Thursday, June 18, 2015

Did Alabama officer commit a crime when he initiated a traffic stop to "serve" papers in Rob Riley lawsuit?

Was it a crime for an Alabama deputy to conduct a traffic stop of my wife and me in order to serve us with court papers in the Rob Riley/Liberty Duke defamation lawsuit? Does a recent U.S. Supreme Court decision add to the likelihood that the deputy committed a crime? Was a well-known legal analyst wrong to shrug off the officer's actions as fallout to be expected from "the war on drugs"?

The answer to all three questions appears to be yes--meaning Officer Mike DeHart probably went beyond just a violation of our civil rights into criminal territory.

We already have shown that DeHart's own words on a log of service attempts in the Riley/Duke case suggest he had no probable cause to believe I had committed a traffic violation and no grounds to stop us at all. Even if he did have grounds to make the initial stop, he clearly violated the law by prolonging the stop beyond its original purpose, with no grounds to do so.

Can this amount to criminal behavior? A recent case from Georgia, styled United States v. House 684 F. 3d 1173 (11th Cir., 2012), shows that the answer is yes. Ironically, Birmingham-based federal judge Bill Pryor, who has curious connections to 1990s gay pornography, wrote the opinion in House.

The case involved Stephen G. House, a former officer of the Federal Protective Service who made it a habit to stop people in traffic for no lawful reason. House wound up being convicted in federal district court on eight counts of willfully depriving a person of the constitutional right to be free from unreasonable seizure by a law enforcement officer, 18 U.S.C. § 242. An 11th Circuit panel, headed by Pryor, upheld most of the convictions. Here is the gist of the case against House:

When the driver of a motor vehicle notices blue lights flashing in the rear view mirror, the driver cannot help but feel a sense of dread. The public reposes a special trust in the peace officers we empower to patrol our highways. That power includes the authority to disrupt the flow of motor vehicle traffic, often traveling at high speeds, and the power to detain a driver and vehicle on the side of a road, which can be a dangerous place. This appeal involves a federal officer with limited authority who repeatedly usurped the power to patrol traffic, violated the civil rights of motorists, abused the public trust, and lied about it in official reports.

Much of the section in yellow applies to DeHart's actions against us. And an April 21 U.S. Supreme decision, styled Rodriguez v. United States, adds to the likelihood that DeHart acted unlawfully. Rodriguez involved an officer who prolonged a traffic stop by calling for a drug-sniffing dog, without reasonable suspicion for doing so. Justice Ruth Bader Ginsburg wrote the 6-3 majority opinion, which even right-wing stalwarts John Roberts and Antonin Scalia joined. Among the key findings in Rodriguez (citations omitted):

Beyond determining whether to issue a traffic ticket, an officer’s mission includes “ordinary inquiries incident to [the traffic] stop.” Typically such inquiries involve checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance. These checks serve the same objective as enforcement of the traffic code: ensuring that vehicles on the road are operated safely and responsibly.

A dog sniff, by contrast, is a measure aimed at “detect[ing] evidence of ordinary criminal wrongdoing.” Candidly, the Government acknowledged oral argument that a dog sniff, unlike the routine measures just mentioned, is not an ordinary incident of a traffic stop. Lacking the same close connection to roadway safety as the ordinary inquiries, a dog sniff is not fairly characterized as part of the officer’s traffic mission.

Likewise, serving court papers is not part of an officer's traffic mission--and that adds to the dubious nature of DeHart's actions against us.

What about the legal analyst who got it wrong about our traffic stop? That would be Ken White, the Los Angeles-based author of the Popehat blog. White wrote several posts about my arrest in the Riley/Duke case, correctly noting that it was wildly unlawful under longstanding First Amendment precedent. White also discussed the DeHart traffic stop, but the Popehat analysis there was not so accurate. Here is what White wrote:

Maybe you're outraged because the Sheriff violated Shuler's Fourth Amendment rights by pulling him over to serve him with legal papers on behalf of the son of the former governor of Alabama. If you want to be outraged, it should be because under current law it's probably not a violation of his Fourth Amendment rights.

You can thank the Great War on Drugs for that. [Eighteen] years ago the Supreme Court, in one of its innumerable drug cases, ruled that a cop can run a traffic stop on you on a pretext. That is to say, if cops want to question you, or sniff around your car in hopes of developing probable cause to search it, they can follow you until they think you've broken a traffic law, and stop you for it, even if they would normally never bother with that particular traffic infraction. So: is it outrageous that a deputy would follow Roger Shuler until he (allegedly) broke some traffic law, and then stop him and use that opportunity to serve papers on him? Hell yes. Is it legal? Unfortunately, it probably is.

That case from 18 years ago is styled Whren v. United States, 517 U.S. 806 (1996), and we've written about it here several times. Unfortunately, Popehat's analysis goes awry with the "pretext" concept at the heart of Whren. As we explained in a recent post, it helps to know exactly what is meant by a "pretext traffic stop":

The Web site addresses pretext stops and Whren v. United States, 517 U.S. 806 (1996), the primary U.S. Supreme Court (SCOTUS) case on the subject. Here is how defines a pretext traffic stop:

A "pretext" or "pretextual" stop is a stop in which the officer detains the citizen for a minor crime (i.e. traffic offense) because the officer actually suspects the person of involvement in another, more significant crime (i.e. drug possession).

That definition is in keeping with Whren, which involved an officer who stopped a vehicle, on the surface, for a traffic violation--but the real reason for the stop was suspicion of illegal drug activity.

It's clear that, by definition, a pretext traffic stop involves suspicion of criminal activity. DeHart never articulated the slightest hint that he suspected criminal activity associated with our car; he wanted to serve court papers--and probably because the case involved Rob Riley--was desperate enough to break the law in the process.

As for Popehat, he addressed our pretext traffic stop in a second post, after a tipster sent him the log of service attempts in our case. (We now have the log, too, and you can view it at the end of this post.) Even Popehat was taken aback by the brazen actions of Shelby County deputies, writing:

One of Roger Shuler's loudest complaints has been that Shelby County Sheriff's deputies pulled him over for the purpose of serving him with papers in Robert R. Riley, Jr.'s defamation suit against him.

Shuler sees that — law enforcement stopping his car and detaining him, however briefly, for the purpose of serving him in a civil case – as a violation of his Fourth Amendment rights against unreasonable search and seizure. In my first post on the subject I pointed out that, regrettably, it probably isn't a Fourth Amendment violation — as part of the Great War on Drugs, the Supreme Court long ago decided that police may make pretextual stops. That is to say, police who wish to ask you questions, or sniff about your car, or otherwise develop probable cause to arrest you or search your car, may stop you for any traffic violation they (purportedly) observe even if under normal circumstances they would not bother to do so. Having stopped you, they may then talk to you and observe you and your car in an effort to develop sufficient cause to take further investigative steps. That doctrine probably allows Shelby County Sheriff's deputies to stop Shuler for a purported traffic violation and, as long as they are lawfully in contact with him, serve him with papers.

What I did not anticipate is how brazen law enforcement has become about this sort of thing. A helpful tipster sent me the Shelby County Sheriff's return of service and log of service attempts. The log generally supports the assertion (admitted by Shuler) that Shuler was evading service of process, which is part of the pattern of nutty pro se conduct that contributed to his trouble. But it also contains this entry describing the eventual traffic stop:


Thanks to the United States Supreme Court, law enforcement can feel free to admit that their traffic stops are pretextual. Thanks, War on Drugs!

While we appreciate Popehat's not-so-subtle digs at Shelby County deputies, it's unfortunate that he is wrong about the actual definition of a pretext stop. (He's also wrong about me admitting to avoiding service.) As we showed above, a pretext stop involves suspicion of criminal activity. That was not present in our case, so Officer DeHart did not conduct a legal pretext stop.

The record shows DeHart certainly violated our civil rights and probably committed a crime as well--and nothing about the "war on drugs" excuses that.


Anonymous said...

How much time did Stephen G. House serve for his crimes?

legalschnauzer said...

That's a good question, @8:35, and I don't know the answer. Let me see if I can find the answer.

legalschnauzer said...

Found an article with this information about sentencing in the House case:

"House was sentenced to one year, six months in prison, followed by three years of supervised release. He also was fined $10,000 and ordered to perform 200 hours of community service."

Here is link to the article:

Anonymous said...

I notice that the officer in the House case stopped about eight different people. I suspect that volume is part of why he was prosecuted. If the guy in Shelby County stopped just you, he'll probably get away with it.

legalschnauzer said...

You might be right, @9:01. Obviously, it shouldn't matter whether someone commits a crime eight times or one time, but it probably does in terms of the decisions that prosecutors make.

The point of my post is not to show what a prosecutor may or may not do, but simply to show that an officer who unlawfully stops you and violates your civil rights is also committing a crime.

It's certainly grounds for a civil action against the officer and his department, but the guy in Shelby County committed a criminal act. My main goal with this post is to show that traffic stops are serious business. They are seizures under the law, and officers should not be playing games with them. Those who do could find themselves in prison.

Anonymous said...

I am also curious as to what they meant by "federal officer with limited authority". What was his official job duties and was traffic control one of them?

legalschnauzer said...

Not sure I know the answer to that. Part of the opinion deals with the officer's role in the Federal Protective Service--I didn't know we had such a thing--and whether he had the authority or jurisdiction to pull over drivers under Georgia law. Another part of the opinion deals with the fact the officer was pulling over people willy nilly, without regard for probable cause, drivers where the officer had no "reasonable suspicion" that they had committed a traffic violation. The opinion addresses all eight drivers, and their testimony that they weren't violating any traffic laws to merit being pulled over.

The opinion states that is a deprivation of constitutional rights amounting to a crime, regardless of what type of officer we're talking about. I think the opinion also found that this particular officer did not have the authority to make any stops under Georgia law.

Like many appellate rulings, it deals with multiple issues, and those were two of the ones raised in this case.

Anonymous said...

I'm glad that something called "" is the ultimate authority on what is meant by a "pretextual stop." I'm sure we'll see it cited more and more frequently by judges now that you've brought the true definition to light. It couldn't be the case that "pretext" in the context of "pretextual stop" simply means that there's another reason for the stop (a "pretext," if you will) beyond the minor traffic offense that's been committed. And I'm sure that Ken White has been deluded in his legal analysis by sources.

legalschnauzer said...

Sorry, but knows a whole lot more about the meaning of a pretext traffic stop than you do. Their definition is pulled from numerous federal court cases. The number of such cases is to numerous to mention them all, but an example is U.S. v. Perez, 37 F.3d 510 (9th Cir., 1994). From that case:

"A pretextual stop occurs when the police use a legal justification to make the stop in order to search a person or place, or to interrogate a person, for an unrelated serious crime for which they do not have the reasonable suspicion necessary to support a stop.'" United States v. Cannon, 29 F.3d 472, 477 (9th Cir. 1994) (quoting United States v. Guzman, 864 F.2d 1512, 1515 (10th *513513 Cir. 1988))."

So there you have three federal cases (Perez, Cannon, and Guzman) describing a pretextual stop, and they all agree with the definition cited in my post. Bottom line: By definition, a pretextual stop involves suspicions of an "unrelated serious crime."

DeHart never mentioned anything related to a crime, serious or otherwise, so his was not a lawful pretextual stop. As for Ken White, he says over and over in his analysis that the stop in my case "probably" was legal, due to the war on drugs. In other words, he wasn't sure, and he apparently didn't want to conduct the legwork needed to get his analysis right.

I don't know that White is deluded. In this instance, it appears he was just lazy.

Anonymous said...

Let me quote to you from Whren: "We think these cases foreclose any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved. We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment. Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis." 517 US 806, 813 (emphasis added).

The officer had the authority to stop you based on your traffic offense. It is entirely clear that what you're trying to do—inquire into the subjective motivation of the officer for stopping you—is foreclosed by the plain, unambiguous language of Whren (unless, of course, you're suggesting that you were selected for a traffic stop based on being a member of a protected class).

Sorry. You were lawfully stopped, and during the lawful stop the officer performed an action that the officer could lawfully perform: serve you. And even if you're right that the stop was unconstitutionally prolonged by the service (which I doubt that you are), you have no authority that suggests that a Fourth Amendment violation renders service of a civil suit a nullity.

legalschnauzer said...

I should note that White also was too lazy to inform himself about what has happened to my wife and me in various court cases, whether we were plaintiffs or defendants. In one of his posts about my incarceration, White called me "a vexatious litigant, a serial pro se abuser of the court system.1 (I formed that opinion by researching records of his litigation history.)"

When you go to White's footnote on this subject, you see that he apparently accessed AlaCourt to determine the outcome of certain cases, and since I "lost" several of them, that makes me vexatious and abusive.

White, however, did not take the time, or expend the effort, to see if those cases were lawfully decided. (Answer: They were not, not one of them.) His effort stopped at looking at who "won" or "lost" the case.

How's this for irony? White correctly chastises Judge Claud Neilson for repeatedly making unlawful rulings in the Rob Riley/Liberty Duke case. But White apparently assumes judges in those other cases ruled correctly. In Ken White's world, Claud Neilson is an incompetent or corrupt boob, but every other judge in Alabama is a paragon of legal virtue.

White knows a thing or two about First Amendment law. But in a lot of instances he resorts to becoming a name-calling hack because he's too lazy to conduct real research. Or maybe he's afraid the record will not support the idea that he wants to promote. He wants his readers to believe I'm some sort of whack job, even though a thorough review of the record would show that is not true.

legalschnauzer said...

Sorry, @5:15, but once again you are wrong. Whren was about reasonable suspicion of a crime--a drug case. All of its progeny have been about reasonable suspicion of crimes, criminal offenses more serious than a traffic violation. As I've shown you, that is the very definition of a pretext stop. DeHart had no suspicion of a crime, by his own words and actions, so Whren does not apply here--it was not a lawful pretext stop.

DeHart's own words, which I've published here multiple times via the department log, show that he did not have grounds to stop me. He admits it was a "pretext stop" in order to serve me with court papers. But that's not a lawful pretext stop.

You have zero evidence to support your claim that I was lawfully stopped. I've presented my evidence in multiple posts, for all to see, under my real name. I was behind the wheel at the time, and I know I didn't roll through a stop sign to make a left-hand turn at a busy intersection. I would love to testify to that, just as the drivers did in the House case.

I also know that DeHart couldn't even see the stop sign in question from where he claims to have been stationed. And I have DeHart's own words that show he conducted surveillance on our house for two hours and then conducted a "pretext stop"--except he makes no mention of having suspicions about a crime, so it was not a lawful pretext stop.

Rodriguez, the very recent SCOTUS case, makes it clear that even a lawful stop cannot be prolonged without reasonable suspicion of a crime. You claim I have no authority that says such a stop makes service of a civil suit a nullity, but you have no authority to support your position at all. Is there a case out there exactly on point? Probably not because I'm not sure any officer in history ever has been stupid enough to pull what DeHart pulled. But as lawyers like to say, it seems axiomatic that a constitutional violation would render the officer's actions improper and unlawful.

More importantly, the evidence suggests DeHart had no grounds to stop us at all, and he certainly had no grounds to prolong the stop--both of which are constitutional violations.

You apparently don't take civil rights seriously, but my wife and I do.

Better luck next time in trying to come up with an empty excuse for police abuse.

Unknown said...

There will always be times when local authorities will not follow the law & the United States Government is at first reluctant to intervene to protect the rights of its citizens. The most famous of such incidents occurred in 1836 San Antonio, Texas at the Alamo Mission. Against the better judgment of their General Sam Houston who instructed them to abandon the Alamo & live to fight again another day, the Texans decided to engage Santa Anna & be massacred. Although Houston managed to win nominal freedom for Texas later that year, it took the United States Government another nine years to finally get around to doing what was right by annexing Texas & protecting the people from the corrupt central government in Mexico City. Live to see the day that the US Government finally brings the smack down on the Alabama Gang. They will get around to doing this when it works to their advantage. Don't think the feds aren't already building a case. They have 49 other states & Iraq & Afghanistan to focus on at the moment. The Alabama Gang will play their last card soon & go down very hard in the end. Both parties in Washington are getting tired of the bullshit. It's basically some very old friendships & shared financial ventures that are holding it all together for now, but when the old guard passes, the fur will begin to fly.

Anonymous said...

Hope you're right, Illegal Doxle. Innocent people, potential witnesses and whistleblowers suffer for years under the oppression and intimidation tactics that accompany corruption and coverup. Some lose their assets, health, families, and some don't live to see the justice that is promised to all American citizens. While they could have been productive citizens living the "American Dream" with success on their horizons, these people instead are forced to live in limbo, often painfully alone and very often "paranoid" (justifiably afraid) of what may happen to them or their families & children for their knowledge or exposure of the corrupt situations. The powers against them are great and they know it.

If a corrupt situation occurred 5 years ago and went unchecked, then imagine how forceful the players will be in their attempts to continue the coverup 10 years later. As years go by the powerful intensify their authority while their victims cling to life itself. Anyone involved is potentially in danger. It is why Homeland Security combined with the Justice Department must do its job within this country. We have networks that are extremely dangerous and many operate or connect at high levels. It's past time to put an end to it.