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Assault and Battery: Handcuffs

****Editor's Case Alert****

     To establish liability for excessive force in the use of handcuffs, a detainee must establish both that police applied the handcuffs unnecessarily tightly, and that they ignored his complaints that the cuffs were too tight. In this case, an officer was not shown to have violated the plaintiff's rights, as the handcuffs were removed in response to the plaintiff's complaints. The defendant officer was not, however, entitled to qualified immunity on the plaintiff's claim that he used excessive force while "cramming" him into the back seat of the patrol vehicle. Vance v. Wade, #07-5930, 2008 U.S. App. Lexis 23952 (6th Cir.).

Assault and Battery: Physical

     Arrestee stated valid claims for excessive use of force and failure to train arising out of incident in which he pointed a gun at plain-clothes police officers who chased him, fearing they were criminals. He allegedly continued to flee after they identified themselves as police, and claimed that they inflicted a severe beating on him after he was subdued. Jones v. Ritter, Civil Action No. 07-1674, 2008 U.S. Dist. Lexis 94383 (D.D.C.).

     A sheriff's deputy who allegedly repeatedly slammed a misdemeanor arrestee against a concrete wall after he was fully compliant and subdued, causing a leaking aneurysm and breaking his ribs was not entitled to qualified immunity from liability. He should have known that such conduct was unlawful. Galvez v. Bruce, No. 08-10531, 2008 U.S. App. Lexis 25478 (11th Cir.).

Assault and Battery: Taser/Stun Gun

     A police officer acted reasonably in using a Taser to stun a man who refused to release a chokehold on a much smaller man he had pinned down on the ground. Use of the Taser was objectively reasonable and necessary under these circumstances. Woosley v. Paris, Civil Action No. 06-365, 2008 U.S. Dist. Lexis 97663 (E.D. Ky.), summary judgment granted by Woosley v. Paris, 2008 U.S. Dist. Lexis 98252 (E.D. Ky.).

Attorneys' Fees: For Plaintiff

     In a lawsuit against a city and various individuals for wiretapping that violated the privacy and constitutional rights of 64 of 135 plaintiffs, who were city employees and their friends and family, even though only nominal damages were awarded by a jury, the winning plaintiffs were "prevailing" plaintiffs entitled to an award of attorneys' fees because they achieved success in part or in whole on all their claims. No fees, however, could be awarded for work directed at defendants dismissed from the case, and hours were reduced when attorneys failed to keep time records which were "contemporaneous." The plaintiffs received fees and costs totaling $ 539,452.37 including $ 15,619.57 in costs, $ 494,815.25 in attorneys' fees, and $ 29,017.55 in expert witness fees. Walden v. Providence, C.A. No. 04-304A, 2008 U.S. Dist. Lexis 82002 (D.R.I.).

Defenses: Statute of Limitations

     False arrest lawsuit filed almost four years after a conviction for possessing a stolen car was set aside was time-barred by a two year Illinois statute of limitations. Prosecutors in the case were entitled to absolute prosecutorial immunity. Gordon v. Devine, No. 08C377, 2008 U.S. Dist. Lexis 81234 (N.D. Ill.).

Domestic Violence

     California state programs that provided benefits for women and their children who were the victims of domestic violence, while denying such programs to men and their children who are the victims of domestic violence violated the equal protection guarantees of the state Constitution. Even if fewer men than women were affected by domestic violence, this did not mean that they were not similarly situated to women or provide a compelling governmental interest justifying a gender-based classification. Woods v. Shewry, #C056072, 2008 Cal. App. Lexis 1588 167 Cal. App. 4th 658; 84 Cal. Rptr. 3d 332 (3rd Dist. Cal. App.).

False Arrest: No Warrant

     When it was unclear what an off-duty officer said to an on-duty officer, it could not be determined on the record whether the on-duty officer had probable cause to arrest a shopper. The on-duty officer, therefore, was not entitled to qualified immunity in a false arrest lawsuit. The off-duty officer had approached the shopper in the parking lot concerning a dog she left unattended in her car, and, during the ensuing encounter, allegedly broke one of her ribs, as well as a tooth. Ciardiello v. Sexton, Civ. No. 06-4007, 2008 U.S. Dist. Lexis 90223 (D.N.J.).

     Trial court improperly ignored plaintiff's argument that the officers lacked probable cause to arrest him, focusing solely on his excessive force claim in granting summary judgment for the officers. The officers, in arguing that they had probable cause for the arrest, clearly knew that they had to defend themselves against a false arrest claim. Further proceedings were ordered on the false arrest claim, while summary judgment was upheld on the excessive force claim. Grimes v Yoos, No. 08-10830, 2008 U.S. App. Lexis 22697 (Unpub. 11th Cir.).

     A suspect's own statements concerning the circumstances of an officer's attempted arrest of him showed that there had been ample probable cause to support an arrest. He admitted that the officer acted lawfully in pulling over his vehicle, and that he had just engaged in an argument with his estranged wife, following which his girlfriend called 911 to complain about his conduct. Smith v. Hermans, Civil Case No. 06-CV-12794, 2008 U.S. Dist. Lexis 78532 (E.D. Mich.).

     An arrest of a store customer who set off a security sensor when he left the store was supported by probable cause. The officer made the arrest on the basis of watching a surveillance videotape and statements from store employees, one of whom found unpaid for merchandise on the customer. The customer later pled guilty to a charge (breach of the peace) stemming from the incident for which he was arrested, which barred him from challenging probable cause, as required for both his false arrest and malicious prosecution claims. White v. Martel-Moylan, Civil No. 3:07CV1794, 2008 U.S. Dist. Lexis 94188 (D. Conn.).

False Arrest: Warrant

****Editor's Case Alert****

     In asserting that he was arrested pursuant to a warrant based on mistaken identity, and that the defendants failed to perform easily performed identity checks, which would have made it clear that he was not the suspect sought, the plaintiff presented a viable federal civil rights claim. He argued that he repeated told officers that he was not the person sought in the warrant, but that they still refused to use available identification technology, and that they "routinely" held the wrong people because of similar names. If true, this could constitute a violation of due process. Alvarado v. Bratton, No. 07-55907, 2008 U.S. App. Lexis 23055 (Unpub. 9th Cir.).

     While an Arkansas deputy sheriff may have arrested the plaintiff in Oklahoma on an Arkansas warrant, he had an objectively reasonable belief at the time that he was still in Arkansas, and therefore, in doing so, did not violate the arrestee's constitutional rights. Engleman v. Murray, No. 07-2060, 546 F.3d 944 (8th Cir. 2008).

     Rejecting an arrestee's argument that a judge would not have issued an arrest warrant if certain facts had been included in the affidavits submitted, a federal appeals court ruled that there would still have been probable cause even with these facts included. Information concerning the arrestee's location had no impact on the issue of whether or not he had been involved in a shooting, nor did the possible taint of an identification by the shooting victim suffice to eliminate probable cause. Cournoyer v. Coleman, No. 06-4978, 2008 U.S. App. Lexis 22560 (2nd. Cir.).

     Probable cause existed for the issuance of an arrest warrant for a woman for the theft of a purse from a fellow visitor at an amusement park. A videotape showed the purse being taken by a juvenile who subsequently left with the plaintiff. Manley v. Paramount's Kings Island, No. 07-4539, 2008 U.S. App. Lexis 22655 (Unpub. 6th Cir.).

     Georgia arrest warrants executed in Florida outside the jurisdiction of the issuing court did not serve to insulate a deputy sheriff from liability for false arrest of the plaintiff businesswoman and her jailing for six days for writing bad checks to a food supplier, until her family came up with money to cover the checks.  The checks presented were post-dated checks, and a prudent officer would not have found probable cause for an arrest based on the known facts, including the supplier's past practice of accepting post-dated checks from the arrestee. The deputy could also be sued for conspiring with the supplier to detain the arrestee to attempt to compel her to pay obligations that were not yet due. Brown v. Camden County, Georgia, Civil Action No. CV207-69, 2008 U.S. Dist. Lexis 81713 (S.D. Ga.).

Federal Tort Claims Act

     The U.S. government could be sued under the Federal Tort Claims Act for the actions of Federal Protective Services agents in instigating an alleged malicious prosecution of a security company employee for false (incomplete) reporting concerning an incident in which a security company employee locked out on the roof of a federal building was purportedly naked. The agents, in encouraging the prosecution of the plaintiff, allegedly falsely indicated that she knew of the nudity, but failed to include it in her report. This, if true, fell outside the scope of the agents' performance of a discretionary function, an exception to liability under 28 U.S.C. § 2680(a), since it involved the alleged knowing submission of false affidavits to the prosecutor and, ultimately, the state court in an “effort to corrupt the fairness of the prosecution.” The fact that no search, seizure, or arrest was involved did not alter the result. Reynolds v. U.S., No. 08-1634, 2008 U.S. App. Lexis 24720 (7th Cir.).

     Trial court improperly dismissed, on sovereign immunity grounds, false arrest, false imprisonment, and malicious prosecution claims against a federal DEA agent, since Congress, under the Federal Tort Claims Act, waived sovereign immunity on such claims, including those stemming from discretionary function acts of federal law enforcement or investigative officers. Nguyen v. U.S., No. 07-12874, 545 F.3d 1282 (11th Cir. 2008).

First Amendment

     A Seattle city ordinance that gives the police chief, while granting parade permits, unbridled discretion to decide whether to allow a group to use the street or remain confined to use of the sidewalk for their demonstration violates the First Amendment. It failed to require that the police chief give any reason for his decision, and failed to provide a mechanism for appealing such decisions. Seattle Affiliate of the October 22nd Coalition to Stop Police Brutality v. City of Seattle, No. 06-35597, 2008 U.S. App. Lexis 25036 (9th Cir.).

     Police captain in charge of directing police response to campus anti-war protest was not entitled to qualified immunity on claims that he authorized the arrests of and use of force against certain protestors, in violation of their First Amendment rights. The rights to freedom of speech and to peaceful assembly are "clearly established." Buck v. City of Albuquerque, No. 07-2118, 2008 U.S. App. Lexis 25450, (10th Cir.).

     Actions of police officer, which completely excluded for one day political petition signature gatherer from cook-out event open to the public held on public property under permit, violated the First Amendment when no justification was given other than the purported right of the permit holder to exclude political messages. Further proceedings were ordered to determine whether the officer was entitled to qualified immunity. Court rejects the plaintiff's argument, however, that a traffic citation given to her on a subsequent day for driving past a police barricade stating that a road was closed improperly retaliated against her for a newspaper article that appeared about the first incident. The plaintiff herself did not dispute that she drove past the barricade. Dietrich v. John Ascuaga's Nugget, No. 06-17135 548 F.3d 892 (9th Cir. 2008).

Malicious Prosecution

     A disabled woman's malicious prosecution lawsuit was based on the contention that, in a case of mistaken identity, she was not the person from whom officers bought drugs, but she was arrested and prosecuted for that crime. There were genuine factual issues as to whether the officers carried out a reasonable investigation, from which the plaintiff claimed that they would have seen clear physical differences between her and the suspect sought. Garrett v. Stanton, Civil No. 08-0175, 2008 U.S. Dist. Lexis 86249 (S.D. Ala.).

     Lawsuit for malicious prosecution for harassment, when the arrest and prosecution was based solely on information provided by the victim, was valid, as the harassment offense at issue had to be committed in the officers' presence to establish probable cause. The plaintiff failed to show, however, a municipal policy or custom, as required to establish municipal liability. Ramos v. City of New York, 06-5252, 2008 U.S. App. Lexis 23226 (2nd Cir.).

Negligence: Dead Body Handling/Identification

     In a lawsuit by the family of a motorist shot and killed by police following a pursuit, the estate and family attempted to assert a claim against the medical examiner's office for negligent abuse of the corpse by failing to properly preserve it, preventing them from having an open casket at the funeral. Applying Pennsylvania state law, a federal trial court ruled that no such cause of action is possible, based on a Pennsylvania Supreme Court decision. Whitson v. Philadelphia, Civil Action No. 07-2832, 2008 U.S. Dist. Lexis 87443 (E.D. Pa.).

Negligence: Vehicle Related

     In a lawsuit concerning an accident between a motorist and a police vehicle, the fact that the motorist was convicted in traffic court of violating a law on operation of vehicles on the approach of an emergency vehicle, and ruled that the officer's sirens and lights were operating at the time of the collision (and that the officer was acting with reasonable care) did not bar the motorist from pursuing her claims. Traffic convictions, under New York state law, do not have a preclusive effect in later civil lawsuits. The plaintiff was entitled to an adverse inference based on spoliation of evidence based on the fact that the officer's vehicle was towed by the police to a remote storage area where it was vandalized, with its lights and siren removed, making it impossible for the plaintiff's expert to conduct an examination concerning its condition following the accident. Marotta v. Hoy, #504466, 2008 N.Y. App. Div. Lexis 8102 (A.D. 3rd Dept.).

Procedural: Amendment of Complaint

    In an arrestee's lawsuit claiming that officers used excessive force and illegally arrested him, he was denied leave to amend the complaint to name two previously unknown officers as defendants. He failed to show good cause for amendment, based on the city's argument that he did not act diligently in trying to discover the officers' identities. Additionally, the serious illness of his lawyer did not justify the delay in discovery of the officers' names, when the lawyer made a decision not to seek further time to do so on the basis of his illness, although he did ask for such extra time in other cases. Fanucchi v. Garrett, No. CIV. S-07-608, 2008 U.S. Dist. Lexis 76966 (E.D. Cal.).

Property

     County officials were entitled to qualified immunity in lawsuit over the seizure by county animal control officers of several hundred rabbits in a forfeiture proceeding from a criminal defendant. They had a reasonable belief that the seizure was proper. Fourth Amendment search and seizure claims were timed barred under a two-year statute of limitations. Claims asserted under state law, however, could proceed under the Oregon Tort Claims Act. Scott v. Jackson County, No. 06-35042, 2008 U.S. App. Lexis 22685 (Unpub. 9th Cir.).

Pursuits: Law Enforcement

     A videotape of an incident in which police broke a motorist's leg while removing him from his vehicle following a chase through a residential area showed that the officers acted reasonably, and did not use excessive force. The officers acted in order to neutralize what they reasonably perceived as a threat after the motorist fled from an officer's vehicular pursuit and then apparently refused orders to leave the vehicle at the end of the chase. Although the chase began over an expired license, the motorist's behavior justified the officer's suspicion that he was dangerous. Rejecting the arrestee's argument that the jury should determine, from the videotape, recorded from an officer's car, whether or not the force used was excessive, the court noted that the U.S. Supreme Court, in similar circumstances, instructed federal courts to determine, as a matter of law, from watching such videotapes, whether the force depicted was excessive, taking the evidence in the light most favorable to the arrestee. Dunn v. Matatall, No. 08-1094, 2008 U.S. App. Lexis 24305 (6th Cir.).

Racial/National Origin Discrimination

     Two long time friends of Arab ethnicity flying from San Diego to New York claimed that they were improperly seized after they got off the plane and confronted with shotguns and police dogs, after which they were placed in police station cells for four hours and questioned about alleged terrorist surveillance actions on the plane. No evidence of wrongdoing on their part was found, they stated. In a federal civil rights and Federal Tort Claims Act lawsuit against a police detective, an FBI agent, and two counter-terrorism agents, the court ruled that the plaintiffs' Arab ethnic origin could not be used, under the Fourth Amendment, as a factor in deciding whether their detention was justified, and that race can not be used to show criminal propensities. Farag v. U.S., Case No. 05-CV-3919, 2008 U.S. Dist. Lexis 95331 (E.D.N.Y.).

Roadblocks

     A checkpoint safety program instituted by police after a number of violent crimes were committed in a neighborhood was a reasonable effort to reduce such crimes, which were often aided by the use of a vehicle. The program was narrowly tailored to do so and "minimally intrusive." At the checkpoints, drivers of vehicles entering the neighborhood were asked to show identification and state a reason for traveling through the area. Those refusing to do so were not detained, but allowed to leave or to park their car and enter the neighborhood on foot. The court denied a request for an injunction against the program. Mills v. District of Columbia, Civil Case No. 08-1061, 2008 U.S. Dist. Lexis 87825 (D.D.C.).

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      Article: Seniors and Law Enforcement, by Stan Van Horn. 77 FBI Law Enforcement Bulletin, No. 11, pg. 1 (Nov. 2008). "Understanding seniors' influence on communities will enable agencies to provide better service to the growing elderly population."

    Article: Supreme Court Cases 2007-2008 Term, by the FBI Academy Legal Instruction Unit, 77 FBI Law Enforcement Bulletin, No. 11, pg. 25 (Nov. 2008). "A number of Supreme Court decisions of particular importance to law enforcement are summarized."

     Statistics: Criminal Victimization, 2007. Presents estimates of rates and levels of personal and property victimization for 2007 and describes the substantial fluctuations in the survey measures of the crime rates from 2005 through 2007. These changes do not appear to be due to changes in the rate of criminal activity during this period, but rather to changes in the sample design and implementation of the survey. BJS and the Census Bureau are continuing to research the impact of the changes, and readers should focus on the comparisons of the 2005 and 2007 rates until these issues are resolved. A technical report discussing these issues is expected later in the year. The estimates are drawn from the NCVS, an ongoing survey of households that interviewed about 73,600 persons in 41,500 households, two times in 2007. The report includes data on violent crimes (rape/sexual assault, robbery, aggravated assault and simple assault), property crimes (burglary, motor vehicle theft and property theft), and personal theft (pocket picking and purse snatching), and the characteristics of victims of these crimes. Highlights include the following: Violent crime rates in 2007 (20.7 per 1,000 persons age 12 or older) were not significantly different from those in 2005 (21.1 per 1,000 persons). U.S. residents age 12 and older experienced an estimated 23 million crimes of violence and theft. The violent crime rate was 20.7 victimizations per 1,000 persons age 12 or older; for property crimes it was 146.5 per 1,000 households. 12/08 NCJ 224390  Press release | Acrobat file (266K) | ASCII file (31K) | Spreadsheets (zip format 15K)

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