See below Sent from my iPhone Begin forwarded message: From: "Mackel-Wiederanders, Michelle R." <MRMackel@dmgov.org> Date: October 1, 2021 at 2:33:24 PM CDT To: Chuck Thompson <cthompson@imla.org> Subject: question for the group  I would love to get feedback from the group on the scenario below. FACTS: We have a situation in which a person was arrested (as determined by the 8th Circuit) for around 7 minutes. There were a number of officers around in the immediate area watching the arrest. Only one officer said he was detained/arrested, which was the point the 8th Circuit said this interaction went from a Terry stop to an arrest. He was never cuffed; his person was searched. Several officers were sued, including the one who stated he was detained. Another is named who searched his person. Another was sued who was ½ a block away most of the time and never touched him after the statement detaining him. QUESTION: I know caselaw indicates that each officer must be analyzed individually. I am interested to know if anyone has had experience with other officers being “imputed” with an arrest just because of proximity. Plaintiff has not argued a failure to intervene claim. Any thoughts are appreciated. Shellie Mackel Senior Litigator/Assistant City Attorney 400 Robert D. Ray Drive Des Moines, IA 50309-1881 515-283-4537 (Phone)/515-237-1748 (FAX) MRMackel@dmgov.org<mailto:MRMackel@dmgov.org> www.dmgov.org<http://www.dmgov.org/> [Description: LEGLogo] Attorney-Client Communication/Work Product—Privileged and Confidential This email, including attachments, is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521, is confidential and may contain attorney-client materials and/or attorney work product, legally privileged and protected from disclosure. This email is intended for the addressee(s) named above, and the privileges are not waived by virtue of this being sent by electronic mail. If you are not the intended recipient, you are hereby notified that any retention, dissemination, distribution, or copying of this communication is strictly prohibited. Please reply to the sender if you receive this message in error and delete it and any copies. Thank you. From: Chuck Thompson <cthompson@imla.org> Sent: Thursday, September 23, 2021 1:13 PM To: Federal Law List Serve <federal@lists.imla.org>; cityattorneys@lists.imla.org; counties@lists.imla.org; ATTY-LIST@LISTSERV.MUNICODE.COM Subject: [Federal] Homelessness Injunction against LA City and County struck down CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe. There are days when the best news for local governments from the Ninth Circuit is the announcement “the court issued no decisions today”, but not today! Today, the court took an opportunity to review the lower court decision that ordered the city and county of Los Angeles to spend billions of dollars on the homeless and engaged in some of the broadest overreach by a judge one could imagine and reversed. IMLA filed an amicus brief in this case and we were extremely well represented and thank the legal team of Judy M. Lam, Maynard Cooper & Gale LLP, Los Angeles, California; John C. Neiman Jr. and Calbe C. Wolanek, Maynard Cooper & Gale P.C., Birmingham, Alabama for a job well done. Perhaps, this quote from the opinion will explain that my description of judicial overbreadth is not hyperbole: “Of these six claims, Plaintiffs had not asserted or moved for injunctive relief on the first four and had asserted the fifth against only the County and the sixth against only the City. The district court’s explanation for why these claims had a likelihood of success on the merits also relied on legal theories that Plaintiffs did not plead or argue, including the race-based discrimination theories underpinning the state created danger, equal protection, and substantive due process claims. In addition, the district court relied almost exclusively on extra-record evidence, and expressly did not rely on Plaintiffs’ preliminary injunction evidence. In deciding that the lower court abused its discretion the panel wrote: As we discussed, the district court granted relief based on claims that Plaintiffs did not allege, supported by novel legal theories that Plaintiffs did not argue, or against Defendants against whom the claim was not pled. In doing so, the district court abused its discretion because it only had equitable power to grant relief on “the merits of the case or controversy before it,” and “does not have the authority to issue an injunction” “based on claims not pled in the complaint.” Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr., 810 F.3d 631, 633 (9th Cir. 2015). LA Alliance for Human Rights vs LA County https://cdn.ca9.uscourts.gov/datastore/opinions/2021/09/23/21-55395.pdf IMLA supports local governments through its amicus program. We can only support members and we need members to join IMLA so we can continue these efforts. If your city or county is not a member, please consider joining to help keep our program available and the voice of local governments heard. Charles W. Thompson, Jr. Executive Director/General Counsel P: (202) 466-5424 x7110 M: (240) 876-6790 D: (202) 742-1016 [facebook icon]<https://www.facebook.com/InternationalMunicipalLawyersAssociation/>[twitter icon]<https://twitter.com/imlalegal>[linkedin icon]<https://www.linkedin.com/company/international-municipal-lawyers-association-inc./> [logo]<https://imla.org/> 51 Monroe St. Suite 404 Rockville, MD, 20850 www.imla.org<http://www.imla.org/> Plan Ahead! IMLA’s 86th Annual Conference<https://imla.org/annual-conference/>, Sept. 29-Oct. 3, 2021 in Minneapolis, MN IN-PERSON or VIRTUAL! IMLA’s 2022 Mid-Year Seminar<https://imla.org/seminars/>, April 8-11, 2022 in Washington, D.C.!

Chuck, if I understand your question, at least in the Fourth Circuit, if these are federal constitutional claims, then an officer is only liable if he or she personally deprived a person of their constitutional rights. So if some officers are standing around doing nothing, then they should have no liability unless there are claims against them for supervisory or bystander liability, the latter based on the principle that officers who don’t directly cause a constitutional violation are nevertheless liable if they knew or should have known that a fellow officer was violating a person's constitutional rights and did nothing to stop it. Here is the quote from Vinnedge v. Gibbs, 550 F.2d 926 (4th Cir. 1977): Although s 1983<https://1.next.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000546&cite=42USCAS1983&originatingDoc=I83f3dbb290fe11d9bc61beebb95be672&refType=LQ&originationContext=document&transitionType=DocumentItem&ppcid=89531d90ba1846229c5f9e31b2b04cfc&contextData=(sc.Search)> must be “read against the background of tort liability that makes a man responsible for the natural consequences of his actions,” Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 484, 5 L.Ed.2d 492 (1961)<https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1961125426&pubNum=708&originatingDoc=I83f3dbb290fe11d9bc61beebb95be672&refType=RP&fi=co_pp_sp_708_484&originationContext=document&transitionType=DocumentItem&ppcid=89531d90ba1846229c5f9e31b2b04cfc&contextData=(sc.Search)#co_pp_sp_708_484>, “(l) iability will only lie where it is affirmatively shown that the official charged acted personally in the deprivation of the plaintiffs' rights. The doctrine of respondeat superior has no application under this section.” Bennett v. Gravelle, 323 F.Supp. 203, 214 (D.Md.1971)<https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1971104550&pubNum=345&originatingDoc=I83f3dbb290fe11d9bc61beebb95be672&refType=RP&fi=co_pp_sp_345_214&originationContext=document&transitionType=DocumentItem&ppcid=89531d90ba1846229c5f9e31b2b04cfc&contextData=(sc.Search)#co_pp_sp_345_214>, aff'd 451 F.2d 1011 (4th Cir. 1971)<https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1971113502&pubNum=350&originatingDoc=I83f3dbb290fe11d9bc61beebb95be672&refType=RP&originationContext=document&transitionType=DocumentItem&ppcid=89531d90ba1846229c5f9e31b2b04cfc&contextData=(sc.Search)>. Having failed to allege any personal connection between Gibbs and any denial of Vinnedge's constitutional rights, the action against him must fail. Accord Jennings v. Davis,476 F.2d 1271 (8th Cir. 1973)<https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1973109546&pubNum=350&originatingDoc=I83f3dbb290fe11d9bc61beebb95be672&refType=RP&originationContext=document&transitionType=DocumentItem&ppcid=89531d90ba1846229c5f9e31b2b04cfc&contextData=(sc.Search)>; Adams v. Pate, 445 F.2d 105 (7th Cir. 1971)<https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1971111210&pubNum=350&originatingDoc=I83f3dbb290fe11d9bc61beebb95be672&refType=RP&originationContext=document&transitionType=DocumentItem&ppcid=89531d90ba1846229c5f9e31b2b04cfc&contextData=(sc.Search)>. What jumps out at me, however, is the fact that he was searched – if he was actually arrested, then a search incident to arrest is ok, if the arrest was valid, but if it was only Terry stop, that does not justify a search, or even a pat down, unless the officer has reason to believe the person is armed. From: Chuck Thompson <cthompson@imla.org> Sent: Friday, October 1, 2021 4:06 PM To: federal@lists.imla.org Subject: [Federal] Fwd: question for the group [Note: This email originated from outside of the organization. Please only click on links or attachments if you know the sender.] See below Sent from my iPhone Begin forwarded message: From: "Mackel-Wiederanders, Michelle R." <MRMackel@dmgov.org<mailto:MRMackel@dmgov.org>> Date: October 1, 2021 at 2:33:24 PM CDT To: Chuck Thompson <cthompson@imla.org<mailto:cthompson@imla.org>> Subject: question for the group  I would love to get feedback from the group on the scenario below. FACTS: We have a situation in which a person was arrested (as determined by the 8th Circuit) for around 7 minutes. There were a number of officers around in the immediate area watching the arrest. Only one officer said he was detained/arrested, which was the point the 8th Circuit said this interaction went from a Terry stop to an arrest. He was never cuffed; his person was searched. Several officers were sued, including the one who stated he was detained. Another is named who searched his person. Another was sued who was ½ a block away most of the time and never touched him after the statement detaining him. QUESTION: I know caselaw indicates that each officer must be analyzed individually. I am interested to know if anyone has had experience with other officers being “imputed” with an arrest just because of proximity. Plaintiff has not argued a failure to intervene claim. Any thoughts are appreciated. Shellie Mackel Senior Litigator/Assistant City Attorney 400 Robert D. Ray Drive Des Moines, IA 50309-1881 515-283-4537 (Phone)/515-237-1748 (FAX) MRMackel@dmgov.org<mailto:MRMackel@dmgov.org> www.dmgov.org<https://gcc02.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.dmgov.org%2F&data=04%7C01%7Ccpeltzman%40howardcountymd.gov%7C46f17a1abfca42f14e9108d98516f2d8%7C0538130803664bb7a95b95304bd11a58%7C1%7C0%7C637687156628119214%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000&sdata=NBBB1XRJMugehBtNe20yZ1A9A4RFjijY%2BlrtTc9qEEI%3D&reserved=0> [Description: LEGLogo] Attorney-Client Communication/Work Product—Privileged and Confidential This email, including attachments, is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521, is confidential and may contain attorney-client materials and/or attorney work product, legally privileged and protected from disclosure. This email is intended for the addressee(s) named above, and the privileges are not waived by virtue of this being sent by electronic mail. If you are not the intended recipient, you are hereby notified that any retention, dissemination, distribution, or copying of this communication is strictly prohibited. Please reply to the sender if you receive this message in error and delete it and any copies. Thank you. From: Chuck Thompson <cthompson@imla.org<mailto:cthompson@imla.org>> Sent: Thursday, September 23, 2021 1:13 PM To: Federal Law List Serve <federal@lists.imla.org<mailto:federal@lists.imla.org>>; cityattorneys@lists.imla.org<mailto:cityattorneys@lists.imla.org>; counties@lists.imla.org<mailto:counties@lists.imla.org>; ATTY-LIST@LISTSERV.MUNICODE.COM<mailto:ATTY-LIST@LISTSERV.MUNICODE.COM> Subject: [Federal] Homelessness Injunction against LA City and County struck down CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe. There are days when the best news for local governments from the Ninth Circuit is the announcement “the court issued no decisions today”, but not today! Today, the court took an opportunity to review the lower court decision that ordered the city and county of Los Angeles to spend billions of dollars on the homeless and engaged in some of the broadest overreach by a judge one could imagine and reversed. IMLA filed an amicus brief in this case and we were extremely well represented and thank the legal team of Judy M. Lam, Maynard Cooper & Gale LLP, Los Angeles, California; John C. Neiman Jr. and Calbe C. Wolanek, Maynard Cooper & Gale P.C., Birmingham, Alabama for a job well done. Perhaps, this quote from the opinion will explain that my description of judicial overbreadth is not hyperbole: “Of these six claims, Plaintiffs had not asserted or moved for injunctive relief on the first four and had asserted the fifth against only the County and the sixth against only the City. The district court’s explanation for why these claims had a likelihood of success on the merits also relied on legal theories that Plaintiffs did not plead or argue, including the race-based discrimination theories underpinning the state created danger, equal protection, and substantive due process claims. In addition, the district court relied almost exclusively on extra-record evidence, and expressly did not rely on Plaintiffs’ preliminary injunction evidence. In deciding that the lower court abused its discretion the panel wrote: As we discussed, the district court granted relief based on claims that Plaintiffs did not allege, supported by novel legal theories that Plaintiffs did not argue, or against Defendants against whom the claim was not pled. In doing so, the district court abused its discretion because it only had equitable power to grant relief on “the merits of the case or controversy before it,” and “does not have the authority to issue an injunction” “based on claims not pled in the complaint.” Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr., 810 F.3d 631, 633 (9th Cir. 2015). LA Alliance for Human Rights vs LA County https://cdn.ca9.uscourts.gov/datastore/opinions/2021/09/23/21-55395.pdf<https://gcc02.safelinks.protection.outlook.com/?url=https%3A%2F%2Fcdn.ca9.uscourts.gov%2Fdatastore%2Fopinions%2F2021%2F09%2F23%2F21-55395.pdf&data=04%7C01%7Ccpeltzman%40howardcountymd.gov%7C46f17a1abfca42f14e9108d98516f2d8%7C0538130803664bb7a95b95304bd11a58%7C1%7C0%7C637687156628129174%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000&sdata=hPxcYlO%2BIb62A6XT62bAvuNOXwP81iS%2BJhzRXu8Ttxc%3D&reserved=0> IMLA supports local governments through its amicus program. We can only support members and we need members to join IMLA so we can continue these efforts. If your city or county is not a member, please consider joining to help keep our program available and the voice of local governments heard. Charles W. Thompson, Jr. Executive Director/General Counsel P: (202) 466-5424 x7110 M: (240) 876-6790 D: (202) 742-1016 [facebook icon]<https://gcc02.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.facebook.com%2FInternationalMunicipalLawyersAssociation%2F&data=04%7C01%7Ccpeltzman%40howardcountymd.gov%7C46f17a1abfca42f14e9108d98516f2d8%7C0538130803664bb7a95b95304bd11a58%7C1%7C0%7C637687156628129174%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000&sdata=yz3BxPGVYqKTvGDvQr%2B8CZofeZ7%2BsScpH7v%2B6H3rfL0%3D&reserved=0>[twitter icon]<https://gcc02.safelinks.protection.outlook.com/?url=https%3A%2F%2Ftwitter.com%2Fimlalegal&data=04%7C01%7Ccpeltzman%40howardcountymd.gov%7C46f17a1abfca42f14e9108d98516f2d8%7C0538130803664bb7a95b95304bd11a58%7C1%7C0%7C637687156628139123%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000&sdata=wODWmPXAyr7nDXCPpKbazJm7M3M7n1LLXa2%2FhfmiZRE%3D&reserved=0>[linkedin icon]<https://gcc02.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.linkedin.com%2Fcompany%2Finternational-municipal-lawyers-association-inc.%2F&data=04%7C01%7Ccpeltzman%40howardcountymd.gov%7C46f17a1abfca42f14e9108d98516f2d8%7C0538130803664bb7a95b95304bd11a58%7C1%7C0%7C637687156628139123%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000&sdata=w59rdpnE3wh15eyv0lGdcijvJvT%2FPhDmQ2NnezURRMI%3D&reserved=0> [logo]<https://gcc02.safelinks.protection.outlook.com/?url=https%3A%2F%2Fimla.org%2F&data=04%7C01%7Ccpeltzman%40howardcountymd.gov%7C46f17a1abfca42f14e9108d98516f2d8%7C0538130803664bb7a95b95304bd11a58%7C1%7C0%7C637687156628149085%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000&sdata=FIQPOudYHbxtENDRb7cgnFTPzZF8RQY2U1BuifrXPj4%3D&reserved=0> 51 Monroe St. Suite 404 Rockville, MD, 20850 www.imla.org<https://gcc02.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.imla.org%2F&data=04%7C01%7Ccpeltzman%40howardcountymd.gov%7C46f17a1abfca42f14e9108d98516f2d8%7C0538130803664bb7a95b95304bd11a58%7C1%7C0%7C637687156628159045%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000&sdata=oju1Qr5trx13gdcaY65xrsEeKyMdbLGtMyCuf7vnpQQ%3D&reserved=0> Plan Ahead! 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