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November 05, 2013


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A couple of questions -

You would expect to be allowed an interlocutory appeal? It is very unusual.

Based on the bare complaint - I would not throw myself on the mercy of the court either, which is why I have said assuming the allegations to be true. But by trial I'd expect to know enough to be able to assess how strong the complaint in fact is.

There are situations where trying to defend liability may prove much more expensive - where it will antagonize a jury. This does look like a case where that is a definite possibility.


FYI, an SJ motion in the case


A better link:


On the updates, I always wonder what justification a Law Professor would have for blogging without having read the complaint and basing it on other blog posts? Is there some reason to be "first" without worrying about being correct? Seems kind of inexcusable on the whole.


Thanks for the link to the SJ motion Mac. It was a nice try but I don't see the court granting it assuming a competent response disputing the facts/law. Not to say that plaintiff won't win the case eventually (he will). I'm sure the allegation that the plaintiff was free to leave but chose not to do so will be made and backed up by multiple law enforcement officers present at the time.

My favorite part is at the end of the motion regarding the dog search. "Here, the dog's sniff is not up to snuff. Regardless, the dog did not alert to Plaintiff's anus or to his person even."

That's motion writing gold.


The SJ motion did provide a lot more of the facts, including some nice details like the affidavit for the warrant, the bizarre argument that he was not under arrest while handcuffed for 12 hours, the suggestion that he did not object to his anal violation (the answers are a good read too.) And number of the answers admit that there was no arrest warrant. To be honest, the whole thing is beginning to sound like a total cluster....

The main benefit of the SJ motion is that it will require a response from the defendants ... and that should be interesting.

I did read Orin's VC posting - it is a pity he did not seem to see this motion beforehand as there is a quite a lot of 10th circuit law in it. I think Orin is right by the way, to paraphrase his point that somewhere around the second enema any chance of their getting out of this simply fell apart.

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