James J. Kilpatrick

Two petitions are now pending in the Supreme Court that once again raise the issue of misconduct by police. Would you vote to hear the cases?

These were the facts in Los Angeles County v. Rettele : In the summer of 2001, L.A. police began investigating a ring of thieves who relied upon false identities to work their scam. The investigation developed probable cause to believe that four of the suspects, all African-American, were working out of an address on Loneoak Avenue in the town of Lancaster, northeast of the city. Motor vehicle records placed two of the suspects at the residence. Another had registered a handgun to the same address. In a summer drive-by, police observed an African-American male who matched the description of yet another suspect.

Thus prepared with a search warrant, and led by veteran Dennis Watters, seven officers made their raid a little after 7 o'clock on the morning of Dec. 19. Unknown to the detectives, several months earlier Max Rettele, Judy Sadler and her teenaged son had moved into the Loneoak property. Police knocked. The boy came outside. At gunpoint, "He was then assisted to the ground." Four detectives rushed in.

From the record: "His gun drawn, Detective Campbell opened a door to a bedroom. Rettele and Sadler were in bed under the covers. They were told to get out of bed and show their hands. Sadler stood up ... Rettele went to another bedroom, naked, to get Sadler a robe. When he came back, he put on his sweat pants and Sadler put on the robe. Sadler was naked in front of Campbell for about one minute."

Detectives soon concluded that a mistake had been made. "Because all three residents were Caucasian and Watters was looking for African-American suspects, Watters decided to call off the search. He then explained why the deputies were there, apologized, thanked them for not getting upset, and swiftly left."

Rettele and Sadler sued the police. U.S. District Judge Dale S. Fischer granted summary judgment to the officers on their plea of qualified immunity, but a panel of the 9th Circuit voted 2-1 to reverse: "After taking one look at the plaintiffs, the deputies should have realized that plaintiffs were not the subjects of the search warrant and did not pose a threat."

In their petition to the Supreme Court, counsel for the police minimize the mistake: "Simply stated, a mild inconvenience or embarrassment does not equal a constitutional violation. ... Plaintiffs were not injured. Their privacy was not unduly invaded. ... The incident was minimally intrusive."

In an entirely separate case, also from the 9th Circuit, counsel ask the high court to exonerate police in Kennewick, Wash. This case arises from an incident about 1 o'clock in the morning of July 14, 2003. Sgt. Richard Dopke observed a man riding a mini-moped without lights and without a helmet. He turned on his siren and gave chase, but the suspect slipped into a garage. Two women told the officer he had run out the back door.

Backup officers arrived, among them a K-9 team in charge of "Deke," a German shepherd trained to track suspects and then to bite and hold. From the petition:

"During the track, Deke became free of his lead and after jumping through a hole in a fence made contact with Mr. Ken Rogers, who had been sleeping in the back yard of a neighboring residence. He was visiting his daughter, son-in-law and grandchildren. Officers Kohn and Bonnalie and Deputy Quackenbush struck Mr. Rogers with fists, knees and a flashlight, while Deke continued to bite and hold Mr. Rogers until Mr. Rogers was subdued and handcuffed. Mr. Rogers was released after it was determined that he was not the driver of the moped."

Rogers sued. The officers claimed immunity, but a panel of the 9th Circuit ruled 2-1 against them.

In their petition to the Supreme Court, counsel for the officers argue that Deke "unexpectedly" jumped the fence. Contact with Rogers was "inadvertent"; his subsequent seizure was not an "intentional" seizure under the Fourth Amendment. Moreover, the 9th Circuit's ruling, if left in place, "will effectively result in holding every police dog handler constitutionally liable for any actions of a police dog while off leash."

How would you vote, you followers of the high court? Would you hear one or both appeals? Police clearly made mistakes. In the nature of law enforcement, mistakes will always be made. In these cases, are the plaintiffs entitled to damages? Judge Kilpatrick, meaning me, votes yes. But it's your call.


James J. Kilpatrick

James J. Kilpatrick has been reporter, editor, columnist, commentator, and briefly an adjunct professor of journalism.

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