Rice v. City of Roy: A Police Shooting Incident Case

A federal jury rules unanimously in favor of Chris Dolan’s clients and finds excessive use of force used by police officer Chris Johnson. A verdict of $3, 257,000.00 was awarded to plaintiffs, in Federal Court, Tacoma Washington, and against Chris Johnson and the city of Roy on September 23, 2021. This case arises from a police officer involved shooting just south of the Roy Washington city limits in February of 2019.

FOR IMMEDIATE RELEASE

UNANIMOUS JURY HOLD ROY WASHINGTON POLICE OFFICER LIABLE FOR EXCESSIVE FORCE IN POLICE SHOOTING CASE

On September 23, 2021, a Federal Jury, In Tacoma, Washington, unanimously found that City of Roy Police Officer, Christopher Johnson, violated the Fourth Amendment rights of David Rice and Seth Donahue, when he shot them as they were traveling, unarmed, in their UTV on the BNR rail tracks inside the City of Roy, a rural city of less than 1,000 inhabitants covering .49 square miles. Roy has a police force of 2, one being the defendant, Christopher Johnson. The total verdict was $3,257,000.00.

FACTS:

February 9th, 2019, was a snowy day in Roy, located in Pierce County, Washington, about 60 miles outside of Seattle. Rice and his nephew, Donahue, had been out in their RZR UTV enjoying the 10-12 inches of snow traveling along trails, rail tracks and “tearing it up” through the city streets in Roy.  Admittedly, they had been drinking beer (ten and 13 beers respectively over 6 hours) that afternoon and evening. Officer Johnson alleged that Rice, driving the UTV, committed various traffic infractions and that he tried to pull the UTV over in town claiming that he activated his lights and siren, and that Rice and Donahue took off on the railroad tracks to evade him. Rice and Donahue stated they were unaware of Johnson’s pursuit, and it was shown that the rail tracks are a commonly used UTV trails. Home surveillance video, located nearby, peripherally caught the shooting on tape.  Dolan argued that “Johnson’s ego, being bruised, let him to turn off his lights and siren and race ahead to try and cut-off Rice and Donahue on the tracks at 295th St.  As Johnson approached perpendicular to the tracks, he turned off all the lights on his car “going dark” as the UTV approached.  Johnson then quickly drove the police vehicle towards the tracks, turned on only his spotlight, shined it down the tracks towards Rice, and ran from his police car, weapon drawn, towards the UTV.  Jonson admitted that he placed himself on the tracks, directly into the path of the approaching UTV and when the UTV didn’t stop, fired two shots into the front windshield and then two more into the passenger window as the UTV went by “fearing for his life.”  Johnson was hit by the UTV before firing.  Rice and Donahue testified that they were blinded by the spotlight, did not associate it with a police officer, and did not see Johnson until he shot them. Rice was struck on the right shoulder, with the bullet traveling into his chest, and also in the groin where the bullet passed through and exited his left leg. Donahue was shot in the right hand.   Dolan used accident constructionists, police procedures and ballistics experts as well as the Chief of the Roy Police Department (the other half of the 2 sworn officers) and Johnson himself, to show that he violated Roy’s Use of Force and Police Pursuit Policies and engaged in an excessive use of force.  Dolan and Jessup also prevailed on a Monelll Claim demonstrating the Chief and Mayor of Roy ratified Johnson’s conduct by failing to engage in an officer involved shooting inquiry and engaging in a disciplinary review of Johnson’s conduct and maintaining him on the force.

Dolan said “finally the tide is turning against police abuse. And justice under the 4th Amendment is being secured for those victimized by abuses of police powers. There is not an increase of police abuse, there is an increase in civil prosecution of these cases largely fueled and supported by modern day evidence generated by cell phones and private surveillance cameras.”

David Rice stated “I thank the jurors for their time and honesty and their courage to hold the police accountable. Their decision vindicates me and my nephew: we were out just having fun in the snow, we didn’t threaten anyone, hurt anyone, and were just about home when he ambushes us and shot us.  I’m a hunter and you couldn’t even shoot a deer this way without it being a crime.  The City of Roy has lied about what happened to the press through their press releases. The Jury saw through those lies.  The City of Roy needs to act to remove Johnson and he should be criminally prosecuted for his excessive use of force and abuse of power.”

Seth Donahue stated “I have been afraid of the Roy Police since the day this happened. They painted us out to be criminals when it was Officer Johnson who broke the law. We are good people who were having fun on a snowy night on rural roads, we didn’t know Johnson was supposedly chasing us and he came out of nowhere and opened fire. They need to take him off the street and take his gun and badge. Before he kills someone else.”

Further information may be obtained by contacting Chris Dolan at 415-279-2604 or Local Counsel, Doug Cloud at 253-921-1505

read more

Can the federal government deploy federal police to states?

Written by: Christopher B. Dolan and Allison L. Stone

As Black Lives Matter protests continue at the Mark O. Hatfield Federal Courthouse and Multnomah County Justice Center, a police headquarters in Portland, militarized federal officers are patrolling downtown Portland in unmarked vehicles and detaining people. President Trump announced that deployment of federal officers into other cities where protests continue including Chicago, Philadelphia, New York, Detroit, Baltimore, and Oakland, will follow. Therefore, it is necessary to explore the president’s power to deploy federal forces in states, and the limits on that power.

On June 26th, President Trump signed an Executive Order which directed the Departments of Justice, Homeland Security and Defense to provide, “personnel to assist with the protection of Federal monuments, memorials, statues, or property.” Federal officials state that they are in Portland protecting the Federal courthouse and justice center from vandalism. However, as federal agents with batons and combat gear patrol the streets of Portland, the legal limits of federal law enforcement must be addressed.

The Tenth Amendment of the Constitution provides that police powers are expressly reserved to the States through state and local police agencies. In other words, while the federal government has broad power to enforce the laws of the United States, the federal government generally has no role in enforcing, making arrests and/or prosecuting local crimes. This is what is commonly known as the separation of powers between the state and the federal governments. Thus, as it relates to the ongoing Black Lives Matter protests, the federal government does not have the power to police the streets or maintain order in a city if and when protests lead to violence.

With that said, a 2002 federal law that created the Department of Homeland Security says its secretary may,

“designate employees… as officers and agents for duty in connection with the protection of property owned or occupied by the federal government (…who may) carry firearms… conduct investigations on or off the property in question… and make arrests without a warrant for any offense against the United States,” with, “reasonable grounds to believe the person to be arrested has committed a felony.”

Accordingly, the federal government does have the right and authority to protect its buildings in Portland. For example, once a crime such as throwing a firebomb at federal property already has been committed, the federal authorities have probable cause to arrest them, even many blocks away from the federal property. Likewise, if a group gathering and planning to vandalize the federal property is observed, federal officers are permitted to investigate. But such power and authority is constrained.

Nevertheless, there are multiple troubling reports of federal officers arresting people who are peacefully protesting and blocks away from the federal buildings in Portland. Likewise, there is footage of officers in combat gear pulling a peaceful protester off the street into an unmarked van as well as video showing federal agents beating a non-violent Navy Veteran. Further, violent tactics by federal agents to control large crowds including use of tear gas, flash grenades and shooting nonlethal munition has left multiple people with serious, life-altering injuries. 

Federal officials are defending their conduct as legal under the aforementioned federal statutes that permit federal agents to go outside the boundaries of the federal property to, “conduct investigations,” into crimes against federal property or officers. However, patrolling the streets, beating peaceful protestors, and detaining and interrogating protesters without any information that those individuals committed a federal offense goes beyond their authority.

Such conduct is problematic and concerning for multiple reasons. First, it constitutes general policing, which is a state and local function outside of federal jurisdiction and powers. Secondly, it is interfering with protests, which violates the most basic First Amendment right to free speech and the right to protest. Additionally, arrests require probable cause, meaning that a federal officer must be able to identify facts that would cause a reasonable officer to believe that the specific person arrested has committed a specific federal crime. Grabbing protesters off the streets, taking people to federal buildings for interrogation, and detaining people that may have been involved in protests at or near federal property is not probable cause. The police do not have probable cause to arrest someone just because they are standing near someone who may have committed a crime. These tactics are believed to be an abuse of executive power, intended to scare and silence protesters and interfere with the Black Lives Matter protests. If federal officers take a protester off the street in a van without probable cause, they could be sued for damages.

On July 29th, it was announced that Oregon and the federal government have come to an agreement for the staged withdrawal of some, but not all federal agents from Portland. 

As Black Lives Matter protests continue, and because deployment of federal agents could be coming to your city next, it’s important to remain vigilant. If you are taken off the streets or injured while protesting and you feel that your rights have been violated, it is important to speak to a lawyer, as you may be entitled to sue the federal government.

read more

Are the Feds Required to ID Themselves?

Written by: Christopher Dolan and Cristina Garcia

This week’s question comes from Roger who writes,

Q: “I have been following the news about the protests in Portland, Oregon. Protesters have reported arrests by federal law enforcement officers in unmarked vehicles and without visible badges. I personally have participated in peaceful protests and find this troubling. It seems counterintuitive to allow individuals in plain clothes and in unmarked vehicles to arrest you. Further, how is one supposed to know that they are law enforcement officers or identify the agency they work for if they are not wearing badges? Are federal law enforcement officers required to identify themselves when making arrests?”

A: Dear Roger,

that is a great question. Currently there is no federal statute requiring federal officers to disclose their identity or their agencies of affiliation. For this reason, many federal law enforcement officers will simply identify themselves as “federal law enforcement.” As you mentioned, this is concerning as citizens engaged in peaceful protests would be unable to identify the officer or the agency that apprehended, detained, or arrested them.

Many legislators became alarmed as news reports poured in from Portland, Oregon reporting several arrests made by federal law enforcement officers in unmarked vehicles and without visible badges. For this reason, two new bills have been introduced to Congress in an effort to reach transparency. The new bills would require federal law enforcement officers to identify themselves and it would prohibit the use of unmarked vehicles when apprehending, detaining or arresting civilians when engaging in crowd control which includes demonstrations, protests and riots.

On June 8, 2020, the Senate introduced Senate Bill 3909 – Law Enforcement Identification Act and on June 11, 2020, the House of Representatives introduced an identical bill which reads in relevant part:

“(b) REQUIREMENT. – Each Federal law enforcement officer or member of an armed force who is engaged in any form of crowd control, riot control, or arrest or detainment of individuals engaged in an act of civil disobedience, demonstration, protest, or riot in the United States shall at all times display identifying information in a clearly visible fashion, which shall include the Federal agency, last name, and badge number of the Federal law enforcement officer or the armed force, last name, and rank of the member of an armed force, respectively.”

If the above bill is passed, it would require all on-duty federal law enforcement officers to clearly display their agency name, their own last name and their identification number. This would allow citizens to know which agency is arresting them. It would also create a sense of accountability as the citizens arrested or witnessing arrests would be able to identify the officer and agency, which would facilitate their ability to report any abuses or misconduct to the correct agency.

The Senate has also introduced Senate Bill 4220 – Preventing Authoritarian Policing Tactics on America’s Streets Act, which would also require all federal law enforcement officers to identify themselves when engaging in any form of crowd control. However, this bill takes it one step further by prohibiting federal law enforcement officers or members of an armed force from taping over or otherwise obscuring or concealing their identification information. Further, federal law enforcement officers would also be prohibited from using an unmarked vehicle for apprehension, detention or arrest of civilians while the officer or member is engaged in any form of crowd control which includes demonstrations and protests.

The purpose of this bill is to limit the use of federal law enforcement officers for crowd control. The federal government has the authority to use federal law enforcement officers to protect federal property that is owned or occupied by the federal government. However, given that in Portland many federal law enforcement officers were reported making arrests several miles away from federal property, the Senate has introduced Senate Bill 4220 to place restrictions on federal law enforcement. Senate Bill 4220 provides that,

“…a Federal law enforcement officer or member of an armed force may only be authorized to perform any form of crowd control, riot control or arrest or detainment of individuals engaged in an act of civil disobedience, demonstration, protest or riot on Federal property or in the immediate vicinity thereof, which shall include the sidewalk and the public street immediately adjacent to any Federal building or property.”

This bill would restrict federal law enforcement officers from arresting or detaining citizens who are engaged in peaceful protests who are not on federal property or in the immediate vicinity of federal property.

Although there is no federal statute requiring federal law enforcement officers to identify themselves at this time, this can change if the Law Enforcement Identification Act and the Preventing Authoritarian Policing Tactics on America’s Streets Act are enacted.

read more

Your Rights When You Are Detained: Do You Really Get A Phone Call?

Detained? No. Arrested and booked? Yes.

If a person is “detained,” the police officer is holding a person for a short amount of time. If a reasonable person would not feel free to leave, or police prevent a person they are questioning from leaving, that detention turns into an arrest. Police take arrestees to a local jail precinct, where they are then booked. In either scenario, the Fifth Amendment right to remain silent applies and should be invoked.

After a person is arrested and booked, they are entitled to phone calls. California Penal Code Section 851.5 provides that arrestees are entitled to three phone calls immediately upon booking except where physically impossible, and no later than three hours after arrest. Arrestees are entitled to make at least three phone calls at no expense if they are within the local calling area and at the arrested person’s own expense (if outside the local calling area). Local calling areas do not necessarily refer to anything within the same area code as the jail. A sign posted near the telephone booth will provide information about what phone numbers are considered local. Collect calling is also an option for making phone calls to a number outside of the local area. Arrestees may call an attorney, a bail bondsman, or any friend or relative.

If the arrestee is a parent with custodial responsibility for a child, then the arrestee has the right to two additional phone calls for the purpose of arranging for the care of a minor child or children during the arrested person’s absence. These phone calls must also be given immediately upon request, or as soon as practicable.

The right to post-booking phone calls is protected by the Fourteenth Amendment of the U.S. Constitution because California Penal Code Section 851.5 creates a liberty interest. Denying arrestees the opportunity to make a telephone call is a civil rights violation. The Fourteenth Amendment guarantees the right to due process, and is particularly protective of the minimal liberty interests granted to prisoners, such as the ability to make a phone call when arrested and booked.

However, this right to phone calls is not without complications.

First, assume that the police will record any phone call made from jail. These phone calls are not private and may be used against you. Police routinely record the outgoing portion of the phone call, so long as that phone call is not with an attorney.

Additionally, know that in practice, police officers have ways to deny phone calls. Here is one trick: A police officer denies an arrestee their constitutional right to a phone call, then entice with the opportunity to sit the arrested person in a waiting room with a television, instead of a holding cell with concrete and metal benches. The catch to get in the waiting room, which has cushioned chairs and a television, instead of the holding cell?: Sign a statement that says the police provided the opportunity to make three phone calls within three hours of booking. If an arrested person asks for clarification since the police did not, in fact, provide the opportunity to make three phone calls, the arrestees returns to the holding cell instead of the waiting room. After several hours, a cushioned chair and a television look better than a metal bench, concrete floor and a toilet within public view of anyone walking through the area.

If the police denies arrestees their constitutionally protected right to phone calls from jail, then there may be a civil cause of action against the police officers. Police officers are not entitled to qualified immunity for this civil rights violation. Qualified immunity purportedly balances the interests in the vindication of citizens’ constitutional rights and in public officials’ effective performance of their duties. The goal is to make it possible for officials to reasonably anticipate when their conduct may give rise to liability for damages.

But qualified immunity does not immunize police officers where the civil right is so clearly established under law that no reasonable officer could have believed that they were not violating a constitutional right.

The right to phone calls after booking is such a right because the statute establishes that police officers do not have discretion to decline phone calls to arrestees, and the consequences for not allowing someone the ability to call family members or an attorney and let them know where they are can be dire.

read more

FOR IMMEDIATE RELEASE: CLAIM FILED AGAINST U.S. GOVERNMENT FOR TRANSGENDER IMMIGRANT’S DEATH

FOR IMMEDIATE RELEASE: CLAIM FILED AGAINST U.S. GOVERNMENT FOR TRANSGENDER IMMIGRANT’S DEATH

PRESS CONFERENCE: June 12, 2019, 1:00 p.m., Dolan Law Firm, 1438 Market Street, San Francisco, CA.

On June 11, 2019, the family of Johana Medina Leon filed a claim against the Immigration and Customs Enforcement Agency (ICE) and the Department of Homeland Security for denying her civil rights and thereby causing her death while she was being detained after crossing into the United States. In December of 2018, Johana, an El Salvadorian National, was threatened with physical violence based on her transgender status. She fled El Salvador in fear for her life to Mexico where she received a Humanitarian Visa. With her visa she traveled to an asylum center in Juarez, Mexico. While in Juarez, Johana was assigned a number for an appointment with the Customs and Boarder Control, ICE and the Department of Homeland Security where she sought asylum. Her fear of persecution was found to be credible and she was detained pending a hearing. Although she was given a court date, The CPB questioned her transgender status, as she had male genitalia, and housed her with males. Unlike other transwomen, she was not paroled pending a future court date and was, instead, sent to the ICE Otero County Processing Center in New Mexico.

Soon after arriving at Otero, Johana’s health rapidly deteriorated. Having been trained and employed as a nurse in El Salvador, she recognized that she needed IV fluids but her request for treatment was denied. She asked for water, sugar and salt so she could prepare her own IV but that request too was denied. In April and May Johana’s condition got progressively worse and, since she was being denied care, she asked to be deported so she could receive treatment. Her request was ignored, and her condition continued to deteriorate. On May 15, 2019, Johana appeared before a U.S. Magistrate to present her case for asylum where she was told that she would receive a decision in 8 days, and she was returned to ICE custody. On May 20th she spoke with her boyfriend in El Salvador and reported that her requests for treatment had been denied. On May 23 or 24, 2019, Johana was found unconscious and was taken by ICE to the Del Sol Medical Center Hospital in El Paso, TX. ICE apparently granted her release on her own recognizance right before she was dropped at the hospital. Over the next several days, Johana spoke with her boyfriend and family members reporting that her condition was worsening. On June 1, 2019, Johana’s family was notified that she had died as a result of pneumonia.

Johana’s family claims that the Government, in violation of Johana’s civil rights, negligently managed her care because of her nationality, her seeking asylum, and her transgender status; thereby causing her death.

Christopher Dolan, the family’s attorney, based in California, stated :“On the Statue of Liberty there is a famous poem by Emma Lazarus, known by all Americans, which states in part, “Give me your tired, your poor, your huddled masses yearning to breathe free, the wretched refuse of your teeming shore. Send these, the homeless, tempest-tost to me . . .” The Trump Administration seems to have re- written the poem, to say “. . .and I will send them back abused, terrorized and dead.” Johana deserved to be protected by this Country as a human being seeking asylum. Instead, she was detained, humiliated, mistreated, and dumped at a hospital where she was not on the threshold of liberty; but, instead, on death’s door. We will get to the truth and hold this Government accountable for its callous disregard of Johana.

A representative of Johana’s family will be present via Skype, from El Salvador, to answer questions.

FOR INFORMATION CONTACT CHRIS DOLAN at 415-279-2604 or presscontact@dolanlawfirm.com

For access to the press conference via video conference go to: https://zoom.us/j/878557725

read more

Reporte detallado del Departamento de Justicia de las deficiencias del departamento de Policía de Salinas

Salinas COPs cover.jpg

El departamento de policía de Salinas mato cuatro hombres latinos en 2014. No cargos fueron puestos en contra de los oficiales. Nuestra firma de abogados representa a los padres de Osman Hermandez, uno de las personas asesinadas.

Nuestra firma de abogados representa a los padres de Osman Hermandez, uno de las personas asesinadas. Los cargos de la queja que los oficiales del departamento de policía de Salinas, sin causa alguna, usaron fuerza excesiva e irrazonable en contra de Osman Hernandez, paralizándolo y después disparándolo aproximadamente diez veces.

read more

Deficiencies Of Salinas Police Department Detailed In DOJ Report

Salinas COPs cover.jpg

The Salinas Police Department killed four Latino men in 2014. No charges were brought against any of the officers. The Dolan Law Firm represents the parents of Osman Hernandez, one of the persons killed.

The civil rights/wrongful death complaint charges that Salinas PD officers, without cause, used excessive and unreasonable force against Osman Hernandez on May 9, 2014, tasing him and then shooting him approximately ten times. Hernandez, the complaint charges, did not pose a threat of death or serious injury to the officers when they fired their guns.

read more

Wrongfully Tased by Police. What Are My Rights?

Police Officer.jpg

Today’s question comes from Marvin in the East Bay who asks: “I was recently tasered by the police when I had not done anything wrong. They were going to arrest some other dude and when I said I had nothing to do with anything I got tasered. I didn’t threaten anybody and I had nothing to do with the crime which they accused the other guy of doing. I was never even accused of being involved in the crime before I was tasered. They originally claimed that I was resisting arrest and interfering with law enforcement but the charges were dropped. What are my rights?”

Marvin, what has happened to you seems to be reflective of what is happening in our society today.

read more