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I'm here for the moneuy Status: Not Logged In; Sign In U.S. Constitution See other U.S. Constitution Articles Title: Family of man shot, killed by police sue city of Southaven, officers Source: WREG URL Source: https://wreg.com/2019/06/20/family- ... ue-city-of-southaven-officers/ Published: Jun 20, 2019 Author: Eryn Taylor and Jessica Gertler Post Date: 2019-09-28 16:54:06 by nolu chan Keywords: None Views: 1085 Comments: 15 Family of man shot, killed by police sue city of Southaven, officers Posted 10:02 am, June 20, 2019, by Eryn Taylor and Jessica Gertler Updated at 05:13PM, June 20, 2019 SOUTHAVEN, Miss. — The family of Ismael Lopez, the man that was shot and killed by police nearly two years ago, has filed a lawsuit against the city of Southaven, the police chief and the two officers involved in his death. The family is seeking $8 million in actual and compensatory damages, $12 million for punitive damages and $25,000 for funeral costs. In July 2017, Southaven officers were sent to Surrey Lane to look for a suspect wanted for an aggravated assault in Tate County. Officers mistakenly went to the wrong home. Lopez reportedly opened the door to find two officers there and tried to run. Reports indicate that the officers shot through the door, striking and killing Lopez. Officers told investigators they saw a rifle barrel pointed through the open door. At that point, a dog charged out of the house, and Officer Samuel Maze shot at it. Officer Zachary Durden began yelling for the person inside to drop the weapon, then fired several shots through the door. According to the lawsuit, Lopez didn't have a gun in his possession and didn't pose an immediate threat to the officers. "The City of Southaven law enforcement officers utilized excessive force in with respect to Ismael Lopez and acted in deliberate indifference to his health and welfare by escalating the situation in an unnecessary fashion," attorneys said. They also claimed that the department has a history when it comes to excessive force. "Defendants City of Southaven and Chief Pirtle have allowed police officers to engage in a pattern of conduct that violates the civil rights of persons residing in the City for years leading up to the death of Ismael Lopez by failing to enforce policies and procedures and by ratifying the unconstitutional conduct of officers by not punishing them and instead allowing them to continue serving as law enforcement officers." "Municipal policymakers are aware of, condone and facilitate by their inaction, a “code of silence” in the Southaven Police Department, by which officers fail to report misconduct committed by other officers, such as the misconduct in this case." Attorneys are asking for a jury to hear the case. Southaven Mayor Darren Musselwhite released a statement on the lawsuit Thursday afternoon, saying the city's officers had been cleared by investigations. "Last year, a Desoto County Grand Jury reviewed all facts of this incident and made a decision to not indict any of our Southaven Police Officers. In addition, this matter was investigated by the FBI and the U.S. Department of Justice, which also cleared the City of Southaven Police Officers. We are ready to vigorously defend our officers and City in a court of law in this matter," the statement read. "Since we will try this case in a courtroom and not the media, I advise all that value the truth to be cautious of the partial facts and misinformation that has been circulated by some since this event occurred." Post Comment   Private Reply   Ignore Thread   Top • Page Up • Full Thread • Page Down • Bottom/Latest Begin Trace Mode for Comment # 5. #5. To: All (#0) https://www.courtlistener.com/recap/gov.uscourts.msnd.42512/gov.uscourts.msnd.42512.18.0.pdf Linares v City of Southaven, MSND 19-cv-133 (4 Sep 2019) Doc 18, BRIEF in Support of Defendant City of Southaven's Motion to Dismiss Based on Standing or Absence of Jurisdiction At 12-13: Neither Plaintiff in this case has Article III standing or statutory standing. The Article III standing issue relates to the absence of Fourth and Fourteenth Amendment civil rights of Ismael Lopez or of Claudia Lianres or derivatives of same for Plaintiff Autry and so absent for those who now seek to stand in place for Ismael Lopez. Plaintiff Linares is also in the United States in violation of United State law and as a result of her status as an illegal alien in American soil has very limited federal civil rights and no federal Fourth or Fourteenth Amendment civil rights as alleged. In addition and absent a valid marriage to Ismael Lopez or some other legally protected interest then she has no standing and no right to relief. Rhyne v. Henderson County, 973 F. 2d 386, 390 (5th Cir. 1992). Ismael Lopez was present in the United States at the time of his death as an illegal alien on American soil. That is the beginning point for analysis. In addition, Ismael Lopez was present in the United States at the time of his death by virtue of his then being in violation of federal law and in violation of multiple court orders prohibiting his entry in the United States. These are distinctive and compelling circumstances as to all claims arising from the complained of use of force as to Ismael Lopez in an area of law on immigration in which Congress has been full throated and vociferous. Any Fourth Amendment civil rights that Ismael Lopez even arguably could have gained upon entry to the United States never came to fruition or were lost by virtue of his own acts and omissions. Motion Exhibit 1 supports a long term record of his criminal conduct and illegal entries. Any contacts that could have grown into positive legal contacts were negated by his demonstrated habitual contempt of the laws and court orders of the United States. Ismael Lopez had insufficient connections with the United States of the type, dignity, and caliber required to attain standing for Fourth or Fourteenth Amendment protection. Ismael Lopez was a convicted felon for a crime of violence while in the United States and fugitive from justice in violation of his terms of probation with an outstanding warrant for deportation as well as being a felon in possession and an illegal alien in possession of a firearm at the time he opened his door to the knock of the described Southaven police officers. The civil rights of Ismael Lopez relative to use of force, if they existed, were subsumed by congressional action into the immigration laws. See example in De La Paz v. Coy, 786 F. 3d 367 (2015). This is evidenced by the code sections Ismael Lopez was charged with shown in Motion Exhibit 1. If he ever had Fourth Amendment or Fourteenth Amendment civil rights, they were lost by his own conduct and misconduct. Ismael Lopez may have been a person on American soil but he was not one of the “We, the People of the United States” entitled to the civil rights invoked in this lawsuit. The Fourth Amendment explicitly states that it's coverage extends to the “right of the people.” This refers to members of the polity of the United States. Plaintiff Claudia Linares is also an illegal alien on American soil who harbored a convicted felon fugitive and who was in possession of a firearm. Plaintiff Linares remains apparently present in the United States without permission and in violation of the laws of the United States. There is no Article III standing for any of the federal civil rights she claims plus the claimed federal familial claims of Plaintiff Linares do not exist as a matter of law. Plaintiff Linares and Ismael Lopez were not legally husband and wife under the laws of the State of Mississippi or any applicable law. Rhyne v. Henderson County, 973 F. 2d 386, 390 (5th Cir. 1992). At 15-18: The Fourth Amendment provides, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const. Amend, IV. In United States v. Verdugo-Urquidez, 494 U.S. 259, 110 S. Ct. 1056, 108 L. Ed. 2d 222 (1990), the Supreme Court addressed the question of the Fourth Amendment's extraterritorial reach. The claim surrounded a warrantless search of premises of a Mexican national in Mexico by United States DEA Agents authorized by Mexican officials and was reviewed under a Fourth Amendment suppression motion. On appeal the U.S. Supreme Court began it's review of the Circuit Court opinion by focusing on the text of the Fourth Amendment. The Court noted that the Fourth Amendment “extends its reach only to ‘the people,'” which “seems to have been a term of art employed in select parts of the Constitution,” including the “Preamble, Article I, and the First, Second, Fourth, Ninth, and Tenth Amendments.” Id. at 265, 110 S. Ct. 1056. The Court found this “textural exegesis” to suggest that “the people” in the Constitution “refers to a class of persons who are part of the national community or who have otherwise developed sufficient connection with this country to be considered a part of that community.” Id. The Court then examined the history of the drafting of the Fourth Amendment and concluded that “the available historical data shows...that the purpose of the Fourth Amendment was to protect the people of the United States against arbitrary action by their own Government; it was never suggested that the provision was intended to restrain the actions of the Federal Government against aliens outside of the United States territory.” Id. at 266, 110 S. Ct. 1056. The Supreme Court distinguished cases that claimant Verdugo-Urquidez relied on for the suppression request noting that those cases “established only that aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country.” Id. at 271, 110 S. Ct. 1056. The Court criticized and rejected the Court of Appeals ruling that had applied a global application of the Fourth Amendment. The Court then concluded that the “Fourth Amendment has no application.” Id. at 274­75, 110 S. Ct. 1056. United States v. Verdugo-Urquidez, 494 U.S. 259, 110 S. Ct. 1056, 108 L. Ed. 2d 222 (1990), clarified the Fourth Amendment's application to illegal aliens by use of the sufficient connections test and its related interpretation of the Fourth Amendment text. District of Columbia v. Heller, 554 U.S. 570, 580 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008) favorably cited Verdugo-Urquidez's definition of “the people” and again stated the test is that “aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country.” The current law is that Ismael Lopez had arguable Fourth Amendment civil rights only when he came within the territory of the United States and developed voluntary substantial connections with this country. Ismael Lopez never established voluntary substantial connections with this country as shown by Motion Exhibit 1 and there is no constitutional claim. The application of the sufficient connections requirement of Verdugo-Urquidez relied on more than just the text of the Fourth Amendment as the opinion cites the history of the Fourth Amendment at 266, 110 S. Ct. 1056, prior precedent at 268-73, 110 S. Ct. 1056, and practical consequences at 273-75, 110 S. Ct. 1056. Aliens in the United States may acquire Fourth Amendment protection. See for example Martinez-Aguero v. Gonzalez, 459 F. 3d 618, 625 (5th Cir. 2006) holding that an alien's regular and lawful entry of the United States pursuant to a valid border-crossing card, reentry based on verbal statements by an American official, and acquiescence in the U.S. system of immigration constituted voluntary acceptance of societal obligations rising to the level of “substantial connections” sufficient to invoke the Fourth Amendment. In contrast the status of Ismael Lopez was more like that of a deported alien standing at the border of the United States and Mexico but still in Mexico as he had no permission to enter and multiple Court orders that barred entry. See for example the discussion of the crimes prosecuted against an illegal alien for illegally entering the United States after having been previously deported in Santacruz-Ramirez v. United States, 2016 WL 8218236 (S.D. Texas 12/29/2016). Any criminal use of force on Ismael Lopez was prohibited by criminal laws but that issue was answered as alleged by Plaintiff in the Complaint when a Grand Jury elected not to indict any person for the subject use of force event. The conclusion that no blanket Fourth Amendment rights exist for “undocumented aliens” is compelling. See refusal to extend Fourth Amendment protection in De La Paz v. Coy, 786 F. 3d 367 (2015). Relief for civil rights violations was noted available only in the context of the INA. See the definition of “the people” in the context of the Second Amendment holding that an illegal alien in the United States has no Second Amendment Constitutional right. United States v. Portillo-Munoz, 643 F. 3d 437, 440 (5th Cir. 2011). The Fifth Circuit clearly stated in United States v. Portillo- Munoz, 643 F. 3d 437, at 440 that “Portillo relies on Verdugo-Urquidez and argues that he has sufficient connections with the United States to be included in this definition of “the people,” but neither this court nor the Supreme Court has held that the Fourth Amendment extends to a native and citizen of another nation who entered and remained in the United States illegally.” Lawfully admitted aliens are “other persons” for purposes of 42 U.S.C. § 1983. Graham v. Richardson, 403 U.S. 365, 91 S. Ct. 1848, 29 L. Ed. 2d 534 (1971). No such blanket right exists for the claims in the Complaint. Neither Linares nor Lopez are or were one of “the people” within Fourth Amendment purview. nolu chan  posted on  2019-09-28   17:54:34 ET  Reply   Untrace   Trace   Private Reply   Replies to Comment # 5.         There are no replies to Comment # 5. End Trace Mode for Comment # 5. Top • Page Up • Full Thread • Page Down • Bottom/Latest

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