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Assault and Battery: Physical

     If the facts were as a fifteen year old arrestee alleged, a reasonable officer should have known that the arrestee had surrendered when he did not resist when the officer lifted him off the ground. It would have been unnecessary for the arrestee to say anything verbally to indicate that the further use of force was unnecessary. The arrestee claimed that after he engaged in shoving the officer, he was swung into a car, fell to the ground, and was picked up by the officer, who then slammed him into a car twice, resulting in a broken jaw. Valladares v. Cordero, #07-1995, 2009 U.S. App. Lexis 374 (4th Cir.).

     U.S. Park Police and an off-duty city officer used reasonable force to subdue a motorist stopped for a license tag who fled on foot and shot one of the Park Police officers in the face. Evidence showed that the arrestee refused to drop the gun before shooting, and was not immobile without resisting when the officers beat him. Arrington v. U.S. Park Police Service, Civil Action No. 01-1391, 2008 U.S. Dist. Lexis 104579 (D.D.C.).

    Ample evidence supported a jury's determination to believe police officers and captains in a use of force lawsuit and to disbelieve the plaintiff's version of the incident. Dixon v. Ragland, No. 03 Civ. 826, 2008 U.S. Dist. Lexis 101458 (S.D. Cal.).

     A court officer had no basis for using more than a tap on the arm to direct a woman being arraigned before a judge. The state of New York was therefore liable for injuries the woman suffered when the officer instead allegedly suddenly grabbed her two shoulders, forced them together and back, and then forcefully grabbed her right elbow, pushing and pulling on it, and jerking it backwards, inflicting injuries requiring pain medication for two to three weeks. Tomaino v. State of New York, #111174, 2008 N.Y. Misc. Lexis 7155 (Ct. of Claims).

Attorneys' Fees: For Plaintiff

     When an arrestee received only $20,000 in damages in settlement of his excessive force claim, or roughly one-fourth of the amount he originally sought, further proceedings were required to reconsider a trial court award of $200,000 in attorneys' fees and costs. His victory fell "far short" of his goal, so that awarding more than a comparable portion of the requested fees and costs was unreasonable. McCown v. City of Fontana, No. 07-55896, 2008 U.S. App. Lexis 26385 (9th Cir.).

Defenses: Qualified Immunity

     Police officer was not entitled to qualified immunity, since the alleged facts, viewed in the light most favorable to the plaintiff, indicated that the plaintiff's son had been battered and subjected to excessive force by the officer. Valladares v. Cordero, No. 07-1995, 2009 U.S. App. Lexis 374 (4th Cir.).

    While a police officer argued that he was entitled to qualified immunity because the facts, correctly interpreted, showed neither unlawful arrest nor excessive use of force against a mother and her adult son, the court could not decide the disputed facts on appeal. Since the facts as alleged by the plaintiffs, if true, would constitute constitutional violations, the officer was not entitled to qualified immunity. Cardenas v. Fisher, No. 08-2036, 2009 U.S. App. Lexis 245 (Unpub. 10th Cir.).

Domestic Violence & Child Abuse

     Defendants not directly participating in alleged due process violations in connection with the maintenance of California's Child Abuse Central Index, or who merely reasonably complied with the duly enacted statutes could not be held liable for purportedly denying identified individuals with a fair chance to challenge the accusations against them. The plaintiffs were placed on the index of child abusers despite the findings of two courts that the accusations against them by a "rebellious" child were "not true." The court held that California, in maintaining the index, violated the due process clause of the Fourteenth Amendment by failing to provide the plaintiffs with a fair opportunity to challenge their inclusion. The county was not entitled to summary judgment on the claims against it, although individual defendants were entitled to qualified immunity. Humphries v. County of Los Angeles, No. 05-56467, 547 F.3d 1117 (9th Cir. 2008).

Expert Witnesses

     A state trooper sued the manufacturer of a Taser, claiming that it had failed to provide warnings of an alleged risk that exposure to it could cause fractures, resulting in him suffering a fractured spine during a training exercise. A trial court did not abuse its discretion in excluding expert witness testimony by the trooper's treating physician that his injury was caused by exposure to the Taser. The doctor's opinion regarding the cause of the injury was "unreliable" because a spinal compression fracture is not the type of injury that ordinarily results from a Taser shock, and the doctor did not show that his opinion that such a shock could cause this kind of injury was testable. In the absence of admissible expert medical witness testimony on causation, the defendant manufacturer was entitled to summary judgment. Wilson v. Taser International, Inc., No. 08-13810, 2008 U.S. App. Lexis 25252 (Unpub. 11th Cir.).

False Arrest/Imprisonment: No Warrant

    Federal appeals court overturns a grant of qualified immunity to two officers on a man's false arrest claim. If the facts were as alleged by the plaintiff, his arrest was carried out without probable cause, since he was not publicly intoxicated and did not obstruct the officers. The officers allegedly also lacked probable cause to think that he had disturbed the peace, used language that could provoke violence, or had engaged in fighting in public. The arrest occurred before the officers learned that the arrestee concealed a weapon on his person. A third officer, however, was entitled to qualified immunity and could not be held vicariously liable for the other officers' actions. That officer also lacked a duty to carry out a blood alcohol test on the arrestee, and there was insufficient evidence that he acted in bad faith in failing to preserve evidence regarding the arrestee's blood alcohol level. Marullo v. City of Hermosa Beach, No. 07-56839, 2008 U.S. App. Lexis 26640 (Unpub. 9th Cir.).

     While a reasonable person could believe that an officer's actions after a prostitution sting backfired imposed restrictions on her freedom of movement similar to those involved in a formal arrest, a federal appeals court agreed that there was no unlawful detention. The officer, however, was not entitled to summary judgment on the plaintiff's excessive force claim, since a reasonable jury could decide that the force used against the plaintiff, which was severe enough to cause a rotator cuff tear, a first-degree shoulder separation, and contusions, were disproportionate, since she was, at most, a petty thief suspect, and was not resisting the officer. Morelli v. Webster. No. 08-1759, 2009 U.S. App. Lexis 115 January 7, 2009 (1st Cir.).

False Arrest/Imprisonment: Warrant

     A state trooper was entitled to qualified immunity for obtaining an arrest warrant for a woman for possession of marijuana plants on a lot adjacent to her home. The trooper acted in compliance with legal advice he obtained from a prosecutor before submitting an affidavit seeking the warrant. Further, while she claimed she did not own the lot, a receipt found during a search of her home connected her to items found on the lot, giving him probable cause to believe that she also possessed the plants found there. Ginter v. Skahill, No. 06-4814, 2008 U.S. App. Lexis 24635 (Unpub. 3rd Cir.).

Firearms Related: Intentional Use

    Police officer did not act recklessly in shooting at person pointing a shotgun at him and his partner, who appeared to be getting ready to shoot at them. He therefore was not liable for injuries suffered by a storeowner struck by a stray bullet. The man shot at was outside the store, the officer acted to defend himself and others, and there was no evidence that the officer fired with the knowledge that it was essentially certain that if he did so that a bystander would suffer injuries. Scott v. Longworth, No. C-080313, 2008 Ohio App. Lexis 5410 (1st Dist.).

First Amendment

     A military academy's policy barring demonstrations on the premises did not violate the First Amendment, as it was applied in a viewpoint neutral manner, and the academy, which was located on a military facility, was not a public forum. Sussman v. Crawford, No. 07-2171, 2008 U.S. App. Lexis 24458 (2nd Cir.).

     The owner of a car claimed that a deputy sheriff violated his First Amendment rights by issuing a repair order for a cracked windshield, followed by the towing of his car, and ultimately it being compacted when he failed to pay a towing fee. The plaintiff had placed swastikas and the words "Vote for Pipkin" on the car, referring to a state senator whom he opposed. The deputy's actions were allegedly taken after the senator's office complained about the car, which was operable, not abandoned, and legally parked. The defendant was not entitled to summary judgment on the First Amendment claim. Richter v. State of Maryland, Civil No. 07-2707, 2008 U.S. Dist. Lexis 104397 (D. Md.).

Governmental Liability: Training

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

     Federal appeals court upholds award of $14 million in damages and approximately $1 million in attorneys' fees to a former death-row inmate whose murder and robbery convictions were overturned. Prosecutors were found to have improperly withheld blood evidence that was exculpatory during the plaintiff's trial. The court found that the plaintiff showed that training about the obligation to disclose exculpatory evidence was obviously necessary, and that it was predictable that failing to provide such training could result in violating the constitutional rights of defendants in criminal proceedings. The plaintiff was not required to show that a pattern of similar violations took place. The fact that an assistant district attorney violated the district attorney's policy in intentionally hiding the blood evidence did not establish that the district attorney was not deliberately indifferent in failing to provide the required training. Thompson v. Connick, No. 07-30443, 2008 U.S. App. Lexis 26440 (5th Cir.).

Immigrants

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

    A California taxpayer sought an order requiring local police in San Francisco to comply with California Health & Saf. Code, § 11369 which provides that “[w]hen there is reason to believe that any person arrested for a violation [of any of 14 specified drug offenses] may not be a citizen of the United States, the arresting agency shall notify the appropriate agency of the United States having charge of deportation matters.” He claimed that the police department was disregarding this statutory requirement. An intermediate California appeals court has overturned a trial court ruling holding that the state statute impermissibly interfered with the exclusive right of the federal government to regulate immigration. The statute, the court held, did not require police to decide what persons should or should not be allowed into the country, how long they could stay, or what their permissible conduct was, but instead merely required that they notify the appropriate federal authorities when there was reason to believe that an arrestee was not a citizen. Further proceedings were therefore ordered on the plaintiff's claim. Fonseca v. Fong, #A120206, 2008 Cal. App. Lexis 1673 (Cal. App. 1st Dist.).

Interrogation

     A detainee, despite the claim that he was not given Miranda warnings, failed to show a claim for violation of his right against self-incrimination when no questioning was carried out after he was taken into custody. Dzwonczyk v. Syracuse City Police Dept., 5:08-CV-00557, 2008 U.S. Dist. Lexis 103315 (N.D.N.Y.).

Malicious Prosecution

     A 15 year-old girl, acquitted of charges of having sexually abused a six year-old child, could not pursue a federal constitutional claim based on the alleged false accusation. She was not seized, for Fourth Amendment purposes when she was merely summoned for trial before a juvenile court and given minimal pre-trial restrictions. Her malicious prosecution claim would more appropriately be brought in state court. Bielanski v. County of Kane, No. 07-1928, 2008 U.S. App. Lexis 26303 (7th Cir.).

Parking Tickets and Traffic Offenses

     An increase in the initial $23 parking ticket fine to $519, which occurred as the result of the assessment of a $16 per month late penalty fee, did not violate the excessive fines provision of the Constitution, despite the plaintiff's argument that he never received the initial ticket. The city did mail him an additional notice of the ticket, and he failed to pay it. The growth of the amount due could be attributed to his failure to pay or contest the ticket, not to any unconstitutional action by the city in designing the late fee penalty. The court also rejected the plaintiff's due process claim, finding that he received adequate notice of his right to contest the ticket and of the late fee penalty. Wemhoff v. City of Baltimore, Civil Action No. CCB-08-1209, 2008 U.S. Dist. Lexis 104398 (D. Md.).

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

     A city system involving capturing photos of cars running red lights or making illegal turns, and then imposing fines on the owners of such vehicles, regardless of whether or not they were the driver, did not violate the due process or equal protection clauses of the Fourteenth Amendment. There is, the court noted, no "fundamental right" to avoid being seen on a public street or to run a red light, nor did the "modest" $90 fine involve any fundamental property right. It is rational to fine the vehicle owner rather than the driver, since the driver could blame others, as it is likely that the driver would not be revealed in the photographs. Idris v. City of Chicago, No. 08-1363, 2009 U.S. App. Lexis 42 (7th Cir.).

Privacy

     A bank president and CEO was properly awarded $100,000 in damages for emotional distress in his Privacy Act lawsuit claiming that information about him was improperly disclosed when the U.S. Justice Department's National Drug Intelligence Center, without authorization, provided an "Executive Summary" which was then disseminated by the media, having an adverse effect on him. While federal appeals courts are split on the issue of what damages can be awarded in such cases, there has been no resolution of this disagreement by the U.S. Supreme Court, and, therefore, prior binding 2nd Circuit precedent on the issue, allowing such awards, still applies. Jacobs v. Nat'l Drug Intelligence Ctr., No. 07-40776, 548 F.3d 375 (2nd Cir. 2008).

Racial/National Origin Discrimination

     For purposes of a malicious prosecution claim, the vacating of a motorist's guilty plea to a drug offense on the basis of a state report indicating that state police engaged in unlawful racial profiling in stopping motorists did not establish his innocence, as required to show a "favorable termination" of the criminal case against him. Hilton v. Whitman, Civil Action No. 04-6420, 2008 U.S. Dist. Lexis 102157 (D.N.J.).

     A white couple claimed that a private club and a state trooper engaged in racial discrimination in violation of their First Amendment freedom of association rights in ending their wedding reception early, allegedly because of the presence of African-American guests. The club, in requesting police assistance to oust them, was not a state actor for purposes of federal civil rights claims under 42 U.S.C. Sec. 1983, and the claim against the trooper was rejected on the basis that the First Amendment did not protect the association involved in the wedding reception. Schultz v. Wilson, #08-1023, 2008 U.S. App. Lexis 26248 (Unpub. 3rd Cir.).

Search and Seizure: Home/Business

     Police who entered a condemned building without a warrant to place illegal occupants staging a protest under arrest were entitled to qualified immunity on Fourth Amendment and First Amendment claims, as their actions did not violate these rights. Further proceedings were needed, however, on claims related to strip searches conducted. Cross v. Mokwa, No. 07-3110, 547 F.3d 890 (8th Cir. 2008).

Search and Seizure: Search Warrant

     A worker's compensation enforcement officer was entitled to qualified immunity for his actions in searching the plaintiff's insurance business office and seizing files pursuant to a search warrant. While the warrant itself failed to identify the place to search or the items to be seized, the attached affidavit, which was incorporated into the warrant did do so. The officer failed to leave the affidavit with the warrant due to certain confidential information stated in it, leading to the suppression, at the plaintiff's criminal trial, of the evidence seized. Despite this, the law concerning this was not clearly established at the time of the search, since the suppression of the evidence was based on a U.S. Supreme Court decision subsequently decided, so the officer's actions were arguably lawful at the time of the search. Battle v. Webb, No. 08-12696, 2008 U.S. App. Lexis 22823 (Unpub. 11th Cir.). Note: The U.S. Supreme Court case at issue was Groh v. Ramirez, #02-811, 540 U.S. 551 (2004), on the basis of which the state trial court ruled, in the criminal case, that the failure to leave a copy of the affidavit with the defendant at the time of the search rendered the search and seizure illegal. The search at issue took place in 2001.

     When an apartment resident claimed that a search warrant obtained for her home was negligently requested by an officer based on factual inconsistencies and unreliable information, she failed to show a constitutional violation, which requires intentional or reckless disregard for the truth rather than negligence or an innocent mistake. The plaintiff did not show that the affidavit for the warrant contained false material information. Andreen v. Lanier, Civil Action No. 08-cv-0810, 2008 U.S. Dist. Lexis 86720 (D.D.C.).

Search and Seizure: Vehicle

     Police officer had probable cause to stop a vehicle for violation of an excessive noise statute for playing loud music. When a second officer arrived on the scene, subjecting the motorist to a dog sniff of his car was not a Fourth Amendment violation, since it did not unduly prolong the length of the stop while the citation for noise was being written. Further proceedings were required, however, as to the reasonableness of the searches of the motorist's car and person after the dog allegedly alerted to the driver's seat. This search, the court stated, was not justified as a search incident to arrest, and the motorist's claim that the officer conducted a digital body cavity search of his anus, if true, would indicate an unreasonable search. Pillow v. City of Lawrenceburg, Tenn., No. 07-6464, 2008 U.S. App. Lexis 22737 (Unpub. 6th Cir.).

Wiretapping & Video Surveillance

     Federal court enjoins enforcement of city ordinance requiring convenience stores with premises of less than 5,000 square feet to install video surveillance cameras. The plaintiffs were prevailing parties entitled to an award of attorneys' fees under 42 U.S.C. Sec. 1988. Midwest Retailers Association v. City of Toledo, Case No. 3:08CV851, 2008 U.S. Dist. Lexis 84288 (N.D. Ohio).

     The Virginia Dept. of Game and Inland Fisheries, in placing a hidden, motion activated, video camera in a man's open fields, and using it to monitor his hawk trap, did not violate his Fourth Amendment rights. He had no legitimate expectation of privacy, as the video merely recorded what any member of the public would have been able to see while passing by. U.S. v. Vankesteren, No. 08-4110, 2009 U.S. App. Lexis 183 (4th Cir.).

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     Report: Accomplishments of the U.S. Department of Justice, 2001-2009, U.S. Dept. of Justice [PDF. 173 pages. Jan. 16, 2009].

     Statistics: Characteristics of Suspected Human Trafficking Incidents, 2007-08 Presents findings from the Human Trafficking Reporting System (HTRS). The HTRS was developed in 2007 to collect data on alleged human trafficking incidents from state and local law enforcement agencies. As of September 30, 2008, it had collected information on incident, suspect, and victim characteristics from 38 human trafficking task forces, funded by the Department of Justice. Incident data include the number of suspects and victims, number of agencies involved in the incident, confirmation of incident as human trafficking, and type of lead agency. Victim data include demographic characteristics such as age, race, gender, and citizenship status. In addition to demographic characteristics, suspect data include available arrest, adjudication, and sentencing information. This report covers incidents reported by task forces from January 1, 2007, to September 30, 2008. Highlights include the following: 1,229 alleged incidents of human trafficking were reported to the task forces from January 1, 2007 to September 30, 2008. Most (83%) of the reported incidents involved allegations of sex trafficking. Labor trafficking accounted for 12% of incidents, and other or unknown forms of human trafficking made up 5%. Information on the number of suspects was available for 475 alleged human trafficking incidents. Among these, task forces reported 871 known suspects and arrest data on 216 suspects. 1/09 NCJ 224526  Press release | Acrobat file (189K) | ASCII file (34K) | Spreadsheets (zip format 14K)

     Statistics: Stalking Victimization in the United States. Presents findings on nonfatal stalking victimization in the U.S., based on the largest data collection of such behavior to date. Data were collected in a supplement to the National Crime Victimization Survey (NCVS) and sponsored by the Office on Violence Against Women (OVW). Topics covered in the report are stalking and harassment prevalence rates by demographic characteristics, offender characteristics, victim-offender relationship, duration of stalking, cyberstalking, protection measures, and emotional impact. The report also includes data on whether victim sought help from others, involvement of a weapon, injuries, other crimes perpetrated by the stalker, and response by the criminal justice system. Highlights include the following: About half (46%) of stalking victims experienced at least one unwanted contact per week, and 11% of victims said they had been stalked for 5 years or more. Approximately 1 in 4 stalking victims reported some form of cyberstalking such as e-mail (83%) or instant messaging (35%). Women were at greater risk than men for stalking victimization; however, women and men were equally likely to experience harassment. 1/09 NCJ 224527 Press release | Acrobat file (148K) | ASCII file (34K) | Spreadsheets (zip format 26K)     

     Tasers: An emergency medicine researcher at Wake Forest University Baptist Medical Center has just published the first large, independent study of injuries from “conducted electrical weapon” (CEW) or Taser® use, finding that serious injuries occurred in fewer than 1 percent of 1,201 Taser uses by law enforcement officers. The study, led by William P. Bozeman, M.D., of Wake Forest University School of Medicine, is now available online in the Annals of Emergency Medicine (“Safety and Injury Profile of Conducted Electrical Weapons Used By Law Enforcement Officers Against Criminal Suspects”) and is scheduled to appear in a future print issue of the journal. The findings represent a three-year review of 1,201 CEW uses at six law enforcement agencies across the United States. The study was funded by the National Institute of Justice. “These weapons appear to be very safe, especially when compared to other options police have for subduing violent or combative suspects,” Bozeman said. “That is not to say that injuries and deaths are impossible. Police and medical personnel need to be aware of the potential for serious injury and look for evidence that a person subdued by a Taser has been hurt.” The study reports that 99.75 percent of criminal suspects shocked by a CEW received no injuries or mild injuries only, such as scrapes and bruises. Of the 1,201 criminal suspects, 492 suffered mild injuries, mostly (83 percent) superficial puncture wounds from the Taser probes. Of the three subjects who sustained significant injuries, two suffered from head injuries related to falls; the third developed rhabdomyolysis, or a rapid breakdown of muscle tissue. Ninety-four percent of the suspects were male, and alcohol or intoxication was documented in almost half of the cases (49.5 percent). A physician at each participating agency reviewed police and medical records after each CEW use. Injuries were identified and classified as mild, moderate or severe. More than two-thirds of United States law enforcement agencies currently use CEWs. They are credited with decreasing police officer and suspect injuries and deaths due to police use of force. However, the devices have been surrounded with controversy. “While injuries from Taser use are uncommon, they are not unheard of,” Bozeman said. “Subjects exposed to a CEW discharge should be assessed for injuries, and appropriate medical evaluation should be provided when non-trivial injuries are apparent or suspected. Existing medical and/or psychiatric conditions in the suspect may also cause or contribute to the behavior that leads police to use a Taser or other physical force. These underlying conditions may require medical assessment and treatment, independent of Taser exposure.” Co-authors were J. Tripp Winslow, M.D., M.P.H., of Wake Forest University, William E. Hauda, M.D., of Inova Fairfax Hospital (Va.), Joseph J. Heck, D.O., of University Medical Center (Nev.), Derrel Graham, M.D., and Brian Martin, M.D., M.S., of Louisiana State University-Shreveport (La.).

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