Tenth Circuit: No Immunity For Cops Who Protected An Abusive Fellow Officer Right Up Until He Murdered His Ex-Wife
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Law enforcement officers have no legal obligation to protect and serve. The words look nice on badges and insignias, but courts have said this is only a nicety, not a guarantee.But that doesn't mean officers can abandon any pretense of protection and service. There are some limits enforced by precedent. Neglecting to take complaints and threats seriously can have consequences. The difference is the definition. There's no due process right to protection and service. But the government does have an obligation under the Fourteenth Amendment to ensure no citizen receives less protection and service than others.That fine line was crossed in this tragic case handled by the Tenth Circuit Appeals Court. And it all could have been avoided if the officers involved didn't decide to give one of their own some unequal protection. The decision [PDF] opens by briefly alluding to this fine line.This case arose after a Silver City police officer murdered his ex-girlfriend, Nikki Bascom, and then committed suicide. Her Estate sued, alleging the Silver City police did not adequately respond to Ms. Bascom’s domestic violence complaints because the shooter, Marcello Contreras, was a fellow police officer. The Estate brought various civil rights claims under 42 U.S.C. § 1983, including a claim that Silver City officers Ed Reynolds and Ricky Villalobos violated Ms. Bascom’s equal protection rights by providing her less police protection than other similarly situated domestic violence victims. The lower court denied qualified immunity to the officers. They appealed. And they lose again.The circumstances of the case would have been awful enough without the added ugliness of police officers giving an abusive fellow officer a pass, thereby placing his family in the direct line of the harms that followed. And this could have perhaps been avoided if the Silver City police department hadn't been so keen on adding a bad apple to its barrel.In 1999, Marcello Contreras’s then-wife, Nikki Bascom, reported to the Silver City Police Department (SCPD) that Contreras had threatened to shoot her at gunpoint because he believed she was having an affair. Contreras admitted pushing his wife but denied threatening her. SCPD charged him with battery on a household member. Nevertheless, in 2001, SCPD hired him as a police officer. Contreras spent the next fifteen years as an SCPD officer. He also spent the next fifteen years in an on-again, off-again relationship with Bascom. The relationship was apparently off when Contreras showed up at her house, drunk, potentially suicidal, and complaining about a suspected affair. (The court notes the two were not dating at this point.) Three officers responded to Ms. Bascom's teen son's 911 call about the argument and Contreras' threat to shoot himself.Officers arrived at the scene and then apparently decided to bend/break all the rules to allow Contreras a semi-graceful exit.When the officers arrived on the scene, Ms. Bascom handed Sergeant Arredondo a gun she had taken from Contreras and said “[Contreras] has gone crazy and wants to kill himself.” Ms. Bascom informed Sergeant Arredondo that Contreras had been drinking heavily for two days. Sergeant Arredondo observed that Contreras had alcohol on his breath and had bloodshot, watery eyes. Despite Sergeant Arredondo being “one of the number one DWI go-getters that makes most of [SCPD’s] DWI arrests,” he allowed Contreras—who had clearly consumed alcohol recently—to drive his truck into the driveway.The officers also acted contrary to SCPD training and policy. Although SCPD officers are trained to interview the 911 caller in a domestic incident, the officers on the scene did not interview Ms. Bascom’s son. Moreover, no officer completed a verbal tracking form, which department policy requires so that officers are aware of volatile situations. Non-law enforcement employees also assisted with the whitewashing of this domestic incident.Finally, dispatch initially classified the call as a “domestic disturbance.” Minutes later, the call type was changed to a “welfare check” at the request of one of the responding officers. The dispatcher explained that the call type was changed to protect Contreras. This change made it more difficult for agencies to detect a history of domestic violence at the residence. The buck got passed. And it never stopped.Sergeant Arredondo reported the domestic disturbance incident to Chief Reynolds. Chief Reynolds met with Contreras and suggested he take advantage of the employee assistance program. But Contreras was not charged with any offenses—domestic violence, refusal to obey an officer, or DWI—as a result of the incident. Two weeks later, Ms. Bascom reported Contreras was following her around in his car and had harassed one of her coworkers. The chief basically told Contreras to "knock it off" but did not document the allegation or deploy any form of discipline. Three days after this report, Chief Reynolds promoted Contreras to acting Captain and gave him a raise.A month later, while on duty, Contreras used his SCPD car to force Bascom off the road. When she tried to call 911, he took her phone. He then went to the coworker's house and threatened him. This incident was also reported to Chief Reynolds. Finally, the chief did something. He placed Contreras on administrative leave and took his weapon. But then he let Contreras go without documenting the allegation or filing a criminal complaint, even though he admitted in court he could have and that Contreras' actions were criminal.Contreras left the police station and began following Bascom again. Another 911 call was made and the Grant County Sheriff's Department responded. Chief Reynolds spoke to one of the sheriff's officers but did not detail the events of the past month. Bascom then left her house and headed towards a domestic violence shelter. She called 911 again because Contreras was still following her. Contreras, in turn, was followed by a sheriff's officer, but the officer didn't feel he had enough evidence to perform a stop. He said this in a call to Chief Reynolds while following Contreras. Chief Reynolds decided there was no need to inform the officer that Contreras had forced her off the road earlier in the day and stolen her cell phone.Here's how it all ended:Ms. Bascom left the domestic violence shelter and drove to her friend’s house. As he had done many times that day, Contreras followed her there. At 4:20 p.m., Contreras shot and killed Ms. Bascom in front of her friend’s house and then turned the gun on himself. Afterwards, Sergeant Yost told dispatch that he should have stopped Contreras and that he could have saved Ms. Bascom’s life. The dispatcher responded, “[W]e have been dealing with this off and on for over a month now, and it’s been swept under the rug.” The court notes the SCPD's handling of Contreras was completely different than the way it handled situations like these that did not involve SCPD officers.In 2016, the year Ms. Bascom was murdered, 149 domestic violence calls resulted in 140 arrests by SCPD officers—an arrest rate of 94 percent. In its briefing before the district court, the Estate identified eight domestic violence complaints where the assailant either (1) pulled a victim over by swerving in front of the victim’s car or (2) pulled a cell phone out of the victim’s hand. In all of these cases, SCPD officers either arrested the assailant at the scene, signed a criminal complaint, or sought an arrest warrant. SCPD officers also arrested domestic violence offenders in relatively minor disputes and even arrested and charged domestic violence suspects over victims’ objections, as mandated by SCPD policy. This discrepancy is a violation of rights.We find that the facts found by the district court support an equal protection claim. Although Ms. Bascom was similarly situated to other domestic violence victims, she was treated differently because her assailant was a police officer with whom she had been in a domestic relationship. When other domestic violence victims reported domestic violence to SCPD, the non-police officer assailant was arrested 94 percent of the time. When Ms. Bascom and her son repeatedly reported Contreras’s domestic violence to SCPD, Contreras was never arrested. Instead, the Officers brushed SCPD domestic violence policy aside to protect their fellow police officer. A reasonable jury could conclude these facts demonstrate disparate treatment of domestic violence victims whose assailants were not police officers and whose assailants were police officers with whom they had been in a domestic relationship. Put a bit more starkly and accurately:SCPD has two domestic violence policies: one for victims whose assailants are SCPD officers, and one for everyone else. This isn't the court making a wry observation using a shopworn idiom. It's an actual fact. Police officers suspected of domestic violence are referred to an outside agency. They are not arrested or detained while this is handled by outside investigators. The outside agency only receives limited information: name of the complainant and the allegations. No statements, documentation, or any other evidence collected prior to this referral is handed over. Non-officers accused of domestic violence are almost always arrested immediately. Cops accused of domestic violence are free to go while outside investigators play catch up with limited info and minimal cooperation.This unequal protection is unconstitutional. And this is a clearly established violation of rights these officers should have been aware of prior to their sheltering of the abuser in their midst.Here we have two factually similar cases, Watson and Price-Cornelison, which clearly established at the time of the Officers’ conduct that providing less protection to domestic violence victims, or certain sub-classes of domestic violence victims, violates the Equal Protection Clause. These cases would put a reasonable officer on notice that it is unlawful to provide less police protection to victims of domestic violence whose assailants are police officers with whom they had been in a domestic relationship than is provided to victims without police assailants. No qualified immunity for the officers who protected one of their own right up until he took two lives -- officers whose actions were so blatantly unequal the dispatcher admitted to another law enforcement agency the PD had been sweeping Contreras' violence and severe misconduct "under the rug." And the person holding the biggest broom -- the chief -- did nothing for a month. Then he followed it up by doing too little far too late.
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posted at: 12:00am on 16-Jul-2021
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Social Tech Loses Appeal To Apple Over 'Memoji' Trademark Because Suing Apple Isn't Using The Mark In Commerce
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For what it's worth, lawsuits against Apple over emojis are not entirely unheard of. You may recall that Apple was sued by a woman who claimed it was copyright infringement for Apple to have emojis that represent more diverse communities, for instance. But for a truly fun story about Apple being sued, and winning its defense, over emojis, well, you have to go to a case between Apple and a company called Social Tech.Social Tech sued Apple in 2018, alleging Apple's Memoji personalized emoji feature infringed its trademark covering its app with the same name. U.S. District Judge Vince Chhabria ruled for Apple in 2019. Indeed. And Social Tech appealed that ruling. So why did the court find for Apple in 2019? Well, because Social Tech couldn't demonstrate that it was actually using the mark in commerce. This is where we'll need to dig into some details.In 2016 Social Tech filed an intent-to-use trademark application for "Memoji" for use in apps and software. The Trademark Office granted a Notice of Allowance, which essentially gives the go ahead to the applicant to put the mark in actual commerce, after which the UPSTO would approve the mark. Social Tech basically did nothing for 2 years after that, other than to ask for an extension on the Notice of Allowance. Meanwhile, another company called Lucky Bunny LLC filed its own trademark application for "Memoji" for the same class of goods. That application was suspended due to the Social Tech application status. In the summer of 2018, Apple acquired Lucky Bunny and its assets, including the suspended trademark application. In June, Apple announced the acquisition and released a public test version of its new mobile OS that included Lucky Bunny's Memoji software.And this is where it gets weird. When I said above that Social Tech did nothing for two years before Apple's announcement, that's not entirely true. Social Tech did write a business plan, fund itself internally for $100k, and write up some promotional material. What it didn't do was write a single line of code... until Apple announced the acquisition. Then, and only then, did Social Tech's interest in actually using the Memoji mark in commerce go into overdrive.The appeal was decided by the court in Apple's favor as a result of all of this, but the details laid out in the judgement are striking.During the three weeks after Apple’s announcement, Social Tech’s co-founder and president, Samuel Bonet, exchanged a series of emails with a software developer to accelerate the timing of the application’s development. In the first of these emails on June 7, Bonet described the circumstances to be “life changing” and concluded the email with: “Time to get paid, gentlemen.” In a series of subsequent emails, Bonet regularly followed up with the developer on the application’s progress. On June 12, Bonet wrote: “the app needs to erase the background AND the body . . . Of course this may take a little work to get perfect, but as long as we can get close initially, we can start to test and put in commerce.” On the evening of June 13, Bonet wrote to the developer: “[i]n other news . . . the initial letter has been sent to Apple. The process has begun. Peace and wealth!” Bonet continued to follow up on the application’s progress over the next several days, noting that “the editing feature [was] vital” to “satisfy the ‘editing’ requirement of the trademark.” On June 18, Bonet wrote that Social Tech would release the application for Android in the Google Play Store first, proclaiming: “We are lining up all of our information, in preparation for a nice lawsuit against Apple, Inc! We are looking REALLY good. Get your Lamborghini picked out!” It goes on from there, but the general gist is that Social Tech was very specifically attempting to finally get its mark pushed through simply in order to file these trademark suits and "get paid." And that, sadly for Social Tech, does not satisfy the requirement for using the mark in commerce. And, since the entire enterprise of putting a broken app in commerce was done simply to get the trademark for "Memoji" and file the lawsuit, those don't actually count either.As a result, the court found for Apple.The panel held that mere adoption of a mark without bona fide use in commerce, in an attempt to reserve rights for the future, is insufficient to establish rights in the mark under the Lanham Act. Use in commerce requires use of a genuine character, in a way sufficiently public to identify or distinguish the marked goods in an appropriate segment of the public mind. Considering the totality of the circumstances, including relevant non-sales activities, the panel agreed with the district court that the evidence in the record showed that Social Tech’s use of the MEMOJI mark was not bona fide in commerce. Accordingly, Apple was entitled to cancellation of Social Tech’s trademark registration. When it comes to intellectual property, it's nice to see grifting not work out for the grifters once in a while.
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posted at: 12:00am on 16-Jul-2021
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