Stone Co Citizen | Arkansas news, politics, opinion, restaurants, music, movies and art

Stone Co Citizen 
Member since Jun 11, 2010


Favorite Places

  • None.
Find places »

Saved Events

  • Nada.
Find events »

Saved Stories

  • Nope.
Find stories »

Custom Lists

  • Zip.

Friends

  • No friends yet.
Become My Friend Find friends »

Stats

Recent Comments

Re: “Blue Hog Report pursues judicial discipline complaint over Judge Dan Kemp

More money has been spent in this campaign than any other in Arkansas history!!!! It's big money verses big money, dark money verses dark money - the question here is --- "Is John Dan Kemp who he says he is"- as a local Stone Co Citizen who has been in court with him I'm here to tell you HE IS NOT - he is racist - a judge in an area with less than 1% minorities - look at their sentences - when they really are 1st time offenders - he is sexist - look at how he treats women in his court - and its clear that he rules on a socioeconomic factor - got enough money - he'll take a pay off and you'll be fine.... all the way back to 1996 - pull up Bagby v Brondhaver, also Twyford v Brondhaver (arresting police officer) - Kemp threw out the arrest warrants of 5 sexual offenders because the arrest warrants were misleading - Federal court did not agree... the real issue everyone involved in the case is the pay off everyone believed he took from his high school friend one of the atty's for the sexual offenders to rule the way he did. The juvenile judge John Norman Harkey protected the children in juvenile court and expressed his complete loathing for the ruling of Kemp. This is not new conduct... Matt Campbell, research will show his relationship to Maggio as well. Maybe the Feds need involved in Stone Co too.

4 likes, 0 dislikes
Posted by Stone Co Citizen on 02/28/2016 at 6:32 PM

Re: “Blue Hog Report smells shenanigans in plea agreement, political contribution to Kemp

The real issue here is - friends of John Dan Kemps and folks with enough money - which ever is most beneficial to him WINS whether that is by reduced sentence or whether that is by being paid off to throw the case out entirely.... he is not what he claims in the ads. He is not honest, clearly, he's had at least one affair that people know of locally and he's easily bribed for the right friends and money, and he's sexist, racist, and socioeconomic biased- he likes people with money .... he says he has 3 decades of experience as a judge... COME ON FOLKS that's in Stone County Arkansas with a population of 12,000 people in the county where few are eligible for the job and those that are, don't want it. He's in a job no body wants.... he has no experience that qualifies him to be a judge in a higher court, much less the highest court in the state of Arkansas and the Head Man at that..... get a grip. We know he's running because he hates women in positions of power. And Walmart is backing him.

4 likes, 6 dislikes
Posted by Stone Co Citizen on 02/23/2016 at 11:21 AM

Re: “Blue Hog Report smells shenanigans in plea agreement, political contribution to Kemp

want to know more about how much HONESTRY AND INTEGRITY Danny Kemp has.... this is one of the women that was charged with selling her children allowing them to be abused in exchange for drugs that Judge Kemp threw out on an excuse of Grammar..... the Juvenile court protected the children under Judge John Norman Harkey but Judge Kemp let all the offenders go with his ruling.

United States Court of Appeals,Eighth Circuit.


Kelley BAGBY, Appellee, v. Steve BRONDHAVER, Appellant.

No. 95-3361.

Decided: October 28, 1996
Before BEAM, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges. Neil R. Chamber, argued, Little Rock, AR (Robert A. Russell, Jr., on the brief), for appellant. Frederick Lee Caddell, argued, Fort Smith, AR, for appellee.
Deputy sheriff Steve Brondhaver appeals an order denying his motion for a qualified immunity dismissal of Kelly Bagby's 42 U.S.C. § 1983 claim.   Concluding that Brondhaver's arrest warrant affidavit did not contain objectively unreasonable falsehoods under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), we reverse.

Between November 1991 and February 1992, Brondhaver was investigating possible sexual abuse of Bagby's seven-year-old nephew, J.T., and his two-year-old sister.   Medical examinations revealed that both children were likely victims of sexual abuse.   During three lengthy taped interviews, J.T. told Brondhaver and other officers that he and his sister had been sexually abused by their mother and several of her male friends.   J.T. related numerous instances of abuse in great detail, naming the abusers.

J.T. did not discuss Bagby during the first two interviews.   On February 1, 1992, during the third interview, J.T. said that Bagby's young son had “learn [ed] things from his daddy” and had abused J.T. and another boy.   Brondhaver then asked, “Has Kelley [Bagby] ever touched you?”   J.T. replied, “No.” However, later that day, Vernon Ivy confessed that he had participated in some of the sexual abuse committed by the group of adults accused by J.T., and Ivy told Brondhaver that Ivy had seen Bagby “sucking on [J.T.'s] peter” in a room at Joy Lee Pouge's apartment.

On February 4, Brondhaver presented nine affidavits to a Stone County Municipal Judge seeking warrants for the arrest of Bagby, J.T.'s mother, and three men.   For each of the other four targets, Brondhaver presented two affidavits, one reciting that the target “has committed sexual intercourse and deviate sexual activity” with “victim John Doe” (J.T.), and the other reciting the same misconduct with “victim Jane Doe” (J.T.'s sister).   Each of those eight affidavits stated that the information was based in part upon “statements from [J.T.],” accurately reflecting that J.T. had expressly accused each of the four targets of sexual abuse.   For Bagby, Brondhaver submitted one affidavit, which recited:

Based on information obtained by me from witnesses statements indicate that Kelley Bagby has committed deviate sexual activity with the victim John Doe w/m DOB 5-31-84 being approximately 4 to 5 years old at the time of the assaults, date 1-10-90 thru 7-90 took John Doe to Joy Lee Pouge residence to bedroom, and sexually assaulted John Doe.-Pacifically inserting his penis into her mouth.   Cheryl Twyford allowed incident to occur.   Statements from witnesses indicate that the suspect was observed having sex with the victim John Doe.

The Municipal Judge issued warrants to arrest each target.   Bagby was arrested and charged with rape.   The charges against her were later dismissed without prejudice by another judge, who concluded that Brondhaver's affidavit had misled the Municipal Judge because it did not include J.T.'s exculpatory statement, it did not disclose the reliability of witness Ivy, and the last sentence “would lead a reasonable person to believe that more than one person witnessed the alleged sexual activity.”

Bagby then filed this § 1983 damage action, alleging that Brondhaver violated her Fourth and Fourteenth Amendment rights by submitting a false and misleading affidavit.   The district court denied Brondhaver qualified immunity because “[i]t was not objectively reasonable for the defendant to submit an affidavit that contained materially false statements.”   Brondhaver appeals.   The parties agree that this qualified immunity order is immediately appealable.   See Behrens v. Pelletier, 516 U.S. 299, ----, 116 S.Ct. 834, 842, 133 L.Ed.2d 773 (1996);  Reece v. Groose, 60 F.3d 487, 489 (8th Cir.1995).

 Brondhaver is entitled to qualified immunity if his conduct did not violate clearly established rights of which a reasonable person would have known.   The doctrine “gives ample room for mistaken judgments but does not protect the plainly incompetent or those who knowingly violate the law.”  Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir.1995), quoting Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986).   A warrant based upon an affidavit containing “deliberate falsehood” or “reckless disregard for the truth” violates the Fourth Amendment.  Franks, 438 U.S. at 171, 98 S.Ct. at 2684.   An official who causes such a deprivation is subject to § 1983 liability.   See Burk v. Beene, 948 F.2d 489, 494 (8th Cir.1991).

 The lynchpin of qualified immunity is the public official's objective reasonableness.   See Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).   Bagby accuses Brondhaver of a constitutional tort in which his motive may be a central element.   Other circuits confronting this paradox have concluded that, if defendant's bad motive is relevant to the § 1983 claim, plaintiff may defeat summary judgment on qualified immunity grounds by producing specific, nonconclusory support for the claim of unconstitutional motive.   See Tompkins v. Vickers, 26 F.3d 603, 608 (5th Cir.1994);  Branch v. Tunnell, 937 F.2d 1382, 1387 (9th Cir.1991);  Elliott v. Thomas, 937 F.2d 338, 345 (7th Cir.1991), cert. denied, 502 U.S. 1074, 112 S.Ct. 973, 117 L.Ed.2d 138 (1992);  Pueblo Neighborhood Health Ctrs. v. Losavio, 847 F.2d 642, 649 (10th Cir.1988);  Martin v. D.C. Metro.   Police Dept., 812 F.2d 1425, 1433 (D.C.Cir.1987).   Cf. Siegert v. Gilley, 500 U.S. 226, 235-36, 111 S.Ct. 1789, 1795, 114 L.Ed.2d 277 (1991) (Kennedy, J., concurring).   That was essentially our approach in Moody v. St. Charles County, 23 F.3d 1410, 1412 (8th Cir.1994), where defendant was accused of lying in a warrant affidavit to cover up his own wrongdoing, and a divided panel concluded that plaintiff's showing of deliberate falsehood was insufficient to defeat qualified immunity.

This case does not involve a deliberate falsehood claim.1  Rather, Bagby relies upon the prong of Franks that holds a warrant affidavit constitutionally infirm if it reflects a material and reckless disregard for the truth.   That was the issue in Burk v. Beene, where we affirmed the denial of qualified immunity because defendant was not objectively reasonable in submitting an affidavit containing material statements she should have known to be false.   This prong of Franks is governed by an objective standard that is quite amenable to qualified immunity review-whether the warrant affidavit was so materially false that defendant manifested reckless disregard for the truth in submitting it.

 In applying this objective standard, we bear in mind another facet of the Franks decision-a warrant may not be collaterally attacked by a criminal defendant, the Supreme Court explained, if all the false and reckless portions of a warrant affidavit are corrected and the corrected affidavit still supports a finding of probable cause.  438 U.S. at 171-72, 98 S.Ct. at 2684-85.   Like the Second Circuit in Soares v. State of Conn., 8 F.3d 917, 920 (2d Cir.1993), we conclude from this that qualified immunity is appropriate if defendant has been accused of submitting a recklessly false affidavit and if a corrected affidavit would still provide probable cause to arrest or search.2  We have doubts about the converse statement in Soares-that defendant is never entitled to qualified immunity if the corrected affidavit is insufficient-because that rule may in some cases fail to serve the qualified immunity purpose of sparing all but the plainly incompetent from § 1983 damage liability.

We need not resolve that issue here because we conclude that a corrected Brondhaver affidavit would have provided probable cause to arrest.   Bagby argues that the most egregious error in Brondhaver's affidavit was the failure to disclose J.T.'s response that Bagby had not touched him.   But Brondhaver's other eight affidavits to the same Municipal Judge all stated that J.T. had accused the target of sexual abuse.   It is hardly reckless disregard for the truth for Brondhaver to assume that a careful magistrate would note and correctly interpret this omission from the Bagby affidavit.   Bagby also relies on Brondhaver's failure to disclose witness Ivy's background as a known child molester then facing criminal charges.   But fuller disclosure would have arguably strengthened the probable cause showing, for Ivy had confessed as a participant to intimate knowledge of widespread sexual abuse by a large group of adults, including those specifically accused by J.T., and as a part of that confession had described in detail his first-hand observation of Bagby sexually abusing J.T.

The nine Brondhaver affidavits reflect hurried drafting and inadequate attention to the fact that he had less information of sexual abuse by Bagby than by the other four targets.   A corrected Bagby affidavit would make clear that only one eyewitness accused her of sexual abuse, whereas both Ivy and J.T. had accused the other four.   It would disclose J.T.'s ambiguous denial and Ivy's confessed misdeeds.   Finally, Bagby argues that “sex” in the last sentence of the affidavit must be corrected to “oral sex,” although we see little risk that the Municipal Judge construed the word “sex” to mean sexual intercourse between a five-year-old boy and an adult woman.

 With these corrections, the Bagby affidavit would still contain a detailed description of alleged sexual abuse provided by an eyewitness.   In our view, this is sufficient to establish probable cause to arrest.   See United States v. Wold, 979 F.2d 632, 634 (8th Cir.1992);  United States v. Reivich, 793 F.2d 957, 963 (8th Cir.1986).   Therefore, Brondhaver is entitled to qualified immunity and dismissal of Bagby's § 1983 claims.

The order of the district court is reversed.   The case is remanded with directions to dismiss Bagby's federal claims with prejudice and her pendent state law claims without prejudice.   We grant appellant's motion for leave to file a supplemental brief.

FOOTNOTES

1.  At oral argument, counsel for Bagby confirmed that she has no evidence Brondhaver deliberately lied in his warrant affidavit.

2.  We express no view as to whether a defendant whose affidavit contained a deliberate falsehood should be entitled to qualified immunity if a corrected affidavit would still provide probable cause.   A more stringent rule may be appropriate when a liar seeks the benefit of this defense.

LOKEN, Circuit Judge.
- See more at: http://caselaw.findlaw.com/us-8th-circuit/…

6 likes, 3 dislikes
Posted by Stone Co Citizen on 02/22/2016 at 6:12 PM

Re: “Blue Hog Report smells shenanigans in plea agreement, political contribution to Kemp

I'm here to tell you that I have no doubt that Judge Kemp took payoffs - I personally was involved in a case as the social worker where he threw out an arrest warrant on several men who were involved in a drug and sex abuse ring on an issue of "Grammar" --- misleading he says. He was high school friends with the offenders atty who later went to jail for his own sexual abuse charges. Judge Dan Kemp is not the moral and ethical man he says he is.... and all you have to do is look at his house and his vehicle to know that he didn't get those on a local judge's salary.

8 likes, 5 dislikes
Posted by Stone Co Citizen on 02/22/2016 at 5:49 PM

Re: “Stone County election questions

Vernon Humphreys, the Republican election commissioner in Stone County gave a list today to the both the Stone County Leader and Stone County Citizen newspapers a list of voters by name who participated in the run off June 8th but have since been determined to be ineligible to vote in that run off - 24 were cross over voters who voted in the Republican primary which made them ineligible to vote in the Democratic run off. 2 voters were not registered in Stone Co, 1 was ineligible by failure to have voted previous 2 federal elections and one was not registered to vote within the required time frame. These 28 voters are being sought by the Republican Commissioner seconded by Bob Turner Democratic Chairman and election commissioner to reveal and confirm who they voted for in order to remove their votes. This action however is likely protected by the constitution and has potential serious legal ramifications. Should the Stone Co Election Commission chose to certify the tie, they would then send it to the Sec of State/Gov for certification. At that time, it would be returned to the county Democratic Party to chose a candidate. They are under no obligation to chose either the current Sheriff, Todd Hudspeth or his challenger Lance Bonds. They could forseeably chose anyone they want. The question of legality of another race seems to be the issue that needs answered. It makes the most sense, however, good sense does not apply here.

Posted by Stone Co Citizen on 06/11/2010 at 9:19 PM

 

© 2017 Arkansas Times | 201 East Markham, Suite 200, Little Rock, AR 72201
Powered by Foundation