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Cougar
2013-May-16, 06:44 PM
I cannot tell if the convoluted sentence quoted below actually has any meaning. What do you think?

This deals with a legal question, which is not difficult to understand. In order to sue a law enforcement officer for a violation of the U.S. Constitution (such as an illegal search), it must be "well established" that the conduct was a violation. (A prior ruling by the U.S. Supreme Court or the local Federal Appeals Court accomplishes this.)

The quotation below also involves a drug-sniffing dog. U.S. law allows a trained canine to sniff around a vehicle, and if the dog smells drugs and gives his trained indication or "alert" that he smells drugs, then this establishes probable cause, which allows the officers to then enter and search the vehicle. (The dog sniff is not considered a "search.") But it is definitely clearly established that the dog must alert from outside the vehicle. The dog or the officers cannot enter the vehicle prior to establishing probable cause. (There is an exception to this, but that's irrelevant to this question.)

I swear, I cannot determine what the following sentence means. Obviously the multiple negatives are problematic. Does it have any meaning, or is it so poorly written that it has no meaning?


It is not clearly established that a reasonable officer would not know that he had to establish an alert by his dog before the dog entered the vehicle.

Gillianren
2013-May-16, 06:52 PM
I think what it means is that (and I apologize in advance for not being able to wipe out enough of the negatives) that it is uncertain if a reasonable officer would know that the alert had to come before the entering the vehicle.

Strange
2013-May-16, 06:57 PM
I don't see much of a problem with it (but I have spent years reading contracts!). My reading is as follows...

There is a Thing that has to be done (establishing an alert by the dog before the dog enters the vehicle). Lets call that X.

The question before the court is, would a "reasonable officer" know X or not know X?

The prosecution argues that a reasonable officer would not know X. (I assume that this would be said by the prosecution to try and argue that it was not an illegal search).

So the question is, has the prosecution provided evidence (e.g. a prior judgement by SCOTUS) to support their argument.

If the answer that question is "no" then: It is not clearly established that a reasonable officer would not know that he had to establish an alert by his dog before the dog entered the vehicle.

ETA: Gillian's answer appears to be consistent with this, but has a lightly different emphasis.

iquestor
2013-May-16, 07:17 PM
it means that whoever owns that vehicle is screwed.

Cougar
2013-May-16, 08:25 PM
it means that whoever owns that vehicle is screwed.

Well, yes, but wrongly screwed. That's why the vehicle owner has brought a civil suit against the dog handler for a violation of her civil rights (4th Amendment). There were no drugs in the car, by the way.


The question before the court is, would a "reasonable officer" know X or not know X?

I'm not sure how you get that, but if you just throw away the second "not" in the sentence, then at least the sentence makes sense:

"It is not clearly established that a reasonable officer would know that he had to establish an alert by his dog before the dog entered the vehicle."


It makes sense, but it is demonstrably wrong (see U.S. v. Winningham (http://federal-circuits.vlex.com/vid/u-s-v-winningham-18500473)). Nobody, including the dog, can enter the car without probable cause. If the dog gives an affirmative alert from outside the vehicle, that establishes probable cause. With that second "not" in there, my head just tends to explode trying to parse the expressed meaning of the sentence!

Strange
2013-May-16, 08:54 PM
I'm not sure how you get that, but if you just throw away the second "not" in the sentence, then at least the sentence makes sense:

"It is not clearly established that a reasonable officer would know that he had to establish an alert by his dog before the dog entered the vehicle."


Yes, b ut that completely changes the meaning.

OK, with the context, I can see that I guessed wrong about who was making the argument. So, I assume the defendant (the police officer or police force?) is arguing that an average cop would not know that this rule existed; i.e. the rule that the dog cannot enter the car before showing an alert. (Which sounds quite unreasonable; you would expect dog handlers to be very accurately trained in what they can and cannot do.)

The sentence (part of the judgement?) refutes that argument by saying that there is nothing to support it (i.e. it is "not clearly established").

Does this help:
A: "It is not clearly established"
B: "What is not clearly established?"
A: "That an officer would not know about this rule."
B: "I see, it is not clearly established that a reasonable officer wouldn't know the rule"

SeanF
2013-May-16, 09:07 PM
Yes, but that completely changes the meaning.
How so?

Noclevername
2013-May-16, 09:08 PM
The sentence means that the writer of the sentence was trying to cloud the issue and confuse laymen with fancy footwork.

Hlafordlaes
2013-May-16, 09:44 PM
...

Strange
2013-May-16, 09:56 PM
How so?

The argument presumably being made is that the cop shouldn't be expected to know.

There is (surely?) a difference between no evidence ("not clearly established") that he should know (the modified sentence) and no evidence that he shouldn't know (the original).

An absence of evidence for something is not the same as an absence of evidence against something.

Cougar
2013-May-16, 10:46 PM
So, I assume the defendant (the police officer or police force?) is arguing that an average cop would not know that this rule existed; i.e. the rule that the dog cannot enter the car before showing an alert. (Which sounds quite unreasonable; you would expect dog handlers to be very accurately trained in what they can and cannot do.)

You are right - dog handlers ARE expected to know what they can and cannot do. This is the Fourth Amendment to the U.S. Constitution that protects U.S. citizens against unreasonable searches and seizures! Winningham was decided in 1998. The relevant language says:



If the dog's leap into the car violated the Fourth Amendment, police were not entitled to draw probable cause from the dog's alert, and the resulting search was illegal.


The rule is simple. You have to establish probable cause; then you can search. If a dog handler lets his dog just jump into a vehicle before establishing probable cause, then that's a violation.For law enforcement officers, ignorance of the law is just that - ignorance. Cops are expected to know "clearly established" law, and it is clearly established exactly what "clearly established" means!


The argument presumably being made is that the cop shouldn't be expected to know.

See, that's the problem. It's hard to tell just what argument is being attempted. I cannot imagine that the defense attorney would claim the cop shouldn't be expected to know. That simply does not fly. It seems to be more like what noclevername said: "The sentence means that the writer of the sentence was trying to cloud the issue and confuse laymen with fancy footwork." Unfortunately, this seems to be a common strategy for defense attorneys, along with delaying as much as possible. They can just keep billing their clients for their time spent on the case. Plaintiff's attorneys usually only get paid if they win the case, when they get a percentage of the jury award. Seems like a bit of a problem with the system. (Of course, most cases settle before trial, but still....)

What is truly incongruous is that the defense attorney in this case filed a motion for summary judgment that really had no basis. The trial court denied the motion. OK, let's get on with it and put the question to a jury. But no. This guy had to appeal to the federal circuit court of appeals - with even less of a basis for an appeal!

BTW, the incident that instigated this lawsuit occurred in 2008!

Jens
2013-May-16, 10:49 PM
I agree the sentence is hard to understand. I guess the reason is that whoever was making the appeal was arguing that a reasonable officer would not know something, and the court was turning down the appeal, telling the plaintiff that he hadn't demonstrated that a reasonable wouldn't know, and thus was losing.

megrfl
2013-May-16, 10:51 PM
I cannot tell if the convoluted sentence quoted below actually has any meaning. What do you think?

"It is not clearly established that a reasonable officer would not know that he had to establish an alert by his dog before the dog entered the vehicle."

Q - Would a reasonable officer (having sound judgment) know that his canine would have to raise an alert before there was probable cause to search/enter a vehicle?

A - It is not clearly established.

Strange
2013-May-16, 11:08 PM
The rule is simple. You have to establish probable cause; then you can search. If a dog handler lets his dog just jump into a vehicle before establishing probable cause, then that's a violation.For law enforcement officers, ignorance of the law is just that - ignorance. Cops are expected to know "clearly established" law, and it is clearly established exactly what "clearly established" means!

It seems you might be being misled by your existing understanding of the legal situation; remember, the sentence is a response to a counterfactual argument.

Strange
2013-May-16, 11:09 PM
"It is not clearly established that a reasonable officer would not know that he had to establish an alert by his dog before the dog entered the vehicle."

Q - Would a reasonable officer (having sound judgment) know that his canine would have to raise an alert before there was probable cause to search/enter a vehicle?

A - It is not clearly established.

Close :)

Q - Would a reasonable officer (having sound judgment) NOT know that his canine would have to raise an alert before there was probable cause to search/enter a vehicle?

A - It is not clearly established.

Cougar
2013-May-17, 12:57 AM
Q - Would a reasonable officer NOT know?
A - It is not clearly established.

OK, I think that is sinking in. Barely. That's basically equivalent to the original "It is not clearly established that a reasonable officer would NOT know." And as Sean suggested, that seems pretty close to being the same as "It is not clearly established whether a reasonable officer WOULD KNOW OR NOT."

REGARDLESS, the claim is legally immaterial nonsense, in my mind. It doesn't matter whether the officer knew or not! The only thing that matters is whether the law was clearly established. This is one of those situations where the officer either knew, or he should have known. If he tries to claim "But I was unaware of that," the judge will say, "That's no defense. You should have known."

Gillianren
2013-May-17, 03:05 AM
I think that's why they emphasize "a reasonable officer," but I have to agree.

SeanF
2013-May-17, 04:26 AM
The argument presumably being made is that the cop shouldn't be expected to know.

There is (surely?) a difference between no evidence ("not clearly established") that he should know (the modified sentence) and no evidence that he shouldn't know (the original).

An absence of evidence for something is not the same as an absence of evidence against something.
"It has not been clearly established that a reasonable officer would not know..." is a much weaker assertion than "It has been clearly established that a reasonable officer would know..." By choosing not to state the latter, the writer is implicitly acknowledging that it has not been clearly established that a reasonable officer would know.

To use the analogy in your final sentence - if there were evidence for something, wouldn't you cite that evidence rather than simply saying there's no evidence against it? And if someone tried to defend an assertion by simply saying, "There's no evidence against it," wouldn't you assume that to mean they had no evidence for it?

Jens
2013-May-17, 04:32 AM
REGARDLESS, the claim is legally immaterial nonsense, in my mind. It doesn't matter whether the officer knew or not! The only thing that matters is whether the law was clearly established. This is one of those situations where the officer either knew, or he should have known. If he tries to claim "But I was unaware of that," the judge will say, "That's no defense. You should have known."

I don't think that's necessarily true. You're American, I believe, so you are operating in a system of common law. Under continental law what you said would be true, but under common law it doesn't have to be.

Strange
2013-May-17, 07:42 AM
OK, I think that is sinking in. Barely. That's basically equivalent to the original "It is not clearly established that a reasonable officer would NOT know." And as Sean suggested, that seems pretty close to being the same as "It is not clearly established whether a reasonable officer WOULD KNOW OR NOT."

Agreed, I would struggle to define a difference in meaning between the "would know" or "would not know" versions. But there is a difference in emphasis. Clearly, one party is arguing that it is OK for the cop not to know.


REGARDLESS, the claim is legally immaterial nonsense, in my mind. It doesn't matter whether the officer knew or not! The only thing that matters is whether the law was clearly established. This is one of those situations where the officer either knew, or he should have known. If he tries to claim "But I was unaware of that," the judge will say, "That's no defense. You should have known."

I tend agree so I assume the argument was rejected. In fact, isn't the sentence being discussed part of the rejection of the argument?

Strange
2013-May-17, 07:43 AM
"It has not been clearly established that a reasonable officer would not know..." is a much weaker assertion than "It has been clearly established that a reasonable officer would know..."

True. But that is yet another sentence, which I hadn't considered!

Jens
2013-May-17, 10:03 AM
True. But that is yet another sentence, which I hadn't considered!

It's actually different meaning. I don't know if it's true versus I know it's not true.

Cougar
2013-May-17, 01:24 PM
...I assume the argument was rejected.

Not yet. Of course, this argument is only a part of a 30-page "appellant's brief," which has yet to be responded to by the plaintiff/appellee. Then the appellant gets a final reply. Then the Circuit Court of Appeals has to look through all this stuff and come to a decision, which will undoubtedly take numerous months. THEN the argument will be rejected, I predict. :dance:

Strange
2013-May-17, 01:45 PM
Or, it could have been an example of "misnegation": http://languagelog.ldc.upenn.edu/nll/?p=4629

OK, probably not, given the context. But people are able to produce sentences that are so hard to parse that they don't even mean what the speaker intended!

SphinxCore
2013-May-17, 02:00 PM
"Ignorance of the law is no excuse" may be used against both a presumed criminal as well as law enforcement.

In a case in Dallas (TX) years ago an officer kicked in a suspect's door, jumped inside the apartment with his gun drawn, and got shot dead.

The next officer in the door clearly identified himself as law enforcement, which the first officer failed to do, and the suspect surrendered.

The District Attorney attempted to press charges for capital murder and failed due to the fact the suspect had the reasonable right to defend himself against unknown people breaking into his apartment with a weapon at the ready.

As the judge in the case stated, the suspect may have been guilty of dealing small quantities of drugs but it did not excuse the police officer from announcing his identity prior to entering the apartment. As such the suspect exercising his right to self-defense could in no way be construed as either murder or wrongful-death. The judge gave the prosecutor the choice of dropping the charge or having the case thrown out.

Ara Pacis
2013-May-17, 02:53 PM
I agree with what others have said about the meaning of the sentence. Having studied con-law and talked to defense attorneys, criminology majors and police officers, I get the impression that there is not an expectation that officers (in the US) will be constitutional scholars in their work. They train on tactics instead of philosophy, and the legal wrangling may be left to the prosecutor and commissioners who authorize certain police activities. In a similar manner, enlisted military personnel may not be required to read Sun Tzu or von Clausewitz, while their officers would. The reason they may not be trained in it is that prosecutors are elected and tend to run on their conviction records, and those conviction records tend to be full of plea bargains, which means that claims of police over-reach may often not see the judicial light of day and so they are not discouraged.

SphinxCore
2013-May-17, 05:25 PM
Or, it could have been an example of "misnegation": http://languagelog.ldc.upenn.edu/nll/?p=4629

OK, probably not, given the context. But people are able to produce sentences that are so hard to parse that they don't even mean what the speaker intended!

This is most often done by members of the Corps Diplomatic employed by most countries -- as a rule diplomats can talk for hours and once their statements are analyzed it turns out they said nothing.

Jens
2013-May-18, 04:48 AM
As the judge in the case stated, the suspect may have been guilty of dealing small quantities of drugs but it did not excuse the police officer from announcing his identity prior to entering the apartment.

In the spirit of the thread, shouldn't that be "but it did not excuse the police officer from NOT announcing his identity?"

Tog
2013-May-18, 08:52 AM
It is not clearly established that a reasonable officer would not know that he had to establish an alert by his dog before the dog entered the vehicle.

The way I break it down is like this.

A reasonable officer would not know that he had to establish an alert by his dog before the dog entered the vehicle. True or false?

This is already possibly clouded. Was the "reasonable officer" in question one with dog handling experience? If the guy had never been trained with dogs, would he know that detail, or would he go on the assumption that the dog jumping in to the vehicle WAS the alert?

That's the second part. It's not "clearly established" that a reasonable officer would know that. An officer trained to work with a dog would surely be expected t know that, but would any officer. The use of "his dog" does make it sound as if the officer was the dog handler, and therefor should know the laws regarding their use.

I also have to wonder if this was a WVC related thing (which will only make sense to Cougar and maybe a couple of others.) If so I think the term "reasonable officer" might bear further scrutiny. ;)

Cougar
2013-May-18, 01:45 PM
I also have to wonder if this was a WVC related thing (which will only make sense to Cougar and maybe a couple of others.) If so I think the term "reasonable officer" might bear further scrutiny. ;)

Ha ha, that definitely makes sense to me. But this was down around Cedar. It's a bit like a Lisa Steed related thing (which will only make sense to Tog and maybe a couple of others), but without the potential for a class action.

But yes, this involved the trained dog handler and the trained dog. And handler training, at least in this state - it's not very uniform nationally - includes a section on all the relevant case law. I fear the training also includes oral suggestions and tricks about how to circumvent Fourth Amendment protections, as seems to be evident in this particular case.

SphinxCore
2013-May-18, 04:08 PM
In the spirit of the thread, shouldn't that be "but it did not excuse the police officer from NOT announcing his identity?"

Ah yes, I see your point, though I would have to state for the record that the original attorney's semantics were chosen to befuddle and bemuse any listener as much as possible but not with the skill of say, Clarence Darrow.

publiusr
2013-May-24, 09:32 PM
I sometimes wonder if drug dogs may be trained to do false indications on purpose so as to give the officer probable cause to do what he wants to do anyway. Take this case:
http://www.ndsn.org/feb96/quadro.html

There are two ways to interpret this. Either the buyers are chumps, or that the cops knew it was fake and were taught to just point it at whoever they wanted to search, shades of the "Ghost 250s" as reported by Adrian Schoolcraft: http://en.wikipedia.org/wiki/Adrian_Schoolcraft