Judge approves ACLU lawsuit against ATF

[Flyboy]

http://www.srpressgazette.com/news/aclu_5047___article.html/atf_judge.html; found at http://reason.com/blog/show/129477.html, where Radley Balko titled it "That'll Teach Her for Thinking We're Thugs"

Judge approves ACLU lawsuit against ATF
Lawsuit Claims ATF’s Unlawful Retaliation for Free Speech
2008-10-03 12:07:00
Jeni Senter

ACLU Director of Communications Brandon Hensler says the American Civil Liberties Union of Florida received an early victory today when Senior Federal Judge Lacey A. Collier denied the ATF’s motions for summary judgment in Kilpatrick v. U.S.


The ACLU filed the case on April 18, 2006, on behalf of Karen J. Kilpatrick, who claimed that the Bureau of Alcohol, Tobacco and Firearms (ATF) violated her Free Speech rights.


Kilpatrick was driving her blue van in Pensacola on April 19, 2004, with the slogans “Remember the Children of Waco” and “Boo ATF” written on some of the windows when she was pulled over by police for questioning by the ATF.


The ACLU argues in the lawsuit that her First Amendment Rights to Free Speech and her Fourth Amendment right to be free from unreasonable search and seizure were violated when officers detained her for an hour, searched her car without consent, and ordered her to remove the writing on the side of her van.


“The ATF’s actions were unconstitutional and there was no legal justification to stop and question Ms. Kilpatrick. We believe that the ATF was trying to silence Ms. Kilpatrick and the 911 call substantiates this position,” said Bert Oram, ACLU cooperating counsel.


“We are confident that we can win this case once the facts are demonstrated and we are pleased that we will be able to make our case in court,” he says.


Counsel for Kilpatrick v. The United States of America are Bert Oram, ACLU cooperating attorney; and Benjamin Stevenson, ACLU of Florida staff attorney in Pensacola.


The MP3 file of the 911 call and a PDF copy of the Order on Summary Judgment can be viewed at: http://www.aclufl.org/pdfs/Kilpatrick-SJ.pdf.

 

[Gunnerpalace]

Meh. When the ACLU says they support 2nd amendment rights I'll listen.

 

[ilbob]

let us hope for a $100,000,000 verdict with a least a big chunk of it local so no local cop will ever cooperate with such a farce in the future.

 

[Feanaro]

Meh. When the ACLU says they support 2nd amendment rights I'll listen.

I'll take what I can get. They are at least tangently helping our cause here.

 

[Gunnerpalace]

let us hope for a $100,000,000

Uhh that's tax money.

 

[ArmedBear]

Yeah. That's our tax money.

I'd prefer to see any officers involved in this executed, and a much smaller settlement to compensate the victim.

Gross, conscious, intentional abuse of power by Federal LEO's should be a capital offense.

 

[ilbob]

Uhh that's tax money.

Would be the best $100,000,000 every spent.

 

[Claude Clay]

the fine to the injured party should be paid by:
4 weeks gross pay from every involved official. one year subtracted from each of their pensions. 4 weeks unpaid leave which can not be off-set by vacation time or in any other manner. no overtime for 6 months when they return. and 15 anger management/ civility classes. a signed statement by each of them that if they are ever found guilty of a similar crime that they will forfeit uncontested their job and ALL pension benefits for themselves and family-- forever.
the plaintiffs costs associated with the unfounded case must be fully reimbursed by the losers (sic) in full and directly from their personal accounts. no gifts or fund-rasiers allowed. failure to do this within 6 months of the verdict results in re-opening the verdict and that they be held in jail during the trail. costs include lost wages, medical, transportation, etc. or $300 per day plus legal fees.

 

[ArmedBear]

This is not about "anger management" or "civility." This is deliberate intimidation of citizens, for their opinions, by Federal police, using their power to detain a citizen. If she'd have fought back, she'd be in deep doo-doo.

That cannot be tolerated in a free society, and not one of these officers should ever be allowed to return to work for the Federal government, no matter what.

 

[Crunker1337]

"I'd prefer to see any officers involved in this executed"

I wouldn't.

 

[ArmedBear]

"I'd prefer to see any officers involved in this executed"

I wouldn't.

I'll bet that the Gestapo didn't come for your grandparents and your dad, though.

As a result, I have a bit less tolerance for this sort of action by Federal cops than some people.

 

[Claude Clay]

whether its about anger or civility is mote: call it sensitivity training----its about them having to be at a certain place at a certain time for 15 weeks and their being enlightened to the consequences of their actions.
that they may be inconvenienced is but a pleasant side effect.

 

[ArmedBear]

You really think that their sentences should be less than the guys who fired pistols at a drug smuggler at the border, when they believed he was going to fire on them? I think they got 11 years or so.

 

[Ergosphere]

Assuming the article's description of events is correct, what are the chances that the agents involved would lose qualified immunity?

 

[.38 Special]

Meh. When the ACLU says they support 2nd amendment rights I'll listen.

Because we all know that the 2nd is the only important amendment, right?

 

[ArmedBear]

what are the chances that the agents involved would lose qualified immunity?

LOL

Here's a clue. The agents involved in Waco got a monument in DC.

 

[.38 Special]

The agents involved in Waco got a monument in DC.

I understand the "Sniper shooting a baby" statue was ruled out early in the process...

 

[armoredman]

Differant outrage.

 

[.38 Special]

No babies were shot at Ruby Ridge. It is likely they were at Waco, though we'll probably never know.

 

[Gunnerpalace]

I'll bet that the Gestapo

That is a poor argument the ATF have NEVER done anything on par with the Gestapo.

 

[Tyris]

That is a poor argument the ATF have NEVER done anything on par with the Gestapo.

Is that with the exception of burning children alive at Waco, or are you stating that they're worse than the Gestapo because even the Gestapo wouldnt stoop that low?

-T

 

[Gunnerpalace]

Is that with the exception of burning children alive at Waco,

Not ATF.

EDIT before lock
In regards to the Thread (start a new one as per req)
The Agent involved should lose his job yes,
This is for the the 1st amendment
The ACLU is known to be anti 2nd amendment,

 

[ilbob]

Assuming the article's description of events is correct, what are the chances that the agents involved would lose qualified immunity?

I would say slim to none. Government cannot afford to allow its rogue agents to be subject to the same laws as the rest of us, or they will stop being rogue.

My guess is no jail time, and if a judgment comes down against one personally, somehow the taxpayers will foot the bill. My guess is the taxpayers are footing the legal bills already.

I would not be at all surprised to see a change in the law to give them more immunity.

 

[insidious_calm]

Unless the JBTs win on appeal, the ATF agent DID lose immunity and is being sued personally.

Under Plaintiff’s version of the facts, Officer Roegner’s detainment of Plaintiff
exceeded the scope of Terry. While the length of detention is not alone determinative,
Plaintiff was held for over an hour with very little to show for it as far as investigative
outcome. While Plaintiff and Roegner apparently spoke at length, Defendant provides little
in the way of detail to show the necessity of the long duration, of the danger that was
suspected and then evidently allayed. More importantly, Defendant contends only that it was
necessary to search Plaintiff and her vehicle, essentially because she had a weapons permit.
While Plaintiff was indeed found to have a weapon, and evidently the permit to go with it,
this alone could hardly have constituted the suspicion of criminal activity upon which the
Terry stop was based. Defendant also points to the report of an assault earlier in the day, but
no detail is provided that might trigger the need for the search. Without more, searching the
van, even if it can be deemed “successful” for uncovering the firearm, appears to have
accomplished nothing. Whatever Roegner’s articulable suspicions might have been, they
were seemingly satisfied by merely talking to Plaintiff, and certainly not by the search.
Of course, Defendant asserts that Plaintiff consented to the search, but because
Plaintiff denies this and Defendants make no effort to show that they otherwise had probable
cause for the search, the Court must conclude that there was no legal basis for the search.
In the context of qualified immunity, the question becomes not whether probable
cause actually existed but whether it arguably existed, that is, whether under the
circumstances a reasonable officer could have believed that probable cause existed. See
Case 3:06-cv-00158-LC-MD Document 117 Filed 09/26/2008 Page 9 of 18
Case No. 3:06cv158/LAC Page 10 of 18
Swint v. City of Wadley, Ala., 51 F.3d 988, 996 (11th Cir. 1995) (citing Moore v. Gwinnett
County, 967 F.2d 1495, 1497 (11th Cir. 1992)). This is out of recognition that situations may
arise where the officer mistakenly but reasonably thought probable cause to exist. Id. Under
the facts of this case, the Court must likewise conclude that Defendant is not entitled to
qualified immunity. Defendant, relying as he does on the assertion that Plaintiff consented
to the search, does not seriously contend that probable cause existed, and in any event no
officer could reasonably conclude that such the pointless search performed in this case could
be justified under the circumstances.

Yes, qualified immunity is out and, hopefully, prison is in all of their futures including the city thugs who stopped her without justification. Couldn't happen to a finer group of folks I'm sure.


I.C.