The 5th Circuit Denied a Cop Qualified Immunity, So We Might Be in the Afterlife

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:00 Clip: Thank you. Like a constitutional statement, a little bit. Yeah, I'm a lot of constitutional.

0:00:19 Jenessa: I'm a lot a constitutionalist has two section 1983 lawsuits against him and is also being charged with malfeasance in office for faking police reports I'm

0:00:38 Thomas: And welcome to Opening Arguments. This is episode 1302. I'm Thomas. That over there is Jenessa. How are you doing? Yeah

0:00:46 Jenessa: Pretty good, I am hanging in there, coasting our way into the election, hopefully in a good way, I'm not on a campaign, so, yeah, on the legal front, just everybody, their eyes are based on movement, just like keep, just, just do your job, everything's fine,

0:00:53 Thomas: I is that yeah is that good I guess we got we're doing we got yeah exactly we got momentum so I'm like I get just nobody screw anything up I guess right or do you still yeah who knows but we're all just bracing for what you're gonna tell us the supreme court ruined next before the elections but maybe are they done ruining things before elections or you know it's getting and tight yeah

0:01:21 Jenessa: There's is a big fight going on, going on about like we already know it's illegal for like ice to be at the polls so there's a lawsuit trying to be like hey the thing you say you're gonna do is illegal can you like stop even saying you're going to do it because that's intimidating people so we'll see how that goes but intel I'm getting is like that seems to be at least in my state probably low -ish risk um know I don't want to tell anybody everything's going to be 100 % fine because we don't know. But the political end, I have no idea. Not my job. But on the legal end, things are doing okay. I think we're going to be all right. Everybody just get out there.

0:02:07 Thomas: You uh wanted to remind people to

0:02:08 Jenessa: Yes. This is going to air on Monday, October 5th, which is either 30 or 29 days before the election, depending on if you count election day as one of the days. States will have their registration deadline somewhere between like 25 to 30 days in advance of the election. So to check like now. You are not on the list, on the deadline to be registered, there's probably nothing anyone can do to help you. You have to be on the list. If there's like errors, we might be able to fix that, you know, but if you're just not even on the lista and the deadline comes and goes, I probably can't help you, so Check now. Even if the deadline is not happening right now in your state, why not check now? And if you are mysteriously missing, get yourself back on that that list. Give you a link to put in the show notes about the registration deadlines for different states so people can check their own deadline or just go check your registration right now. Who cares what the deadline is?

0:03:15 Thomas: Do you do that oh

0:03:16 Jenessa: Best way to do it is to go to your either State Board of Elections website or if you don't have a State Board of Elections, your Secretary of State runs the elections. Your county boards may also be able to check it. I know in New York when you try to check your registration with the county board they just immediately automatically direct you to the New York State Board of Elections to check. There will be a digital system somewhere in your state to check that. I would recommend going to government websites because there are increasingly scam websites now where like votesafe .org is elon musk's america pack it looks like a great place to check your registration

0:04:01 Thomas: What a horrifying collection of words Jenessa what a what a horrifying assemblage of syllables all

0:04:08 Jenessa: Dot org makes you think like oh it's some sort of non-profit or something no they're going to take your data and sell it and start sending you asks for campaign donations. And it's not the same as going on a government website to check your registration. Or would recommend government websites and vote411 .org. That's the League of Women Voters runs that. They're a nonpartisan nonprofit. They're reliable, trustworthy. They have the best information available for every state um careful there's like people sending mailers that are like you might not be registered and it's just like some guy sent that that's not your county board sending that to you be on the lookout there of people are going to try to give you bad information just go to your your or local government website they will have the best information yeah yeah

0:05:01 Thomas: Right well all that said we haven't even gotten into what we're going to be talking about today there was weirdly it seems to me a good decision out of the fifth circuit which is is maybe the worst one and it was around qualified immunity what's happening up is down down is dogs and cats living together yeah

0:05:14 Jenessa: I I man it's weird um it's a really just solid decision and I honestly it's gonna blow your mind the way that they are just being so reasonable reasonable about letting a lawsuit go forward and not like the most egregious thing you've ever heard like normally when we hear about these cases it's like and then they beat the shit out of this guy and then they like spit on his dog and it is just a traffic stop that went on way too long and wasn't really justified probably and

0:05:49 Thomas: Is that why they did it where it's like low stakes or something hmm

0:05:59 Jenessa: Don't know oh, I don't know. A really interesting decision. And I think it's a great place to illustrate how qualified immunity can be overcome, like what circumstances we need. It also, we talk a lot about the Fourth Amendment in the context of like a search of your house or a search of your electronic devices. Traffic stops have their entire body of case law that's just like separate related to a traffic stop. So neat opportunity to explore a whole other area of law, kind of still Fourth Amendment. But a it's a weird one.

0:06:39 Thomas: Right well I'm excited I can't wait for some maybe kind of sort of good news regarding qualified immunity because yeah you're right I mean the ones we've heard that qualified immunity is upheld or whatever like those ones the ones we hear I mean they're crazy they're like they're so bad so it's amazing I was actually worried when you sent me you're like all right I'm gonna play from this video I was like dear god this is gonna be like a genocide or something like that the cops are doing like the worst things imaginable in order to get their qualified immunity uh withdrawn or whatever yeah

0:06:51 Jenessa: It's granted. Yeah. This video will not be traumatizing. It should be fine unless you've had some really bad traffic stops in your day it should be okay yeah

0:07:17 Thomas: What a banner day I'm so it's just all coming up millhouse all right well let's take a break uh support the show patreon .com slash law avoid the breaks give the goodies and most importantly support being the able to bring Jenessa and matt on and take a brick and get right to it all right so do you know why I stopped you here today to break this down for us well

0:07:38 Jenessa: My god you have was pulled over like literally once maybe 15 years ago in another state I don't even know I would probably just burst into tears at this point. I don't know how to handle any of the stress of this situation. I never get pulled over. Well, because I'm doing 65 in the right lane with my cruise control on. I'm bothering nobody. Helps a lot.

0:08:02 Thomas: Okay you're bothering me go

0:08:05 Jenessa: I am in the lane. I have a lot of time. I I am staying out of the way.

0:08:06 Thomas: Faster no I'm just kidding yeah no that's good that's fine nobody nobody could possibly have a problem with that

0:08:12 Jenessa: One is real interesting so the trial court it's Rosales v. Lewis for some reason when we get to the fifth circuit they have flip-flopped the order of the defendants and written it as Rosales v. Terrell I don' know well

0:08:25 Thomas: There a reason they do that where it's like depends on who won and then you're appealing oh

0:08:32 Jenessa: That would be if it switched from From Rosales v. Lewis, I would have expected it to go Lewis v. Rosales because Lewis appealed. Rosales is the plaintiff. Instead, we have taken Officer Lewis and Officer Terrell, the two defendants, and we have just flipped them.

0:08:48 Thomas: I see what you're saying yeah weird weird it's whoever got there first you know it was a race race to the courthouse I don't know it's rochambeau 2022

0:08:51 Jenessa: I guess. It's very strange. But Mario Rosales is our plaintiff, driving along with his girlfriend, Gracie Lazione. Um are in alexandria louisiana and he has new mexico plates and as far as anybody can tell that is the only precipitating event for this um officers are going to claim he did not signal a lane change which we have the dash cam footage it's too blurry and too far away to tell and they kind of say that like a while after they pull him over um this all happens on june 15th of 2022 and it's been a while these

0:09:37 Thomas: The law moves so quickly yeah this

0:09:42 Jenessa: The dash cam video they pull him over and I time I've ever been in a car that was pulled over seen a video whatever they they pull you over and they they walk up to the driver's side window, right? Okay.

0:09:57 Thomas: The other one to stay out of the street, yeah.

0:10:00 Jenessa: They might go, yeah, for safety, they might go to the passenger window to just not be in traffic. Have the dash cam and the body cam for both officers. This does not look like a typical getting pulled over experience.

0:10:16 Thomas: Here let's catch everybody up so we got a red you sporty car pulled over uh we're just dash cam right first an officer comes out and is by the hood essentially of their own car and then he just like signals like come here or something like to the to the car I would have interpreted that as like back up or something I don't know let's oh no okay he's asking him to come here the guy just comes out this guy's wallet it like okay gives him his thing okay

0:10:46 Clip: Red Zero Two, Jackson to Dorchester, 28 -27 on a right hand stand, out of domestication, Alpha Not Bothered, November 8th, 5th.

0:10:53 Thomas: They're talking you know dog okay they're both out there with him now oh there's also a woman in the car he's

0:11:24 Jenessa: -hmm that's his girlfriend in the passenger seat yep

0:11:31 Clip: Hey, you got a gun in the car? A

0:11:38 Thomas: Like we're in Fifth Circuit land of course I have a guy on the car what are you talking about oh yes the movie is again the car I said in my bag or in the back I couldn't tell which I

0:11:45 Jenessa: And the bag in the back seat

0:11:47 Thomas: Know both okay yeah sure okay

0:11:48 Clip: Backseat? Okay. What is it? Is it a Taurus? Huh? Do you have any on you?

0:12:02 Clip: Hey, can I just mention that you've got a .48-meter gun out of your vehicle? No, I don't.

0:12:11 Thomas: So he declines a search all

0:12:13 Jenessa: We got a couple of important things that have happened so far so the first thing that is just weird like you said they're just gesturing for him to get out of the car while standing next to their hood and interviews uh has said like I I couldn't figure out what the hell was going on. Like, just driving through a residential neighborhood. I get pulled over and all of a sudden it's like, get out of the car. I didn't do anything. I don'T know, I have no prior arrests. I is this happening? Can see when he gets out, he asks, why am I being pulled over? And he's not told anything. The officer says when he walked up to the car where the girlfriend is in the passenger seat. You open your glove box to get out your registration. Well, he saw ammo in the glove box. So he asked about a gun. Thing we would absolutely always advise, he says, can I get that out of the car? And he says no, I am not consenting to a search. Like, don't let them get a thing out of your car because you just invited them to open the door and get into your car no the answer is no um great job expressing his rights there um what you also see is immediately upon oh you have a gun in the car uh younger officer Terrell is going to pat him down the fact that you have gone in the cart right

0:13:32 Thomas: He asked him he says do you have one on you and he says no and then he's like okay now I want to pat you down so I don't believe you I guess yeah

0:13:36 Jenessa: I want to pat you down anyway uh going to find out, the judges will agree this is not justified. Also then go to the girlfriend and say, okay, get out of the car. That one you're probably going to get away with. If there's like, you're doing a traffic stop, there's a weapon in the car and you want the passenger to not just be seated there near the gun, they'll probably get away. If the traffic stop had been justified in the first place, that probably would have have been okay to be like you can't be in the car with the gun and you're not letting me retrieve it um the whole rest of that is not kosher um

0:14:13 Thomas: Yeah the whole rest of which part what

0:14:18 Jenessa: Him get out when uh don't even know why we're pulling him over the pulling himover we're gonna come to that um him just because he is in legal possession of a gun that's not on him at the time right

0:14:32 Thomas: It's kind of a funny thing where it's like speaking there's absolutely no reason why him saying yeah there's a gun in the back of the car increases the odds that like he has it on him you know it's like he could have just like if he was a guy who was trying to harm you he probably would have said no I don't have a gun anywhere yeah

0:14:48 Jenessa: Of it's lining up um hear the cop give a reason for the stop oh

0:14:58 Clip: I have any guns on you, D? Just sit in this stage a second. I'll just throw you right there for a second, okay?

0:15:10 Clip: 32 -104 and 32 -352. Uh, for the PC group.

0:15:16 Jenessa: Pc uh completed with brackets as probable cause in the document so presumably they have stipulated to that's what I meant when I said pc um he's giving a reason for himself and the officer what was the probable cause for the stop um actually only need reasonable suspicion for a traffic stop so treat traffic stops uh basically the same as a terry stop the never want to call it stop and frisk because new york had stop and fresk and it was found to be like unconstitutional so I don't like using that terminology interchangeable um idea that you can stop and question somebody and then if you determine they are a danger to other people or yourself they might be presently armed and dangerous then you can do a frisk um basis for a terry stop of a pedestrian or a car is reasonable suspicion of criminal activity activity that's lower than probable cause for an arrest um criminal activity in the case of a car could be any traffic violation you're entitled to pull them over you just need reasonable suspicion of it so cops don't actually know the law um

0:16:27 Thomas: They don't need to well

0:16:29 Jenessa: Yeah the law he gives 32 104 is turning movements and required signals so at this point he is actually alluding to something and 32 352 is mufflers and prevention of excessive noise fumes and smoke um can see when the car was on we had no sound on the dash cam so we don't know if it was like really loud or something um

0:16:52 Thomas: If it is I'm all of a sudden on the cop side back the blue you know huh

0:16:55 Jenessa: Do hate the really loud cars um the citations he'll end up with at the end is 32 -104, failure to signal. Also going to give him 47 -501, failure to register a vehicle. Is where the thing they do not do right is the cops shortly after this read them their Miranda rights and then start asking them questions. Don't answer. Just stop.

0:17:24 Jenessa: Stop is the right answer at that point. I don't know why you're asking me questions, but I'm not going to talk my way out of this um ask the guy a whole bunch of questions about you ever been arrested and do you have anything you're not supposed to have on you do you have any drugs in the car and after he says he doesn't have any drug he's like do you have heroin in the card you have cocaine in the cart you have crack cocaine in the car like

0:17:45 Thomas: I got that yeah no I thought you meant like ibuprofen oh

0:17:49 Jenessa: Um he's just running through all that no no no so you think to to yourself I'm talking my way out of this by saying no to everything and after the millionth drug he's like I don't do any drugs and then the cop's like well what are you doing here you got new mexico plates he's Like well I'm trying to move to louisiana I'm like I'm trying to establish my residence I like live with her so you just talked your way into a ticket he's been there more than 30 days you're supposed to change your registration if you technically really live here you can't keep your New Mexico plates um this citation does get dismissed ultimately so maybe he didn't really meet the criteria for you need to have changed it by now maybe he goes back to New Mexico often enough but you talked your way into a ticket you gave them something like just shut up just reading you your Miranda rights. Something bad is happening. Have to know what it is to know something bad is happening? The other hand, we're talking about a visibly Hispanic person, and I just don't want to tell anybody how to handle a cop interaction. Maybe it was the right call to just try to be as compliant as possible. I don't know. A legal perspective, obviously, we want you to not accidentally confess to something. Of that will get dismissed, the failure to a signal the failure to register it all gets thrown away um gonna ask him to empty out his pockets under the hood of the car uh other cop will say do you mind if I check you and he's like well I was already patted down like what is happening um

0:19:24 Thomas: They just have have nothing to do do we need to get cops hobbies you

0:19:27 Jenessa: I don' t know I it makes no sense

0:19:28 Thomas: Know start knitting pokemon go do something you don't this is pointless

0:19:32 Jenessa: Anything like solve real crimes that are really happening

0:19:35 Thomas: What are we doing you know

0:19:36 Jenessa: It's probably like a a break -in happening somewhere um if you go to four minutes and 43 seconds you can hear part of this interaction

0:19:57 Clip: I mean, did you have an answer? Oh, you had an answer. I'll show you. I promise you I won't.

0:20:20 Jenessa: So you might have caught he's the plaintiff in a lawsuit against another officer um initial thought was like oh I wonder if this is retaliation do they know about it um

0:20:30 Thomas: If it's in new mexico maybe yeah

0:20:31 Jenessa: Is so it's would be very surprised if some like random city cops in louisiana know about this um

0:20:40 Thomas: Probably not and like what are they keeping an eye out or something you know but

0:20:44 Jenessa: How would you even know it doesn't make sense um

0:20:47 Thomas: It's not zero percent just because what are you doing you're like that that would at least explain why you're doing any of this right

0:20:51 Jenessa: Doesn't yeah says his best guess is he's in louisiana with new mexico plates new mexico's at the border these people think I'm drug smuggling that must be it it's

0:21:03 Thomas: Right yeah that's probably what it is yeah

0:21:05 Jenessa: Probably that so should totally cover this case at some some point, when he was in New Mexico years earlier, an off -duty plainclothes cop is driving his car and Rosales passes him. And that cop, who had his own child in the passenger seat, it's basically a road rage incident, follows Rosales home, pulls a gun on him in his driveway.

0:21:27 Thomas: My gosh oh wow yeah

0:21:32 Jenessa: The sheriff deputy shows up because Bradshaw had called it in and the sheriff knew Bradshaw had a violent temper so thing about they can't find the body cam footage um was off duty playing clothes I think it must be the sheriff deputy who showed up in uniform um that lawsuit is ongoing that's in the 10th circuit and the 10TH circuit also uh not grant qualified immunity to that officer um that's like a whole separate episode we should totally cover that case because it's wild and it's another case of no qualified immunity

0:22:06 Thomas: Involved in two cases where the cops didn't get qualified immunity that's

0:22:11 Jenessa: In two different circuits this guy's about to create like I

0:22:14 Thomas: Like the the guinness world record of the guy being struck by lightning six times or whatever like that's literally the odds of this might be worse than that it's

0:22:18 Jenessa: Know yeah he's working with the institute for justice and were working with him on the first lawsuit and then I guess he knew had who to call when this happened um

0:22:31 Thomas: Sure that call was really funny like you're not not going to believe this I'm

0:22:35 Jenessa: Here we are again um clip at uh nine minutes and seven seconds that I think you'll find interesting you

0:22:48 Clip: Only traffic stop is the lead entertainment, right? You're detained on a traffic stop, right? Yeah. It seemed like a constitutional statement, a little bit. Yeah, I'm a lot of constitutional.

0:23:05 Thomas: Was that yeah

0:23:07 Jenessa: He's gonna have the other officer come question him they're like switching on and off who's questioning him and who's questioning Gracie so

0:23:13 Thomas: Instead of good cop bad cop they're like confusing cop confusing cop that's another way to do it I guess he just like walks off and the other guy comes in what's okay oh

0:23:20 Jenessa: So is officer Jim Odie Lewis um you be surprised to learn that officer I'm a lot a constitutionalist has two section 1983 lawsuits against him and is also being charged with malfeasance in office for faking police reports I'm

0:23:43 Thomas: My god are you serious to be fair what is the average number of those lawsuits that an officer has I was against them many times so

0:23:45 Jenessa: Dead serious I it's so bad so right now he's also the defendant in milligan v lewis um

0:23:58 Thomas: He could have bonded with this guy over the year no way lawsuit buddies oh which side are you on oh yeah the cop side oh I'm on the you know been harassed by cop side I'll die yeah okay no I get it oh

0:24:06 Jenessa: Oops so well incident with rosales this happened in june of 2022 the milligan incident happened in february of 2023 where

0:24:24 Thomas: It's after this okay so I see yeah

0:24:26 Jenessa: It's after this this guy gets arrested for possession of weapons which he had a concealed carry permit for just don't go to louisiana why everyone has a gun um officer says he saw him come out of a bar with those weapons which impression is would have been illegal even with the permit like you can't do that uh milligan denies it the body cam Cam footage does not show him coming out of a bar. It shows him walking across a parking lot. Prosecutors have dropped all charges against Milligan, and Milligan is now suing Lewis for an inappropriate arrest. Then in March of 2023, a month later, Lewis stopped a shoplifter. He then went back into the store and ordered the shopkeeper to inflate the value of the stolen goods to make the theft into a felony. So he got arrested for that in,

0:25:18 Thomas: A a lot of constitutionalists you could say yeah

0:25:20 Jenessa: He got arrested for That in August of 2024. like delayed the trial over and over and over again. I saw something from September of this year that charges might have been dropped. I had a really hard time like, it's like small town paywalled newspapers. I think think it might have been dropped, but like there is extensive testimony from the shopkeeper who's just like, I just did what he told me. Here's what I did. I entered this, I did this. On that one, but I mean, there's a mugshot for it. So, uh, malfeasance in office and injuring public records.

0:26:00 Jenessa: It's a funny way to say it, isn't it? The public records have been harmed deeply by this so ask uh she's being questioned by officer terrell in the middle of all this and she says why were we even pulled over he responds that he was quote curious she asked if he quote pulls people over because he is curious and then he responded he pulled them over because Rosales failed to signal.

0:25:59 Thomas: Public records yeah yeah okay yeah

0:26:30 Jenessa: He gets their badge numbers and asks who to contact to get the dash cam footage. They had been stopped for a total of 21 minutes, taken out of the car, questioned separately, switched from one officer to the other. Rosales was patted down twice, asked to empty his pockets, and all for a citation about failing to signal and needing to register your car both of which were dropped so he's gonna sue for two things my number one that they violated the fourth amendment by initiating the traffic stop without reasonable suspicion of criminal activity and by expanding and scope without reasonable suspension. And number two, that they violated the First Amendment when they prohibited them from recording on their phones. One's interesting. It is rather quick. District court affirmed it and then the Fifth Circuit overruled and said no. So what's going on there, you do have a crystal clear right to record police officers in public when you're just a guy. You are currently detained, definitely don't have, which you would need to to overcome qualified immunity is a clearly established right to do that. Maybe somebody can get that on the books at some point, but for now, to overcome qualified immunity, that they had no right to say no to you, that they should have known better? No, we're not going to pass that one.

0:28:03 Thomas: Once again it shows how ridiculous qualified immunity is because I don't even know what you're saying like do we have that right or not you if we have the right um kind of meaningless if you're like yeah but we they haven't super duper like established enough to where the idiots who are police officers know so nothing we can do and then there's that trap we talk about whether it never it can never become a well -established right because it never gets past the phase it needs to to become that right yeah

0:28:09 Jenessa: Good question. Right. Mm -hm. In this case, they could have said but do have that right going forward and could imagine a scenario where it makes sense to let it slide the first time but not the second time um that tends not to happen that they will go out of their way uh I worry that if courts did that would the supreme court consider it dicta you just said that but it wasn't the issue I don't know um they will mention in the fourth amendment part fifth circuit holdings where they said it wasn't clearly established however henceforth it is a right you have so the fifth circuit is doing that um is interesting to me so

0:28:38 Thomas: Did were they visited by three ghosts or something huh yeah but it's interesting so that uh this is probably obvious but just to ask when you someone is pulled over when a car is pulled over is everyone in that car technically detained hmm

0:29:14 Jenessa: Don t know I like she have just been like well if the if thing the you have supposed reasonable suspicion or probable cause for is failing to signal I

0:29:39 Thomas: It's a turn signal like I didn't do my passenger side turn signal oh

0:29:45 Jenessa: Nothing to do with that you'll hear the officers talk about that if you go to 11 53 nothing

0:29:52 Thomas: I had nothing but time apparently to do that all right Wow

0:30:10 Clip: This is why, and the reason, right, in standing here because there was a fire on the other day according to you, right - Yeah, but I'm not saying it. Right, and that's why you're standing here, you said something. This is a traffic spot, you are detained, and we don't need phone calls on traffic stops. He

0:30:45 Thomas: This guy's the worst is love this plaintiff he's just Just, like, walking around with all the, just, he's been, this is not his first rodeo. Apparently won't be his last.

0:30:56 Jenessa: I can't fault somebody for in that situation feeling like you have to answer some questions and that's really the only thing I see here that a lawyer would not have told him to do the biggest thing we would have said is just shut shut up. But otherwise, like, yeah, calm, clear. Why am I being detained? Am I being detained? Is she being detained. No, you cannot search my car. Like he really nailed it. Like to handle this as best as possible and to get on the record that they said that. Can't I have my phone? Can she have her phone? Why can't she have her phone like getting them to say these things on the camera it's not the worst idea um and it really helped them out here that question of is she actually detained they kind of won't reach it here because they will say the entire stop was invalid um the defendant I you move to dismiss you're you want to get rid of it then they're going to interpret the case the facts in the light most favorable to the plaintiff we didn't have the qualified immunity or anything we would just say well, they say they signaled. So if they signalled and you're saying you pulled them over because they didn't signal, that would not have had probable cause. You would not Have had reasonable suspicion. You would have been just pretextually pulling them over. They allege you pretextual pulled them over and if we're taking them at their word, that would obviously be illegal uh

0:31:09 Thomas: Wait, I thought you'd have to construe it toward the police. Wait, maybe I'm not understanding.

0:32:38 Jenessa: What's so weird so the police want to dismiss so

0:32:41 Thomas: Oh, the police want to dismiss.

0:32:43 Jenessa: Asking for qualified immunity is asking to dismiss it oh

0:32:46 Thomas: Oh, sorry, I got mixed up in the procedures there. Sorry about that. Okay. So you said he got the, like the stupid charges against him. I was thinking that. Okay gotcha okay got

0:32:55 Jenessa: Right the criminal part yeah the criminal party is long gone we are at a section 1983 civil lawsuit rosales and uh lazio and gracie are suing the two cops for this stop so they're they're the plaintiffs, the two cops are the defendants, the two cops want qualified immunity, so they want this lawsuit dismissed, you have to interpret it in the light most favorable to the two plaintiffs. So if they were cops, you would just go, okay, well, in the light most favorably to them, they're alleging you just made crap up, and the facts could support that. We look at the dash cam, it's not, like, it's just super blurry and it's like a reasonable thing to say I did switch you either made this up or you didn't see me put my blinker on but that's not my problem um would think then but wait a minute qualified immunity is like the cops are entitled to this sort of good faith presumption so how can we interpret it in the light favorable to the plaintiffs and the cops this doesn't make sense. There's a footnote that really lays out this tension. So they say here, officers suggest that they had a reasonable suspicion of a traffic violation based on a reasonable but mistaken belief that Rosales failed to signal. Although reasonable suspicion can rest on a mistake of law or fact and citations there that is true the mistake must be objectively reasonable crediting the complaints allegations that officers concocted a baseless traffic violation no mistake of fact could be objectively unreasonable or otherwise made in good faith so we assume that what they're saying is true if we take them at their word looking at the facts given that the facts are ambiguous if you did concoct a reason to pull them over that can't be a objectively reasonable mistake you're making it can't being good faith I this all sounds completely reasonable to me I just don't know how the hell anyone has ever won qualified immunity under this standard

0:35:10 Jenessa: No

0:35:11 Thomas: Just going to say like if this is how this works all you have to do is allege you know and that's not that hard to to allege something that would get past this so I'm what are we missing

0:35:23 Jenessa: A whole thing of like so if the dash cam if you don't have footage then you just credit the plaintiff their story as long as it's plausible if you do have video you credit the video if it blatantly contradicts the plaintif or hypothetically the defendant if they're the one moving for whatever um only thing I can think is that sometimes in some of these we must have because there's dash cam and body cam footage are they saying that blatantly contradicts your story that that's what we often get is like oh it was objectively reasonable for the officer to be mistaken mistaken maybe that's the problem is people are not alleging and because it's probably the truth this officer wasn't like didn't shoot somebody because they hate them and it was a secret like hit job they shot them because they're just like dumb and jumpy and they acted with unreasonable excessive force but that was a objectively reasonable mistake is that what's happening I think that must be it, because these plaintiffs are alleging, no, this was pretextual. You just looked at my license plate and decided I must be a drug smuggler, and that's not a good reason to pull a person over. You concocted a story, and if we credit that as true, the dash cam footage does not clearly show any traffic violation. Can't make sense of it. That's the best I got is that these other violations people are alleging that the person acted as a terrible person acting in good faith I don't know

0:37:05 Thomas: Trying to explain why the Fifth Circuit is suddenly has a conscience and

0:37:09 Jenessa: T know right

0:37:09 Thomas: Also if if this is the way it works, why it doesn't always work. But yeah, I guess it must just be that the dash cam contradicts it enough or something. Is that what you think?

0:37:13 Jenessa: I they specifically say the dash cam is just ambiguous and doesn't really answer the question which I would agree with having watched it like like to me, he probably signaled, but it's too blurry to tell. So they're crediting him over the cops. When the cops say, no, I didn't signal. And he's like, I did. Then they're like, okay, we believe you because you're the plaintiff and they're the defendant and they are moving to dismiss. So we believe that. Does that not always work? I guess it just has to be like in those examples where it's like well, I shot this person at a traffic stop because I thought they were pulling a gun out, you would have to allege they didn't think I was pulling a Gunout that it wasn't objectively reasonable for them to think that and the problem we run into is often we are giving cops such wide latitude that they were objectively objectively reasonable in their just like scaredy cat freak out belief. I, know that. I mean, this standard seems great. Yeah.

0:38:17 Thomas: I think it's also because it's not something that was endangering the police. I mean, I thinks so often these cases we're talking about, well, he had a toothpick and I thought that was a baseball bat that he was going to crush my head with. And you're like, well, that's fair. He was black, so he could have, that makes sense. Whereas this is like is a turn signal man like the thing they're talking about is like whether or not he signaled which already I don't know if this factors in but maybe like as part of the their overall calculus it's like why are we even doing this over like even if true why are doing all this over a turn single like that's stupid you know so like maybe just the whole the sum total of it is this the officers don't seem very credible I don' know in

0:38:59 Jenessa: Part of it will come up as like a step two. So we've

0:39:02 Thomas: Case

0:39:03 Jenessa: Got for a Terry stop, we've Got two steps. Number one, was the stop justified at its inception? And number two, if it was justified, were the officer's subsequent actions reasonably related in scope to the circumstances that caused him to stop the vehicle in the first place so obviously you can after the stop develop more suspicion or probable cause because of you other stuff that happens but yeah if you pull me over for a headlights out or something that doesn't let you then expand the scope into whatever you want so interesting here is at step one they are already saying this was not justified at its inception because at just at this stage we are crediting you when you say no this was baseless this was concocted I did signal okay then you did and so the stop was baseness step two we wouldn't normally even go to step two if if the stop wasn't justified then everything that happened afterward was unacceptable but they allege a separate cause of action for and also I should get even more damages because not only did you unjustifiably stop me but then you did all this other stuff that did it take 20 minutes why did you make me get out of the car why did you pat me down why did you do all this other stuff um we are going to analyze that second piece was this reasonably related in scope um this was so interesting here this is where they start seeming much more like cop friendly so appellees assert officers unlawfully prolonged the stop when they one ordered computer checks two separated appellee is to question them about quote drugs and other unrelated topics and three frisked rosales and searched his pockets so

0:40:52 Thomas: He he has any other missing turn signals in there yeah

0:40:56 Jenessa: Like what? And you're exactly hitting the right point. First part, our precedent allows computer checks. So if you pull somebody over, they do that every time. And apparently we've decided that's okay, even though like checking for an arrest warrant has nothing to do with a turn signal, whatever, you're just allowed to do that.

0:41:04 Thomas: They just do that every time don't they don't worry pretty soon the flock cameras will do all that anyway and they won't even need to just

0:41:20 Jenessa: Allows questioning even to the extent it concerned drugs and other illegal items because it was a quote appropriate attempt to dispel any reasonable suspicion after rozales admitted that there was a firearm in the vehicle and gave vague answers regarding his residency so they're saying like once he gave those vague answers and said there was gun in the car they were allowed to start asking him about drugs and arrests and yeah

0:41:49 Thomas: Because you know suspicious people do drugs I don't know the standard is so loose

0:41:53 Jenessa: Like is it is and he's gonna win on this part that leaves only the claim that officers unlawfully prolonged the traffic stop by searching Rosales as discussed he plausibly alleged those searches were unlawful under the fourth amendment as a result prolonging the traffic stop to conduct them was also unlawfull because they were unrelated to the traffic stops purpose and unsupported by reasonable suspicion of additional criminal activity so you were saying you pulled me over for supposedly failing to signal what does that have to do with searching my pockets. Nothing. And the critical issue there is going to be, you can do a stop and frisk if you have a reasonable suspicion that somebody's armed and dangerous. The fact that he disclosed he has a gun not on his person doesn't count. The act that he said in the calmest voice possible, I am agitated they literally this is the fifth circuit talking about a not white person said literally said well yeah he said agitated but you could reasonably interpret that to mean nervous and that's a thing you're entitled to be when somebody asks you

0:43:01 Thomas: This is crazy yeah these cops are just like I don't know what's happening what day is it a full moon. What's going on? The normal crap I say is not working,

0:43:19 Jenessa: I don't know like that's exactly what I would want the court to say is like he didn't say I'm agitated and then swing a fist at you he very calmly said what yes could reasonably be interpreted to mean I am nervous why are you making me get out of my car and they said that did not justify continuing to search him additionally once they did a pat down not that that was okay but the other officer says empty out your pockets well one guy already already patted him down. That revealed no weapons. The whole point of a Terry stop is you search for weapons for immediate danger. Already determined there's no weapons asking him to empty his pockets is a great way to try to find not a weapon but evidence of some other crime. You can't be doing that. So that's also unjustified. They go through clearly established. Do we have precedent on this? Yes, we do. All of this is clearly established. You know you can't pull people over when you have no reasonable suspicion you know the rules for a terry stop there's one thing cops know it's the rules für a terri stop you know you didn't have a right to search him you

0:44:31 Thomas: A constitutionalist like that.

0:44:33 Jenessa: My I literally was like I as soon as I heard that I had to google his name and I was like why do I have a mugshot like it was so perfect so I can leave you with this. Two clips of these guys just for an extended period of time sitting in their car looking stuff up while the two plaintiffs stand outside wondering what's happening.

0:45:06 Clip: Had a bad experience with the police. Apparently this is a good trip

0:45:17 Jenessa: Narrator, it was not. Um got one more for you uh plaintiff in part of these interactions has mentioned to officer lewis that he is he's not just from new mexico he is from roswell new mexico please

0:45:33 Clip: To Roswell. I was like, Roswell? You know where the alien ship crashed? What? Oh my god, you've never heard of Roswell, New Mexico? You know that's a history time? Alien ship crashed like in the 40's and they had the little green men. The government came and scooped and they created Area 51 out of it.

0:45:50 Thomas: This is, oh my God. Oh my

0:45:55 Clip: Oh my God dude, you have to do the Roswell in New Mexico. Oh, I heard you like have meteorites, huh? Yeah, he was like, yeah. I was like wow. I don't know.

0:46:06 Clip: It's a spacecraft crash there in the 40s.

0:46:10 Thomas: Much you want to bet that other officer knows perfectly well what's going? I was just like, oh no, yeah, okay, I don't want you to talk about any of this yeah no yeah yeah this

0:46:18 Jenessa: Stop joe rogan the cop from telling me about this

0:46:21 Thomas: Is for sure joe rogan the cop and this is who we put in charge of you know weapons and policing and and is what we delegate physical force to in our society some idiot who thinks there's aliens in roswell and it's like you don't even you don' you don't watch the street channel oh man

0:46:43 Jenessa: Man you he said to him like where you're from where you go and and he said roswell and he was like oh like where are the aliens and the guy was like yeah and he's like oh I thought he was just doing the thing where you try to disarm a situation and you chit chat and then for like a solid minute he's like no aliens the history channel the government and I was just like oh my god what's happening

0:47:06 Thomas: He's a constitutionalist it all fits yeah

0:47:09 Jenessa: Two plaintiffs are standing out there talking to each other stressed out wondering what's happening and these two doofuses are talking about roswell new mexico just

0:47:17 Thomas: Always wonder what's taking so freaking long and they're just doing nothing turns out nothing incredible

0:47:23 Jenessa: Of luck to them if the fifth circuit upheld that I know maybe they'll appeal to the supreme court the cops or maybe at this point you will settle because you just lost it at the fifth circuit what are your odds at the supreme court I would imagine it's going to settle these these things almost never want to go to a trial but I mean good for this guy he's currently in the middle of fighting two different lawsuits section 1983 fourth amendment violations against the police and in the fifth and tenth circuit those cops were denied qualified immunity next time we come back and talk about that tenth circuit case which is somehow even wilder and worse yeah

0:48:03 Thomas: Well what great news this is amazing I love this plaintiff uh Hopefully this leads to more better outcome. I don't know. Who knows? Do you think it's just a one-off or what is happening?

0:48:15 Jenessa: I don't know I mean this just the fifth circuit covers a lot of states and it just set a precedent for how to approach this kind of case I it's kind of a big deal it lays out a strategy I think for plaintiffs so yeah I don't know good news man oh

0:48:33 Thomas: Awesome. Well, thanks so much for the breakdown. Thanks most of all to our alien friend, the plaintiff, who has now somehow overcome qualified immunity in his cases twice. I mean, that is like as rare as aliens. He might be an alien. Hold on. Blowing the lid off this one. I hope that officer listens to this podcast because he'll be like, he is an alien.

0:48:57 Jenessa: Use the insanity defense

0:49:02 Clip: This has been Opening Arguments, produced by Thomas and Lydia Smith, with editing help from Peter Baird. The intro is by Thomas Smith. This outro is by Matt Cameron. Support the show at patreon.com/law. Contact us through Patreon or openarguments@gmail.com. Make sure to follow our blue sky at OpenArgs. But most of all, please share the show. Thanks for listening.

0:49:34 Jenessa: Just shut up just

0:49:37 Thomas: Were they visited by three ghosts or something huh