Xiphos (KSEE-fohss) a doubled-edged, one-handed sword used by ancient Greeks.

Xiphos is Lexipol’s monthly legal newsletter, providing insight and analysis on topical legal cases from Ken Wallentine, Legal Advisor. Subscriptions are free for public safety officers, educators and public attorneys.

From the author ~ I don’t get much mail from readers, though I am always happy to hear about great motorcycle roads, awesome pie shops and quirky roadside attractions. I’ve just returned from a 1,700-mile weekend ride to eat a great slice of apple pie from the Julian Pie Company in the mountains above San Diego. In a couple of weeks, I’ll ride the Harley to Pie Town, New Mexico, for more apple pie. Feel free to email me suggestions for your favorite pie shops.

Earlier this month, I heard from a reader who asked about qualified immunity. He wrote, “I get that I can’t be sued if I don’t violate ‘clearly established law,’ but what does that mean? I’m not a lawyer. Explain, please!” I enlisted the help of esteemed attorney and veteran officer, Michael Brave, to discuss “clearly established law” and to comment on one of the more bizarre theories recently embraced by a police use-of-force academic.

We’ll also apply the question of qualified immunity to another new case, King v. City of Rockford. We’ll round out this month’s issue with a couple of cases involving a pole camera and a camera disguised as a smoke detector, as well as a case about a tardy inventory search.

— Ken

The Gunslinger’s Dilemma (Bohr’s Law), Clearly Established Law and Qualified Immunity

By Ken Wallentine and Michael Brave

Cameron Lewis’s mother called police to report “physical and active” domestic violence by her son. When officers arrived, the 15-year-old was belligerent and hostile. An officer warned Lewis he would use a TASER device if Lewis did not comply. When that was ineffective, officers used force — including fist and knee strikes — to subdue him. Lewis sued the officer who punched and kneed him, alleging excessive force. The officer asked the court to grant him qualified immunity, leading to summary judgment and dismissal of the lawsuit. We break down the case based on Graham factors and the meaning of “clearly established law.”

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If a Suspect Can Talk, Does That Mean He’s Breathing?

An officer stopped Thurman King one night after seeing him roll through a stop sign with a non-working license plate light. King pulled over in his own driveway and exited his car, denying that he did anything wrong. The officer commanded King to put his hands behind his back, and King complied. When King yelled to his fiancée in the house, the officer and his backup took him to the ground. King reported both officers knelt on his back, though he complained he couldn’t breathe. One officer said “if King can talk, he can breathe.” King sued, alleging no reason for the stop and unreasonable force in arresting him.

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Extended Pole Camera Surveillance Was Admissible
Police officers noticed drugs and a gun in a parked car. During their investigation, they installed a camera disguised as a smoke detector in Darron Mayo’s building, where he was recorded doing a drug deal. When officers detained Mayo for a drug violation, he made incriminating statements in the back of the police car. A warrant search of his apartment produced drugs, cash, and a gun. A trial court denied Mayo’s request to suppress the hidden camera video and the results of the search. Mayo appealed.

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Smile! You’re on Candid Camera (and the Evidence Is Admissible)

Police officers noticed apparent drugs and a gun in an open car in an area where they were doing security. Closing the door, the officers had the car towed. During their investigation, they connected Darron Mayo to the car and an apartment, where they installed a camera disguised as a smoke detector in a common area. The camera recorded Mayo conducting a drug deal. Later, officers stopped and detained Mayo in his car for an equipment violation, and May was recorded making incriminating statements in the back of the police car. A warrant search of his apartment produced drugs, cash, and a firearm. A trial court denied Mayo’s request to suppress the video from the hidden camera and the results of the search warrant. Mayo appealed.

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Delayed Inventory of Backpack Leads to Admissible Evidence

Responding to a call about gunshots, officers encountered Markanthony Sapalasan with a backpack and a gun visible in his pocket. The officer took the loaded firearm and got consent to search the backpack. Securing it in his car, the officer drove Sapalasan to the station, where he was interviewed and released. When the officer later opened the backpack, he found drugs. Sapalasan asked the court to suppress the search of his backpack, claiming a Fourth Amendment violation.

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KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over four decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

MICHAEL BRAVE, Esq., M.S. (attorney, consultant, trainer, fmr. Officer/Chief) is involved in a wide range of comprehensive law enforcement risk/liability and litigation management services. He has been retained as an expert in 250+ cases, been involved in reviewing 650+ law enforcement temporal deaths, and has presented on force options and other subjects 1000+ times in the U.S., as well as Mexico, Canada, Panama, Austria, and the United Kingdom. He serves as ILEETA’s Legal Advisor and a Board Member.