Burns v. Sailor: Ludington Citizens Get Burned, City Sails On

[XLFD]

The Ludington City Council's agenda for April 8, 2013 has scheduled within it (9d) a closed session to discuss the matter of Shelly Jo Burns v. Aaron Sailor, a lawsuit by a Ludington citizen against a LPD Officer (Sailor).  You may have read about it in the City of Ludington Daily News yesterday, right at the very end of the usual Saturday-before-the-Monday-meeting blurb about the council meeting. 

 

They say:  "The council is also scheduled to meet in closed session to discuss a lawsuit filed against Ludington Police Officer Aaron Sailor.  Shelly Jo Burns is alleging the officer committed assault and battery and violated her civil rights during an incident on February 25, 2012." 

                                             Ludington Police Department's Aaron Sailor, second officer from left

It's amazing how well they keep secrets here in Ludington.  I live on the same street, East Dowland, as the incident happened, run a local watchblog, attend most all of the City Council meetings I am legally permitted at, read all the meeting minutes, and have made over 150 FOIA requests to the City of Ludington since 2009, but I was totally in the dark on this one.  It is not too big of a mental exercise to believe that our local police could be capable of violating our citizen's civil rights, this is, after all, the city that created a policy that allows their City Manager to ban anyone from public facilities on a whim without any regard to due process.  And the City whose police officer took part in a Taser Tag party on a citizen who had committed no crime.

 

 

The above memo to the council instructs the city council that they will be discussing pending litigation in closed session.  Haughty City Manager John Shay says they will discuss this in closed session, but he has no ability to make that motion or a vote to do so.  That determination is to be made by the City Councilors.  If we review the agenda, we will also find Shay has said part of their agenda is to "Uphold FOIA Coordinator's response dated 3/19/13 to Tom Rotta's request dated 3/14/13."  If that is part of their agenda, it makes it pretty pointless for me to write a 5 minute speech detailing how wrong the City's FOIA Coordinator is wrong with his blanket denial of records involving Lowell Fetters shootout with the cops last June.  'The agenda is already set' covers that in five words.

 

There are indications that this complaint started out in our local circuit court, but got switched over to the Western Michigan Federal District Court, probably due to the Constitutional violations alleged in the complaint.  But here's the complaint complete with the defendant's answers to that complaint.  It is followed with a link to the .pdf file it came from and a couple of more documents and some analysis.

 

The .pdf file for this answer is here.  Here is a supplemental summary of the two party's version of events found in this document:

 

 

My analysis of the facts behind this case may be tainted by my past misgivings about the LPD, so be free to make your own decisions.  It seems agreed that Sailor did enter the house without displaying any type of warrant and without the consent of the owner.  The homeowner expressly denied Sailor to enter the residence, Sailor never produced a search warrant until it was brought later, but he advanced further into the house, and made some contact with Ms. Burns that caused injuries. 

 

As such, it seems to me like they did violate Mrs. McCann's and her visiting sister's Fourth Amendment rights at the least, and after violating those rights knocked down an innocent Ludington citizen bystander and injured her.  On the surface, this is a strong case, because with the given fact set, Officer Sailor and McMellen looks to have clearly violated the two sister's Fourth Amendment rights.  And here's why in a nutshell:

 

The Fourth Amendment protects private citizens from unreasonable searches and seizures, which includes entering your house without consent and searching your house without a warrant.  There are some exceptions, but let's start with the basics first. What is a search warrant? If a judge is convinced that there is "probable cause" of either criminal activity or contraband at a place to be searched, he or she will issue and sign a search warrant—a court order that allows the police to search a specific location for specified objects at a specific time.

 

You may ask to read the search warrant or have the officer read it to you.  Absent consent or exigency, an officer cannot enter a home to arrest a person who does not live there unless the police also have a warrant to search that home for the person to be arrested (Steagaid v. U.S.). Whether an arrest warrant is also required is an open question.  But in this case, the officers didn't have a search warrant and never produced their outstanding warrant.

 

There are four main circumstances in which a warrant is not required for police to search your house:

1. Consent. If the person who is in control of the property consents to the search without being coerced or tricked into doing so, a search without a warrant is valid. Note that police do not have to tell you that you have the right to refuse a search, but you do. Also, note that if you have a roommate, he or she can consent to a search of the common areas of your dwelling (kitchen, living room), but not to your private areas (bedroom, for instance). On the other hand, the Supreme Court recently ruled that one spouse cannot consent to the search of a house on behalf of the other.

2. Plain View. If a police officer already has the right to be on your property and sees contraband or evidence of a crime that is clearly visible, that object may be lawfully seized and used as evidence. For example, if the police are in your house on a domestic violence call and see marijuana plants on the windowsill, the plants can be seized as evidence.

3. Search Incident to Arrest. If you are being arrested in your house, police officers may search for weapons or other accomplices to protect their safety (known as a "protective sweep"), or they may otherwise search to prevent the destruction of evidence.

4. Exigent Circumstances. This exception refers to emergency situations where the process of getting a valid search warrant could compromise public safety or could lead to a loss of evidence. This encompasses instances of "hot pursuit" in which a suspect is about to escape. A recent California Supreme Court decision ruled that police may enter a DUI suspect's home without a warrant on the basis of the theory that important evidence, namely the suspect's blood alcohol level, may be lost otherwise.

None is 'warranted'  here, and the contact made with Shelly Jo Burns, apparently with her back to the officer, and absent the authority to be in the house in the first place makes any injuries she received from Officer Sailor his fault, for apparently not following the correct protocol. 

 

But here is the important part.  You may feel that the lawsuit is a lot of to-do about nothing and support the actions of the defendant as a necessary trade-off for catching a fugitive.  Or you can feel that violating the two sister's rights to peacefully reside in a domicile absent a properly secured warrant is something that demands further discipline for Aaron Sailor and Matt McMellen and a huge award for both women.  Or something in between.  You may think that Ms. Burns is overstating her injuries or understating them. 

 

But the City of Ludington has tentatively decided that they will settle this case for an undisclosed sum at this point.  And the purpose of Monday night's closed session will be just so they can vote on those terms as far away from the public's eye as they can.   Take a look at these two court documents:

 

 

 

 

 

 

 Shown here and here; note our $60+ an hour John Shay is attending on behalf of the defendant.  So the only thing left to do is to have the Ludington City Council decide, in closed session, whether the City of Ludington proper, will agree to the terms negotiated, come out of that meeting, and vote on whatever terms were agreed upon, using the taxpayer's money to pay off this 'blood money'.  What a perfect example of a government that operates almost solely in the dark.  Which raises this other question...

        

The City's often used risk-management attorneys have came forth to defend several public figures serving the City lately, including LPD's Warmuskerken, City Hall's John Shay, and now LPD's Aaron Sailor.  Sailor is the only one to be individually charged from the get go. 

 

But as was pointed out in this thread :  In Messmore, Sonnenberg, and all other similar precedents, the courts of Michigan have ruled that if a police officer in service to the community is sued for some incident occurring while they are acting in their official capacity, the public entity they serve is not forced to defend their actions, nor are they forced not to defend their actions.  It is up to the discretionary powers of the board that oversees the expenditures of the public entity. 

 

The Ludington City Council failed to make such a decision in an open meeting in this case, allowing Officer Sailor the ability to use their legal services and the City of Ludington taxpayers to fund the expense and their insurance to pay off the lawsuit without official approval.  So much for personal and fiscal responsibility.   Where there is no accountability, public officials can get away with practically anything irregardless of the laws and the rights of their citizens.  This is just one of many cases in point.

[XLFD]

The answer to the 'Burns v. Sailor' complaint had acknowledged that there were two arrest warrants out for Jeff McCann at the time of the incident.  The way the answer to the complaint is worded, I believe these warrants were not available or presented to the homeowner, Jeff's mother, prior to the illegal trespass by officers Sailor and McMellen before the assault on Shelly Burns was committed by Sailor. 

I'd love to give Jeff a fair opportunity to present a truthful account of events before, during and after that night he was arrested, but I'm getting the impression that he only wants to act tough and accomplish nothing other than look foolish.