What Happens If You Take The Fifth in a Civil Case?

What Happens If You Take The Fifth in a Civil Case?

By Eugene Volokh | The Volokh Conspiracy

August 28, 2015

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/08/28/what-happens-if-you-take-the-fifth-in-a-civil-case/

I’ve blogged before about National Abortion Federation v. Center for Medical Progress, one of the cases involving the center’s surreptitious video recording campaign. (See also this post.) Now there’s a twist, involving the Fifth Amendment and not just the First:

Defense counsel advises the Court that all individual defendants plan to invoke their Fifth
Amendment privilege to refrain from self-incrimination.

What happens if you invoke the privilege against self-incrimination in a civil case?

1. You can do it, and you won’t be held in contempt for failing to testify. Though the provision says that no person “shall be compelled in any criminal case to be a witness against himself,” the Supreme Court has made clear that this extends to compelling a person to testify in a civil case, when that compelled testimony could later be used against him in a criminal case. See, e.g., McCarthy v. Arndstein (1924):

The Government insists, broadly, that the constitutional privilege against self-incrimination does not apply in any civil proceeding. The contrary must be accepted as settled. The privilege is not ordinarily dependent upon the nature of the proceeding in which the testimony is sought or is to be used. It applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it.

2. But a decision to take the Fifth may be used against a party in a civil case (if the party is the witness who refuses to testify, or is closely enough connected to the witness). In a criminal case, the judge and the prosecutor may not tell a jury “that it may draw an inference of guilt from a defendant’s failure to testify about facts relevant to his case.” But that’s not so in a civil case, see, e.g., Baxter v. Palmigiano (1976):

[T]he Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.

So if the Center for Medical Progress people refuse to testify, the court may well give this whatever “evidentiary value … [is] warranted by the facts surrounding his case.”
3. Finally, a witness who takes the Fifth as to some matters can’t then try to provide testimony on the same subject that is helpful to the side that the witness might want to support. If the Center for Medical Progress people take the Fifth as to what they did, they thus likely wouldn’t be able to testify about facts (if there are such facts) that might help them show that certain conversations weren’t private, that the confidentiality agreements they signed might be invalid, or whatever else they want to prove. And if they do testify about certain matters, their testifying would waive their Fifth Amendment privilege, at least as to those matters. See, e.g., Mitchell v. United States (1999):

It is well established that a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details. The privilege is waived for the matters to which the witness testifies, and the scope of the “waiver is determined by the scope of relevant cross-examination.” …

The justifications for the rule of waiver in the testimonial context are evident: A witness may not pick and choose what aspects of a particular subject to discuss without casting doubt on the trustworthiness of the statements and diminishing the integrity of the factual inquiry…. [A] contrary rule “would open the way to distortion of facts by permitting a witness to select any stopping place in the testimony.” It would … “make of the Fifth Amendment not only a humane safeguard against judicially coerced self-disclosure but a positive invitation to mutilate the truth a party offers to tell.”

Feds Fighting to Keep Cash Seized From Person Never Charged With Crime - Civil Asset Forfeiture.

Feds Fighting to Keep Cash Seized From Person Never Charged With Crime

By Joseph Weber

Published August 29, 2015FoxNews.com

http://www.foxnews.com/politics/2015/08/29/feds-fighting-to-keep-cash-seized-from-person-never-charged-with-crime/

Federal prosecutors are battling in court to keep $167,000 in cash seized in a 2013 traffic stop, despite the motorist never being charged in the incident and the Obama administration clamped down this spring on such asset seizures and forfeitures.

The case -- which highlights the ongoing concerns about the government unjustly seizing money and property -- began when a Nevada state trooper pulled over the motorist on a cross-country trip to California.

The trooper stopped Hawaii resident Straughn Gorman’s motor-home in January 2013 for allegedly going too slow along Interstate 80.

According to court documents, Gorman was allowed to proceed without a citation despite the trooper suspecting he was hiding cash.

The trooper said he couldn’t inspect the vehicle because he would have needed a canine unit and for the dog to detect drugs, which would have created enough probable cause to get a search warrant.

However, no canine unit was available so the trooper released Gorman but not before requesting the county sheriff’s office stop him again -- about 50 minutes later and this time with a drug-sniffing dog.

No drugs were found during the second stop, in which Gorman was pulled over for two alleged traffic violation. But his vehicle, computer, cellphone and the cash, stashed throughout the vehicle, were seized.
In June, a federal judge in Nevada ordered Gorman’s cash be returned.

In his ruling, District Judge Larry Hicks cited Gorman’s “prolonged detention” for the alleged traffic violations and criticized federal authorities for failing to disclose that the first officer requested the second stop.

“The second stop was not based on independent, reasonable suspicion sufficient to justify the prolonged investigation,” wrote Hicks, a Bush administration appointee. “The two stops were for minor traffic violations, and they both were extended beyond the legitimate purposes for such traffic stops.”

Hicks also said in his ruling the second stop never would have happened if the first officer had not relayed information about the first stop, which included a vehicle description, suspicion about concealed cash and that a “canine sniff” would likely be needed to get probable cause for a search.

The federal government earlier this month appealed Hicks' ruling in the 9th Circuit Court, in San Francisco, considered among the most liberal in the country.

Federal attorneys did not submit a reason for the appeal in their one-paragraph request, according to The Daily Signal, which first reported the request.

The court is expected to also decide whether Gorman should be reimbursed $153,000 in legal fees, which federal lawyers don’t want to pay.

The first court proceeding is scheduled for November 19.

The Justice Department earlier this year issued a series of directives to reform and restrict its policies on asset seizures and forfeitures, amid the complaints about government abuse and overreach.

“We are keenly aware of concerns raised about certain seizures and forfeiture practices,” the agency told the Senate Judiciary Committee in April. “The department takes seriously any and all allegations of perceived or actual abuse.”

The first of the changes were announced in January by then-Attorney General Eric Holder, starting with forfeitures.

Holder said federal agencies could no longer take assets seized by state and local law enforcement agencies, except for those “directly related to public safety concerns” including firearms, ammunition, explosives and property associated with child pornography.

Among the valuables the agencies can no longer take are cash and vehicles.

In March, Holder announced changes to banking laws that allow money to be seized from people who make deposits below specific amounts to intentionally keep the transaction from being reported to federal authorities -- a scheme known as “structuring.”

Holder said authorities would now focus on “the most serious offenses” and essentially that money could be seized only after the defendant is charge with a crime or found to have been engaged in a crime beyond structuring, according to document the Justice Department gave FoxNews.com this week.

The minimum-deposit laws were enacted to detect and nab drug dealers, terrorists and other money-launders and criminals trying to conceal their enterprise and cash. And they were enacted to create a money stream to provide financial compensation to crime victims.

The IRS seized more than $242 million in roughly 2,500 alleged structuring violations, from 2005 to 2012. However, no other criminal activity was alleged in roughly 33 percent of the cases, according to the Institute of Justice, which worked on a more recent case in North Carolina.

Last year, the IRS took $107,000 from Carolina small-business owner Lyndon McLellan after he made a series of deposits under $10,000.

McLellan owns a convenience store-restaurant-gas station. And many of his transactions are in cash.
The federal government offered to return half of McLellan’s cash, a standard move by federal officials who know many people cannot afford a lengthy court battle and would rather settle.

McLellan got back all of the money but wasn’t reimbursed roughly $22,000 in legal and accounting fees, Institute attorney Robert Everett Johnson said Tuesday.

“We’re pleased that Lyndon’s money has been returned,” Johnson said. “That the federal government returned the money validates he didn’t do anything wrong.”

However, Johnson expresses dismay that his client is still battling to recoup his costs and interest on the seized money, to which he appear entitled under the 2000 Civil Asset Forfeiture Reform Act.

“We thing the federal government should make him whole,” he said. “It simply cannot pretend that nothing happened.”

Autopsy Indicates Officer Stephen Rankin Shot Unarmed Teen William Chapman From Distance

Autopsy Indicates Officer Shot Unarmed Teen William Chapman From Distance

Eighteen-year-old was not close enough to officer Stephen Rankin to pose a threat, says family lawyer, as report shows he was subsequently handcuffed

Jon Swaine in New York | @jonswaine

Monday 24 August 2015 07.15 EDT

http://www.theguardian.com/us-news/2015/aug/24/william-chapman-autopsy-stephen-rankin-police-shooting-virginia

An unarmed black 18-year-old was fatally shot in the face by a police officer from several feet away during their confrontation outside a supermarket in Virginia earlier this year, the findings of his autopsy indicate.

The typical signs of a close- or body-contact shooting were not found around the bullet wounds William Chapman sustained in the head and chest when he was killed by Officer Stephen Rankin in the parking lot of a Walmart in Portsmouth on 22 April. Chapman was the second unarmed man to be shot dead by Rankin.

“There is no evidence of close-range fire to visual inspection,” wrote Wendy Gunther, an assistant chief medical examiner for Virginia. Gunther said a definitive ruling would be made by the state’s department of forensic sciences.

A copy of Gunther’s report was obtained by the Guardian from a source who was not authorized to release it to the media, along with a separate toxicology report from state forensic investigators that said Chapman’s blood showed no traces of alcohol or drugs.

Rankin and Chapman engaged in a physical struggle after Rankin tried to arrest the 18-year-old on suspicion of shoplifting from the Walmart, according to police. Witnesses said Chapman broke free and then stepped back towards the officer aggressively before being shot twice. A decision on whether Rankin will be prosecuted is expected to be made by authorities in the coming days.

An attorney for Chapman’s family, who said he was preparing a civil lawsuit against Rankin even before state prosecutors make their decision, said the physical evidence suggested Chapman had not been near enough to Rankin to pose a threat.

“If an unarmed person is not in close proximity to the police officer, not in his so-called ‘wingspan’, then to say the officer shooting and killing that person is pretty excessive may be the greatest understatement of the year,” said attorney Jon Michael Babineau.

Gunther’s report said “no fouling or stippling” – the sooty residue and speckled gunpowder burns typically left by a close- or intermediate-range gunshot – were found on the skin around either of Chapman’s wounds, nor on the clothing where the shot to his chest entered. 

Dr Judy Melinek, a prominent California-based forensic pathologist who frequently testifies as an expert witness, said in an email after reviewing the autopsy report that unless some other object created an obstruction between Rankin and Chapman, “the absence of soot or stippling means it is a distant range gunshot wound”. Melinek classes a “distant” shot as being from more than 30 inches away. 

Dr David Fowler, the chief medical examiner for neighboring Maryland, said in a brief telephone interview on Friday: “These are fairly small particles, and while they may be coming out at the same speed as the bullet, they have very little mass and an odd shape, so they lose velocity very rapidly.”

Fowler added: “Typically the fragments of unburnt gunpowder and soot travel out somewhere in the region up to 12in for a handgun, maximum, maybe 18in for a very powerful handgun.”

The Virginia autopsy was carried out the day after Chapman’s death. The report also said Chapman’s hands were cuffed behind his back. Babineau, the attorney for Chapman’s family, said scuff-like abrasions on the 18-year-old’s face and chest indicated he was rolled on to his front, cuffed, then rolled back again, after being fatally shot. Chapman was 5ft 8in tall and weighed about 185lbs.

Police and store managers still have not said if Chapman was found to have stolen anything from Walmart. The autopsy report lists clothes and shoes as his only personal effects, including a pair of trousers with the pockets turned inside out.
 
His family said he frequently browsed the store. Babineau said that through his own inquiries and interviews with witnesses, he had found no indication Chapman was carrying stolen merchandise, and that he appeared to have turned out the pockets to show they were empty.

This may be answered conclusively by surveillance footage recorded inside the store that was collected by investigators. The shooting itself, which took place just inside the perimeter of the large parking lot, close to the street, is understood not to have been captured on camera. 

An inquiry into the shooting has been completed by Virginia state police and passed to Stephanie Morales, the Virginia commonwealth’s attorney for Portsmouth. The prosecutor also commissioned “additional investigative work” and tests by the state department of forensic science, according to Tamara Shewmake, a spokeswoman for the prosecutor. 

The spokeswoman said earlier this week that following a delay, Morales expected to have received all the forensic files by Friday 21 August. 

“Once all findings have been turned over to the commonwealth’s attorney, there will be a review and final prosecutorial determination,” Shewmake said.

Sources familiar with the inquiry said the week-long delay was due to Morales commissioning an advanced type of forensic analysis that had never before been completed by Virginia state officials. 

The sources said Morales, who is 31 and newly elected earlier this year, had no intention of passing the case to an outside jurisdiction or special prosecutor, and that she had indicated she would present the case to a grand jury within Portsmouth, which is an independent city, if she decided to prosecute Rankin.

Portsmouth police and Virginia state police still decline to confirm Rankin was the officer who shot Chapman. His identity was confirmed to the Guardian by Sean McGowan, the executive director of the Virginia Police Benevolent Association, Rankin’s union. 

Once Rankin’s name was published, McGowan denied he had confirmed it, then suggested he had not been authorized to confirm it, then said he would never again speak to a reporter from the newspaper. McGowan has refused to identify Rankin’s attorney or an alternative representative.

Rankin, 36, is a veteran of the US navy who earned a grey belt in the the Marine Corps martial arts programme, which requires the ability to “stop an aggressor’s attack” with hand-to-hand combat.

The officer was placed on administrative leave after shooting Chapman. In April 2011 he fatally shot Kirill Denyakin, a Kazakh cook, less than three miles from the site of Chapman’s death. Denyakin was shot 11 times by Rankin, who was responding to a 911 call about the 26-year-old aggressively banging at the door of a building where he was staying.

Rankin said he shot Denyakin because the cook, who was drunk, charged at him while reaching into the waistband of his jeans. The officer said he feared Denyakin would pull out a weapon. No weapon was found.

A grand jury declined to indict Rankin on criminal charges and a jury in a $22m civil lawsuit brought by Denyakin’s family found in Rankin’s favor. 

Among 250 posts defending himself on a local newspaper website, Rankin wrote: “22 mil wont buy your boy back,” adding that most Americans could not hope to earn that in an entire career, “let alone a habitual drunk working as a hotel cook”.

The standfirst of this story was amended on 24 August 2015 to make clearer that William Chapman was handcuffed after he was shot.

William Chapman: Unarmed 18-Year-Old Shot Dead by Officer Who Killed Before

Black teenager accused of shoplifting at Walmart killed in April by white officer Stephen Rankin, who had been suspended for shooting another unarmed man

Jon Swaine in Portsmouth, Virginia | @jonswaine

Monday 1 June 2015 08.42 EDT

http://www.theguardian.com/us-news/2015/jun/01/william-chapman-unarmed-shot-dead

 

An unarmed black 18-year-old accused of shoplifting was killed by a police officer in Virginia who had been barred from patrolling city streets for almost three years after fatally shooting another unarmed man.

William Chapman was shot dead by Stephen Rankin, a white Portsmouth police officer, during a struggle in a Walmart parking lot. Rankin, 35, a US navy veteran trained in martial arts, was once disciplined for posting violent remarks and Nazi images online.

Chapman’s family likened his death to that of Michael Brown, another unarmed black 18-year-old who was suspected of a theft and shot dead following a struggle with a white officer. Brown’s death last year in Ferguson unleashed nationwide protests.

But they noted with disappointment that Chapman’s killing in April barely registered among activists and the media. “I feel alone,” said Chapman’s mother, Sallie. “Because my son is gone and because nobody is trying to help me understand why.”

The Virginia chief medical examiner’s office said in a statement only that the cause of Chapman’s death was “gunshot wounds of face and chest”. Chapman’s mother said his hands were also wounded in the encounter, a claim supported by photographs of his body reviewed by the Guardian.

Chiefs only allowed Rankin to return to frontline policing in March last year, almost three years after he killed an unarmed 26-year-old Kazakh immigrant in February 2011. Rankin was later found to have insulted the man and his family in other online postings.

A sergeant in the department at the time told the Guardian that senior commanders were formally warned by one of Rankin’s supervisors weeks before his first fatal shooting that he was “dangerous” and likely to cause someone harm. 

Asked twice during a telephone interview why Rankin had been allowed to continue policing the public, Portsmouth’s police chief, Edward Hargis, repeated: “That’s a personnel matter and I can’t comment.” He added: “I’m not going to comment on what people may say, allegation-wise.”

Police refused to say whether Chapman was actually found to have stolen anything. They will still not confirm it was Rankin who shot him. However, the head of Rankin’s professional association confirmed to the Guardian he was indeed the officer involved.

Rankin fired twice after Chapman resisted an arrest at the edge of the superstore parking lot on the morning of 22 April and a struggle ensued, according to witnesses. The officer was responding to a complaint by store staff of a “suspected shoplifting”.

A funeral service was held for Chapman last month but his body has not yet been buried because his family is unable to afford the $3,600 fee, relatives said.

His shooting is being investigated by the Virginia state police, which is also carrying out an inquiry into the fatal shooting by another Portsmouth officer a month earlier of Walter Brown, a 29-year-old black man who fled a stop by drugs police.

Sergeant Michelle Anaya, a state police spokeswoman, declined to discuss any details of what happened in Chapman’s shooting. “That investigation is currently ongoing and that information is not available at this time for release,” she said in an email.

Chapman’s death was publicly overshadowed by that of 25-year-old Freddie Gray in Baltimore, Maryland, three days earlier. He is one of three unarmed black teenagers killed by law enforcement in the US so far this year, according to an ongoing count by the Guardian.

Brandon Jones, also 18, was killed by a police officer in Cleveland, Ohio, in March after a struggle when he was caught robbing a grocery store, according to authorities. Earlier that month, Tony Robinson, 19, was shot dead by an officer looking into a disturbance in Madison, Wisconsin. Last month state prosecutors ruled the shooting was justified.

Chapman’s cousin, Earl Lewis, welcomed The Counted, the Guardian’s project to monitor all killings by police and law enforcement. He said increased transparency could reduce unnecessary or unjustified fatalities. “Better data would put a check on how some cities and their officers do business,” said Lewis.

Construction workers who saw the confrontation between Chapman and Rankin told local television reporters that the 18-year-old appeared to break free from an attempt by the officer to handcuff him against a parked car.

One, Leroy Woodman, told reporters at the scene Chapman was shot because he “took a couple steps towards the cop like he was ready to fight”. A colleague of Woodman’s, Paul Akey, said Chapman “came at” Rankin after the Taser was knocked from Rankin’s hand and the officer stepped back. Akey said he believed Rankin’s actions were justified.

“I know my son,” said Sallie Chapman. “He would have been saying ‘Why are doing this? I didn’t do anything.’ I know what his words would have been.”

Woodman and Akey, who have since been interviewed by police investigators, declined or ignored several requests for comment when reached by telephone and online messages.

Police have not given any explanation to Chapman’s mother, she said, and Walmart management called the police to help remove her when she travelled to the store demanding information about what he may have stolen and what happened.

“My son is gone, and I just want to know why,” said Chapman. “Why can’t I see the Walmart surveillance video? I’m his mother.”

The police did not actively inform Chapman that her son had died. After being unable to reach him on 22 April, and hearing media reports of an 18-year-old killed at their local Walmart, she called 911. When she gave William’s name, she was placed on hold and eventually told a detective would visit her home. The detective told her William was dead.

Recordings of live news bulletins from the scene on the day of the incident show that Chapman’s body was still on the ground of the parking lot five hours after he was killed. “It hurt,” said Lewis. “It was as if a dog had been hit in the street, and eventually, later on, someone found the owner and told them to come pick it up.”

Portsmouth and state police have declined to confirm that Rankin was the officer responsible for the shooting. Sean McGowan, the executive director of the Virginia division of the Police Benevolent Association (PBA), told the Guardian Rankin was the officer involved and the group had helped him obtain legal representation.

“Any other questions you have, I would need to refer you to his attorney,” said McGowan, who then declined to identify Rankin’s attorney. The officer’s legal team did not respond to requests for comment that McGowan said he had conveyed to them.

State police investigators are expected to pass their completed inquiry on the shooting to Stephanie Morales, Virginia’s commonwealth attorney, who will then decide whether or not to put the case to a grand jury for a possible criminal prosecution.

The deaths of Chapman and Brown were the Portsmouth department’s first fatalities since Rankin’s April 2011 shooting of Kirill Denyakin, a Kazakh cook. Denyakin was shot 11 times by Rankin, who was responding to a 911 call about the 26-year-old aggressively banging at the door of a building where he was staying.

Rankin claimed he shot because Denyakin, who was drunk, charged at him while reaching into the waistband of his jeans. The officer said he feared Denyakin would pull out a weapon. No weapon was found.

A grand jury declined to indict Rankin on criminal charges and a jury in a $22m civil lawsuit brought by Denyakin’s family found in Rankin’s favor. Among 250 posts defending himself on a local newspaper website, Rankin wrote “22 mil wont buy your boy back”, adding that most Americans could not hope to earn that in an entire career, “let alone a habitual drunk working as a hotel cook”. 

It also emerged Rankin had in Facebook posts referred to his firearms case as “Rankin’s box of vengeance” and said he would rather be dirtying his guns than cleaning them. His Facebook avatar was once a print of a photograph depicting a Serb left hanging from a lamppost by invading Nazi forces in 1943.

When he returned to work two months after the shooting, Rankin was restricted to administrative duties for more than two and a half years. He was finally allowed back on patrols on 1 March 2014. “I never thought seeing Steve get ready for work would make me so nervous,” his girlfriend wrote in a post to Facebook.