holding, on remand from Deven- peck, that probable cause existed because there was “suffi- cient evidence in the record to support a finding of objective probable cause to arrest Alford for the misdemeanor offense of criminal impersonation in the second degree”
How later courts described this case
- holding, on remand from Deven- peck, that probable cause existed because there was “suffi- cient evidence in the record to support a finding of objective probable cause to arrest Alford for the misdemeanor offense of criminal impersonation in the second degree”
- recognizing that a new trial should be granted if the record contains no evidence to support the verdict
- “[W]e can reverse such a denial only if the district court makes a legal error in applying the standard for a new trial or the record contains no evidence that can support the verdict.”
Written by the judges who cited it.
Later courts went against this
Disagreed with by Harrell v. City & County of Honolulu, 283 F. App'x 509 (2008)
In light of this, we respectfully disagree with our colleague: we cannot find that the record “contains no evidence that can support the verdict,” id. at 936, or that the jury’s decision is against the weight of the evidence, or was a seriously erroneous result.
The opinion
B. FLETCHER, Circuit Judge,
dissenting:
I respectfully dissent.
Our prior order remanding to the district court because the issue of probable cause for impersonating an officer was not before the jury, was correct. Any evidence of other conduct by Alford was presented only in the context of whether he had the requisite intent under the Privacy Act. The instructions to the jury were in the context of violation of the Privacy Act. The jury was not asked to consider other possible crimes for which Alford could have been arrested.
The arguments of both counsel focused on the Privacy Act and witness-credibility. Neither suggested that the jury was to decide whether there was probable cause to arrest for impersonating a police officer. Granting the government’s Petition for Rehearing and affirming the acquittal is inconsistent with the testimony, the jury instructions, and counsels’ arguments all of which indicate that the jury was not presented with the theory that the officers may have probable cause to arrest for an offense other than Privacy Act violations. The remand to the district court, leaving those proceedings open on the issue of qualified immunity, is appropriate. We should deny the government’s Petition for Rehearing.