TN – Hirsch v McGuire – 1:14-cv-00106

Arthur Hirsch v McGuire –  1:14-cv-00106 – TN

The Post and Email has been ‘reporting’ on the case of Arthur Hirsch who was stopped for a traffic issue and admitted to possessing a firearm. He was subsequently placed under arrest and taken to jail. The officer presented a probable cause hearing to the judge who signed the warrant. Hirsch is suing for a myriad of violations, in Federal Court. His criminal case appears to be pending in Tennessee State Court. He has accused the State District Attorneys General, the arresting State trooper and his direct command, as well as the Judge. The Tennessee Trooper, Jeff Reed, has filed his response as outline below.

The Judge has filed for an extension so we won’t hear her side of the story for some time. From the filings so far, it appears that there was no Miranda violation as Hirsch was stopped for a traffic inquiry and voluntarily admitted to owning a firearm. He now claims that he felt threatened by the presence of other police officers and involuntarily gave his statements, however such a claim is unlikely to survive as the traffic stop was outside, on a parking lot, out in the public. Once he made his statement, he was placed under arrest and was no longer asked further questions. Or at least, the complaint does not make such claims.

The officer wrote citations and took him to jail where he quickly presented the case to a Judge to fulfill the probable cause hearing requirement, which, under US law, does not require that the defendant is present. The judge signed the warrant.

On July 26, 2014 the grand jury handed down an indictment on plaintiff’s case.

Jeff Reed, Tennessee State Trooper

Miranda violation – As expected, no such violation happened because a traffic stop does not count as being ‘in custody’. The complaint even states that Officer Reed asked questions about the license plate, something related to a traffic stop.

The Supreme Court case of Miranda v. Arizona, 384 U.S. 436 (1966) provides that, when a suspect is in custody, the suspect must be apprised of his/her rights prior to questioning by the police. Miranda, 384 U.S. 436, 478-70. However, “a seizure of a lesser degree than a formal arrest, such as a temporary investigative detention or a traffic stop, does not constitute custody within the meaning of Miranda.” Berkemer v. McCarty, 468 U.S. 420, 437-40 (1984); see also, Maryland v. Shatzer, 559 U.S. 98, 112-13 (2010). In Berkemer, the Supreme Court noted that, particularly with regard to traffic stops, the rule does not apply because: (1) a traffic stop is by nature a brief detention, not prolonged, and (2) a traffic stop is out in the public, so police are less likely to engage in inappropriate behavior.

Violation of fourth, sixth or fourteenth amendments

The Supreme Court in Gerstein v. Pugh, held that (1) A probable cause determination is only required for those who are subjected to prolonged detention; and (2) A probable cause determination may be made outside the presence of the defendant and satisfy the Fourth Amendment. 

The probable cause hearing was conducted the same day as the arrest. Plus, plaintiff bonded out the same day as the arrest – approximately seven hours after the arrest.
Violation of Tennessee Rules of Criminal Procedure 5(a)(1)(B)
It appears that plaintiff may be attempting to raise a claim for an alleged failure to follow Tennessee’s Rules of Criminal Procedure. This claim fails on many grounds.
First, plaintiff misreads the Rule itself. Tenn. R. Crim. Proc. 5(a)(1)(B) states in pertinent part that “any person arrested … shall be taken without unnecessary delay before the nearest appropriate magistrate of: … the county in which the alleged offense occurred if the arrest was made without a warrant, unless a citation is issued pursuant toRule 3.5.” (emphasis added). Rule 3.5 in pertinent part states, “The use of citations in misdemeanor arrests is as provided by law.” There are no allegations that the citations were unlawful. Thus, since citations were issued, the exception to Rule 5 applies, and there was no requirement under that Rule for plaintiff to be brought before a neutral magistrate.
 Furthermore, even if plaintiff were correct, the issue is moot. If there were no presentation before a neutral magistrate, then the relief would be to dismiss the warrant.  In this case, indictments have issued against plaintiff, which indictments supersede the warrant. [Complaint, D.E. 1, ¶ 4.94]. Thus, plaintiff has not been damaged. In addition, Rule 5.1(c) provides that, if a magistrate finds there is no probable cause, the “discharge of the defendant does not preclude the state from instituting a subsequent prosecution for the same offense.” The prosecution has indicted plaintiff, which would be the subsequent prosecution if a magistrate found no probable cause. Plaintiff this cannot prove that he was damaged in any way by the alleged failure to take him before a neutral magistrate.

Abstention under the Younger Doctrine

Here, the claim meets the Younger test – there is an ongoing state judicial proceeding – plaintiff’s criminal trial. An important state interest is implicated – the issue of whether plaintiff violated state law and should be punished for that. And, plaintiff is free to raise constitutional issues in the criminal court proceeding at any level, even on appeal. Thus, the Younger abstention doctrine bars plaintiff’s claims.