras while on duty. R. 4 n.6. Additionally, officers are
supposed to upload the videos at the end of their shifts. Id. When Respondent put his body
camera on and began patrol on June 19, 2013, he knew that any video footage recorded was to be
uploaded at the end of his shift. R. 4. While the body camera could promote officer safety, its
main function was to keep track of the actions of the officers during their patrol. See Shaffer v.
Fields, 339 F. Supp. 997, 1003 (C.D. Cal. 1972). The aforementioned intrusion is justified in this
instance but it is otherwise barred by the Fourth Amendment. Kirkpatrick, 803 F.2d at 489.
Despite the body camera being located in Respondent’s locker, by wearing the body
camera, Respondent “knowingly” exposed his activities to his supervisors, and surrendered his
Fourth Amendment protections’ in favor of such activities or effects. United States v. Simons,
206 F.3d 392, 399 (4th Cir. 2000). Courts have recently analyzed the Fourth Amendment rights
of employees in their workplace computers for government employees and private sector
employees. See generally Simons, 206 F.3d at 395.
The Fourth Circuit in Simons defined “third parties” as employers who would be
overseeing the defendant’s internet use on his work computer. Id. Accordingly, the FBI’s actions
in Simons in searching and seizing the computer files that the defendant downloaded from the
25
internet did not violate the Fourth Amendment. Id. Similarly, when Respondent put his body
camera on, and went to work on June 19, 2013, he “knowingly” exposed his activities to third
parties, thereby surrendering his Fourth Amendment protections. Id. at 399. The defendant in
Simons also had no reasonable expectation of privacy in his computer because of an established
computer policy. Simons, 206 F.3d at 398.
The criminal defendant in Simons was charged with receiving and possessing materials
constituting child pornography. Id. at 395. The defendant received the materials at his
government workplace via the internet. Id. at 395. Another employee at the defendant’s
workplace investigated the defendant’s workstation and concluded that the defendant was
involved in unauthorized activity. Id. at 396. A search team searched the defendant’s office, but
did not leave a copy of the warrant which should have stated which items were taken for
investigation. Id. at 402. The defendant argued that the district court erred in denying his motion
to suppress the information found during the search. Id. at 395. The issue in the Simons case was
whether the search team had intentionally and deliberately violated the “copy and inventory list”
requirement. Id. The Court in Simons held that government employees may have a legitimate
expectation of privacy in their offices such as their desks or file cabinets. Id. at 399. However,
the searches of the defendant’s computer did not violate his Fourth Amendment right because the
defendant lacked a legitimate expectation of privacy in the files downloaded from the internet.
Id. The internet policy in Simons clearly stated that FBIS would “audit, inspect, and/or monitor”
employees’ use of the internet. Id. Similarly, the department policy in the instant case indicated
that “the officers are supposed to upload the videos at the end of their shift.” R. 4 n.6.
26
B. Even If the Reasonable Expectation of Privacy Had Been Established, the Search
Was Reasonable Because the Incident Involved Exigent Circumstances
In the instant case, there was no warrant obtained to search Respondent’s locker by
Officer Graham. However, there are exigent circumstance exceptions to the warrant requirement.
The exigent circumstances exception to the warrant requirement applies when one of the
following circumstances is present: (1) evidence is in imminent danger of destruction, (2) a
threat puts either the police or the public in danger, (3) the police are in “hot pursuit” of a
suspect, or (4) the suspect is likely to flee before the officer can secure a search warrant. Georgia
v. Randolph, 547 U.S. 103, 117 n.6 (2006); see also Jarrett, supra, at 28.
In the instant case, it was evident that the body camera footage was “in imminent danger
of destruction” because Respondent told investigators that he could not find his body camera the
day Mr. Jennings was shot. Georgia, 547 U.S. at 117 n.6; see also R. 7. Respondent also lied
about the day of the incident, stating that he had gone without his body camera. R. 7. In the
instant case, exigent circumstances existed because of how easy it would have been for
Respondent to destroy the video footage on the body camera.
In United States v. Plavack, agents appropriately seized a computer without a warrant
when the target was caught burning relevant documentary evidence and then running away from
his residence carrying the computer. 411 F.3d 655, 664-65 (6th Cir. 2005). In the instant case,
Respondent told investigators that he could not find his body camera the day Mr. Jennings was
shot and went without it. R. 7. This was a blatant lie. Campbell had also replaced the departmentissued lock he received for his locker with a personal lock the day after the Jennings incident. R.
7. This is analogous to the facts in Plavack where the defendant was caught burning relevant
documentary evidence. 411 F.3d at 665. The replacement of the lock that was issued to
Respondent by his department is similar to a “burning” of evidence because it indicated that
27
Respondent might eventually try to permanently destroy or hide the body camera footage. The
replacement of a personal lock on his locker was also analogous to “running away” as it set in
motion the fact that he was attempting to conceal relevant evidence.
In Gossmeyer v. McDonald, the plaintiff was a child protective investigator who filed an
action against defendants, state officials, co-workers, and the federal government, alleging that
her constitutional rights were violated when co-workers searched her office, filing cabinet, and
storage unit pursuant to an anonymous tip that she kept child pornography in her filing cabinet.
128 F.3d 481, 484 (7th Cir. 1997). During the course of a separate investigation conducted
against the defendant, Gossmeyer, at the child protective agency, Gossmeyer bought (at her own
expense) a four-drawer file cabinet and a two-door storage unit, each of which was equipped
with a lock. She used the file cabinet to store evidentiary photographs and photographic
equipment, amongst other items for her investigations. Id. at 484-485. Gossmeyer locked the
cabinets when they were not in use or when she was not in her office. Id. She had her own
private key to the cabinets. Id.
On appeal, the court affirmed the lower court’s decision finding that Gossmeyer did not
have an expectation of privacy in her filing cabinets simply because she purchased them herself.
Id. at 490. The items that were searched were part of the workplace and not part of Gossmeyer’s
personal domain. Id.
Similarly, in the instant case, Respondent bought his own lock for the locker and replaced
the department issued lock with it. R. 7. Simply because Respondent bought his own lock for his
locker did not mean that his locker was not a part of the “workspace.” In Gossmeyer, not only
did the plaintiff have her own office, her own locker, and her own cabinets that she purchased,
the Seventh Circuit still found that all items were included in the “workplace” and were “within
28
[her] employer’s” control. Gossmeyer, 128 F.3d at 490. Further, a workplace search like the one
in Gossmeyer is reasonable if it is “justified at its inception” and if it is reasonably related in
scope to the circumstances that prompted the search. Ortega, 480 U.S. at 726. If there are
reasonable grounds to believe that the search will uncover evidence of the employee’s
misconduct, then the search is “justified at its inception.” Id.
Similar to the instant case, the search conducted of Respondent’s locker met both prongs
of the Ortega test. There were reasonable grounds to believe that Officer Graham’s search would
uncover evidence that Respondent lied about misplacing the body camera, which is misconduct.
In addition, Respondent also committed two other types of misconduct. First, he hid he body
camera, which is government property. Second, police officers are required to wear the camera
while on duty. By insinuating that he was not wearing the camera the day of the incident,
Respondent violated department policy. As such, the search of Respondent’s locker was within
the bounds of the Ortega test, and therefore, it did not violate his Fourth Amendment rights.
C. Even If an Expectation of Privacy Was Established, the Search Conducted Was Still
Reasonable Under the Special Situations Exception as Articulated in O’Connor v.
Ortega
The Court in Ortega explained that there are exceptional circumstances in which special
needs, beyond the normal need for law enforcement, make the warrant and probable-cause
requirement impracticable. O’Connor, 480 U.S. at 721. In addition, the Court in Ortega stated
that the imposition of a warrant requirement would conflict with the common-sense realization
that government offices could not function if every employment decision became a constitutional
matter. Id. at 722. The Instant case is a special situation like the one Ortega discusses because
Respondent not only lied about whether or not he was wearing his body camera the day of the
29
incident, but he also attempted to hide it by switching the department issued lock with his own
lock.
As the Ortega Court noted, the “fundamental command of the Fourth Amendment is that
searches and seizures be reasonable and although 'both the concept of probable cause and the
requirement of a warrant bear on the reasonableness of a search, . . . in certain limited
circumstances neither is required.’” Id. at 722 (quoting Almeida-Sanchez v. United States, 413
U.S. 266, 277 (1973)). In the instant case, Graham did not need “probable cause” as it has been
traditionally recognized under the Fourth Amendment. As Ortega stated, “the appropriate
standard for administrative searches is not probable cause in its traditional meaning.” Ortega,
480 U.S. at 723. Graham did conduct what the Ortega Court called a “routine inventory” which
is typically conducted by public employers for the purpose of securing state property. Id. Graham
was attempting to secure state property.
The Ortega Court went on to distinguish searches made for work-related purposes from
searches made for law enforcement purposes. R. 9. In the lower court opinion, the District Court
of Old York held that the two types of searches are “necessarily conflated” in the instant case
because Officer Graham searched Respondent’s locker which was within a police department. R.
9. Regardless of which type of search Officer Graham conducted was legal, and necessary for the
efficiency of the police officer’s work place.
In the instant case, Officer Graham suspected that Respondent was involved in either
hiding, stealing or destroying what was state property (the body camera). Graham was acting to
conduct an administrative search, which was proper because he was acting as an agent of the
police station. It was his duty to secure the state property, and if Graham had not acted, the
30
supervisors of the police station may not have had time before Respondent either hid or
destroyed the video footage.
In Sears, Roebuck & Co. v. Wholey, the employer, a retail chain, discharged a security
employee after he conducted an extensive private investigation of a store manager whom he
suspected of theft. 139 Md. App. 642, 647 (Md. Ct. of Spec. App; 2001). The employee security
guard sued for wrongful discharge. The employee security guard was discharged because instead
of reporting his suspicions of a store manager stealing from the retail store, he proceeded in his
own investigation into the store manager’s theft. Wholey, 139 Md. App. at 647. The employee
security guard installed cameras in the store, but he claimed that he had asked his superior if he
could do so. During the employee security guard’s discharge, his superior claimed that the
employee had never asked if he could install the cameras. Id. The employee stated otherwise, but
the court believed the employee’s superior. During the day of the employee’s discharge, he was
told that his superior did not approve of his handling the investigation of the store manager,
particularly the installation of the security cameras in the store manager’s office. Id. However,
since the employee’s duties all related to security, if he could not be fired for mishandling
security matters, he could not be fired at all. Id.
In the instant case, there is a possibility that Graham similarly “mishandled” his duties as
a police officer. However, Officer Graham’s behavior should not be punished, and this Court
should rule that Respondent did not have a reasonable expectation of privacy in his workspace. If
this Court finds that Officer Graham’s actions violated Respondent’s Fourth Amendment rights,
then future officers like Officer Graham will not act on their instincts, and misconduct like the
kind displayed by Respondent will go unnoticed and/or unpunished. In order to protect victims
31
like Mr. Jennings from future harm, and to maintain the efficiency of police officers’ workplace,
Graham’s actions should not be punished or discouraged.
1. The search was necessary to preserve police integrity
In Ortega, Justice O’Connor repeatedly stated the importance of the proper operation and
efficiency of government agencies both to the agencies as well as to the public interest. 480 U.S.
at 721. Justice O’Connor emphasized that employees’ privacy interests must be balanced against
the realities of the workplace, which suggest that a warrant requirement would be unworkable in
non-investigatory searches. Id.
Justice O’Connor concluded that “special needs, beyond the normal need for law
enforcement make the . . . probable-cause requirement impracticable” for legitimate work-related
non-investigatory intrusions as well as investigations of work-related misconduct.” Ortega, 480
U.S. at 721. Further, even if Respondent did have a reasonable expectation of privacy, it would
not change the outcome because the search that Officer Graham conducted was reasonable. In
Biehunik v. Felicetta, a police commissioner acting on a tip that some police officers were
engaged in neighborhood assaults rounded up sixty-two officers and placed them in a line-up.
441 F.2d 228, 230 (2d Cir. 1971). The officers claimed that their Fourth Amendment rights were
violated, but the Court disagreed. Id. at 231. The Court in Biehunik concluded that police officers
may be subjected to searches or seizures in the interest of protecting police integrity. Id. In the
instant case, in order to preserve police integrity, a search of Respondent’s locker was not only
necessary, but would have likely been performed with or without Officer Graham’s individual
actions. If Officer Graham had not searched Respondent’s locker, then surely the supervisors in
the New Jacksonville Police Department would have at a later time. Even if Officer Graham
32
mishandled his duties as a co-worker of Respondent that day, his actions were in the interest of
public policy.
When Officer Graham went into Respondent’s locker using bolt-cutters, he had good
faith and probable cause to believe that Respondent’s body camera was inside his locker. R. 7.
Likewise, if Officer Graham was conducting a non-investigatory search, all he needed was a
reasonable belief based on articulable and demonstrable facts the Respondent was hiding
government property. Ortega, 480 U.S. at 726. As for an investigatory search, any officer in
Officer Graham’s position had a duty to the force to protect the body camera evidence. There
would have been no time for the police officers to get a warrant to check Respondent’s locker.
In Ortega, Justice O’Connor stated that public agencies would suffer if employers were
required to obtain a warrant every time an administrative investigation occurred. 480 U.S. at 723.
Further, Graham’s search of Respondent’s locker was based on probable cause under the totality
of the circumstances. For public policy reasons, police officers should be made aware that if a
police co-worker has good faith and probable cause, he or she would be able to search the locker
in order to prevent misconduct like there was in the instant case.
2. Respondent was on notice of potential searches
In United States v. Speights, the defendant was a police officer who had both a locker of
his own and a department issued lock on his locker. 557 F.2d 362 (3d Cir. 1977). There were no
regulations addressing the issue of personal locks, and also no regulation or practice to justify the
search of the defendant’s locker. Id. The Court found that because of the lack of policy or
regulation in opening lockers with both locks on it, that there was an expectation of privacy. Id.
In addition, the officers in Speights were not put on notice of the searches. Conversely, there was
33
a past police search that took place to look for drugs and/or cash that was part of a large-scale
investigation within the New Jacksonville police department. R. 9.
All members of the department were therefore on notice that their lockers were subject to
search. R. 9. The lower Court explained that the search took place before Respondent joined the
department. R. 9. The lower Court correctly stated that the fact that the search was before
Respondent joined the department is immaterial because it still showed the lockers in the police
department were government property, and that this was something that the police department
did as policy during investigations. R. 10. The fact that the random search had occurred before
was evidence that there was a practice of opening lockers with private locks, or with department
issued locks, which contrasts with the facts in Speights.
III.
THE COURT OF APPEALS ERRED IN REVERSING AND VACATING
RESPONDENT’S HATE CRIME CONVICTION UNDER 18 U.S.C. § 249.
The District Court’s conviction of Respondent under the Matthew Shepard and James
Byrd, Jr. Hate Crimes Prevention Act should be upheld because Respondent committed a racemotivated hate crime under the statute. According to 18 U.S.C. § 249:
(a) In general.-(1) Offenses involving actual or perceived race, color, religion, or
national origin.--Whoever, whether or not acting under color of law,
willfully causes bodily injury to any person or, through the use of fire, a
firearm, a dangerous weapon, or an explosive or incendiary device,
attempts to cause bodily injury to any person, because of the actual or
perceived race, color, religion, or national origin of any person-(A) shall be imprisoned not more than 10 years, fined in
accordance with this title, or both
…
(B) Circumstances described.--For purposes of subparagraph (A),
the circumstances described in this subparagraph are that-(i) the conduct described in subparagraph (A) occurs during
the course of, or as the result of, the travel of the defendant
or the victim-…
34
(II) using a channel, facility, or instrumentality of
interstate or foreign commerce;
(ii) the defendant uses a channel, facility, or instrumentality
of interstate or foreign commerce in connection with the
conduct described in subparagraph (A)
…
Here, Respondent, as a police officer, was acting under color of law and he willfully caused
bodily harm to Mr. Jennings when he shot him with a firearm.
A. Although Police Officers Have Yet to Be Charged With Hate Crimes Under § 249
They Have Been Charged Under State Hate Crime Laws and Therefore Should
Be Charged Under § 249.
While state law is inapplicable in this case, it is important to see how police officers are
being charged with hate crimes in different jurisdictions. Individual states have their own hate
crime laws, and for the most part, these laws are extremely similar in their language. In fact, the
Illinois Hate Crimes Act (IHCA) in particular is almost identical to § 249 of the federal law.
Under the IHCA there have been many claims brought against police officers, police
departments, and cities for officers’ physical conduct that is racially motivated. The racial
motivation of these acts is evident through the officers’ use of certain offensive and derogatory
language, as well as through the surrounding circumstances of the incidents.
First is the case of Davis v. Peoria County where an African-American woman was
severely beaten and verbally abused while in police custody. The plaintiff was taken into custody
for allegedly interfering with or obstructing an officer. No. 08-cv-1118, 2009 WL 3258318 at *1
(C.D. Ill. Oct. 8, 2009). Once in police custody, the plaintiff alleged that one or more officers
abused and beat her by throwing her to the floor, biting her shoulder, and pulling out her hair. Id.
Shortly before the physical abuse, one of the officers used crude and offensive language towards
her, including the phrase, “Shut the fuck up, nigger.” Id. Plaintiff brought suit claiming a
violation of the IHCA (among others). The IHCA is similar to § 249, but the IHCA requires
35
proof of some other crime in order to show that the defendant violated the state law and
committed a hate crime. Id. at *10. In Davis, the plaintiff had the physical injuries necessary to
prove battery, and the derogatory phrase was enough to support the hate crime claim. Id. at *11.
Here, Respondent clearly committed a battery when he unnecessarily and without
justification shot and severely injured Mr. Jennings while he was sitting in his car. Respondent
told Mr. Jennings that he could “pull anyone over for any reason he wanted, ‘especially your
kind.’” R. 4. While “especially your kind” may not be derogatory in and of itself, it is an
offensive phrase in the context in which it was used. Respondent was singling out and
minimizing the African-American race, and his agitation and racial prejudice during the traffic
stop fueled his conduct. Furthermore, Respondent was heard bragging that “at least I made sure
that one of them won’t be able to breed.” R. 6 n.9. In addition to this later phrase, other
background information makes it clear that Respondent had a racial motivation for the shooting.
He is a member of the League of the South and Kingdom Identity Ministries, which are
dedicated to preserving racial purity and hate. R. 6. Respondent clearly has racial biases towards
African-Americans, and like the officers in Davis, Respondent’s actions were racially motivated.
Second is the case of Maglaya v. Kumiga, where officers were charged with a hate crime
under the IHCA. No. 14-cv-3619 (N.D. Ill. signed Aug. 3, 2015). The plaintiff, who is a
Hispanic woman, sued the officers because they shot her dog. Id. at 1. The IHCA allows suit for
damages to property that are based on a person’s race, and the property in this case was the dog
Id. at 14. The officers, who were neighbors with the plaintiff, wanted her and her family out of
the neighborhood because of her ethnicity and socioeconomic status. Id. at 1. This animus
transferred to the dog, and when the dog innocently got out of its fenced-in yard, the officers
jumped on the opportunity to satisfy their racial hatred. Id. Like the facts of Davis and our
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present case, the hate crime in Kumiga was accompanied by racial slurs, derogatory language,
and a clear racial animus by the defendants. Id. at 1-2. After the shooting, one of the officers
referred to the plaintiff as a “spic” and called the dog a “nigger dog.” Id. at 2. The officers also
failed to follow proper protocol in recording and cleaning up the scene, which further evidences
their racial hatred for the plaintiff and her family and their desire to keep their hands clean. Id. at
1. This is also similar to the case at bar because Respondent lied about what happened during the
traffic stop and claimed that his gun discharged by accident. R. 6. Respondent knew he was
wrong to use his gun and that it was an excessive use of force, so he needed to protect himself.
The officers in Kumiga tried to cover-up their racially motivated crime and used derogatory
language after the incident, just as Respondent did with his lies and derogatory language.
There are other cases where a motion to dismiss a state hate crime claim against police
officers was denied and the claims were allowed to proceed. One case is Abdoh v. City of
Chicago where a Jordanian person was slapped in the face, punched in the head, and arrested by
an officer at an airport. 930 F.Supp. 311, 312 (N.D. Ill. 1996). The plaintiff claimed that the
attack was due to the officer’s racial animus, id., and the plaintiff suffered injuries as a result, id.
at 313. The facts of Abdoh are similar to our case because the injuries which Mr. Jennings
suffered were due to Respondent’s actions that were motivated by his racial biases against
African-Americans.
Another case is Franklin v. Village of Riverdale where the plaintiff, who is an AfricanAmerican woman, was arrested and beaten without just cause. 94 C 3493, 1995 WL 616678 at
*2 (N.D. Ill. Oct. 19, 1995). She sued the police officers for several causes of action, including a
violation of the IHCA. The claim survived because there was enough evidence to support the
claim, particularly evidence of certain language used by the officers. Id. at *5. Once the officers
37
brought the plaintiff back to the police station after the initial incident and arrest, they made
racial slurs and comments. Id. The court found that these racial slurs and comments were enough
to support a hate crime charge. Id. Additionally, during the initial altercation, the officers
responded to a question of why they had become violent by saying, “because [I] could.” Id. at
*1. There was also evidence that Franklin was pregnant, and neighbors warned the officers, but
one officer responded, “She should have thought of that before she brought her black ass out of
the house.” Id. at *5 n.4. The use of such language during and after the initial incident clearly
evidences a racial animus by the officers that caused the hate crime. Here, Respondent similarly
used offensive language during and after the traffic stop, as stated above, that shows his racial
biases and motivation for the shooting.
While these cases involve hate crime claims brought under the Illinois state statute, they
are easily analogized to Respondent’s case. Police officers in all of the aforementioned cases
used racially offensive language either during the incident, after the incident, or both. The IHCA
requires the offender to commit some other listed crime, along with the racial motivation for that
crime. Section 249 does not necessarily require the same, but it does require the willful infliction
of bodily injury. Batteries, as seen in the aforementioned cases, are usually intentional, and that
is precisely the case here. Respondent intentionally used his firearm against Mr. Jennings and the
use of such force was unwarranted. Mr. Jennings did nothing wrong, but Respondent used his
racial biases in the worst way. If officers can be charged for a hate crime under the IHCA, which
requires an extra element of another listed crime being committed, then there is no reason why
Respondent should not be charged with a hate crime under § 249. Respondent’s actions meet the
statutory requirements, and his racial animus was clear. This Court should reform the policy of §
249 to match IHCA more closely. By broadening the interpretation of § 249, this Court will
38
ensure that victims of hate crimes have the ability to seek a remedy for the violations they have
sustained by officers acting under the “color of the law.”
B. Police Officers’ Actions Are Analogous to Those of Civilians Who Are Charged
With Hate Crimes Under § 249.
There have been several cases in which civilians are charged with hate crimes under §
249. For instance, in United States v. Maybee, the victims were Hispanic and were attacked by
the defendants because of their race or national origin. 687 F.3d 1026, 1029 (8th Cir. 2012). The
victims stopped at a gas station where they encountered the defendants, and the defendants began
yelling racial slurs and using derogatory language, including “Spics,” “Mexicans,” “beaners,”
and “wetbacks.” Maybee, 687 F.3d at 1029. After the men left, the defendants discussed a plan to
pursue them and eventually physically assault them. Id. During the pursuit, the defendants used
their truck to repeatedly hit the victims’ car, and the defendants eventually ran the other car off
the road using a “pit maneuver.” Id. This maneuver caused the car to flip over and catch fire. Id.
According to one of the defendants, defendant Maybee “stated that he hoped the ‘fuckin' beaners
burn and die’ so that he would not get caught.” Maybee, 687 F.3d at 1030. The use of racial slurs
and derogatory language before, during, and after the brutal incident evidenced a racial
motivation for the attack.
This case is similar to Respondent’s case where he stopped Mr. Jennings because of his
race, used offensive language during the traffic stop, and was later heard bragging about his
actions. R. 6. The Court of Appeals in Maybee noted that, “Based on [the] evidence, a reasonable
jury could have concluded that the race or national origin of the occupants of the sedan was ‘a
substantial motivating factor’ in defendant Maybee's decision to pursue the sedan and force it off
the highway,” id. at 1032, so the Court affirmed the hate crime conviction, id. at 1034. During
the traffic stop here, Respondent became more enraged as his racial biases became worse. Not
39
only was the traffic stop motivated by those racial biases, the shooting was similarly motivated.
Respondent would not have pulled out his gun, let alone used it, had Mr. Jennings been White.
The shooting was against police protocol, was an excessive use of force, and was a hate crime in
violation of § 249.
A similar case was United States v. Miller, where members of a certain sect of the Amish
religion were charged with and convicted of hate crimes under § 249. 767 F.3d 585, 589 (6th Cir.
2014). These members attacked and assaulted members of a different Amish sect because of
their religious differences. Id. On appeal for their convictions, the defendants argued that the test
for whether their acts were racially motivated to fall within § 249 is “but-for” to align with the
“because of” language in the statute. Miller, 767 F.3d at 589. The district court, on the other
hand, had adopted the “substantial motivating factor” test as was used in the Maybee case. Id.
The Miller court accepted the defendants’ argument that the test should be “but-for” and reversed
the convictions because the mistake was not a harmless error. Id.
Although the convictions were reversed, the argument can still be made in favor of using
a “but-for” test in Respondent’s case. In Miller, the defendants and victims had known each
other for quite some time, during which time they had many interactions. Id. at 594-95.
Therefore, the religion of the Amish sects could not have been “but-for” causes of the alleged
hate crimes. Instead, the religion was a substantial motivating factor, and since the Court agreed
that the language of § 249 calls for a “but-for” test, the defendants could not be convicted of a
hate crime. Id. at 594, 611. Here, Respondent and Mr. Jennings did not know each other prior to
the traffic stop. See generally the Record. There was no history between them that could indicate
other causes for Respondent’s actions. Id. Whether this Court adopts the “substantial motivating
factor” or the “but-for” test, Respondent still can be convicted of the hate crime under § 249. Mr.
40
Jennings’ race not only substantially motivated Respondent’s actions, it also was a but-for cause
of his reaction.
1. Respondent’s racial biases escalated during the traffic stop leading to the shooting of
Mr. Jennings.
Respondent never would have stopped Mr. Jennings and he never would have used his
gun if Jennings was White. Even though Respondent claims that he “didn’t know what
[Jennings] was going to do” (when he started the car), use of a firearm was not a proportionate or
rational response. R. 6 n.9. By starting the car, the worst that could have happened was that Mr.
Jennings would have driven away. Respondent was not in front of the car, so he was not in
danger of being run over or hurt. The normal and logical response would have been for
Respondent to call for backup and pursue Mr. Jennings in his own patrol car. Respondent
overreacted and used excessive force based on his racial biases towards Jennings.
While police officers need a certain amount of flexibility and discretion in effectively
performing their jobs, they need to be able to make well-reasoned, logical decisions. When a
quick decision needs to be made it does not mean that all logic and morality should be neglected.
Police need to be held accountable for their negligence, carelessness, and hateful acts. Therefore,
Respondent’s racial animus was both a but-for cause and a substantial motivating factor behind
the shooting, and he should be charged with a hate crime under § 249.
Finally, in United States v. Cannon, a group of defendants were convicted of a hate crime
under § 249 for a physical attack against an African-American man, in the course of which they
used the “N” word. 750 F.3d 492, 495-96 (5th Cir, 2014). The court noted that the first person to
inflict bodily injury in a confrontation has no bearing on the sufficiency of the evidence to
support the conviction. Id. at 506. This is because the statute calls for an attempt to harm, if not
actually causing harm, and it does not matter who acts first. Id. Defendant Cannon took the first
41
swing, so he clearly attempted to harm the victim in violation of § 249. Id. Even though the
victim was the first to inflict bodily injury, the attack was initiated based on racial biases. Id.
Here, Respondent used derogatory language, and he was the first (and only) to cause injury.
Even though Mr. Jennings tried to leave in his car, Respondent is the one who wrongly pulled his
gun and shot it out of rage and racial animosity against Mr. Jennings. Respondent not only
attempted to cause injury by using his gun, he did cause injury, and that is enough to find him
guilty under § 249.
C. Respondent Is Not Entitled to Qualified Immunity Because His Actions Meet Both
Prongs of the Applicable Two-Part Test.
Even though Respondent is a public official, he is not entitled to qualified immunity. In
Cardoso v. City of Brockton, the Court stated that the qualified immunity doctrine “does not
protect public officials ‘who, from an objective standpoint, should have known that their conduct
was unlawful.’” No. 12-10892-DJC, slip op. at 10 (D. Mass. signed Sept. 15, 2014) (quoting
Drumgold v. Callahan, 707 F.3d 28, 42 (1st Cir. 2013)). Respondent here is a public official, and
he should have known that using his gun on Mr. Jennings was unlawful. Mr. Jennings did
nothing to warrant a stop of his car, and he definitely did nothing to warrant the use of a gun. In
no way, shape, or form did Mr. Jennings pose a threat to Respondent that would lawfully entice
the officer to deploy his weapon, let alone shoot it.
The Cardoso Court also discusses the two-part test that courts must use to determine
qualified immunity. Id. See also Moss v. U.S. Secret Service, 675 F.3d 1213, 1222 (9th Cir.
2012)). First, a court must determine “whether the facts alleged or shown by the plaintiff make
out a violation of a constitutional right.” Id. Here, Mr. Jennings’ constitutional rights of
movement and to use the pathways of inter- and intrastate commerce were violated. Jennings
42
was lawfully driving his car on the roadways of New Jacksonville, Old York, and those
roadways are pathways of commerce which law-abiding citizens are permitted to use.
The second prong of the test is if a constitutional right in the first prong was violated,
“whether the right was clearly established at the time of the defendant’s alleged violation.” Id. at
10. Mr. Jennings’ rights were clearly established for similar reasons to the analysis for the first
prong. Respondent knew Mr. Jennings was doing nothing wrong when he pulled him over.
Respondent believed Mr. Jennings looked suspicious because of his own racial biases towards
African-Americans, so he was clearly looking for any excuse to give Mr. Jennings trouble.
Respondent’s actions were objectively unreasonable given the surrounding circumstances. Thus,
Respondent’s actions satisfied both parts of the test. Respondent should not be afforded qualified
immunity.
Respondent also should not be granted qualified immunity because he was aware of his
unlawful conduct. In Hope v. Pelzer, the Court stated, “[q]ualified immunity operates to ensure
that before they are subjected to suit, officers are on notice that their conduct is unlawful.” 536
U.S. 730, 731 (2002). In other words, qualified immunity exists because it is acknowledged that
police officers and other public officials do unlawful things, so they should acknowledge such
conduct before performing it. Here, Respondent knew the shooting was unlawful because he lied
to protect himself and make it look like Mr. Jennings was the aggressor. This fact supports the
argument that Respondent should not be afforded immunity since he knew his actions were
unlawful and was therefore on notice.
2. Respondent used excessive force in violation of § 1983 when he fired his gun upon
Mr. Jennings.
The constitutional violations proved under the two-part test would also be sufficient to
support a claim under 42 U.S.C. § 1983 which states:
43
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress….
Respondent violated Mr. Jennings’ constitutional rights, so a § 1983 claim would be valid.
Claims brought under § 1983 can also include the use of excessive force. The analysis for such a
claim is similar to the test for qualified immunity in that “the specific constitutional right
allegedly infringed by the challenged application of force” must be identified. Davis, 2009 WL
3258318 at *4. Here, in furtherance of violating and infringing upon Mr. Jennings’ constitutional
rights, Respondent used excessive force by deploying and shooting his firearm. R. 4. Given the
circumstances, such force was unnecessary, unwarranted, and disproportionate. Mr. Jennings
showed no signs of possessing a weapon, and he posed no threat to Respondent, so using a
firearm in response was extremely excessive. Respondent had other means of preventing Mr.
Jennings from leaving, and such excessive force was the last means that should have been
employed in this situation.
3. There is no public policy which permits a public official in this situation to be
immune from suit or liability
According to Doe 20 v. Board of Educ. of Community Unit School Dist. No. 5, “Public
officials seeking absolute immunity from civil liability bear the burden of showing that
overriding considerations of public policy require that they be exempt from personal liability for
their alleged unlawful conduct.” 680 F.Supp.2d 957, 985 (C.D. Ill. 2010) (quoting Auriemma v.
Montgomery, 860 F.2d 273, 275 (7th Cir. 1988)). Because of the recent increase in hate crimes
across the country, and given the very recent publicity of alleged hate crimes committed by
police officers, there is no public policy to protect Respondent from liability. In fact, there would
44
be a public policy argument that officers should be held liable for their racially motivated
actions. While police officers need a certain amount of flexibility in performing their duties, they
should not be allowed to commit such heinous, race-based crimes against others. If society
allows police officers to be immune from suit it would send the wrong message – a message that
officers can do whatever they want and get away with it. This Court should address this issue and
make sure that officers are held accountable for their actions in order to maintain public peace
and order, as well as to ensure equality among all citizens.
D. Studies of Race Relations Show that Respondent Had a Racial Animus and Racial
Biases that Caused Him to Shoot Mr. Jennings and They Were Evidenced by
Respondent’s Words.
There have been significant studies in the United States regarding the use of the N-Word
among Blacks and Whites. Parks and Jones discuss the use of the N-Word and race relations by
saying that “courts should presume racial animus where a White person uses the N-word while
committing a crime against a Black person.” Gregory S. Parks & Shayne E. Jones, “Nigger”: A
Critical Race Realist Analysis of the N-Word Within Hate Crimes Law, 98 J. Crim. L. &
Criminology 1305, 1306 (2008). Many Whites have implicit biases against Blacks, and those
biases are made clear through the use of the N-word by Whites. Id. While Respondent did not
use the N-word toward Mr. Jennings or in referring to Mr. Jennings, Respondent’s choice of
words was just as offensive in this context. By referring to Blacks during the traffic stop as “your
kind,” R. 4, and then referring to Mr. Jennings afterwards as “one of them,” R. 6, Respondent
demonstrated his racial animus, and therefore his motivation for the stop and the shooting.
Furthermore, the authors assert: “[H]ate crimes are not committed against people because of their
personal identity. Those who commit hate crimes are not focused on who the victim is, but rather
what he or she is.” Parks, supra at 1313. Respondent did not know Jennings and did not care
45
who he was. Respondent pulled him over because of race, and he admits that Mr. Jennings
looked suspicious driving an expensive car in that neighborhood. R. 3. Therefore, the hate crime
of the shooting resulted from Respondent’s racial biases towards Mr. Jennings’ race.
Parks’ article also discusses the elements of a hate crime that states must prove in order to
convict a defendant. Parks, supra at 1314-15. While this is a criminal claim under a federal
statute, the fact that many state hate crime laws are almost identical to § 249 means that these
elements could equally be applied to a § 249 analysis. First, it must be proven that “the defendant
committed the legally prohibited act.” Parks, supra at 1314. Second, “the defendant [must have]
selected the victim due to the victim’s characteristics.” Id. And third, “the defendant [must have]
demonstrated bias or prejudice because of said characteristic.” Id. First, Respondent shot and
severely injured an unarmed, innocent person, which is prohibited by law. Second, Respondent
chose to pull over Mr. Jennings because of his race, and third, Respondent demonstrated his
biases through his language during and after the traffic stop. Respondent satisfies all three of
these elements; therefore, he should be charged under § 249 with a hate crime.
Another law review article discusses hate crimes and how they are committed by those
with racist personalities. For instance, the author “define[s] a racist personality as one that finds
pleasure in inflicting pain on a person because of that person’s race.” Andrew E. Taslitz,
Condemning the Racist Personality: Why the Critics of Hate Crimes Legislation Are Wrong, 40
B.C. L. Rev. 739, 744 (1999). Based on what Respondent was overheard saying after the
shooting - that “at least [he] made sure that one of them won’t be able to breed”- he clearly took
pride in his actions and felt pleasure from Mr. Jennings’ serious injury. R. 6. People do not brag
about something unless they are pleased by it.
46
The author also points out that “hate crime legislation promotes unity among racial and
ethnic groups.” Taslitz, supra at 746. The only way to promote unity and prevent hate crimes is
to punish those who commit them. If we allow people to get away with these hateful acts,
especially those like the Respondent who hold authoritative positions in society, then society will
never be harmonized and equal. What Respondent did was wrong in several ways, and he should
not be allowed to avoid punishment for such a heinous, hateful crime. Discord between racial
minorities and the police will never be remedied if people like Respondent are allowed to bypass
the laws and escape liability and punishment.
CONCLUSION
For the foregoing reasons, Respondent’s motion to suppress the video from the Axon
Body Camera should be denied. Furthermore, Respondent should be found guilty of a hate crime
pursuant to 18 U.S.C § 249.
47