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 knowmyrights.org 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 knowmyrights.org 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:
"CONDUCTED A PRETEXT TRAFFIC STOP ON SHULER'S BLUE NISSAN AFTER OBSERVING IT ROLL THRU STOP SIGN AT MAC lAN/ KEITH DR; STOP WAS AT NORTH SHELBY LIBRARY; WARNING ISSUED FOR TRAFFIC VIOLATION AND BOTH PARTIES WERE SERVED WITH PAPERS, WHICH THEY DISCARDED IN THE PARKING LOT AS THEY LEFT."
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.