Ninth Circuit Finds Officer Not Entitled to Qualified Immunity

Remember seeing the video of this old lady getting tased by the police officer for being too sassy during a traffic stop? Well the Ninth Circuit has held such police conduct constitutes excessive force and a violation of civil rights. Further, it found the police officer was not entitled to qualified immunity.

Here's a link to a NYT article about the case: http://www.nytimes.com/2010/01/01/us/01taser.html?hpw
And here's a link to the decision: Bryan v. McPherson, http://www.ca9.uscourts.gov/datastore/opinions/2009/12/28/08-55622.pdf.

Mr. Bryan was tased during a traffic stop for a seatbelt violation. He was upset -- shouting gibberish and hitting himself in the quadriceps -- but was unarmed, did not threaten the officer or attempt to flee.

The Court wrote:

"We thus conclude that the intermediate level of force employed by Officer McPherson against Bryan was excessive in light of the governmental interests at stake. Bryan never attempted to flee. He was clearly unarmed and was standing, without advancing in any direction, next to his vehicle. Officer McPherson was standing approximately twenty feet away observing Bryan’s stationary, bizarre tantrum with his X26 drawn and charged. Consequently, the objective facts reveal a tense, but static, situation with Officer McPherson ready to respond to any developments while awaiting back-up. Bryan was neither a flight risk, a dangerous felon, nor an immediate threat. Therefore, there was simply no immediate need to subdue Bryan before Officer McPherson’s fellow officers arrived or less-invasive means were attempted. Officer McPherson’s desire to quickly and decisively end an unusual and tense situation is understandable. His chosen method for doing so violated Bryan’s constitutional right to be free from excessive force." Slip Op. p. 16753 (internal quotes, brackets and citations omitted.)

This is an interesting case which will hopefully put the brakes on some of the abusive police practices we've seen. I'll keep an eye on it to see if it goes en banc or up to the Supreme Court.

Happy New Year to all and thanks for your readership and support over the past year.

Convictions Reversed for Failure to Sua Sponte Order Competency Examination

Yesterday the COA reversed robbery convictions where there was a question of whether the defendant was competent either to stand trial or represent himself due to delusional thinking. (The defense in the case was that the CIA, NSA and other "black ops" organizations forced the defendant to rob the banks.) The Court held that the district court erred in failing to sua sponte order a competency evaluation given the evidence of bizarre thinking prior to and during the trial. The conviction was reversed and the matter remanded for a competency hearing and a new trial if the defendant was found to be competent.

State v. Hawkins, http://www.isc.idaho.gov/opinions/Hawkins,%20Faron.pdf.

An Important Message from the Supreme Court Regarding the Extremely Short Period to File a Notice of Appeal in TPR and Adoption Cases

Here is a message from Debra Alsaker-Burke, Child Protection Program Manager at the Supreme Court:

New Appeal Deadline on Magistrate Court Decisions – Termination of Parental Rights and Adoption.

On July 1, 2009, new rule IAR 11.1 became effective. This rule provides that an appeal from an order granting or denying the termination of parental rights or an order granting or denying an adoption is appealable by right to the Supreme Court so the district court is no longer involved in these appeals and is no longer an option for such an appeal. I.A.R. 11.1 also provides that the appeal is to be expedited in accord with I.A.R.12.2. Rule 12.2 governs the expedited review for appeals brought pursuant to Rule 11.1 as well appeals in custody cases brought by way of permissive appeal pursuant to Rule 12.1 and sets out specific time limits for these appeal. It specifically states that a notice of appeal filed pursuant to 11.1 (termination or adoption) must be filed within 14 days of the order. Several of these appeals have already been dismissed for failure to file within this deadline, which is jurisdictional. In addition, several of these appeals have been significantly delayed by motions for waiver of fees or appointment of counsel on appeal. If you file one of these motions please bring it to the clerk and the court’s attention that it is an expedited appeal.

Effective January 1 appellants are also being asked to designate on the notice of appeal whether it is an expedited appeal. This order will be on the court’s website soon.

There has also been a change in I.A.R. 35 (d) regarding briefing that requires all minors to be referred to by initials or some other designation. Briefs are now scanned and placed on Lexis and this is to protect the privacy of the minor.


The Supreme Court sent out a similar warning not too long ago (See SCOIDBlog October 23, 2009, Alert: Two New Rules Affecting Parental Termination Appeals). Apparently the problem persists. So, if you work in a law firm that handles such cases be sure to alert the other attorneys in your office of the rule changes.

No Contact Orders Must Contain a Termination Date

Today, the SCOID released its opinion in State v. Cobler. Procedurally, the case came before the Court on the State's petition for review following the Court of Appeals' decision released last year. http://www.isc.idaho.gov/opinions/coblerSUB34308.pdf. (See SCOID blog from last December http://scoidblog.blogspot.com/2009/01/court-of-appeals-decided-state-v.html) The Court of Appeals previously held that the no contact order which prohibited Cobler from having any contact with all minors, violated his fundamental right to parent his children.

On review, Cobler raised multiple challenges to the no contact order. The Supreme Court, however, only addressed whether the trial court's denial of his motion to modify the order was an abuse of discretion. Importantly, the order originally issued by the magistrate judge noted it would terminate "upon dismissal of the case."

After pleading guilty and having been sentenced by the trial court, Mr. Cobler filed a motion to modify the no contact order. The order issued by the trial court vaguely stated that the motion was denied, but failed to recite the grounds upon which the district court denied the motions other than the observation that the order was to remain in effect until dismissal of the case. Given the procedural posture of the case at that point, the Supreme Court noted "the no contact order would, unless modified, have perpetual existence." Accordingly, the Court held that "the district court abused its discretion in basing the denial of the order on the apparent ground that the order was to remain in effect until the dismissal of the case."

The court also addressed Mr. Cobler's challenge to the trial court's denial of his Rule 35 motion. In support, he submitted new evidence in the form of honest remorse and good behavior while in prison. In its brief denial of Mr. Cobler's challenge, the Court noted "prison behavior is not the type of new or additional information that will support a Rule 35 motion, as it could not serve as an underlying basis for Cobler’s sentence."

The opinion can be found at: http://www.isc.idaho.gov/opinions/Cobler%20Opinion.pdf

Where the Wild Things Aren't

The Court issued two opinions last Thursday. My apologies for not posting them sooner. Both dealt with the admissibility of evidence.

In the first case, the Court upheld convictions for misdemeanor offenses of possession of wild or exotic animals and possession of deleterious exotic animals without a permit. (It is not clear from the opinion precisely what kinds of animals were being possessed, but I'm pretty sure they were Wild Things.)

The first issue on appeal was whether Payette County's passage of an ordinance banning the possession of wild or exotic animal after the defendant had already purchased property to construct a zoo violated the impairments of contract clause. The Court did not reach this issue because it found there was not sufficient evidence of a contract.

The second issue was whether the court erred in excluding copies of orders from the bankruptcy court. The Court held that there was no error because the documents, although public records, where not certified copies as defined in IRE 902(4) and required by IRE 1005(a).

State v. Korn, http://www.isc.idaho.gov/opinions/State%20v.%20Korn%20-%20FINAL.pdf

In the second case, State v. Watkins, http://www.isc.idaho.gov/opinions/State%20v.%20Watkins%20-%20FINAL.pdf, the Court reversed a conviction for L&L. At trial, the court permitted a DNA expert to testify about test results even though she was not the person who conducted the tests.

The Court held that was error to allow the expert to testify about the chain of custody because she was not the one who received the evidence. The Court also held that the expert's testimony about the results was not admissible as either a Record of Regularly Conducted Activity (IRE 803(6)) or under IRE 703 (Basis of Opinion Evidence by Experts).

Congratulations to Erik Lehtinen of SAPD!

To Scoid Blog on its First Anniversary

Scoid Blog has spent a year now offering information, great images, humor, and community. Thank you Dennis and all contributors. I don't know about you, but I can't settle down to my work day without checking out the news and views on Scoid Blog.

May it enjoy a long and happy life.

"I wanted you to see what real courage is, instead of getting the idea that courage is a man with a gun in his hand. It's when you know you're licked before you begin but you begin anyway and you see it through no matter what. You rarely win, but sometimes you do." ~Atticus Finch, To Kill a Mockingbird

Substitute Opinion in Lampien

The Court issued a substitute opinion in State v. Lampien today. The original opinion came out on October 2nd and was SCOIDBlogged in "State Breaches Plea Agreement by Opposing Rule 35 Motion When it Agreed to be Bound to Sentencing Recommendation."

The opinion has been amended by the addition of language on pages 10-11 and 13 explaining why the breach of plea agreement issue was adequately preserved for appeal. Here's the substitute opinion: http://www.isc.idaho.gov/opinions/Lampien%20SUBOpinion.pdf.

A Pardoned Conviction Counts in Federal Court if it was not Granted Due to Innocence or Errors of Law, or Otherwise Rendered the Conviction a Nullity.

The Board of Pardons and Paroles granted a pardon to Clint Bays who was on parole for vehicular manslaughter. He was later convicted of a drug offense and a gun offense in federal court. He argued there that his pardoned conviction should not count as criminal history in his sentencing guideline calculation. The District Court disagreed with Clint and the Ninth Circuit affirmed.

Here's a link to the Ninth Circuit Blog summary: http://www.circuit9.blogspot.com/

Here's a link to the published opinion: http://www.ca9.uscourts.gov/datastore/opinions/2009/12/17/09-30124.pdf


Clint is a well-known, respected and beloved private investigator who did a lot of good work for defense attorneys here in Southern Idaho. It's a real shame what happened to him. It's also a shame that pardons don't mean as much as you'd think they would.

How to make Lemonade out of this opinion: One of the reasons the Ninth Circuit concluded that the pardon was not an "expungement" (which would not be counted) is that "the Idaho Legislature has implemented statutory procedures which enable a defendant to request that a prior conviction be expunged," citing to I.C. 19-2604 and 20-525A. "If the state court grants the requested relief, the conviction is vacated and becomes a nullity. . . . This relief is more extensive than the mere removal of the punishment and effects of a finding of guilt." To my knowledge, this is the first time the Circuit has suggested that a conviction dismissed under I.C. 19-2604 does not count in the criminal history calculation.

Rule 35 Has Been Amended

Rule 35 was amended and became effective on December 9. (To no great fanfare, if I might say so.) The new rule reads as follows (the new text has been underlined):

Rule 35. Correction or reduction of sentence.
(a) Illegal sentences. The court may correct a sentence that is illegal from the face of the record at any time.
(b) Sentences imposed in an illegal manner or reduction of sentence. The court may reduce a sentence within 120 days after the filing of a judgment of conviction or within 120 days after the court releases retained jurisdiction. The court may also reduce a sentence upon revocation of probation or upon motion made within fourteen (14) days after the filing of the order revoking probation. Motions to correct or modify sentences under this rule must be filed within 120 days of the entry of the judgment imposing sentence or order releasing retained jurisdiction and shall be considered and determined by the court without the admission of additional testimony and without oral argument, unless otherwise ordered by the court in its discretion; provided, however that no defendant may file more than one motion seeking a reduction of sentence under this Rule.
(c) Credit for time served prior to sentencing. A motion to correct the computation of credit for time served prior to sentencing may be made at any time.

The amendment was in response to State v. Clements, #35665, and a suggestion set forth in the concurring opinion. (SCOIDBlog discussed Clements in An Illegal Sentence Must be Illegal on its Face In Order to Get Rule 35 Relief. (October 15, 2009).)

Fifth District DJs Selected

Eric Wildman, a staff attorney for the Snake River Basin Adjudication, has been appointed to take retiring Judge R. Barry Wood's position and Jonathan Brody, chief deputy prosecutor for Minidoka County, will succeed Judge (now Court of Appeals Judge) John Melanson.

Congratulations to both.

Friday's Arguments

The Court hears three cases today, one of which is a criminal case.

To read the Court's Press Releases on the civil cases, click here: http://www.isc.idaho.gov/ISC_PressRelease_12.11.09.pdf

The criminal case is another appeal from the summary dismissal of a post-conviction petition. The summary below is an abbreviated version of the press release.

In Schoger v. State, Ms. Schoger was charged with the 10 year mandatory minimum version of trafficking in methamphetamine (400 grams or more). The state agreed to amend the charge to the 5 year version (at least 200 grams) and to recommend the mandatory minimum.

At the change of plea hearing, however, the Court did not accept the proffered plea because Schoger, while admitting she had 56 grams of methamphetamine on her person and that there was some other methamphetamine in a bedroom at a house she shared with her boyfriend, told the judge that she had not intended to exercise control over the methamphetamine. The Court also refused to accept a proffered Alford plea. A jury later found her guilty of the 10 year charge.

On post-conviction, Ms. Schoger alleges that trial counsel provided ineffective assistance of counsel by failing to explain "the factual and legal basis necessary to plead guilty," and that appellate counsel provided ineffective assistance of counsel by failing to argue that the district court abused its discretion by rejecting Schoger’s guilty plea.

Failure to Rule Upon Motion for Appointment of Counsel is Harmless Error When Post-Conviction Petition Does Not Raise Possibility of Valid Claim.

Melton v. State. For more: http://www.isc.idaho.gov/opinions/melton%20final%20opn.pdf

Today at the Court: 12/9/09

The Court will hear three arguments today, two of which involve criminal cases. The first criminal case is McKay v. State and the other is State v. James.

McKay is a post conviction case arising from a felony vehicular manslaughter conviction. Mr. McKay argues that the elements jury instruction was erroneous because it omitted the language from the Pattern Jury Instruction that the "operation of the motor vehicle in such unlawful manner was a significant cause of the death" and substituted language which did not accurately describe the elements. Mr. McKay's petition alleges his trial counsel was ineffective for failing to object to the instruction and that his appellate counsel was ineffective for failing to challenge the instruction on direct appeal.


In James, the police searched a car that James was a passenger in and found drugs and drug paraphernalia. He, along with the others, was questioned by the officer, without the benefit of Miranda warnings. James said that the drugs were his after the officer threatened to arrest them all if no one admitted ownership. The district court found that James was not in custody and Miranda warnings were not required. The Court of Appeals disagreed. The Supreme Court will finally decide.

Today's Oral Arguments

The Court will hear two criminal law cases today.

In State v. Cobler, the defendant was charged with sexual battery of a minor. The court issued a no contact order prohibiting Mr. Cobler from contacting the victim and all minors until dismissal of the case, even though he had three minor children. The district court later sentenced him to prison but did not vacate the no contact order. Mr. Cobler filed a Rule 35 motion and a motion to modify the no contact order to allow contact with his children. The court denied both motions.

On appeal, Mr. Cobler challenges the validity of the continuing no contact order.

The Court of Appeals opinion, holding that the no contact order violated Mr. Cobler’s fundamental rights as a parent, is available here: http://www.isc.idaho.gov/opinions/coblerSUB34308.pdf


In State v. Peterson, the appellant was convicted of felony possession of a controlled substance. Mr. Peterson argues that, under a plea agreement in another case, the State promised not to charge him for that offense.

The Court of Appeals unpublished opinion, affirming the district court, is available here: http://www.isc.idaho.gov/opinions/peterson33137.pdf

Today's Docket

The Court will hear argument in three cases today. Ridgley v. State, an appeal from the summary dismissal of a post-conviction petition, is the only criminal case on the docket.

Ridgley's petition alleged, inter alia, that his attorney did not provide effective assistance of counsel because counsel failed to consider whether Ridgley’s severe grief and depression rendered him incompetent or unable to make a rational decision about pleading guilty. Ridgley's wife had died just 16 days prior to the entry of the guilty plea.

The COA concluded that the district court erred in dismissing this claim as "Ridgley’s evidence is sufficient to raise a genuine issue of fact regarding his emotional state and the competence of the lawyer’s representation of Ridgley in light of the alleged emotional state. Although it might well be said that nearly any criminal defendant will be somewhat depressed at facing the possibility of conviction of a serious crime, there is evidence here from which it could be found that Ridgley’s level of depression was far more consequential than the typical emotional distress at facing prosecution." The COA reversed the dismissal in part and remanded the case for further proceedings on this claim, but the state's petition for review was granted.

The COA opinion can be found here: http://www.isc.idaho.gov/opinions/ridgley.pdf

Pro Se Appellant Drives Off With Victory!

Today a pro se appellant got his speeding conviction reversed due to insufficient evidence.

At trial, "[t]he officer testified that he had been trained in visually estimating the speed of vehicles and had received certification of the ability to make estimates within 5 miles per hour of the actual speed. He said that he had estimated the speed of Estes’ vehicle at 65 miles per hour, 10 miles per hour over the speed limit."

The magistrate found that the officer’s testimony was proof beyond a reasonable doubt that the driver was speeding. The Court of Appeals disagreed, writing:

"Although the officer implied that he met a certification standard requiring that he be able to make estimations falling within 5 miles per hour of the actual speed, he did not testify as to the required accuracy rate. That is, he did not disclose whether certification required that he be able to meet that 5-mile-per-hour variance standard 65 percent of the time or 99 percent of the time, nor what his actual rate was. An accuracy frequency approaching 100 percent would give far greater support to a finding of guilt beyond a reasonable doubt than would a substantially lower accuracy rate. Here, the trial evidence is void of any information at all on the officer’s accuracy rate. In addition, the State produced no evidence of the distance between the officer’s location and Estes’ vehicle when the officer made his estimation, the angle of his view, or how long he observed the vehicle before reaching his conclusion. We do not hold, as some courts apparently have, that an officer’s estimate can never be sufficient to prove a speeding infraction. We hold only that on this evidentiary record, and given that the difference between the estimated speed and the speed limit in this case was not great, the State failed to prove beyond a reasonable doubt that Estes’ vehicle was travelling above the speed limit." (Emphasis added.)

Congratulations to Mr. Estes for his perseverance and for a job well done!

State v. Estes, http://www.isc.idaho.gov/opinions/Estes,%20David.pdf