Pubdate: Sun, 09 Nov 2008
Source: Burlington Free Press (VT)
Copyright: 2008 Burlington Free Press
Author: Adam Silverman
Bookmark: (Policing - United States - News)


A Burlington minister and a South Burlington police officer, both of
whom claimed victory in a racial-profiling lawsuit this summer, have
appealed the verdict, triggering a new round of legal maneuvering in
the divisive case.

Attorneys for the Rev. Rico Diamond and policeman Jack O'Connor have
filed separate claims related to the federal civil-rights case with
the 2nd U.S. Circuit Court of Appeals in New York. The appellate
court is  the middle step between U.S. District Court in Burlington,
where the matter was tried this summer, and  the U.S. Supreme Court,
which either side could ask to consider further appeals.

Diamond sued O'Connor after the officer seized $5,200 of the
minister's money during a raid on a South Burlington hotel room in

Diamond, who is black, claims the policeman had no legal basis to
take the money or to hold it for three weeks, and he accused
O'Connor, who is white, of acting based on racial prejudice. O'Connor
counters he was investigating a legitimate tip of possible drug
activity, found suspicious circumstances in the hotel room, and was
ordered by a local Drug Enforcement  Administration agent to seize the

A jury determined after a nine-day trial this summer that O'Connor
acted appropriately, and that the city -- another defendant in the
lawsuit -- had satisfactorily supervised and controlled its employee.
But the judge,  William Sessions III, issued a separate ruling that
said O'Connor, though he had enough "reasonable suspicion" of drug
activity to take the cash briefly,  lacked the probable cause to keep
it because there was no evidence of a crime.

Each side has appealed a portion of the outcome.  O'Connor is seeking
to overturn Sessions' ruling, which carried with it the potential for
an award to Diamond of hundreds of thousands of dollars in legal
fees.  Diamond wants the appeals court to conclude the jury erred in
exonerating the city, alleging no reasonable juror could have reached
an acquittal given the facts.

The back-and-forth appeals mean the case is likely to continue for at
least an additional year, and possibly longer, lawyers said last week.

"We're seeking a judgment against the city that would recognize they
had a practice of allowing Jack O'Connor to conduct unconstitutional
searches, and they inadequately addressed those problems," said Lisa
Shelkrot, Diamond's attorney. She added the case presents important
legal questions about keeping people safe from illegal police
searches and seizures. "There's very little more fundamental to our
collective  concept of liberty."

O'Connor attorney Kaveh Shahi said the appeal rests on a different
principle: whether law-enforcement agents are protected from lawsuits
when they take actions they believe are components of their duties.
O'Connor, for  instance, took the money on instructions from the DEA,
which should absolve him of responsibility, Shahi said.

"We want to help officers understand what their potential exposure
could be in similar cases in the future," Shahi said. "If you are
told to do something,  do you need to second-guess that? Can you be

Arguments have not been scheduled before a three-judge  panel of the
2nd Circuit, in Manhattan. Lawyers will  file legal papers first, and
the court has yet to set  any deadlines. Shelkrot and Shahi agreed a
ruling is  unlikely for at least a year.

Before the appeal, Sessions denied requests by both  sides for a new
trial or for him to overrule jurors and  issue a verdict in their favor.
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