Posted for comment: False arrest?

[AMonger]

[FONT=Arial, Helvetica, sans-serif]Federal Court Upholds DUI Jailing of Sober Man
[FONT=Arial, Helvetica, sans-serif]US Court of Appeals denies relief to sober Army veteran jailed for DUI.

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The Eleventh Circuit US Court of Appeals on Tuesday saw no problem with jailing a man for eight hours after he blew .03 on a breathalyzer -- far below the legal limit. Santa Rosa County, Florida sheriff's deputies had arrested Roger A. Festa on the charge of driving under the influence of alcohol (DUI) on April 9, 2005. Since he had been entirely sober, Festa sued Deputy Adam Teichner and Deputy Douglas Burgett for unlawful arrest.

On the day in question, Burgett had received a 911 call describing a vehicle similar to Festa's swerving. Burgett noticed Festa's car and claimed he saw it make a sudden lane change in order to avoid a car that had made an unexpected turn. He also noted that Festa, while not speeding, was varying his velocity. Burgett initiated the stop.

Festa explained to the deputy that he and his wife were in an unfamiliar area looking for a place to eat. He admitted that he had a single drink earlier in the afternoon. Burgett claimed he smelled a "mild odor" of alcohol. Deputy Teichner performed the roadside sobriety tests and brought Festa to the station for a breath test that registered .03.

"Unfortunately, I couldn't just let you go," Burgett told Festa in a court deposition. "You were under arrest for DUI."

Festa, who could add to his arrest statistics for the month, then explained how plea bargains would take care of the inconvenience done to Festa.

"Basically, once you were arrested for DUI, I made a determination from the conversations that we had between there and the jail that I was going to have this pled down to a reckless driving and then the reckless driving to a [nolle prosequi] so you would suffer no monetary damages or a record," Burgett said.

Instead of cutting a deal, Festa pleaded not guilty to both charges. The state eventually dropped the DUI charge and a judge tossed the reckless driving charge nearly a year later. The three-judge federal appeals panel found that the deputies were entitled to immunity for their actions while on duty because they had done nothing unconstitutional.

"No decision from the United States Supreme Court, this court, nor the Florida Supreme Court has clearly established that continued detention after an arrestee registers a breath-alcohol level of 0.05 or less is unconstitutional," the per curiam decision stated. "Indeed, neither the United States Supreme Court, this court, nor the Florida Supreme Court has established within what time frame nor under what circumstances an officer has an affirmative duty to release an arrestee. We therefore cannot conclude that Deputies Teichner and Burgett had fair warning that their continued detention of Festa was unconstitutional."

Festa died on May 9, 2010 while waiting for the case to be resolved. Festa was a successful businessman who earned a silver and bronze star during his service in Vietnam as an Army Ranger. A copy of the unpublished decision is available in a 70k PDF file at the source link below.

Source:

Festa v. Santa Rosa County (US Court of Appeals, Eleventh Circuit, 2/8/2011)
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[bikerpaul]

The way we would handle this type of situation when I was on the Lucas Co. Sheriff's Dept., I would issued a citation for weaving on the roadway or making an improper turn and then cut him loose. .03% would be hard to detect on his breath.

 

[zero3nine]

He was in fact under the influence of alcohol. Why is this even a story? The guy should not have been driving, period.

fired at you from my Droideka

 

[Poorboy]

Biker Paul said it all! Had it been me as the Arresting officer I would have done the same as he said except for one thing. I would have had someone pick him up to CMA!!

 

[chefdennis]

He was lawfully stop and detained, ticketing for the traffic ibfraction i could see..petty but they used them for the reason for the stop...the DUI and him being held was BS...and no, at .03 he is not under the influence of alcohol...by that std, no one with ant alcohol at all in their system could be charged....

Now with this one out of the way, look at this one:

Government argues 'liberty' doesn't mean 'physical liberty'

Pleading defends authorities' decision to jail defendant for 12 hours in violation of the law
Posted: February 12, 2011
10:50 pm EasternBy Bob Unruh
Government argues 'liberty' doesn't mean 'physical liberty'

Attorneys for Bradley County, Tenn., and several of its officials have submitted a brief to the state Supreme Court arguing that the constitutional idea of "liberty" doesn't actually mean "physical liberty."

That's the way a brief filed by Thomas E. LeQuire of Spicer Rudstrom, PLLC, states it anyway:

"Liberty does not mean physical liberty," explains point DII in the pleading that encourages the high court to reject a request from Jeremy Paul Hopkins for a hearing.

WND previously reported that the state appeals court released an opinion in the dispute that scolded sheriff's department officers in Cleveland, Tenn., for breaking state law regarding due process, but at the same time said those actions really don't violate the U.S. Constitution's guarantee of those rights.

"We hold the trial court was correct when it held that the Bradley County sheriff's department had violated Tenn. Code Ann. [Paragraph] 40-11-150," said the ruling from Court of Appeals of Tennessee at Knoxville.

"However, violation of the statute did not deprive Mr. Hopkins of his due process rights under the 14th Amendment of the United States Constitution."

Hopkins at the time told WND he'd pursue an appeal of the decision to the Tennessee Supreme Court, and possibly up to the U.S. Supreme Court, because of the precedent that appears to give law enforcement a pass on following the law.

"This means the state of Tennessee can jail any law-abiding citizen against their will without violating the U.S. Constitution and without the citizen having recourse," he told WND at the time.

But when he submitted his request to the Supreme Court, the defendants, including the county, Sheriff Tim Gobble, Officer Marshall Hicks, and a number of unidentified officers, responded with the idea that liberty isn't liberty.

"Hopkins' basic argument was and is that the concept of 'liberty' is the right to physical liberty enumerated in the Constitution, and therefore a fundamental right," the county argues. "This position has been repeatedly rejected by the courts."

"While the Fifth and Fourteenth Amendments mention the word liberty, 'this does not mean that the 'right to liberty' is a free-floating fundamental substantive Due Proceses right,'" the county argues.

"Justice Scalia's holding that 'the text of the Due Process Clause does not protect individuals against deprivations of liberty simpliciter. It protects them against deprivations of liberty 'without due process of law,'" the county said.

"Prior to the Court of Appeals' ruling in this case, if there had not been a specific finding made that the arrestee is, or is not, a threat to the victim, Bradley County believed ... that it was required to hold the arrestee for the 12-hour period," it continued.

"Since the sheriff's department's policy passes the rational relationship test, there is no violation of the U.S. Constitution and, consequently, Hopkins' Due Process rights were not violated," the county argues.

The filing also claims that, "Negligent understanding of state statute is not a constitutional violation."

"The Court of Appeals ruled that the Bradley County sheriff's department 'obviously misconstrued the meaning of Tenn. Code Ann. Paragraph 40-11-150(h) and held Mr. Hopkinsn for 12 hours. However … this mistake or negligent act is not a violation of Hopkins' due process rights," the county argued.

Hopkins, however, submitted in his brief arguments citing U.S. Supreme Court precedents that "liberty" does, in fact, mean "physical liberty:"


"Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action." Foucha v. Louisiana, 504 U.S. 71, 80, 112 S. Ct. 1780, 1785 (1992).


"If the 'liberty' protected by the Due Process Clause means anything, it means freedom from physical restraint." Schall v. Martin, 467 U.S. 253, 289, 104 S. Ct. 2403, 2422 (1984).


"In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception." United States v. Salerno, 481 U.S. 739, 755, 107 S. Ct. 2095, 2105.


"t is the State's affirmative act of restraining the individual's freedom to act on his own behalf—through incarceration, institutionalization, or other similar restraint of personal liberty— which is the 'deprivation of liberty' triggering the protections of the Due Process Clause." DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 200, 109 S. Ct. 998, 1006 (1989)
"It is a sad and scary day in America when lawyers actually argue that the liberty protected in the Constitution does not mean physical liberty," Hopkins told WND. "The county's position is stunning. Americans should be very concerned with court opinions declaring the Constitution no longer protects persons from being unlawfully jailed.

"In this case, the county not only jailed me without authority and in violation of law, but they also jailed me in the face of a court order specifically instructing them to release me. Even more disconcerting is the fact that the state attorney general, who took an oath to uphold the Constitution and to defend the citizens, has not intervened to stop this outrageous conduct. If physical liberty is not a fundamental right, it is difficult to think of anything that would be," Hopkins said.

Hopkins' situation developed like this, according to the court's documents: Hopkins was involved in a custody fight following a divorce, and he was accused falsely of domestic violence. The count later was expunged, he reported.

But at the time the claim was made, he found out about the arrest warrant, and made arrangements for bond, then turned himself in to law enforcement, expecting to have the proper paperwork processed and to be released.

Instead, sheriff's officers refused to recognize his bond until 12 hours had passed.

"Plaintiff was incarcerated in jail on an arrest warrant that authorized bail of $1,500.00, which defendants failed to honor until the elapse of a 12-hour period," the lower court noted. "The trial judge held the defendants violated the statute ... and that the violation amounted to a constitutional violation entitling the plaintiff to damages."

The appellate opinion said the trial judge was correct that the sheriff's officers broke the state law by holding Hopkins for 12 hours before allowing bond, but it said the illegal confinement didn't amount to a constitutional violation.

Appellate judge Herschel Pickens Franks wrote the opinion and Charles Susano Jr. and D. Michael Swiney joined.

Hopkins explained he reported to the sheriff's office on Dec. 22, 2006, for a warrant dated the day before.

"The warrant provided for his release from jail on a $1,500.00 bond, and he claimed that he was willing and able to post the bond but the sheriff department officers informed him that, because the allegations against him involved domestic violence, the department was required to hold him in custody for 12 hours following his arrest before he would be allowed to post bond and be released," the court's ruling explained.

That, however, was wrong, the ruling said.

"The sheriff's department policy was based on a misreading of the statute and, therefore, inappropriate," the decision said. "The statute provides only that the arrestee 'shall not be released within 12 hours of arrest if the magistrate or other official duly authorized to release the offender finds that the offender is a threat to the alleged victim.'"

No written findings existed in Hopkins' case, the court admitted.

The decision from the lower court confirmed, "The statute was not followed, and findings were not made. Without a finding of a threat to the victim, the offender is to be released. ... Therefore, the policy of the Bradley County sheriff's department violates plaintiff's due process rights when the policy violates the statute."

The appeals court agreed: "The 12-hour holding period ... only applies to an alleged domestic offender who has been found by a magistrate to be a threat ... . Thus, the Bradley County sheriff's department's policy to hold all alleged domestic violence offenders for 12 hours after arrest ... was not in accordance with [state law.]"

But hold on, wrote the appeals court; it's one thing to have a sheriff's office operating with a policy that violates state law, but another to call it a due process violation that creates a liability to the plaintiff.

"The Bradley County sheriff's department obviously misconstrued the meaning of [state law] and held Mr. Hopkins for 12 hours. However ... this mistake or negligent act is not a violation of Hopkins' due process rights," the appellate opinion said.

Hopkins, a licensed attorney who never has been convicted of any wrongdoing, resolved the underlying custody dispute with an agreement for equal custody.

 

[RLENT]

On the day in question, Burgett had received a 911 call describing a vehicle similar to Festa's swerving. Burgett noticed Festa's car and claimed he saw it make a sudden lane change in order to avoid a car that had made an unexpected turn.

Here's a perhaps a couple of relevant questions:

Was the officer's patrol car equipped with a dashcam ?

If it was, why wasn't it turn on, to record what actually occured ?

In any event, why is a motorist taking effective action to avoid a collision with another motorist, who was (apparently) operating his vehicle in a somewhat reckless manner, a cause for an LEO to stop .... not the motorist operating recklessly ....... but the one that (apparently) wasn't ?

As written, the story appears to indicate an inability of the officer to select the correct target for his attentions ....

He also noted that Festa, while not speeding, was varying his velocity. Burgett initiated the stop.

Oh the horror of it ..... varying his speed .... please say it ain't so !

It's not like varying one's speed is a common thing that is done when operating a motor vehicle .....

 

[RLENT]

Now with this one out of the way, look at this one:

Yeah ..... more evidence of lawyers, judges, and government officials losing all their marbles.

"At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions, nevertheless, become law by precedent, sapping, by little and little, the foundations of the constitution, and working its change by construction, before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life, if secured against all liability to account." - Thomas Jefferson, letter to Monsieur A. Coray, Oct 31, 1823

 

[greg334]

I can't even consider this a liberty/rights issue for one simple and rather missed point - EVERYONE has a different tolerance to alcohol and DRIVING is not a right.

Even if he blew a .03% does not mean he is capable of driving. Without being there at the time of the arrest, we don't know what else may have tipped off the cop or caused a further detention of the guy.

BUT I also ask this of the reporter, what in the hell does being a veteran have to do with the story?

 

[purgoose10]

.03 oh please how hard up can a cop get. They treat everyone the same when they stop for a traffic stop, guilty as charged. They know your from out of town and won't come to court, really pathetic.

 

[jw-bama]

the difference in the way alcohol is metabolized in the individual, is the reason some people handle a beer better than others . 1 beer might make u drunk and if it does your blood alcohol content will be higher than .03 if you use listerine you would blow a .03. and it really has nothing to do with the guy earning the metals other than it does show the man has character.

 

[greg334]

the difference in the way alcohol is metabolized in the individual, is the reason some people handle a beer better than others . 1 beer might make u drunk and if it does your blood alcohol content will be higher than .03 if you use listerine you would blow a .03. and it really has nothing to do with the guy earning the metals other than it does show the man has character.

The medals and service mean nothing, a lot of medal recipients go on to be criminals.

Listerine is an interesting example, there are cases where people have not been able to use the product because of their intolerance for the base ingredient in it - alcohol.

 

[AMonger]

I can't even consider this a liberty/rights issue for one simple and rather missed point - EVERYONE has a different tolerance to alcohol

Yet, we have static laws and standards (cf. hours of service) because they can't legislate something so subjective, or leave it up to an individual's whim whether or not someone is impaired. A standard is needed, and this guy was legally not intoxicated under that standard.

and DRIVING is not a right.

It is unquestionably a right, even if you say it's a qualified right, it's a right.

Even if he blew a .03% does not mean he is capable of driving. Without being there at the time of the arrest, we don't know what else may have tipped off the cop or caused a further detention of the guy.

And the burden of proof is on the government to prove that he was impaired. Without that proof, he's sober. And what appears to have caused further detention, as the story implies, is the desire to pad the deputy's arrest stats. It apparently doesn't matter to him that the guy gives up his freedom for a time and would then have an arrest record, regardless of how it was adjudicated after the fact.

BUT I also ask this of the reporter, what in the hell does being a veteran have to do with the story?

It's a disturbing trend, mentioning everybody's service. It smacks of military worship, or implies that we have more rights than those who didn't serve, or at the least invokes an emotional response.

 

[layoutshooter]

"It is unquestionably a right, even if you say it's a qualified right, it's a right."

How is driving a right?

 

[LDB]

Driving is a privilege and only a privilege. Many take it so for granted they consider it a right but it is not. Now if the Constitution specifically granted the right to use horses, mules, wagons, buggies and other means of transportation it would be a right as the evolution of those means of transportation. As it is, it is just a privilege.

 

[Turtle]

In any event, why is a motorist taking effective action to avoid a collision with another motorist, who was (apparently) operating his vehicle in a somewhat reckless manner, a cause for an LEO to stop .... not the motorist operating recklessly ....... but the one that (apparently) wasn't ?

I dunno, is it all that apparent? "...make a sudden lane change in order to avoid a car that had made an unexpected turn," sure sounds like Festa was following too closely, if anything, and had to suddenly change lanes because the car in front of slowed down too quickly for Festa to properly react.

As written, the story appears to indicate an inability of the officer to select the correct target for his attentions ....

Possibly, but there's not really enough information to draw any proper conclusion, too many assumptions have to be made.

Oh the horror of it ..... varying his speed .... please say it ain't so !

It's not like varying one's speed is a common thing that is done when operating a motor vehicle .....

In an unfamiliar area looking for a place to eat, likely paying more attention to businesses on the sides of the road than to the traffic on the road, slowing down to get a good look at this or that restaurant, then speeding up to move on to the next location to peek at, and not paying attention to the car directly in front of him. That's the kind of varying of speed that indicates DUI or distracted driving, and is the kind that causes accidents. We've all seen it, and likely all have done it.

 

[AMonger]

Driving is a privilege and only a privilege. Many take it so for granted they consider it a right but it is not. Now if the Constitution specifically granted the right to use horses, mules, wagons, buggies and other means of transportation it would be a right as the evolution of those means of transportation. As it is, it is just a privilege.

Are you sure you're posting about the right country? Are you sure you're in the right country?

First, the Supreme Court has held that the right to travel is not just a right, but a fundamental right. I say that in response to your horses, mules, wagons, buggies, etc. comment. But more important is that

THE CONSTITUTION GRANTS NO RIGHTS

THE CONSTITUTION ONLY RECOGNIZES PRE-EXISTING RIGHTS
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EVERYTHING NOT PROSCRIBED IS A RIGHT. And there are few things the government may proscribe.

Picking your nose is a right. Singing the blues is a right. Ordering a pizza is a right (as long as you're not imposing an obligation that someone else MUST deliver one). Petting your dog is a right. Walking down the street is a right. Putting on a blue shirt in the morning is a right. And driving on the public (public=my) roadway is a right. That some states claim it's a privilege does not make it so.

We do, however, call it a QUALIFIED right. That is, we in society say that you can do so if you demonstrate you can do so safely. But like owning a gun, it's not up to the gummint to say you can't.

Do the government's boots taste that good? Why else would you want so badly to lick them? Are you looking for their approval? What other rights do you want to cede to government?

I see this all the time in drivers. Many drivers are hyper-compliant. One here a few weeks ago said you must answer any question put to you by the DOT, and he previously indicated he had no knowledge of the general right to remain silent. What's behind this pathological compulsion to be under the government's thumb?

Any boot you can lick, I can lick better. I can lick any boot better than you.

No, you can't.

Yes, I can.

No, you can't.

Yes, I can.

No, you can't.

Yes, I can, Yes, I can, Yes, I can!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!