United States v. Marcus Lamour Harvey
24 F.3d 795
6th Cir.
1994
Check Treatment

*1 givе employers information must opportunity fairly not serve as notice that a new violation prepare to a defense. was entering case. See Freight, Yellow (citations omitted). 954 F.2d at 358 case, In the instant the citation issued to we find inadequate, notice we hold Car- Equipment alleged Carlisle the crane Equipment’s lisle process rights due piсked up “a load that exceeded the manufac- been violated. rating,” turer’s load in violation 29of C.F.R. 1926.550(a)(1).

§ The citation indicated “a We cannot discern from the record wheth- load,” Further, not two loads. defendant er Equipment Carlisle suffered an increased only contends that the evidence relative to penalty as a result of citаtion; the additional the removal of the new unit from the truck however, because Secretary requested a presented Equip- show Carlisle $4,000 penalty for the single violation cited in ment should have weight known the of the complaint, imposed ALJ that penalty old unit. finding ‍‌‌‌​‌‌​​​​‌‌‌‌​‌​‌​​​​‌​‌​​‌​‌‌‌‌​​​‌​‌​‌​​​​​​​‍after two light violations. of our A review of the record shows that some finding process that due has been violated evidence of the first given lift was at trial. regard to the second cited Although there was sufficient evidence to REMAND this matter to the ALJ for deter- incident, establish a violation based on this mination as penalty to whether the be should question is not whether .a violation oc- adjusted. curred, but whether Carlisle Equipment had notice a fаir opportunity to defend.

Pursuant § to 29 C.F.R. 2200.-

35(f)(3), 15(b) governs Fed.R.Civ.P. the avail

ability of amendment. When an ALJ

amends evidence, a citation to conform to the process

due is not necessarily violated. Ad Bronze, Dole,

vance Inc. v. 917 F.2d (6th Cir.1990). Hence, the ALJ was free to UNITED STATES of America, provided amend Equipment Carlisle was not Plaintiff-Appellee, surprised prejudiced by the action. Al though the Secretary change did not theory liability, evidence of the lift of HARVEY, Marcus Lamour the new air conditioner initially appeared to Defendant-Apрellant. be at aimed issue constructive knowl edge, and it does necessarily not follow that No. 92-2366. Equipment Carlisle impliedly consented United Appeals, States Court try the second violation it did Sixth Circuit. object to this evidence. establish To implied consent, it appear par must May 5, 1994. ties understood the evidence to aimed at unpleaded issue. Freight Sys., Yellow KEITH, Before: GUY, and Martin, (6th Cir.1992) Inc. v. 954 F.2d 353 BATCHELDER, Judges. Circuit (citing Lotus/East, Inc., Motor MBI v.Co. Cir.1974)). Here, ORDER counsel, discussion between the ALJ and complaint, and the evidence admitted at the The court having petition received a hearing, all indicate only banc, lift at issue petition en having was the removal of old unit from the roof. been original circulated not panel of the lift Evidence of the new unit was members but also to all judges other active understood being all as court, introduced to of this less than show knowledge constructive judges hazard having suggestion, favored the ous arising condition from the lift of the old petition for rehearing been has referred to Thus, unit. introduction of this original evidence did hearing panel.

796 By myopically fo- peti- were African-Americans. the further reviewed panel has The violations, majority the cusing on the traffic that the and concludes tion for Equal Protec- fully glaring con- the petition were failed to consider the raised in issues so, majority li- doing de- In the and violation. original submission tion upon the sidered on race. petition disparate treatment Accordingly, the based censed case. cision of the is denied. majority the Harvey, I from In dissented adopt an urged the court opinion and dissenting from KEITH, Judge, Circuit that would Ferguson exception to the test rehearing en petition for the the denial of case in instant reached the avoid the result banc. pretext as prоhibit the use of and would presents firmly this case believe and I reiterate dissent probable cause. en banc where the rare instances of one by grievously erred circuit this note of from the denial proper, I dissent is review in rehearing en banc petition for denying the rehearing. for petition the ease. the instant imposes “a stan- Amendment Fоurth The of upon exercise the of ‘reasonableness’ dard MARTIN, JR., Judge, F. BOYCE Circuit Dela- by government officials.” discretion for petition dissenting the denial the 648, 653-54, Prouse, 99 v. ware rehearing en banc. 1396, 660 De- 59 L.Ed.2d S.Ct. consis- and moving In from a reasonable requirements, the Fourth Amendment’s spite claims approach to Fourth Amendment tent pre- inquiry for the correct circuit hеld this to the ad hoc stan- involving alleged pretext particular offi- stops [a] is “whether textual ease, by majority in this employed dard to believe probable cause in fact had cer an and charted ill-advised this Court has occurred, regardless of offense had a traffic Compare States dangerous course. United or basis this was whether Cir.1988) (6th Pinо, 855 F.2d v. v. stop.” States United one basis in United States (adopting used test Cir.1993). (6th I dis- F.3d 385 Ferguson, 8 (11th Cir.1986), Smith, Ferguson believe in sented if officer ‍‌‌‌​‌‌​​​​‌‌‌‌​‌​‌​​​​‌​‌​​‌​‌‌‌‌​​​‌​‌​‌​​​​​​​‍would stop is valid reasonable traffic stops, meaningful review of waives test in of an seizure the absence have made the therefore, ripe for abuse. is and motivation) States illegitimate United I warned. of which exemplifies abuse Cir.1993) 391-92 Ferguson, 8 F.3d traf- of minor By focusing on the existence banc) (en if had (stop is valid officer refusing other examine fic violations that a traffic violation cause to believe particular stop, the for a improper bases result, we occurring). a or As occurred was guarantees to honor the court fails again the introduction have oncе endorsed Equal Protec- and the Fourth Amendment what, my opin- pursuant to evidence seized categorically The Constitution tion Clause. ion, illegal an search. on race. disparate treatment based prohibits however, test, facts the case summarized The Ferguson Under majority opinion as follows: discretion to limit an officer’s court’s failure a offense estab- once traffic motorists 22, 1990, May on Genesee 1-475 On negates any reason- probable cause lishes County, Michigan, the defendant was pretext to serve permits inquiry ableness automobile passenger a 1978 Chevrolet probable cause. right front bumper front that had no by police headlight that was clocked casе, majority primarily the instant exceeding speed sever- limit vio- officers on existence minor focused stopped The per al miles hour. officers three miles Appellants drove lations. The equipment speeding for the vehicle in a without speed limit vehicle because, as officer later violations and officer established bumper. Once hearing, suppression “[t]he violations, at testified of traffic existence the defective that I observed with testimony he vehicle ignored officer’s appearance very similar in stopped vehicle because Q: profile to several vehicles that it aWas certain damage ultimately stopped which ended in had been on this car that made it look like drug profile arrests of traffickers.” When the it fit you? produce driver of the car was unable to No, A: I made that statement on the *3 license, step driver’s he was asked to out of basis experience highway, on that car. He admitted then his license drug and traffickers that I have arrested suspended; placed he was under ar- in the Flint area. license; driving suspended rest for awith Collardey Officer continued: and, being while searched incident to the Q: you What else made think this fits arrest, he was found to have a rock of profile? some sort of a jacket pocket. in cocaine his The driver A: There young were three black male gave conflicting stories about who owned occupants in an old vehicle. car, registration but the vehicle that he Q: young

produced occupants Three black male showed defendant Marcus Har- a vey car? Harvey to be the owner. Neither nor passenger produce the other could a driv- Yes, A: sir. (Harvey’s er’s license had license been sus- Q: part And that was thе basis or pended passenger also and the other your stopping basis for of that car? license), any never obtained or age A: The appear- the vehicle and the passengers form of identification. Both occupants. ance of the get

were asked to out of the vehicle and patted weapons by were down for the offi- cers; weapons Following no were found. (district Q judge): What ‍‌‌‌​‌‌​​​​‌‌‌‌​‌​‌​​​​‌​‌​​‌​‌‌‌‌​​​‌​‌​‌​​​​​​​‍was it about the policy police department, of their appearance occupants got your impounded officers the car because there attention? away,

was no licensed driver to drive it A: It appearance. wasn’t so much the inventory conduсted an search the car. every Almost time that we have arrested key Because none of the had the drug Detroit, they’re traffickers trunk, to the vehicle’s the officers removed usually young driving black males old inventory the back seat order to cars. pair trunk and found there of men’s Q: car, why you stopped Was that or pants pockets sweat whose contained 78 you stop did the car for traffic violations? rocks of crack cocaine and six live .357 stopped A: them for traffic violations. magnum cartridges. revolver Also in the (Keith, J., dissenting). Id. at 113 bullet-proof trunk was a vest. At this point pried open the officers trunk approach This Court’s current to Fourth carefully the car to more search it and Amendment claims such as the one in this magnum found a .357 six-shot revolver. case is that: long probable so as the officer has cause to 109, 110-11 Harvey, United States v. believe that traffic violation has occurred (6th Cir.1994). trial, At the officer who con occurring, resulting stop or was is not stop following ducted the testified in the unlawful and does not violate the Fоurth manner: Amendment. We focus not on whether a Q: Collardey, you gave Officer the Prose- stopped reasonable officer “would” have your effecting cutor two reasons for a traf- (even suspect though he had infraction, stop. fic One was the traffic cause to that a traffic believe violation had speeding occurred), or whether officer “could” you something then referred to (because stopped suspect a traffic was, yet today, fitting hadn’t heard occurred), violation had in fact but on general description of some sort of a particular whether this officer in fact had profile? probable cause to believe that a traffic did, yeah, ocсurred, A: It it did fit. regardless offense had of wheth- banc, allowing the decision in rehearing en basis er this was Harvey, 16 F.3d 109 United States stop. basis Cir.1994), circuit. law of the to stand as the omitted). (citations 8 F.3d at Ferguson, princi- to believe that I continue standard, I concede regrettable Under this to deci- threatens ple espoused entirely valid. stop here was significаnt rights of mate however, me, also clear It population, dissent. portion of our miss- justifications asserted —the car’s ex- ear headlight pulled and the over a bumper Harvey, police officers ing defendant, per Harvey, hour” miles traordinary speed of “several Marcus riding. entirely pretextual. young Black were males limit —were two othеr *4 travelling stop, ear was of the At the time the eloquently stated Frankfurter As Justice limit, speed three miles actually raise Fourth ago, most who years bump- missing front headlight and a ‍‌‌‌​‌‌​​​​‌‌‌‌​‌​‌​​​​‌​‌​​‌​‌‌‌‌​​​‌​‌​‌​​​​​​​‍broken very peo- are “not nice claims Amendment most, may have these violations er. At Rabinowitz, 339 U.S. ple.” United States citations. for violation formed the basis (1950) 436, 56, 69, 94 L.Ed. 653 70 S.Ct. mishaps, Yet, a seriеs of coincidental after (Frankfurter, J., by, dissenting), overruled resulting in its sub- impounded, the car was California, 89 S.Ct. Chimel During inventory search. this sequent (1969). involving Cases 23 L.Ed.2d 685 officers uncovered several rounds search the to a led this Court unpopular defendants vest, ammunition, proof a bullet 78 of live also legal am confident flawed standard. cocaine, magnum. a .357 rocks of crack that, claimants as Fourth Amendment trial, sought suppress this evi- Harvey At to will, nicer, as it get the Court unlikely any to court, however, refused to trial dence. The compound only to today, continue has done finding that the search grant motion was his Indeed, by adopting misjudgment. initial its admitted, and Har- legal. The evidence stop any police may the position the plea guilty. of vey a conditional entered defect, a minor automobile with any petty traffic commits whose driver agreed majority panel of the appeal, On effectively declared court, we have find- decision district with the meaningful relinquish all Fourth citizens alia, that the traffic viola- ing, inter various simply by choosing protections Amendment to effect probable the tions created cause an conclusion, to enter automobile. ma- coming the stop. to this In jority officer’s comment irrelevant the found comforting knowledge— Armed with the the pulled the over because that he had car hindsight the car available —that However, majori- the Black. were contrаband, the Court did this case contain use of race ty’s to the officer’s as indifference police officer’s mere hunch has validated deeply probable for cause is offensive proxy stop. In legitimate traffic for a the basis personal guarantees of constitutional to the so, the appear to have doing abandoned Accordingly, I liberty equality. cannot solely expediency. to Fourth Amendment enough opposition to to- strongly my voice by rising the tide engendered the fear Given Harvey permit to stand. day’s to decision crime, may support this some drug-related of one, however, I, dissent for must approach. judge, expected, as a to Perhaps I am еvidencing adoption of a standard the totally the detached from emotions remain protection disregard for the such reckless the issues themselves within of that embed grants to the Fourth Amendment ap- an Such race that the court confronts. country. this citizens of arguably an ideal proach would of decision- conduct the business to JONES, dissenting. R. NATHANIEL However, rarely— is making. such ideal an by consistently of or at least join excellent dissents I wish to —achieved Moreover, any the blind judges of race. Judge Martin. Judge Keith and colleagues, unwisely ignores to such an ideal Moreover, adherence separately I write history of racism America. the undeniable with which view ominousness majority, Contrary of agаinst to conclusion Today majority votes opinion. justification officer’s statement that one peace. as in It always has been one of the for the car stopping was the pillars freedom, race of its of one of principles of occupants is exceedingly relevant. Although liberty which, on recent authority, we today’s decision and denying vote are now fighting, judges are not would otherwise, seem to respecters indicate persons, and stand between race, simple reality often, subject too does any attempted encroach- matter when it comes to the enforcement of ments liberty of his executive, alert perusal A laws. history American see that justified coercive action is jurisprudence bears fact in law. out. protest, alone, even if I itdo against a strained construction concluding upon words, put the traffic violations (citation offenses) giving the effect of power uncontrolled constituted cause imprisonment justify vehicle, Harvey’s Minister. Haney majority upon relied this circuit’s 3 All E.R. decision in Ferguson, United States v. Judge eloquent Keith’s dissent in Harvey (6th Cir.1993). However, as the decision warned that this again court plac- was once in Harvey disturbingly illustrates, so ing in police the hands of power *5 officers the Ferguson opinion legitimizes the use of race arrest, stop, jail persons, harass based in a reading of the Fourteenth solely upon their race. stand with him in impermissible. Amendment holds is Pre- urging the hazard of position, for no sumably, the rationalization for Ferguson matter the exigency presented by the war on impassioned decision was an desire be drugs, the Constitution is not silent. Its “tough However, I, on crime.” though too, command is the same during crises it share concerns rampant over the crime that periods ‍‌‌‌​‌‌​​​​‌‌‌‌​‌​‌​​​​‌​‌​​‌​‌‌‌‌​​​‌​‌​‌​​​​​​​‍of tranquility. Regrettably, today’s streets, seems to have consumed our I have denial of rehearing decision, allows profound reservations use of the overrides the rights many drugs justification war on as a American (by citizens condoning the use of abridgement of rights. individual ra- Similar race proxy as a suspicion reasonable tionalizations have courts, been used other activity) criminal to stand as the law of this crises, regretted. to be later circuit. Because I agree, cannot I dissent. States, See Korematsu v. United 65 S.Ct. 89 L.Ed. 194 Not- withstanding pressing urgency of nation-

al security or the war drugs, on Constitu-

tion must stand as against a bulwark incur- Yet,

sions on civil ironically, liberties. to-

day’s decision has perpe- afforded those that America, UNITED Appellee, STATES of trate such refuge incursions in the federal courts. The Sixth Circuit must at some point come to realize that the Constitution William SNELENBERGER, Bruce does not police abide officers basing their law Appellant. enforcement decisions on the of per- color son’s skin. No it, matter how may excuse No. 93-2148. that is what here. occurred United States Appeals, Court of again, Once remind the of Lord Sixth Circuit. Atkin’s profound in Liversidge words Anderson, a case that emergency construed Argued April 1994. legislation defense in Great during Britain May Decided 1994. World II.War He wrote:

In England, amidst the clash of arms the

laws They may silent. changed, speak

but they language the same in war