When his children complained that their mother and her husband sexually abused them, Ronald Murray told police that he would not relinquish custody of his children to the alleged abusers. Murray v. Lene (CA8) (here). Murray's ex-wife agreed to not demand custody of the children until an investigation was completed.
When the ex-wife's parents demanded that Mr. Murray relinquish custody to them. Mr. Murray refused, as any concerned parent would. The ex-wife and alleged child molester called the police.
Mr. Murray told the police that he would comply with any court order demanding him to relinquish custody. All Mr. Murry wanted, it seemed, was some level of due process for his children.
How did police respond? They pulled a classic trick: Omit material facts from an arrest warrant application. It happens every day in criminal cases. Here's how it works:
Let's say that you have a marginal - even applying the low probable-cause standard - case for an arrest. Many judges would say, "This doesn't seem like a crime. I am not going to issue an arrest warrant." You really want the arrest, though, so here's what you do:
Officer Jason Lene Lene prepared a probable cause statement, although he neglected to mention that Mr. Murray was willing to comply with a court order to return the children, that Mr. Murray and Ms. Vittetoe shared joint custody, and that Ms. Vittetoe had agreed not to have any contact with the children during the course of the investigation.
Cool, huh? You've magically turned a father into a kidnapper. You haven't lied by telling false facts. Every fact is true. You have omitted material facts. Thus:
Basedon Officer Lene's affidavit, Mr. Williams initiated a prosecution against Mr. Murray for abducting his children and the Cedar Rapids, Iowa, Police Department arrested and detained him for about a month before it released him on his own recognizance. After a grand jury declined to indict Mr. Murray and Mr. Williams dismissed the prosecution, Mr. Murray commenced this suit.
A grand jury will indict a ham sandwich, but not a father who seeks to protect his children from being raped. Will the courts protect that same father?
Of course not:
The fact that Ms. Vittetoe agreed not to have contact with the children during the investigation would also not have been "clearly critical" to the finding of probable cause. [Thus, the cop who omitted material facts will not be held accountable for misleading a judge into authorizing the arrest of an innocent man.]
Really? Does anyone here believe that a judge would have granted a search warrant application that stated: Ms. Vittetoe has been accused of sexually assaulting her children. She has agreed not to have any contact with her children until an investigation has been completed. Her parents are demanding that Mr. Murray give them custody of the children. Mr. Murray said he will comply with a court order demanding that he relinquish custody to the parents of the accused child molester.
The omitted facts are a game-changer, aren't they? They change everything. Mr. Murray was not some random man who kidnapped the children. Instead, he was a concerned father who simply wanted a judge to hear him out before handing his children over to an alleged child molester's mother.
Moreover, isn't the grand jury's failure to indict evidence that the officer's omissions were deliberately calculated to lead to a false arrest? A grand jury - unlike a
petit jury - does not decide guilt beyond a reasonable doubt.
Instead, a grand jury will indict when there is a probable cause that a crime was committed. It's the same standard that applies when granting an arrest warrant. Here, the grand jury refused to indict. A grand jury, when presented with all of the facts, refused to find probable cause; where as a judge, when presented with only a few facts, did find probable cause that a crime had been committed.
Shouldn't the grand jury's decision mean something? At the least, it's
prima facie evidence that the omitted facts were material.
Moreover, why didn't the court let a jury decide the issue? Why did the panel decide -
as a matter of law - that the police officer was not reckless in his warrant application? It seems to be that if reasonable minds would disagree on the issue, then a jury should decide it. Here, though, a court stole the issue from the jury.
Murray v. Lene is the latest is a long line of Section 1983 cases that only excuse police misconduct; but which also arrogate power to the judiciary. The panel had no legal authority to take this case away from a jury. What relevance is the Seventh Amendment in light of
Lene?
Lene's outcome is horrendous. It encourages police to lie - through omission - on probable cause affidavits. An innocent man spent a month in jail for kidnapping because a police lied.
Lene also disregard's the judiciary's limited role in adjudicating disputes.
Lene harms not just Mr. Murray, but our entire constitutional system of separated - and therefore limited - powers.
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