September 2012

False Allegations of Adult September 2012 Volume 81 Number 9

United States Department of Justice Federal Bureau of Investigation Washington, DC 20535-0001 Robert S. Mueller III Director Contributors’ opinions and statements Features should not be considered an endorsement by the FBI for any policy, program, or service. The attorney general has determined False Allegations of Investigators should learn to detect that the publication of this periodical Adult Crimes these offenses, which waste law is necessary in the transaction of the 1 enforcement resources and impact public business required by law. Use By James McNamara and of funds for printing this periodical has communities. been approved by the director of the Jennifer Lawrence Office of Management and Budget. The FBI Law Enforcement Bulletin (ISSN-0014-5688) is published monthly by the Federal Bureau of Investigation, 935 Pennsylvania Qualified Immunity This doctrine provides important Avenue, N.W., Washington, D.C. By Richard G. Schott legal protections for officers in the 20535-0001. Periodicals postage paid 22 performance of their duties. at Washington, D.C., and additional mailing offices. Postmaster: Send address changes to Editor, FBI Law Enforcement Bulletin, FBI Academy, Quantico, VA 22135. Editor John E. Ott Associate Editors Eric A. D’Orazio Linda L. Fresh Departments David W. MacWha Art Director Stephanie L. Lowe 7 Leadership Spotlight 13 Research Forum The Training Division’s Falling Prey to Posturing The Attitudes of Outreach and Communications Unit Managers Toward produces this publication with assistance from the division’s 8 Perspective Intelligence-Led Policing National Academy Unit. Redefining Police Power Issues are available online at 18 http://www.fbi.gov. Bulletin Alert 12 ViCAP Alert Deployment of Spike Strips E-mail Address [email protected] Sexual Assault Case 19 Notable Speech Cover Photo © iStockphoto.com J-U-S-T-I-C-E

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False Allegations of Adult Crimes By JAMES MCNAMARA, M.S., and JENNIFER LAWRENCE, M.A.

t 7:30 a.m., an unknown secluded rural area and led her 3 p.m. Pamela drove herself to male abducted Pamela into the woods. He bound her to the nearest hospital for treat- Aat knifepoint while she a tree, placing the bicycle chain ment, and staff members notified fueled her car at a convenience around her neck. The subject the police. After receiving medi- store. The offender then forced then assaulted her vaginally cal attention, she was released. her to drive to a bridge, where with a box cutter and lacerated and local police in- they crossed into a neighbor- her breasts and right nipple. vestigators conducted the initial ing state. During the long ride, Then, he ordered Pamela interview of Pamela at the he choked her with a bicycle back into her car and had her hospital. Although initially co- security chain and slashed her drive them to a nearby ferry. operative, she stopped answer- with a knife. The subject exited the vehicle ing questions. Pamela agreed Next, the assailant ordered and disappeared while heading to meet investigators at a later Pamela to park the vehicle in a toward the ferry at about date at the state police barracks

September 2012 / 1 to discuss the abduction and antidepressant. Working with against them to a law enforce- sexual assault, but she never NCAVC, officers developed a ment agency. Both men and arrived. successful interview strategy, women commit these crimes; A review of hospital medi- and Pamela finally admitted that however, women perpetrate cal records showed that Pamela she fabricated the abduction and the majority of them. A limited received treatment for super- sexual assault. number of studies have focused ficial lacerations to her right Her false allegation tied up on false allegation adult crimes, hand, left breast, right breast the resources of several state with the majority of research and nipple, and neck. She also and local police departments, as addressing cases of rape and to had several superficial abrasions well as the area FBI office. Sig- a lesser degree stalking.1 in her pubic region. The doctor nificant media attention focused These offenses occur described her as tired but in no on the case prior to her confes- throughout America every acute discomfort. sion. An artist’s sketch of the year. Unfortunately, they waste Officers found no forensic imaginary offender circulated. substantial investigative re- from Pamela or her The media quoted a spokesper- sources—needed for legitimate vehicle. They contacted the son for a local women’s rape cases involving real victims— FBI’s National Center for the crisis center as saying, “What before authorities can identify Analysis of Violent I see is a community that is them as false allegations. And, (NCAVC) for assistance scared….” as noted in the quote from the in developing an interview crisis center worker, these false strategy. Investigators deter- Background allegations can severely affect mined that Pamela suffered A false allegation crime in- communities and the people from depression and anxiety volves persons reporting a fab- who live and work there. Worse, and had a prescription for an ricated offense that has occurred they can make it harder for law enforcement agencies and citizens to take real victims of crime seriously. Offender Motivations Perpetrators of false al- legation crimes have various underlying motivations that fall into one or more categories. Investigators may encounter cases involving more than one motivation.2 Mental illness/depression Attention/sympathy Special Agent McNamara serves Ms. Lawrence serves as a crime Financial/profit in the National Center for the analyst in the National Center for Analysis of Violent Crime in the the Analysis of Violent Crime in the Alibi FBI’s Critical Incident Response FBI’s Critical Incident Response Group. Group. Revenge

2 / FBI Law Enforcement Bulletin A significant life problem motive or incentive, mental The covert investigation (e.g., marital, financial, employ- health issues may prove focuses on establishing whether ment) that the offender does not significant. the case involves a false allega- have the skills to resolve drives tion crime. Keeping this prong the motivation. Many perpetra- Investigations covert helps to avoid premature- tors have multiple life difficul- Law enforcement offi- ly accusing a legitimate victim ties. Rather than seeking ap- cers may find false allegation of a false allegation, prevent propriate assistance from family crimes complex and difficult to derailing the overt investigation, members, coworkers, clergy unravel. Further, investigators and preserve valuable informa- members, or mental health working closely with offenders tion for the subject interview. professionals, offenders develop may become so emotionally Officers must gather all possible a self-victimization plan. These invested in the case that they details concerning offenders. individuals may realize tempo- have a hard time believing Because false allegation perpe- rary relief from their life prob- that the individual could be trators have serious life prob- lems due to immediate attention deceptive. lems motivating them, the co- and support from family, neigh- vert investigation quietly must bors, and coworkers. And, more identify which issues trouble the often than not, false allegation individual. This type of infor- offenders do not consider the mation proves crucial during the serious, long-term law enforce- A suspected false interview process. Investigators ment investigation or significant allegation requires a need to examine offenders’ per- media coverage that reveals the two-pronged sonal relationships, employment truth. In the long run, offenders “ situation, finances, past criminal approach—covert are worse off than before the history, and other areas of their false allegation crime report and and overt. life to identify any indication of even may face prosecution. abnormal stress. Typically, female offend- Additionally, the covert ers want to gain attention and investigation determines if the sympathy and will falsely allege offender has made other false offenses, such as interpersonal A suspected false allega- allegations or crime reports. violence (e.g., sexual assault), tion requires a two-pronged Officers also should check with more likely to achieve that approach—covert and overt.” local emergency rescue depart- result. While the desire for at- Of course, overt investigation ments or hospital emergency tention and sympathy also can proves necessary in the early rooms to discover any false motivate males, they tend to opt phase of the case before offi- injury or illness reports made by for nonsexual offenses, such as cers identify the complaint as a the individual. As the covert in- physical assault or attempted false allegation. If the claim is vestigation progresses, the lead .3 Offenders who falsely legitimate, investigators need investigator responsible for the allege more impersonal crimes, to identify and apprehend the overall coordination of the case like theft or vandalism, more offender. They should use all should receive all information. likely will have financial or normal resources and carefully The experience of NCAVC profit motives. And, in cases protect the reporting victim’s and research related to this phe- where the perpetrator has no reputation. nomenon have shown that false

September 2012 / 3 The FBI’s National Center for the Analysis of Violent Crime (NCAVC) NCAVC consists of four units, including three Behavioral Analysis Units (BAUs) and the Violent Criminal Apprehension Program (ViCAP) Unit. BAU-1 handles cases involving threat assessments or counterterrorism; BAU-2 addresses investigations of adult crimes, including serial or individual murder and serial sexual assaults; and BAU-3 deals with crimes involving child victims. The three BAUs offer a broad array of operational services for investigators or prosecutors. Crime analysis Behavioral characteristics of unknown offenders Personality assessments Interview strategy affidavit assistance Investigative strategy Prosecutive/ strategy Expert testimony Media strategy In collaboration with other law enforcement agencies and academic institutions, the BAUs also conduct research into various crime areas. Additionally, the BAUs share the knowledge gained through operational experience and research with law enforcement agencies through a variety of training venues. allegation adult crimes usually experienced patrol officer for progressed, Charles would involve only one offender. In a medium-sized city police not give a detailed statement most cases, the individual con- department, stopped a vehicle in about the incident and de- ducts preplanning, preparation, a deserted area outside of town. clined a polygraph test. The or staging of the crime scene.4 Shortly thereafter, he reported covert investigation in the Fewer incidents of false allega- that the driver produced a .22 case uncovered that he faced tion adult crime arise from spur- caliber handgun and shot him extreme personal stress due of-the-moment decisions. Many in the torso at close range. to a problematic marriage and cases have involved more than Responding officers could not several extramarital affairs. one offense reported simultane- locate a vehicle or in Investigators eventually ously to law enforcement (e.g., the area. Further, the bullet hit gained a confession from carjacking/extortion, abduc- Charles in an ideal place on his Charles and determined that tion/rape). Investigators need ballistic vest and was deflected, he got the idea from an inci- to carefully scrutinize forensic causing him no injury. dent in a neighboring county evidence and injuries for Investigators quickly deter- the night before wherein inconsistencies. mined that he could not describe a deputy sheriff was shot For example, while work- his shooter or the vehicle he and killed during a traffic ing the night shift, Charles, an pulled over. As the investigation stop. Charles staged his own

4 / FBI Law Enforcement Bulletin shooting to gain attention and evidence and more likely will hour-long interview. Beforehand, sympathy. gain a confession. investigators determined that Katrina was an under- Katrina felt that her relationship Interview Strategies graduate student at a large state with her boyfriend was at risk When allegations prove university. At the end of a week- and that she desired his attention false, often no forensic evi- end, her roommate returned to and sympathy. Further, authori- dence exists. Most testimony their dorm room to find Katrina ties discovered that she previ- by eyewitnesses tends to offer gone. Her wallet, keys, purse, ously made a false report of an exclusively postoffense details mobile phone, and laptop all assault that proved unfounded and include only information remained in the room. There (lacking sufficient evidence). provided by the offender. As a were no signs of a struggle or Unfortunately, Katrina’s case result, the ability of investiga- forced entry. gained national media attention tors to gain an admission or and caused a major upheaval in confession from the perpetrator and around the university. And, can become crucial in resolv- the investigating police depart- ing the case. ment depleted its annual over- Officers face the challenge Most testimony by time budget searching for her. of determining which life eyewitnesses tends problems have caused the of- to offer exclusively Possible Clues fender to present a false report “postoffense details Several indicators can help to law enforcement. Gener- and include only investigators identify a false alle- ally, the most effective inter- information provided gation case. While none of these views involve an empathetic by the offender. signs by themselves indicate a approach toward the subject. false allegation case, investiga- Directly challenging offenders tors should strongly consider a with inconsistencies in their two-prong investigation with the account or the lack of hard corroboration of two or more. evidence likely will make them The roommate notified local The offender may— shut down or stubbornly insist police who began an intensive continue to make inconsis- on the accuracy of their story. abduction investigation. How- tent statements conflicting After establishing rapport, ever, investigators immediately” prior claims by the individual interviewers need to address suspected a false allegation or information provided by the person’s life problems. abduction case. They contacted witnesses; However, empathetic does not NCAVC for a crime analysis. offer descriptions or cir- mean sympathetic. Authorities NCAVC personnel concurred cumstances of the reported can express an understanding that the case was a false allega- offense that do not seem of difficulties that caused the tion and provided an interview plausible or realistic; situation without condoning strategy to use when Katrina the behavior. By addressing the reappeared. show on a poly- offender’s underlying issues, After a few days, Katrina graph or refuse to take one; interviewers eliminate the need returned. Interviewers gained have a history of mental and to argue over the allegation’s a confession from her by using emotional problems or false contradictions or the lack of an empathetic approach in an allegations;

September 2012 / 5 make the allegation after Staff members also conduct and frustrating. Officers risk a similar crime received research in the area of violent being accused of not treat- publicity (suggesting mod- crime from a law enforcement ing crime victims properly eling or a copycat motive perspective to gain insight into by prematurely labeling their in which the similarity to criminal thought processes, allegations as false or by be- the publicized crime offers motivations, and behaviors. ing unable to resolve the case. credibility); or NCAVC shares its findings with Further, a tremendous amount provide an allegation that the law enforcement community of department resources lacks substantiating foren- through publications, training, (which could be applied to sic, physical, or medical and application to the investiga- real victims of real crimes), evidence and does not agree tive and operational functions of such as overtime, forensic with laboratory findings. the center. budgets, and work hours, can be wasted on them. Source of Assistance Realizing how to identify The FBI’s NCAVC pro- false allegation crimes by vides advice and assistance using the two-prong investiga- NCAVC reviews tion and developing the appro- in the general areas of crimes specific crimes from against adults, counterterror- priate interview strategy based ism and threat assessment, behavioral, forensic, on the offender’s true motiva- “and investigative tions/life problems allows in- and crimes against children. Typical cases received for perspectives. vestigators to more easily and assessment at NCAVC include quickly resolve these cases. serial murder, kidnapping, serial This will save significant sexual assault, stalking, threat department resources and put the community at ease. assessment, domestic and in- Personnel typically consult ternational terrorism, and false on cases, such as false allega- Endnotes allegation crimes. NCAVC staff tion crimes, when requested 1 K. Mohandie, C. Hatcher, and D. Ray- members handle requests for as- by the investigating agency.” mond, “False Victimization Syndromes in sistance from both domestic and NCAVC will assist by providing Stalking,” in The Psychology of Stalking: enforcement Clinical and Forensic Perspectives, ed. R. behavioral analysis and investi- Meloy (San Diego, CA: Academic Press, agencies. gative and interview strategies. 1998), 225-255. NCAVC reviews specific Only law enforcement agencies 2 T.P. Carney, Practical Investigation of crimes from behavioral, foren- and prosecutor’s offices can Sex Crimes (Boca Raton, FL: CAC Press, sic, and investigative perspec- receive services from NCAVC. 2004); and E.J. Kanin, “False Rape Allega- tives. This analytical process tions,” Archive of Sexual Behavior 23, no. 1 (1994): 81-92. serves as a tool for client law Conclusion 3 J. McNamara, S. McDonald, and J. enforcement agencies by pro- Although false allegation Lawrence, “Characteristics of False Alle- viding them with an evaluation adult crimes tend to be the gation Adult Crimes,” Journal of Forensic of the offense, as well as an exception, rather than the rule, Science 57, no. 3 (May 2012): 643-646. 4 understanding of the criminal Ibid.; and J.M. Taupin, “Clothing these cases present serious Damage Analysis and the Phenomenon of motivations and behavioral concerns to law enforcement. the False Sexual Assault,” Journal of Fo- characteristics of the offender. Investigators find them difficult rensic Science 45, no. 3 (2000): 568-572.

6 / FBI Law Enforcement Bulletin Leadership Spotlight

Falling Prey to Posturing By Gary R. Rothwell, DPA

osturing is an understated, preventable who is posturing, even when common sense Pmistake. Sometimes, crime scene inves- suggests acting otherwise. Leadership entails tigators are insecure or fearful of not measur- recognition of these insecurities, awareness of ing up. They may to appear confident the potential peril, and willingness to question even when they are not. Herd behavior occurs, unsupported opinions. and responders blindly fol- Often, silent officers low the loudest officer’s need time to gather compo- theories and declarations, sure and regain confidence resulting in posturing. in their abilities. Lead- Posturing is how we ers who detect and break present ourselves to others. the pronouncing posturing We attempt to appear in the behavior can allow these most favorable light. At individuals to have the time crime scenes, there are two they need. officer postures—silence Challenging the domi- and pronouncing. Silence nant opinion tactfully re- entails remaining quiet un- quires fortitude and de- til our wits return, enabling pends upon the leader’s us to deal with the issue personality. Saying “let’s

at hand. Pronouncing in- © Zoran Karapancev / Shutterstock.com think about this” subtly volves loudly proclaiming puts the onus on pronounc- assertions to attempt to convince others that ing posturers to defend their assertions and we are competent. provides an opening for others to question These pronouncements sometimes are them. Confronting posturers is effective, but wrong. However, other individuals are not if done through ridicule or embarrassment, comfortable challenging them. The person there is a risk of backlash. Law enforcement who pronounces becomes the unofficial leader leaders who recognize and stop this behavior of an investigation, whether a detective, coro- avoid a mistake made by many, but admitted by ner, assistant prosecutor, or, even, a journalist. few—falling prey to posturing. The result is wasted time and resources. Posturing is not limited to crime scenes. It occurs in situations of uncertainty because Special Agent Rothwell heads the Perry office of the unsure individuals do not want to appear stu- Georgia Bureau of Investigation. pid. It is human nature to agree with the person

September 2012 / 7 Perspective

Redefining Police Power By Stephen M. Ziman, M.S.

olice officers exercise their power in different ways. Some- Ptimes they wear riot gear and carry high-powered weapons, sledgehammers, battering rams, and hooligan tools. Other times, officers may be in a nonthreatening stance in front of a once-unruly crowd, speaking in a calm manner to defuse the situation. Some people envision positive images of law enforcement, while others visualize notions that are more negative. Diver- sity of opinion exists among the public, and some citizens ask whether the police always are justified in their actions. While such questions are inevitable and understandable, officers know the use of force often becomes necessary. Officers may encounter citizens who have little control of their emotions, are under the influence of alcohol or other drugs, suffer from mental illness, or, simply, do not want to go to jail. Police officers must consider these factors, in addition to poli- tics, media, statistics, and bias. Redefinition of Power Law enforcement agen- cies have a duty to redefine what real might means and to use this authority to build as ideal a relationship as pos- sible between officers and the communities they serve. Re- defining police power begins with individuals who already possess the necessary tools. This capability is beneficial both on and off the job. By employing a few critical techniques, police can use their influence most appropriately, avoid common mistakes, and, ul- timately, succeed on the job. Doing the best work is a matter of following

8 / FBI Law Enforcement Bulletin specific rules that do not change and applying those Qualities of a Winner rules to any situation, anytime, and anywhere. To In addition to honor, winners possess certain learn these important methods, officers must know qualities. These include positive self-expectan- themselves and their communities. cy, self-image, self-control, self-esteem, self- awareness, self-motivation, self-direction, and Change and Improvement self-discipline.1 Officers must be confident and Police officers determine their own success, successful. although they must remain aware of how they The habits of highly effective people “embody exercise their power. Officers commit to a cycle of the essence of becoming a balanced, integrated, self-improvement. Individuals who become law powerful person and creating a complementary enforcement officers grow to become different team based on mutual respect. These are the prin- people. They change, and the community changes ciples of personal character.”2 They are “principles with them. Police officers can use their power ef- that shape who and what you are.”3 fectively. Citizens and law enforcement officers Officers must analyze themselves to determine can work together to better the world. who they are. Once they have an understanding of Eager to improve, police officers often desire self, they need to look outward, examine the com- additional training. In fact, most officers want to munity, and realize it is an extension of them. Once learn. Like professional athletes, committed law law enforcement personnel respect the community, enforcement officers expect to achieve their goals. that esteem will be returned. Following the “gold- They strive to be the best at what they do. en rule,” police officers should treat the public as Understandably, there may be obstacles along they, in turn, want the public to treat them. this path to self-discovery and knowledge. Once officers commit to change and begin to look within, Community Relationships they discover a variety of emotions. These feelings Police officers confront issues every day. They exist, are real, and affect them every day. However, deal with personal stressors that can challenge police officers can be taught to appropriately digest and deal with the emotional impact of the job. Law enforcement officers learn to understand Mr. Ziman, a retired the law as well as to skillfully fire weapons, write sergeant with the Aurora, Illinois, Police Department, reports, and abide by prescribed safety procedures, is director of security at a but they must know themselves to expand their private security and consulting firm and an arsenal of knowledge. Change and improvement associate professor of begin with the self. Police officers need to realize criminal justice at this and learn to be happy with who they are. Aurora University. During this process of self-examination, it is wise to adopt a personal code of honor. When honor serves as the foundation of a police officer’s life, the officer is on the right path. But, what is honor? Honor may be defined as esteem or per- sonal integrity. In other words, it means respecting oneself and, as a natural extension of that, respect- ing others.

September 2012 / 9 relationships with the community. Everyday an effective job; they must do what it takes to concerns, such as preserving a marriage, raising resolve community situations in a positive way. a family, attending additional schooling, or ne- Striving for perfection and aiming for excel- gotiating the politics of the job, can compound lence will bring law enforcement agencies and adverse situations. neighborhoods closer together. A solid relation- Officers bring preconceived beliefs and emo- ship with the public is important. People will tions to every contact with the community, just understand and respect police officers, and their as citizens bring their ideas and feelings. Every- expectations will become the same. Willingness one has bad days; however, with empathy and to learn and the ability to become sympathetic compassion, police officers can determine why and responsive to the community hold power. individuals are upset, what they are thinking, or how Knowledge of Oneself they are feeling. With this Law enforcement per- knowledge, they can make sonnel must give their best that contact successful. “ every day. Police officers When law enforcement Policing is who enjoy their work officers realize the relation- successful when and receive support from ship with the community officers empathize with their supervisors become needs improvement, they members of the public natural leaders in the de- must act. Police officers and recognize their partment. Officers reap can make a difference, and feelings, wants, and benefits when they enjoy the need to do so is impor- needs. their lives and engage tant. Before knowing the in their profession. The community, officers must knowledge of oneself, not begin by understanding the raises, bonuses, and themselves. gestures from the public, ” is the true reward. Policing is successful when officers empathize with members of the The secret to law enforcement is recogniz- public and recognize their feelings, wants, and ing the humanity of self and others in the com- needs. Real power comes when police officers munity. In one manner, law enforcement is a reject stereotypes, refute ignorance, think cre- business in which success depends on respect. atively and compassionately, and do what is right. With mutual courtesy and support, everyone This is the criminal justice road to success. benefits. The keys are being self-aware and fol- Crime never may be totally eradicated; how- lowing the golden rule. ever, circumstances can be made better. Commu- Officers who believe knowledge brings nity policing, partnerships, and problem solving rewards are successful, satisfied with their posi- have improved safety and quality of life. When tions, happy, and optimistic. They help others, analyzing the moral climate of police work in conduct themselves appropriately, and bring relation to the community, it appears that law positive attention to their departments. These enforcement is on the right path. police officers are in control of emotional bag- No matter what, officer safety always must gage. They know who they are, and they are come first. Police officers should endeavor to do true servants of their community.

10 / FBI Law Enforcement Bulletin Conclusion The days of merely responding to calls have Law enforcement agencies need to evolve ended. Today is the day to learn about self and and progress. They have a responsibility to their community and to strive for excellence in law en- officers and the citizens they serve. Departments forcement. Now is the time to cultivate knowledge need to instill reciprocal empathy, compassion, and redefine true police power. and partnership between police and the commu- nity. Law enforcement agencies dedicated to this Endnotes relationship find the time and energy to improve. 1 Denis Waitley, Psychology of Winning: The Ten Qualities Now is the time for officers to change and progress of a Total Winner (Chicago, IL: Nightingale-Conant, 1983). both personally and professionally. This is what it 2 Stephen R. Covey, The 7 Habits of Highly Effective People (New York, NY: Free Press, 2004). means to mature and develop a sense of self. Law 3 Stephen R. Covey, The 8th Habit, From Effectiveness to enforcement officers and agencies always can Greatness (New York, NY: Free Press, 2005). improve. Officers should engage in ongoing training that encourages them to analyze their motivation along with that of the community. They need to develop The author thanks Teri Fuller, associate professor of English, Waubonsee Community College, Sugar Grove, a better understanding of human nature and learn Illinois, for her contributions to this article. to be patient with one another.

The Bulletin’s E-mail Address © Digital Vision he FBI Law Enforcement Bul- T letin staff invites you to commu- nicate with us via e-mail. Our e-mail address is [email protected]. We would like to know your thoughts on contemporary law en- forcement issues. We welcome your comments, questions, and suggestions about the magazine. Please include your name, title, and agency on all e-mail messages. Also, the Bulletin is available for viewing or downloading on a number of computer services, as well as the FBI’s home page. The home page address is http://www.fbi.gov.

September 2012 / 11 ViCAP Alert Attention Violent Crime, Sex Crimes Units, and Crime Analysis Units

SEXUAL ASSAULT CASE BOULDER COUNTY, COLORADO

Date: June 17, 2012 Time: 2200 hours Location: Boulder County, Colorado South Foothills Highway (Highway 93), south of Boulder

Weapon(s): Black semiautomatic handgun Offender: Unknown, W/M, approximately 5’11” No further description Vehicle Description: Late model Jeep Cherokee, or similar vehicle Color: Grey or blue with cloth interior

CASE SUMMARY On Sunday, June 17, 2012, at approximately 2200 hours, a female was sexually assaulted on the shoulder of South Foothills Highway (Highway 93), just south of the Boulder, Colorado, city limits. The victim was lost and had stopped on the highway shoulder to update her GPS. The offender approached her driver’s side window and asked if she was OK. He then ordered her out of the vehicle and displayed a handgun, possibly a compact, black semiautomatic. The suspect forced the victim to move to the backseat of his vehicle, described as a late model Jeep Cherokee or similar vehicle, gray or blue in color with cloth fabric. He then sexually assaulted her. After the assault, the offender ordered the victim out of the car and left her at the side of the road. The suspect last was seen making a U-turn and driving back toward Boulder. According to the victim, she did not recall seeing the suspect’s vehicle on the shoulder when she first stopped, and she did not see it pull up behind her. The description of the suspect is vague. It is believed that he is a white male, approximately 5’11” in height. To provide or request additional information, please contact Detective Mark Spurgeon, Boulder County, Colorado, Sheriff’s Office at 303-441-3615 or the FBI’s Violent Criminal Apprehension Program (ViCAP) at 800-634-4097 or [email protected]. Contact ViCAP for in- formation on how your agency can obtain access to the ViCAP Web National Crime Database and view this case.

12 / FBI Law Enforcement Bulletin Research Forum

The Attitudes of Police Managers Toward Intelligence-Led Policing By Scott W. Phillips, Ph.D.

© Thinkstock.com

olice departments routinely improve their most current approach to improve police response Peffectiveness and efficiency. They develop time. ILP still is in its early stages of development new strategies and tactics for reducing crime and and understanding—not all agencies have adopted protecting the public. When implemented at street it.2 Examination of attitudes and opinions of po- level, even with proper planning, some strategies lice managers can help identify hurdles. Based on pose problems. Departments use simplistic expla- research findings, when initiating ILP, top police , such as lack of resources, to explain stra- administrators receive the information they need tegic or tactical failures.1 Often, a more complex to anticipate problems and understand the mind-set explanation exists. Based on past examinations of of supervisors. policing strategies, implementation problems oc- Strategy changes come from goal shifts. For cur when rank-and-file officers are not included in example, Sir Robert Peel organized the London the planning process. Mid-level police managers Metropolitan Police to focus on crime prevention, and street-level officers receive instructions from rather than response.3 Technological developments, administrators to execute the strategy. such as telephones and cars, caused improvements. These advances reduced response time and ex- Evolution of Policing Strategies panded the area an officer covered during patrol. Policing strategies have evolved over the years, Substantive changes in American policing with intelligence-led policing (ILP) becoming the came early in the 20th century. In the 1930s, it

September 2012 / 13 began shifting toward a professional model where rapid deployment, effective tactics, and relentless officers are hired strictly on qualifications. Agen- follow-up. Natural progression and tactical simi- cies started developing standard operating proce- larities exist in these strategies. dures for structure and guidance.4 Police have used Team policing uses decentralization to respond different tactics to improve effectiveness. to citizens’ needs.8 Decentralization allows greater In the 1970s, team policing motivated officers community engagement to identify crime and working in a ridged military-style organization.5 develop long-term quality of life improvements.9 Community policing in the mid-1980s showed that POP requires community involvement to indicate prevention of serious crime required addressing its problems and solutions. This strategy involves root causes, such as low-level disorders or minor movement of officers beyond response to indi- offenses. This strategy has led to stronger working vidual incidents. relationships between police and the community, Police should view crime as behavior resulting which is necessary for effective crime prevention. from problems or underlying causes, either crimi- Related to community policing, problem- nal or noncriminal. Systematic analysis of basic oriented policing (POP) requires the dissection issue information and data related to those under- of a problem to identify its fundamental causes lying problems is key to solving them.10 Compstat and develop a specific targeted response.6 Devel- requires substantial criminal activity analysis for oped in the 1990s in the New York City Police police or social service agencies to expend re- Department, Compstat, which compares statistics sources on the problem. used to track data, is an agencywide strategy for keeping police managers accountable for crime Innovative Approach in their precincts.7 This method consists of four ILP is an innovative strategy for advancing components—accurate and timely intelligence, crime prevention efforts. It is “a strategic, future- oriented, and targeted approach to crime control, focusing upon the identification, analysis, and Dr. Phillips is an management of persisting and developing prob- associate professor 11 in the Criminal Justice lems and risks.” ILP does not involve storing Department at Buffalo crime data; it integrates them into the strategic State College in New police mission, including control of various crimes York. He is a former 12 Houston, Texas and terrorist activities. police officer. This program shares several characteristics with other policing strategies. Still in its develop- mental stage, it has not matured enough for suf- ficient examination to determine its success. This may cause agencies to wait until it has worked through its growing pains in other organizations. ILP will spread despite its likely hurdles. Implementation Issues The intent of these various approaches is to improve policing. Evaluations of these methods show that bureaucratic law enforcement agencies

14 / FBI Law Enforcement Bulletin change slowly. Police departments possess strong analysis, the respondents’ attitudes toward ILP organizational cultures that hold tightly to tradi- were encouraging. tional strategies and tactics. Research has indicat- ed resistance by mid-level managers to new strate- Attitudes Toward ILP gies that may cause some loss of authority.13 When developing programs and strategies, When top-level administrators enact policing mid-level police managers are an important link strategies and street-level officers employ them, between administrators and street-level officers. research has shown that mid-level managers in- Understanding these managers’ views is impor- fluence the implementation. Therefore, examin- tant because those judgments set the tone. Over 85 ing the attitudes and opinions of these managers percent of respondents agreed or strongly agreed toward ILP is necessary. With that top-level administra- this information, it is possible tors recognize the need for to forecast the strategy’s suc- crime analysis information. cess or failure. Sixty-one percent agreed or strongly agreed that of- Research “Police should view ficers understand the value The FBI’s National Acad- of analysis reports. This is emy (NA) in Quantico, Vir- crime as behavior resulting from problems a positive attitude, although ginia, provides graduate-level managers view police ad- instruction and professional or underlying causes, ministrators and street-level development to command- either criminal or non- officers differently. level municipal, state, county, criminal. and federal officers. The goal Resources is to improve the administra- Studies indicated that tion of justice by raising po- resources, such as funding licing standards, knowledge, ” and personnel, often are re- and cooperation. stricted and limit implemen- In April 2011, police managers participated tation of new programs.16 This must be a consid- in an ILP and crime analysis study. Two hundred eration with specific crime analysis components. forty six NA students received questionnaires. Two Funding, personnel, training, and technology hundred eighteen surveys were completed and require dedicated resources that otherwise could used in this study. The officers canvassed repre- be allocated for traditional policing tactics. sented a variety of police agencies, communities, According to the NA study, two-thirds of mid- experience and education levels, and ranks. Work level managers disagreed or strongly disagreed experience ranged from 6 to 35 years, and super- that funding for crime analysis could be used bet- visory experience extended from 1 to 28 years. ter for patrol or investigation. This finding indi- Officers attending the NA are not a representative cated that managers view crime analysis funding sample of the ; however, in other as an acceptable allocation of resources. studies using these students, the participant diver- sity was similar.14 Police Culture Survey questions were based on general stra- Traditional strategies and tactics sustain the tegic and ILP implementation research.15 In this culture of policing.17 Law enforcement values

September 2012 / 15 “real police work,” rather than activity considered According to this study, supervisors accept and to be outside normal police behavior. The culture promote crime analysis and reporting. This is en- traditionally has valued random patrol, rapid re- couraging considering managers received limited sponse to service calls, and of offenders training. If instruction levels increase, ILP support over long-term focus and time-consuming inquiry may rise. needed for crime analysis. Research indicated that less than half of Conclusion crime analysts feel accepted as part of police Mid-level police managers are important in culture. They believe supervisors, not patrol of- implementing any new program. ILP is an in- ficers, understand the analysts’ role.18 However, novative strategy for improved crime control 86 percent of NA police man- and problem solving. Study agers surveyed agreed or results suggested that manag- strongly agreed that analysts ers understand and appreciate are accepted. This result is en- intelligence-led-policing for couraging. Managers can serve “ its contributions. This means as intermediaries and improve ILP is an less resistance for imple- officer-analyst relationships. innovative strategy mentation. Officers are the This may motivate analysts to for advancing crime primary source of information provide high-quality reports for analysis and application. and encourage street-level prevention Success of ILP depends on officers to use analysis. efforts. mid-level managers and street An important police su- officers meeting present and pervisor role is officer motiva- future challenges together. tor, particularly when changes occur in the organization or 19 ” Endnotes duties. Supervisors accept crime analysis as part of the culture; 85 percent 1 Marilyn Peterson, Intelligence-Led Policing: The New Intelli- encourage officers to use intelligence reports. This gence Architecture (Washington, DC: U.S. Department of Justice, Bureau of Justice Assistance, 2005). finding, in addition to analysts’ acceptance, is posi- 2 B. Taylor, A. Kowalyk, and R. Boba, “The Integration of tive news. With supervisors who are optimistic to- Crime Analysis into Law Enforcement Agencies: An Exemplary ward crime analysis, effective ILP implementation Study into the Perceptions of Crime Analysis,” Police Quarterly looks promising. 10, no. 2 (2007): 154-169. 3 H.A. Johnson, History of Criminal Justice (Cincinnati, OH: Anderson Publishing Co., 1988). Training 4 H. Goldstein, Problem-Oriented Policing (New York: Crime analysis training is necessary at all McGraw Hill, 1990). levels to educate and influence the culture to ac- 5 G.W. Sykes, “The Functional Nature of Police Reform: The 20 Myth of Controlling the Police,” Justice Quarterly 2 (1985): cept ILP. Four percent of officers stated that they 51-85. received sufficient guidance to be comfortable 6 H. Goldstein, Problem-Oriented Policing. conducting crime analysis. Over 50 percent of 7 Compstat is known by many names throughout the policing supervisors reported obtaining enough instruction industry. The New York City Police Department coined the term Compstat, which stands for COMPuter STATistics. Other terms to understand it. Sixteen percent acquired ample include ComStat (Command Status) in Newark and FastTrack, training to make them aware; yet, 30 percent re- formerly in Los Angeles. J. Eterno and I.B. Silverman, “The ceived no guidance. New York City Police Department’s COMPSTAT: Dream or

16 / FBI Law Enforcement Bulletin Nightmare?” International Journal of Police Science and Man- 13 J.E. Deukmedjian and W. de Lint, “Community into Intelli- agement 9 (2005): 218-231. gence: Resolving Information Uptake in the RCMP,” Policing and 8 L.W. Sherman, C.H. Milton, and T.V. Kelley, Team Polic- Society 17, no. 4 (2007): 239-256. ing: Seven Case Studies (Washington, DC: Police Foundation, 14 J.A. Schafer, “The Ineffective Police Leader: Acts of Com- 1973). mission and Omission,” Journal of Criminal Justice 38 (2010): 9 J. Eck and D.P. Rosenbaum, The New Police Order: Effec- 737-746. tiveness, Equity, and Efficiency in Community Policing (Thou- 15 Based on his consideration of officer familiarity, the sand Oaks, CA: Sage, 1994). author used the term crime analysis, as opposed to the phrase 10 H. Goldstein, Problem-Oriented Policing. intelligence-led policing, in the multiple survey questions. 11 W. de Lint, “Intelligence in Policing and Security: Reflec- 16 Marilyn Peterson, Intelligence-Led Policing: The New tions on Scholarship,” Policing and Society: International Intelligence Architecture. Journal of Research and Policy 16, no. 1 (2006): 1-6. 17 J.R. Greene, W.T. Bergman, and D.J. McLaughlin, “Imple- 12 D.L. Carter and J.G. Carter, “Intelligence-Led Policing: menting Community Policing: Cultural and Structural Change in Conceptual and Functional Considerations for Public Policy,” Police Organizations,” in The Challenge of Community Policing: Criminal Justice Policy Review 20, no. 3 (2009): 310-325; Testing the Promises ed. D.P. Rosenbaum (Thousand Oaks, CA: M. Maguire and T. John, “Intelligence-Led Policing, Manageri- Sage, 1994): 92-109. alism, and Community Engagement: Competing Priorities and 18 B. Taylor, A. Kowalyk, and R. Boba, “The Integration of the Role of the National Intelligence Model in the U.K.,” Polic- Crime Analysis into Law Enforcement Agencies: An Exploratory ing and Society 16, no. 1 (2006): 67-85; W. de Lint, “Intelli- Study into the Perceptions of Crime Analysts,” Police Quarterly gence in Policing and Security: Reflections on Scholarship”; and 10, no. 2 (2007): 154-1169. E.F. McGarrell, J.D. Freilich, and S. Chermak, “Intelligence-Led 19 R.S. Engel, “Patrol Officer Supervision in the Community Policing as a Framework for Responding to Terrorism,” Policing Era,” Journal of Criminal Justice 30, no. 1 (2002): 51-64. Journal of Contemporary Criminal Justice 23, no. 2 (2007): 20 Marilyn Peterson, Intelligence Led Policing: The New Intel- 142-158. ligence Architecture.

Wanted: Bulletin Honors

The FBI Law Enforcement Bulletin seeks submissions from agencies that wish to have their memorials featured in the magazine’s Bulletin Honors department. Needed materials include a short description, a photograph, and an endorsement from the agency’s ranking officer. Submissions can be e-mailed to [email protected] or mailed to Editor, FBI Law Enforcement Bulletin, FBI Academy, Quantico, VA 22135.

September 2012 / 17 Bulletin Alert

Deployment of Spike Strips

According to FBI reporting, 2011 rep- should weigh other options, such as the pit resented a deadly year for law enforcement maneuver, to end high-speed chases. Depart- officers killed while deploying spike strips to ments also can consider the increased use of end dangerous high-speed pursuits. The use aerial surveillance to track an offender’s loca- of spike strips began in 1996. Since that time, tion relative to that of an officer placing the drivers have struck and killed 26 law enforce- spike strip. Moreover, radio communication ment officers, 5 in 2011—the most since 2003, could help confirm that a subject is too far which also featured 5 officer deaths.1 In at least away to reach the location of an officer dur- one of the 2011 deaths, ing deployment. Fur- an offender intention- ther, new technology ally struck an officer. that could disable cars To place such tire- involved in high-speed deflation devices, “the chases may reduce the officer must be po- risk to officer safety. sitioned somewhere ahead of the chase... Endnotes and park his vehicle on the side of the road, 1 The Officer Down Memo- exit the vehicle, and rial Page, http://www.odmp. org/ (accessed April 2, 2012). then deploy the strip 2 Blue Sheepdog, “Are across the roadway in Spike Strips Killing Officers?” front of the suspect.”2 http://www.bluesheepdog. And, doing so “is a real danger for law enforce- com/2011/07/11/are-spike-strips-killing-officers/ (accessed ment officers. Offenders who are fleeing from April 2, 2012). 3 The Officer Down Memorial Page, “Officers Killed pursuing officers have no concern for other While Deploying Spike Strips,” http://blog.odmp. motorists, let alone the officers chasing them org/2010/09/officers-killed-while-deploying-spike.html or attempting to stop them.”3 According to one (accessed April 2, 2012). expert in law enforcement driver training and 4 Craig W. Floyd, “Spike Strips Pose Own Element of tire-deflation devices, “While these tools can Danger While Making Vehicle Pursuits Safer,” National Law Enforcement Officers Memorial Fund, http://www. ultimately make a pursuit safer for the com- nleomf.org/officers/stories/spike-strips-pose-own-element. munity, there is an element of danger in using html (accessed April 2, 2012). them. Officers should take great caution when utilizing any tire-deflation device.”4 Gregory R. McMahon, an intelligence analyst in In view of the dangers associated with spike the FBI’s Violent Criminal Threat Section, Criminal strip deployment, law enforcement agencies Investigative Division, prepared this Bulletin Alert.

18 / FBI Law Enforcement Bulletin Notable Speech

Law Enforcement a commitment to justice. I’m talking about justice: Do It J-U-S-T-I-C-E J-U-S-T-I-C-E. Not all people are cut out for police By G.B. Jones, M.A.P.A., M.A. work, and not all people read those letters the same way. But, to those of us who have answered the call to become police professionals, those letters represent a commitment that is central to who we are, how we act, and what we represent. Justice is an essential component of the demo- cratic rule of law, and it is a fundamental respon- sibility of . In fact, our system of laws, law enforcement, and is called the justice system. I work for and represent today the FBI—a component of the U.S. Department of Justice. Not surprisingly, The Pledge of Allegiance ends with “and justice for all.” Finally, Superman, Wonder Woman, Aqua Man, and all the other Superfriends were headquartered at the Hall of Justice. Coinci- dence? I think not. Those of you in this class have chosen to pursue the most noble of all professions and, in so do- ing, have dedicated yourselves to the service of © iStockphoto.com justice. ongratulations, graduates, and thank you Nearly 20 years ago, I met someone who had Cfor inviting me to speak to you today. a very strong sense of justice and dreamed of one Thank you, family, friends, instructors, and law day becoming a police officer. When we met, I was enforcement colleagues, for your presence here a rookie cop working the evening shift on a very today. Your support helped get these graduates cold Minnesota December night. It was so cold, through their training, and your support will keep the fashion police took the night off. In fact, it them grounded as they face the challenges of po- was so cold, I was wearing one of those furry cold licing our neighborhoods and communities. What weather caps made famous in the movie Fargo. a great honor and opportunity to address you on You know the one—fuzzy ear flaps with a badge this, the kickoff night of your new careers. Thank on the forehead. But, as I walked into the police you, WCTC Fall Class of 2011, for your commit- department with my field training officer (FTO), ment to the cause of justice. I noticed a striking blonde police reservist talking with several other officers. I never had met her Honorable Profession before, but I’ll never forget the first words she ever President Calvin Coolidge once said, “No one spoke to me: “Nice dork hat.” Of course, my reply is compelled to choose the profession of a police to my FTO was “Who’s the loudmouth in the cor- officer, but having chosen it, everyone is obliged ner?” I didn’t yet understand that loudmouth was to live up to the standard of its requirements.”1 A to be my wife. A year later, I pulled her over on a commitment to the vocation of law enforcement is traffic stop and proposed to her. We celebrated our

September 2012 / 19 18th anniversary this year. That is justice. Just 7 U: Be understanding. People do stupid months ago, and 20 years after she set her sights things. You will do stupid things. Stupid on becoming a police officer, she was sworn in as things will happen. Look for the motives and a rookie patrol officer in the Town of Beloit. Win- the motivations. Work to understand them. Be ter on the night shift is quickly approaching, and I even tempered. Give the benefit of the doubt just bought her a fuzzy hat with ear flaps. Now that when it is warranted. Be empathetic. If you truly is justice. can’t walk a mile, take at least a few steps in someone else’s shoes. It is not us versus them. High Standards We are them. Be understanding. Graduates, as you start your law enforcement S: Be service-minded. You have commit- careers, I ask that you keep justice at the forefront ted yourself to a calling that is greater than of your mind: J-U-S-T-I-C-E. yourself. Don’t forget that. You understand J: Be just. Be fair and open-minded. Be even- now that this is a service business. But, with handed and professional in your dealings with the long hours, late shifts, missed holidays, everyone. Honor your family, your partners, poor diets, and stress, you may be tempted your bosses, and your public. Respect the to forget that. Your jobs exist because there Constitution, and protect civil rights. Demon- are people who need your service. Not all of strate your commitment to others by treat- them will thank you for it. In fact, most will ing them fairly, without bowing to pressure, not. But, many will, and the silent majority is bias, or prejudice. Being just means not being behind you and will remain so if you work to judgmental. Your job is to introduce others to keep them there. Be service-minded. the justice system. It is not to judge them or convict them. Be just. T: Be trustworthy. Your word is your honor. Your actions are your currency. It has taken you a lifetime to build your character. It will Assistant Special Agent in take you a minute to destroy it. Be trustwor- Charge Jones of the FBI’s thy, and people will trust you. Work to earn Milwaukee, Wisconsin, office delivered this speech and maintain that trust. Respect your ethical at the fall 2011 graduation compass. You know the difference between ceremony of the Waukesha right and wrong. Trust your instincts, and County Technical College Law Enforcement Recruit do the right thing. Be trustworthy in all you Academy in Pewaukee on do—your family, your partners, and your December 8, 2011. public expect it. Your leaders, lawmakers, and the courts demand it. Set the example; don’t become the example. Be trustworthy. I: Be intelligent. That means more than just being smart and being willing to learn. It means identifying and using intelligence to inform your decision-making and your polic- ing strategies. You are entering law enforce- ment in the post-9/11 world, and intelligence is a part of that culture. What you see and what you learn on the street can inform and

20 / FBI Law Enforcement Bulletin impact you and your department, but it also are and what they do. Look for the gaps and can impact our national security. You have ac- the seams in our ’s security and work cess to more information and intelligence net- together to close them. Be collaborative. works than ever before. Use that access. Talk E: Be enthusiastic. You’ve been given the op- to people, not at people, and you will develop portunity to do the greatest job in the world. a human intelligence network. Leverage Appreciate it. Work hard in whatever you that network. Share that human intelligence. do, and have fun while you are doing it. As Use it to contribute to the homeland security a police officer, you are a role model. Be a intelligence apparatus. The security of our positive one. Be busy—stop lots of cars and families, our communities, and our nation make lots of contacts. But, make them posi- demands it. Be intelligent. tive contacts. That traffic stop may be 1 of 10 or 12 for you C: Be collaborative. that day. But, the person you There was a time when encounter will remember that law enforcement was not one stop forever. Be respect- considered a team sport. “ Be just, ful with your enthusiasm. One riot, one ranger. understanding, Never, ever forget that nearly You and your squad car, service-minded, every crime has a victim. alone against the world. trustworthy, intelligent, Protect the weak, but don’t Sure, you had partners collaborative, and be afraid to challenge those out there, but they were enthusiastic. who are strong when they are to meet for coffee, not to wrong. With the great days, drag around with you to you’re going to have some your good calls. Firefight- bad days. You’ll have some ing, by contrast, always trying days and some scary has been a team sport. ” days. But, as a professional, Four firefighters respond to a fire in one truck. you can control what that looks like on the They work together to put the wet stuff on outside. Be enthusiastic. the red stuff, then they go back to the station and polish the truck. In the post-9/11 world, Conclusion police officers have to be collaborative. You Congratulations on your graduation, and good have to be a team player. Police officers today luck as you move forward with your careers. Be are asked to be part doctor, part lawyer, part just, understanding, service-minded, trustworthy, psychiatrist, part teacher, part garbage col- intelligent, collaborative, and enthusiastic. That is lector, and at least part law enforcer. You’ve the practice of justice. Use what you’ve learned, met some great friends and had some great and keep on learning. Practice your skills. Be instructors during the last 13 weeks. Build safe. Law enforcement is not a job. It is a calling. and maintain those networks. But, expand You’ve committed yourself to that responsibility. your networks through collaboration. Meet Now, go do it justice! firefighters, teachers, emergency profes- sionals, public health officials, military and Endnotes National Guard members, and, yes, even 1 http//josephsoninstitute.org/quotes/quotations. federal agents. Work to understand who they php?q=Policing,%20crime (accessed January 4, 2012).

September 2012 / 21 Legal Digest

Qualified Immunity How It Protects Law Enforcement Officers By RICHARD G. SCHOTT, J.D.

© Thinkstock.com aw enforcement person- defenses available in a civil has provided additional nel expose themselves case.2 Additionally, law enforce- guidance regarding the protection L to risks every day. Those ment personnel are protected by afforded by qualified immunity, risks include the possibility of the doctrine of qualified im- including three cases decided this being sued civilly for something munity. In 1982, 11 years after past term. they did while performing law its Bivens decision, the Supreme This article will provide enforcement duties. While act- Court provided the modern a historical discussion of the ing in the scope of their em- standard for determining wheth- doctrine of qualified immunity, ployment, federal, state, and er a government employee is review the changes the Supreme local officers can be sued for in- entitled to qualified immunity.3 Court has provided to determine tentionally violating a person’s Since then, the test for whether whether qualified immunity constitutional rights.1 qualified immunity is appropri- should apply in a particular case, Like anyone else facing a ate in a particular case has and summarize three very recent lawsuit, officers have various been applied differently, but Supreme Court cases addressing defenses available to assert in the scope of its protection has this issue and how these deci- their defense. Of course, these remained unchanged. Over sions impact the law enforcement include all of the traditional the past 12 years, the Supreme community.

22 / FBI Law Enforcement Bulletin QUALIFIED IMMUNITY undue interference with their the President of the United DOCTRINE duties and from potentially States. For executive of- disabling threats of liability.”5 ficials in general, however, Clearly Established Law Justice Powell, writing for the our cases make plain that While law enforcement offi- Court, continued by recognizing qualified immunity repre- cers recognize the inherent risks that sents the norm. [W]e of their occupation, they should [o]ur decisions have recog- [have] acknowledged that be comforted by the description nized immunity defenses high officials require greater given by the Supreme Court of two kinds. For officials protection than those with as to the effect of the qualified whose special functions or less complex discretionary immunity doctrine on one of constitutional status requires responsibilities.6 those inherent risks—that of complete protection from Based on this reasoning, being sued civilly. In Harlow v. suit, we have recognized Harlow—Nixon’s aide—was Fitzgerald, the Court explained the defense of “absolute entitled not to absolute im- that “government officials per- immunity.” The absolute munity, but, rather, to qualified forming discretionary functions immunity of legislators, immunity. generally are shielded from li- in their legislative func- The Court then reexamined ability for civil damages insofar tions, and of judges, in their its earlier treatment of qualified as their conduct does not violate judicial functions, now is immunity. Prior to this case, clearly established statutory or well settled. Our decisions qualified or “good faith” immu- constitutional rights of which a also have extended absolute nity included both an objective reasonable person would have immunity to certain officials and a subjective aspect. The known.”4 The plaintiff in Har- of the Executive Branch. subjective aspect involved low, A. Ernest Fitzgerald, sued, These include prosecutors determining whether the gov- among others, President Rich- and similar officials, ex- ernment actor in question took ard M. Nixon and one of his ecutive officers engaged in his “action with the malicious aides, Bryce Harlow, alleging adjudicative functions, and intention to cause a deprivation that he was dismissed from his employment with the Air Force in violation of his First Amend- ment and other statutory rights. The sought im- munity from the lawsuit. While ruling on the issue of immu- …law enforcement nity, the Supreme Court distin- “ personnel are guished the president from his protected by the aide. First, the Court noted that doctrine of qualified its “decisions consistently have immunity. held that government officials are entitled to some form of immunity from suits for dam- ages. As recognized at common law, public officers require this Special Agent Schott” is a legal instructor at the FBI Academy. protection to shield them from

September 2012 / 23 of constitutional rights or incompetent or those who the magistrate judge had re- other injury.”7 This subjective knowingly violate the law.”10 viewed a detailed itemization determination typically would Stated differently (but just as of the firearms in the applica- require discovery and testimony comforting to law enforcement tion for the search warrant, the to establish whether malicious officers), officers are not liable search warrant itself did not intention was present. Having for damages “as long as their include any such itemization. to go through the costly process actions reasonably could have Rather, the ATF agent inad- of discovery and trial, however, been thought consistent with the vertently “typed a description conflicted with the goal of rights they are alleged to have of respondent’s two-story blue qualified immunity to allow for violated.”11 As protective as the house rather than the alleged the “dismissal of insubstantial language in these post-Harlow stockpile of firearms.”14 lawsuits without trial.”8 cases would suggest qualified The homeowner sued the Recognizing this dilemma, ATF agent for a violation of the Court altered the test to his Fourth Amendment right determine whether qualified to be free from “unreasonable immunity was appropriate. searches and seizures.”15 Of The new test, as stated earlier, While law course, the Fourth Amendment is that “government officials enforcement officers also mandates that search war- performing discretionary recognize the rants “particularly describ[e] functions generally are shielded inherent“ risks of their the place to be searched, and from liability for civil damages occupation, they the persons or things to be insofar as their conduct does should be comforted seized.”16 Despite this clear not violate clearly established by the…effect of the mandate, the ATF to statutory or constitutional qualified immunity the civil lawsuit argued that he rights of which a reasonable doctrine…. was entitled to qualified immu- person would have known.”9 By nity because even if the im- applying the reasonable person properly written search warrant standard, the Supreme Court constituted a Fourth Amend- established, for the first time, ment violation, his failure to a purely objective standard to immunity is, qualified immu- include a particular descrip- determine whether granting a nity is not appropriate if a law tion did not violate a clearly government official qualified enforcement officer violates” a established right at the time. immunity was appropriate. clearly established constitutional The Court quickly dispatched While Harlow did not right. the notion that the inadequate involve a law enforcement For example, in Groh v. warrant was simply a “technical officer’s actions, the deci- Ramirez, a special agent for the mistake or typographical er- sion is significant because law Bureau of Alcohol, Tobacco, and ror” that did not rise to the level enforcement officers are gov- Firearms (ATF) applied for and of a constitutional violation.17 ernment officials who perform received from a U.S. magistrate Finding the violation, the Court discretionary functions and may judge a search warrant authoriz- turned to whether the right was be protected by qualified im- ing the search of a home located clearly established at the time munity. This shield of immunity on a ranch.12 The purpose of the the violation occurred. is an objective test designed search was to locate and seize a The Supreme Court used de- to protect all but “the plainly “stockpile of firearms.”13 While cisive language to show that the

24 / FBI Law Enforcement Bulletin homeowner’s rights had been afforded the deputies qualified specific, if only short-lived, clearly established before the immunity because even when guidance on how and in what violation in this particular case based on a favorable view of order to apply the two-part test. occurred. The Court pointed out the plaintiffs’ allegations, there In Saucier v. Katz, a protestor that “the particularity require- simply was no violation of due at an event that included Vice ment is set forth in the text of process. The court noted that to President Albert Gore, Jr., was the Constitution.”18 The Court violate the Due Process Clause, arrested by a military police then referred to a previous deci- the deputies had to intend to officer.23 The arrested protes- sion by the Court in this area, cause harm, and that had not tor sued the officer, alleging stating, “as we noted nearly 20 been the case.21 Rather, the that during the , excessive years ago in Sheppard: ‘The [deputy’s] “instinct was to do force was used, which violated uniformly applied rule is that his job as a law enforcement his Fourth Amendment rights. a search conducted pursuant to officer, not to induce [the dece- The officer’s request for quali- a warrant that fails to conform dent’s] lawlessness, or to terror- fied immunity was denied by to the particularity requirement ize, cause harm, or kill.”22 both the district court and by of the Fourth Amendment is the U.S. Court of Appeals for unconstitutional.’”19 Accord- the Ninth Circuit.24 In denying ingly, the request for qualified qualified immunity on the issue immunity was rejected. of excessive force, the Ninth Constitutional Violation/ Circuit first found that the “law Objective Reasonableness governing the official’s conduct Even if the law is clearly was clearly established,” focus- ing on the general right to be established, the law enforce- 25 ment officer is entitled to free from excessive force. The qualified immunity if there was Ninth Circuit then concluded no constitutional violation in that the reasonableness inquiry the first place. For example, in © Thinkstock.com into the amount of force used County of Sacramento v. Lewis, should be determined by a jury, the deputies involved in a fatal While the two determina- ruling out qualified immunity high-speed pursuit were sued by tions into whether qualified im- for the officer. the decedent’s parents for a due munity should apply have been The Supreme Court dis- process violation.20 The alleged well-settled, which of the two agreed with the Ninth Circuit constitutional violation was due separate inquiries to analyze first and pointed out that its rea- process because the decedent has not been. soning would contravene the was not intentionally seized by purpose of granting qualified the deputies, but, rather, ac- APPLICATION OF THE immunity at an early stage of cidentally struck by one of the QUALIFIED IMMUNITY court proceedings “so that the deputies after the motorcycle TEST costs and expenses of trial are being pursued crashed in front Almost 30 years after the avoided where the defense is of the pursuing deputies. The Supreme Court provided the ob- dispositive.”26 To satisfy this decedent, in fact, had merely jective test to determine whether purpose, the Supreme Court been a passenger on the mo- qualified immunity should be ruled that the first inquiry into a torcycle. The Supreme Court afforded a defendant, it provided request for qualified immunity

September 2012 / 25 must be whether a constitutional in finding qualified immunity of Appeals that found itself in right would have been violated appropriate, the Court deviated the position—“unnecessarily to on the facts alleged; then, and from its own pronouncement decide difficult constitutional only if the answer to the first from 3 years earlier in Saucier. questions when there [was] inquiry is affirmative, does the In a per curium opinion in available an easier basis for the question of whether the right Brousseau, the Court found in decision”—of whether quali- was clearly established at the this case that the officer’s use of fied immunity should apply, the time of the alleged violation force—shooting an unarmed but Supreme Court modified the have to be answered. The Su- “disturbed felon, set on avoid- mandatory formula it set forth preme Court also disagreed with ing capture through vehicular in Saucier. 32 the Ninth Circuit’s rationale that flight”—fell in the “hazy border In 2009, the Supreme Court only a jury could decide wheth- between excessive and accept- decided Pearson v. Callahan.33 er the force used in this instance able force.”30 The case involved the warrant- was excessive, making its two- less arrest of a subject at his step approach workable even in home immediately following his excessive force claims.27 sale of illegal drugs to a police While the Supreme Court’s informant. The arresting officers guidance in Saucier provided In an effort to mitigate relied on the notion of “con- a mandatory two-inquiry test the costs and burden sent once removed” to make to be used for future qualified “of defending oneself entry into the home following immunity cases and while that from a lawsuit, the informant’s drug purchase. test was effective for the facts government actors are The arrested homeowner sued at hand, rigid compliance to the entitled to assert the arresting officers, asserting two-step inquiry soon fell out immunity as a barrier that the warrantless entry of his of favor. Lower courts struggled to being sued. home was a Fourth Amendment to apply Saucier because it was violation, arguing that “consent not always practical to decide once removed” was limited to whether a constitutional viola- an undercover officer being tion occurred before addressing invited in and that it did not ap- whether the constitutional right Because of the close-call ply in cases where an informant at issue had been clearly estab- nature as to whether the amount was invited in. lished. While some lower courts of force used was reasonable, The officers requested quali- began deviating from the Su- the Court granted qualified” im- fied immunity. The district court preme Court’s rigid two-inquiry munity based on the lack of a deemed that they were entitled approach, others were at least clearly established right, rather to immunity. The U.S. Court of expressing frustration with it.28 than any possible constitutional Appeals for the Tenth Circuit Even the Supreme Court itself violation or lack thereof. Based methodically applied the two- did not always see fit to follow on the Supreme Court’s earlier pronged inquiry handed down its own mandate. In Brousseau decision in Saucier, however, by the Supreme Court 6 years v. Haugen, another excessive that was exactly the dilemma earlier and determined that the force allegation against a law the Ninth Circuit found itself grant of qualified immunity enforcement officer was re- in when deciding Brousseau.31 was improper.34 Recognizing solved by affording the officer Recognizing that it was not that the “Saucier procedure has qualified immunity.29 However, only the Ninth Circuit Court been criticized by Members of

26 / FBI Law Enforcement Bulletin this Court and by lower court the Supreme Court has ruled on the officers got called away, judges, who have been required three qualified immunity cases Bowen showed up, and a violent to apply the procedure in a involving law enforcement/pub- encounter ensued. Kelly was great variety of cases and thus lic safety personnel in just the able to get to her car and at- have much firsthand experi- past several months. tempted to flee. However, before ence bearing on its advantages she could, Bowen got a black, and disadvantages,” the Court, 2012 QUALIFIED sawed-off shotgun with a pistol in granting certiorari, “directed IMMUNITY CASES grip, ran in front of Kelly’s car, the parties to address the ques- In Messerschmidt v. Mil- pointed the gun at her, and told tion whether Saucier should lender, the Supreme Court ruled her that if she tried to leave, he be overruled.”35 A unanimous that officers were entitled to would kill her. When she sped Court softened the mandatory qualified immunity.38 Like the away, Bowen fired at the car five nature of the Saucier approach, Groh v. Ramirez case discussed times, blowing out the car’s left receding from without totally earlier, this case involved offi- front tire, but did not prevent abandoning it. Justice Alito, cers executing a search warrant her escape. Kelly found police writing for the entire Court, officers, described the incident, stated that “[o]n reconsidering and mentioned that Bowen was the procedure required in Sauc- a member of the Mona Park ier, we conclude that, while Crips—a local street gang—and the sequence set forth there is provided a picture of Bowen. often appropriate, it should no The named defendant in the longer be regarded as manda- subsequent civil lawsuit, Detec- tory. The judges of the district tive Curt Messerschmidt, was courts and the courts of appeals assigned to investigate. Kelly should be permitted to exercise provided to Messerschmidt their sound discretion in decid- the address of Bowen’s foster ing which of the two prongs of mother as a probable location the qualified immunity analysis for him. She also advised him should be addressed first in © shutterstock.com of Bowen’s gang connections. light of the circumstances in the later determined to be invalid.39 Through independent investiga- particular case at hand.”36 Not A detailed review of the facts tion, Messerschmidt confirmed surprisingly, in the case before leading up to the civil lawsuit Bowen’s connection to the foster them, the Court found the issue at issue in Messerschmidt is re- mother’s address and that Bo- of qualified immunity easier quired to appreciate the Court’s wen was an active gang member. to determine based on whether holding.40 In reviewing Bowen’s 17-page any violation (if one occurred at When Shelly Kelly decided criminal history, Messershmidt all) was of a clearly established to leave her boyfriend Jerry learned that Bowen had been right. Here, the Court found that Ray Bowen, she requested the arrested on at least 31 occasions, at the time of the officers’ presence of Los Angeles including 9 times for firearms actions, it was not clearly estab- County, , Sheriff’s offenses. lished that those actions were Department officers while she Based on his investigation, unlawful.37 packed her things because of Messerschmidt obtained a search With the now-flexible Bowen’s past violent actions warrant for the foster mother’s Saucier test in place for 3 years, against her and others. When home, authorizing the search

September 2012 / 27 for and seizure of, among other curtailment of further crimes “warrant’s authorization to items, “All handguns, rifles, being committed.’”42 Before search for firearms was uncon- or shotguns of any caliber, or submitting the application stitutionally overbroad because any firearms capable of fir- and affidavits to a magistrate, the ‘crime specified here was a ing ammunition, or firearms or a sergeant and a lieutenant in physical assault with a very spe- devices modified or designed Messerschmidt’s department, cific weapon’—a black sawed- to allow it [sic] to fire ammuni- as well as an assistant district off shotgun with a pistol grip— tion. Any firearm capable of attorney, reviewed Messer- negating any need to ‘search for firing or chambered to fire any schmidt’s work. A magistrate all firearms.’”43 The district caliber ammunition. Articles of issued the warrant, and officers court also found the warrant evidence showing street gang executed the search 2 days later. overbroad in that it allowed for membership or affiliation with The officers, including Detec- the seizure of gang-related any Street Gang to include but tive Messerschmidt, seized only materials, but there “was no not limited to any reference to evidence that the crime at issue ‘Mona Park Crips,’ including was gang-related.”44 writings or graffiti depicting On appeal to the Ninth gang membership, activity, or Circuit Court of Appeals, the identity.”41 ...the law three-judge panel reversed, Messerchmidt prepared two enforcement officer finding that the officers were affidavits to support his warrant is entitled to qualified entitled to qualified immunity request. The first described “immunity if there because “they reasonably relied Messerschmidt’s extensive was no constitutional on the approval of the warrant law enforcement experience, violation in the first by a deputy district attorney including his lengthy work place. and a judge.”45 However, the en involving gang-related crimes. banc Court of Appeals granted The second affidavit, which was a rehearing and reversed the expressly incorporated into the three-judge panel, denying search warrant, described the qualified immunity because the incident between Bowen and the foster mother’s shotgun, a affidavits and warrant “failed to Kelly in great detail, to include box of .45 caliber ammunition, ‘establish that a discussion of the sawed-off and a California Social Services the broad categories of firearms, letter addressed to Bowen.” shotgun used in the assault. firearm-related material, and The affidavit also requested The Millenders (Bowen’s gang-related material described that the search be allowed to foster mother and her daugh- in the warrant were contraband take place at night because ter) subsequently filed a civil or evidence of crime.’”46 of Bowen’s gang ties. “The lawsuit in federal court suing, The Supreme Court began affidavit concluded by noting among others, Detective Mess- its analysis of the qualified im- that Messerschmidt ‘believe[d] erschmidt, alleging that the munity issue by pointing out that the items sought’ would be search warrant at issue was in- that “[w]here the alleged Fourth in Bowen’s possession and that valid under the Fourth Amend- Amendment violation involves ‘recovery of the weapon could ment. The federal district court a search or seizure pursuant to be invaluable in the success- ruled against the individual a warrant, the fact that a neutral ful prosecution of the suspect defendants as to qualified im- magistrate has issued a warrant involved in this case, and the munity and found that the is the clearest indication that the

28 / FBI Law Enforcement Bulletin officers acted in an objectively Chief Justice Roberts then presented in the affidavits— reasonable manner or, as we turned to the authority to seize alone or taken together—actual- have sometimes put it, in ‘objec- gang paraphernalia during the ly did establish probable cause. tive good faith.’”47 But, Chief search. Following a brief dis- The Court pointed out that this is Justice Roberts, writing for the cussion of the potential uses for because the “‘officers’ judgment majority, goes on to say that the evidence of Bowen’s member- that the scope of the warrant was magistrate’s issuance of a war- ship in a gang, Roberts con- supported by probable cause rant is not the end of the quali- cludes by simply stating, may have been mistaken, but it fied immunity inquiry. Qualified “[w]hatever the use to which was not ‘plainly incompetent.’”52 immunity still will “be lost, evidence of Bowen’s gang This is consistent with one of for example, where the war- © shutterstock.com the goals of qualified immuni- rant was ‘based on an affidavit ty, which is to “give govern- so lacking in indicia of prob- ment officials breathing room to able cause as to render official make reasonable but mistaken belief in its existence entirely judgments.”53 unreasonable.’”48 The Court did The Supreme Court decided not find this to be the situation two other qualified immunity in this case. Accordingly, the cases shortly after ruling in Court found that qualified im- Messerschmidt. In Filarsky v. munity was appropriate. Delia, the city of Rialto, Cali- With respect to the authori- fornia, hired Steve Filarsky, a zation to seize all firearms, the private attorney, to assist in the Court noted that “it would not internal investigation into one be unreasonable for an officer to of its firefighters named Nicho- conclude that there was a ‘fair involvement might ultimately las Delia.54 The city suspected probability’ that the sawed-off have been put, it would not have that the firefighter remained shotgun was not the only fire- been ‘entirely unreasonable’ on medical leave when he was arm Bowen owned,” and it “cer- for an officer to believe that the capable of returning to work. tainly would have been reason- facts set out in the affidavit es- The city initiated surveillance on able for an officer to assume that tablished a fair probability that Delia and observed him purchas- Bowen’s sawed-off shotgun was such evidence would aid the ing building supplies. Thinking illegal.”49 Therefore, Chief Jus- prosecution of Bowen for the Delia was doing a project at his tice Roberts continued, “a rea- criminal acts at issue.”51 home, rather than returning to sonable officer could conclude Because reasonable offi- work, the city ordered him to that there would be addition- cers could have reached these appear for an interview where al illegal guns among others that conclusions on the items to be Filarsky was present. After Bowen owned.”50 Chief Justice seized, it cannot be said that confronting Delia with their Roberts also explained that a the officers in this case violat- suspicions, fire department offi- reasonable officer could believe ed anyone’s clearly established cials asked for consent to search that seizing all firearms rather statutory or constitutional rights Delia’s home to see whether the than just the sawed-off shotgun of which a reasonable person work was ongoing or completed. could be necessary to prevent would have known. Therefore, He refused to provide consent, Bowen from using a different the Court did not have to deter- but was compelled by the de- weapon to do harm to Kelly. mine whether the facts partment to produce the building

September 2012 / 29 materials onto his lawn so that immunity not only to public The defendants in the the city officials could be sure employees but also to others civil suit were Secret Service he had not been working at his acting on behalf of the govern- agents assigned to protect Vice home during his medical-related ment similarly serves to ‘ensure President Richard Cheney while absence from work. that talented candidates [are] not he visited a shopping mall in Delia brought a civil lawsuit deterred by the threat of dam- Beaver Creek, Colorado, in against numerous individuals, ages suits from entering public 2006. When one of the agents including the private attorney, service.’”57 The Court noted overheard Steven Howards for a violation of his Fourth the hypocrisy that would result say he was going to ask the Amendment rights. Initially, the if some people doing a job for vice president an inflammatory federal district court granted the government could be sued question, the agents watched summary judgment to all of the personally, while government Howards closely. The agents individual defendants based employees performing the same saw Howards approach Cheney, on qualified immunity because tasks would be protected by make a comment to him, and there had not been a violation qualified immunity. touch the vice president before of a clearly established right.55 walking away. When questioned However, the Ninth Circuit by the agents, he denied touch- Court of Appeals concluded that ing the vice president. Howards while the order to produce the was arrested and charged with materials from his home onto harassment under Colorado his lawn did violate Delia’s law. That charge was dismissed, Fourth Amendment rights, the but Howards brought a civil court ruled that all defendants lawsuit claiming both First and except for Filarsky, the private Fourth Amendment violations. attorney, were entitled to quali- After the U.S. District Court fied immunity because that right for the District of Utah denied was not clearly established at the agents’ request for qualified the time the order was given.56 immunity, the Circuit Court of Finding no dispute that qualified © Thinkstock.com Appeals for the Tenth Circuit immunity was appropriate in the concluded that because the case, the Supreme Court agreed Finally, the Supreme Court agents had probable cause to only to determine whether the also entertained a qualified arrest Howards, they enjoyed private attorney also was entitled immunity case involving Secret qualified immunity from the to its protection even though he Service Vice Presidential Fourth Amendment claim. worked for the government on Protective Detail members in However, the Tenth Circuit something other than a perma- Reichle v. Howards.58 The issue denied qualified immunity as to nent or full-time basis. in the case was not whether the First Amendment allegation. The Supreme Court found no the Secret Service agents had The Supreme Court reversed, reason to differentiate between probable cause to arrest, but affording qualified immunity the other defendants in this case whether they were immune from the First Amendment al- and Filarsky. In fact, the Court from the suit that alleged the legation as well. found several reasons for treat- arrest was in retaliation for The Court used its pre- ing them the same. Among those political speech protected by the rogative of first considering reasons was that “[a]ffording First Amendment. the “clearly established” prong

30 / FBI Law Enforcement Bulletin of the two-prong inquiry into being sued. It is comforting, 3 Supra note 1; and Harlow v. Fitzger- whether qualified immunity was though, to know that the pur- ald, 457 U.S. 800 (1982). 4 Supra note 3 at 818. available in reaching its conclu- pose of qualified immunity is to 5 Id. at 806 (emphasis added). sion. To be clearly established, protect all but “the plainly in- 6 Id. at 807 (internal citations omitted). the Court reminded, “a right competent or those who know- 7 Id. at 815 (citing Wood v. Strickland, must be sufficiently clear ‘that ingly violate the law.”61 As this 420 U.S. 308, 322 (1975) (emphasis in every reasonable official would article has demonstrated, the original)). 8 Supra note 4 at 814. [have understood] that what he test to determine whether quali- 9 59 Supra note 6. was doing violates that right.’” fied immunity should be afford- 10 Malley v. Briggs, 475 U.S. 335, 341 Because “[t]his Court has never ed officers has changed over the (1986). recognized a First Amendment years, but the objective nature 11 Anderson v. Creighton, 483 U.S. 635, right to be free from a retalia- of the doctrine itself has re- 645 (1987). 12 tory arrest that is supported by mained unchanged for nearly 30 540 U.S. 551 (2004). 13 Id. at 554. probable cause[,] nor was such years. This objective determi- 14 Id. a right otherwise clearly estab- nation often shields competent 15 U.S. Const. Amend. IV. lished at the time of Howards’ law enforcement officers from 16 Id. (emphasis added). arrest,” it stood to reason that defending a suit itself, much 17 Id. at 558. 18 the Secret Service agents in- less from being found liable at Id. at 563. 19 Id. at 564 (quoting Massachusetts v. volved in Howards’ arrest were the conclusion of a suit. Sheppard, 468 U.S. 981, 988, n. 5). 60 entitled to qualified immunity. 20 523 U.S. 833 (1998). Endnotes 21 U.S. Const. Amend. XIV, which states, in pertinent part, “[N]or shall any 1 42 U.S.C. §1983 provides this statu- CONCLUSION State deprive any person of life, liberty, or tory remedy against state and local law Law enforcement is a dif- property, without due process of law.” enforcement officers, while the Supreme 22 Supra note 20 at 855. ficult profession. It presents Court created the same cause of action to many challenges and risks, as 23 533 U.S. 194 (2001), receded from, be taken against federal law enforcement Pearson v. Callahan, 555 U.S. 223 well as great rewards, to those agents in Bivens v. Six Unknown Named (2009). who undertake it. One of the Agents of Federal Bureau of Narcotics, 24 Id. at 199. risks associated with law en- 403 U.S. 388 (1971). For a full discourse 25 194 F.3d 962, 967 (9th Cir. 1999). forcement is the possibility of on the cause of action itself and the ele- 26 Supra note 23 at 200. ments required for the officer or agent to 27 being sued civilly for an action Id. at 201-209. be found liable, see R. Schott, “Double 28 See, e.g., Egolf v. Witmer, 526 F.3d taken in the course and scope of Exposure: Civil Liability and Criminal 104 (3rd Cir. 2008); Robinette v. Jones, one’s employment. In an effort Prosecution in Federal Court for Police 476 F.3d 585 (8th Cir. 2007); and Ehrlich to mitigate the costs and bur- Misconduct,” FBI Law Enforcement Bul- v. Town of Glastonbury, 348 F.3d 48 (2nd letin, May 2008, 23-32. Cir. 2003). den of defending oneself from 2 a lawsuit, government actors Fed. R. Civ. P. 12(b) sets forth the 29 543 U.S. 194 (2004). time frame and the required manner in 30 Id. at 200; and Id. at 201, quoting are entitled to assert immunity which to assert traditional defenses, such Saucier v. Katz, 533 U.S. 194, 206. as a barrier to being sued. For as “lack of subject matter jurisdiction,” 31 The Ninth Circuit did find that taken law enforcement officers, the “improper venue,” and “failure to state a in the light most favorable to the party as- level of immunity available is claim upon which relief can be granted.” serting injury, the officer’s actions violated qualified immunity. As the name The rule also makes clear that “[i]f a a constitutional right and that the right had pleading sets out a claim for relief that been clearly established. Haugen v. Brous- implies, this type of immunity is does not require a responsive pleading, seau, 339 F.3d 857 (9th Cir. 2003). protective, but is not an absolute an opposing party may assert at trial any 32 Supra note 28 (Breyer, J., concur- guarantee against successfully defense to that claim.” ring).

September 2012 / 31 33 555 U.S. 223 (2009). 45 Millender v. County of Los Angeles, 51 Id. at 1248-1249 (quoting United 34 Callahan v. Millard Cty, 494 F.3d 891 564 F.3d 1143, 1145 (9th Cir. 2009). States v. Leon, 468 U.S. at 923). (10th Cir. 2007), cert. granted, 552 U.S. 46 Supra note 38 at 1244 (quoting Mil- 52 Id. at 1249 (quoting Malley v. Briggs, 1279 (2008). lender v. County of Los Angeles, 620 F.3d 475 U.S. 335, 341 (1986)). 35 Supra note 33 at 231. 1016, 1033 (9th Cir. 2010)). 53 Id. (quoting Ashcroft v. al-Kidd, 36 Id. at 236. 47 Id. at 1245 (quoting United States v. 563 U.S. ___, ___, 131 S. Ct. 2074, 2085 37 Id. at 245. Leon, 468 U.S. 897, 922-923 (1984)). The (2011)). 38 __U.S.___, 132 S. Ct. 1235 (2012). Court goes on in a footnote following this 54 ___ U.S. ___, 132 S. Ct. 1657 (2012). 39 Supra note 12. quote to point out that while Leon involved 55 Id. at 1661. 40 This recitation of facts is from the the proper application of the exclusionary 56 Id. Supreme Court opinion, supra note 35. rule to remedy a Fourth Amendment viola- 57 Id. at 1665 (citing Richardson v. Only direct quotes from the opinion will tion, the same standard of objective rea- McKnight, 521 U.S. 399, 408 (1997), be cited further. sonableness defines the qualified immunity quoting Wyatt v. Cole, 504 U.S. 158, 167 41 Supra note 38 at 1242. accorded an officer who obtained or relied (1992)). 42 Id. at 1243. on an allegedly invalid warrant. 58 566 U.S. ___ (2012). 43 Id. (quoting Millender v. County of 48 Id. 59 Id. at ___, citing Ashcroft v. al-Kidd, Los Angeles, Civ. No. 05-2298 (C.D.Cal., 49 Supra note 38 at 1246 (quoting Il- 563 U.S. ___, ___, (2011), quoting Ander- Mar. 15, 2007), App. To Pet. For Cert. 106, linois v. Gates, 462 U.S. 213, 238 (1983)); son v. Creighton, 483 U.S. 635, 640 (1987). 157). and supra note 38 at 1246. 60 566 U.S. at ___ (2012). 44 Id. 50 Id. 61 Supra note 10.

Clarification

he U.S. Department of Justice’s Office of Tribal Justice and the FBI’s Legal Instruction TUnit, Office of General Counsel, provide the following clarification to the article “Indian Country and the Tribal Law and Order Act of 2010” that appeared in the May 2012 issue. The article states that the Metlakatla Tribe is not subject to PL-280. That is not accurate. All Indian country in Alaska is subject to PL-280, including the Metlakatla Tribe’s reservation. In Alaska and other areas subject to PL-280, tribes still possess authority to exercise criminal jurisdiction if they so choose. The Tribal Law and Order Act (TLOA) encourages but does not grant cross- deputization for law enforcement officers working in Indian country. The article incorrectly states that the Indian Civil Rights Act of 1968 (ICRA) prohibits the use of the exclusionary rule in tribal courts. In fact, the ICRA does not prohibit the use of the exclusionary rule in tribal courts. Also, the Major Crimes Act includes two additional criminal offenses that did not appear in the article: felony child abuse and neglect. Finally, while the TLOA provides for many important changes in the Indian country criminal justice system, the Act did not appropriate any funding for implementation. Also, the editorial staff would like to advise readers that the word “They” was left out of the first sentence on page 18 of the article “Picketers, Protesters, and Police: The First Amendment and Investigative Activity” that appeared in the August 2012 issue. The sentence should have read, “They involve war protesters, death penalty protesters, persons participating in labor dis- putes, and political protesters and take the form of marches, rallies, and boycotts.” The sentence in the August issue has been corrected in the online version.

32 / FBI Law Enforcement Bulletin Bulletin Notes

Law enforcement officers are challenged daily in the performance of their duties; they face each challenge freely and unselfishly while answering the call to duty. In certain instances, their actions warrant special attention from their respective departments. The Bulletin also wants to recognize those situations that transcend the normal rigors of the law enforcement profession.

Lieutenant Anthony Rudolph and Officers Dana Adams and Shane Haimes of the Memphis, Tennessee, Police Department’s Harbor Patrol received a dis- tress call one night concerning six stranded boaters who were low on fuel and travelling in the wrong side of the Mississippi

Lieutenant Rudolph Officer Adams Officer Haimes River channel. The boaters, in- experienced and in grave danger, were taking on 8-to-10 foot wakes that were causing their vessel to float uncontrollably in and out of commercial barging traffic. The Harbor Patrol officers made contact with the boaters after a 45-minute effort and advised them of maneuvers that would allow their vessel to stay afloat until they could be reached. Searching through the complete darkness of the river, the officers eventually discovered the six panic-stricken boaters and rescued them and their pontoon boat without incident.

Deputy Sheriff Benjamin Kirkpatrick of the Polk County, , Sher- iff’s Office was dispatched to assist fire rescue personnel on a medical call regarding a 10-month-old boy who was choking on an unknown object. Ar- riving first at the scene, Deputy Kirkpatrick discovered that the victim had stopped breathing, and he took immediate action by placing the boy over his knee to deliver back thrusts. After four or five thrusts, he saw a piece of food dislodge from the victim’s mouth. The child then began to cry and resumed breathing on his own. Deputy Kirkpatrick continued to hold and comfort him as paramed-

Deputy Sheriff Kirkpatrick ics arrived and transported the Nominations for the Bulletin Notes should be based on either the child to the hospital to confirm he was rescue of one or more citizens or arrest(s) made at unusual risk to an officer’s safety. Submissions should include a short write-up out of danger. (maximum of 250 words), a separate photograph of each nominee, and a letter from the department’s ranking officer endorsing the nomination. Submissions can be mailed to the Editor, FBI Law Enforcement Bulletin, FBI Academy, Quantico, VA 22135 or e-mailed to [email protected]. Some published submissions may be chosen for inclusion in the Hero Story segment of the television show “America’s Most Wanted.” U.S. Department of Justice Periodicals Federal Bureau of Investigation Postage and Fees Paid Federal Bureau of Investigation FBI Law Enforcement Bulletin ISSN 0014-5688 935 Pennsylvania Avenue, N.W. Washington, DC 20535-0001

Official Business Penalty for Private Use $300

Patch Call

The Astoria, Oregon, Police Department was In the background of the Bartonville, Illinois, Po- instituted in 1879 and is one of the oldest law en- lice Department patch is an outline of the state with forcement agencies in the western United States. a star indicating Bartonville’s location. The rocket The patch of its police department prominently depicted on the left is the symbol of Limestone Com- depicts the Astoria Column, built in 1920 to com- munity High School, whose art students designed the memorate the end of the railroad in the West. The patch, while the steel ladle on the right represents the column, which overlooks the city, is modeled after Keystone Steel and Wire Company. The large build- Trajan’s column in Rome. In the background is a ing at the bottom represents the Peoria State Mental section of the Astoria-Megler Bridge. Hospital, opened in 1902 and closed 70 years later.