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Assault and Battery: Handcuffs

     In a criminal appeal, an intermediate California appeals court finds that police officer did not have a sufficient basis to handcuff a motorist whose truck they stopped in a high gang, high narcotics area, and whose passenger had admitted that she was carrying drugs. The court rejected the argument that an officer's concern about the motorist's height, which was 6'6", and fears for safety in light of the fact that those involved in drugs may carry weapons justified the handcuffing. The court found that the handcuffing was not reasonably necessary for the investigative detention, that the motorist's subsequent consent to a search was coerced, and that drugs subsequently found on the motorist should be suppressed. People v. Stier, #D051505, 168 Cal. App. 4th 21 (4th Dist. 2008).

Assault and Battery: Physical

    Defendants in arrestee's excessive force lawsuit were entitled to summary judgment based on officers' testimony that the suspect actively resisted the arrest, when no evidence to the contrary was produced, and the arrestee, who was sick and on medications, had no independent recollection of the events. The plaintiff could not defeat the motion for summary judgment merely by arguing that a jury might not believe the officers. LaFrenier v. Kinirey, No. 07-1644, 550 F.3d 166 (1st Cir. 2008).

     Officer who allegedly pushed an arrestee into a steel cell door and a plexiglas window as they were both leaving an elevator used minimal force that could not be the basis of an excessive force claim, particularly when there was no challenge to the legality of the arrest, no significant injuries resulted, and the officer contended that force was necessary to subdue the arrestee, who he claimed acted in an aggressive manner. The officer was entitled to qualified immunity even if the minimal force used had been unprovoked. McCall v. Crosthwait, No. 2:07-CV-870, 2008 U.S. Dist. Lexis 103772 (M.D. Ala.).

Attorneys' Fees: For Plaintiff

      In a case where a jury awarded products liability damages against a manufacturer in a lawsuit over the death of a man subjected to multiple Taser shocks, but rejected claims that police officers used excessive force in deploying Tasers against the decedent, the trial court has also ordered the manufacturer to pay $1.423 million in attorneys' fees to the plaintiffs. The attorneys' fee award was made under the California Private Attorneys General Statute, Calif. Code of Civil Procedure Sec. 1021.5. Heston v. City of Salinas, No. C 05-03658, U.S. Dist. Court for the Northern District of California, San Jose Division (Jan. 30, 2009).

Defenses: Absolute Immunity

     Supervisory prosecutors were entitled to absolute prosecutorial immunity in a federal civil rights lawsuit brought by a prisoner who showed that his murder conviction had depended on false testimony provided by a jailhouse informant, a unanimous U.S. Supreme Court held. The plaintiff claimed that his conviction had been caused by the failure of the supervisors' failure to properly train and supervise prosecutors or to develop an information system containing potential impeachment material concerning such informants, in order to disclose it to criminal defendants and their defense attorneys. Absolute immunity from liability applied because the actions or inactions involved here concern how and when to make impeachment information available at trial, and, therefore, are directly connected with a prosecutor's basic trial advocacy duties. Van de Kamp v. Goldstein, No. 07-854, 2009 U.S. Lexis 1003.

Defenses: Qualified Immunity

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

     A man whose conviction for selling drugs to an undercover informant he voluntarily admitted into his residence was overturned sued Utah state law enforcement personnel who carried out a warrantless search of the premises. The trial court found that the officers were entitled to qualified immunity based on the adoption, by some courts of the "consent-once-removed" doctrine, allowing warrantless entry by officers into homes after consent to entry has previously been given to undercover officers who have observed drugs or other contraband in plain view. This was found to have entitled the officers to have reasonably believed their entry to have been lawful. Based on a two-step procedure spelled out by the U.S. Supreme Court in Saucier v. Katz, 533 U. S. 194, a federal appeals court rejected the qualified immunity defense, based on a rejection of the expansion of the "consent-once-removed" doctrine to the facts of the immediate case, in which the person initially voluntarily admitted into the home was not an undercover officer, but merely an informant. The U.S. Supreme Court unanimously reversed.

     The Court first found that the Saucier two-step procedure for finding qualified immunity should not be "regarded as an "inflexible requirement." The two-steps involve first determining whether the facts claimed constitute a violation of a constitutional right, and secondly, whether that right was "clearly established" at the time, with qualified immunity applying unless the conduct alleged violated such a clearly established right.

     While this two-step analysis may still be useful in some cases, the first step of deciding whether a constitutional right was actually violated may be avoided in instances such as the immediate case where it can be found that it was not clearly established, at the time of the conduct at issue, that the conduct was unlawful. In this case, at the time of the warrantless search, it was not clearly established that the officers' entry was unlawful, based on the adoption of the "consent-once-removed" doctrine by two state Supreme Courts, and three federal appeals courts. The officers could act in reliance on these decisions even when the federal appeals court governing their area had not yet decided the issue, particularly where no federal appeals court had then explicitly rejected the doctrine at issue. Pearson v. Callahan, No. 07-751, 2009 U.S. Lexis 591.

Dogs

     Woman allegedly attacked and injured on public property by a privately owned dog while walking home from work failed to show that a city was liable for her injuries under either federal civil rights law of Texas state law, despite her argument that the city's past failure to adequately enforce its animal control laws was a due process violation that had resulted in the attack. The plaintiff claimed that, on "one or more occasions prior to [the date of the attack]. . . the dog attacked a human” within the city and that the city knew that but, contrary to the provisions of its animal control ordinance, did not seize the dog and deliver it to an animal control shelter, declare it a vicious animal, notify the owners of or conduct a hearing to declare the dog vicious, and “did not condition the city’s release" of the dog to its owners. The city, however, did not own, use, or possess the dog. "There is no allegation whatever in the complaint that the city or any city officer or employee or anyone acting for the city ever had any intent to injure plaintiff or anyone else, or knew of any danger to plaintiff or to any particular, identifiable discrete group including plaintiff (as distinguished from members of the public at large within the city). ... [N]or is it in anyway alleged that the city ever did anything to the dog which made it more vicious or changed it in any way." Jaramillo v. City of McAllen, Texas, No. 08-40308, 2009 U.S. App. Lexis 275 (Unpub. 5th Cir.).

False Arrest/Imprisonment: No Warrant

    Officer who arrested a man in connection with the operation of his repossession business and seized some of his property while doing so had probable cause for his actions. While he received "inconsistent" allegations of criminal activity from an informant, he independently corroborated several of these allegations during his thirty-seven day investigation. Although charges against the arrestee were later dismissed, this did not negate the existence of probable cause at the time of the arrest. Case v. Eslinger, No. 08-10657, 2009 U.S. App. Lexis 2141 (11th Cir.).

     Store customer who refused to wait in line with other customers to enter the premises, demanding to be admitted, and who was, as a result, removed from the property and permanently barred from the store failed to show that police lacked probable cause to arrest him, based on their personal observations of his conduct. Singleton v. St. Charles Parish Sheriff's Department, No. 08-30471, 2009 U.S. App. Lexis 884 (Unpub. 5th Cir.).

     Deputies who encountered a female motorist during a traffic stop allegedly learned that she was pregnant, bleeding, and in distress, as well as in the process of driving herself to seek emergency treatment at a hospital, but still detained her for the purpose of issuing her a traffic citation. When she drove away without permission, if this was true, they should have known that she was not attempting to flee them, but was acting out of necessity, as she drove to a nearby hospital emergency room, and ran from her car, yelling, "Help! I'm pregnant and bleeding." The deputies were not entitled to qualified immunity on a false arrest claim, but there was no evidence that they used excessive force, and they caused her no injuries. Williams v. Sirmons, No. 08-13218, 2009 U.S. App. Lexis 563 (11th Cir.).

      When a conversation between a man, his friend, and an officer posing as a prostitute included "extensive" talk about exchanging money for sexual services, including the terms and planned implementation, arresting the man did not violate his Fourth Amendment rights. The court rejected the arrestee's argument, after the charges against him had been dropped, that the arrest was based on either entrapment or a response to "innocent repartee." The court also rejected the plaintiff's argument that his race played a role in the arrest. Mills v. City of Harrisburg, Civil Action No. 1:06-CV-0882, 2008 U.S. Dist. Lexis 97607 (M.D. Pa.).

     Police officer did not have an arrestee's consent to enter his home to arrest him, but allegedly simply entered through the front door after confirming his identity, grabbed the arrestee's arm, and wound up pushing him approximately six feet before arresting him. The arrestee immediately asked to see a warrant, and the warrantless entry to arrest him was not justified by either consent or exigent circumstances. Officer was not entitled to qualified immunity from liability. Shepard v. Davis, No. 07-11307, 2008 U.S. App. Lexis 24172 (Unpub. 11th Cir.).

     Police officer had probable cause to arrest a man on charges of violating a valid restraining order when he admitted that he had been taking pictures of a female city attorney who obtained the order to prevent him from harassing or stalking her. Additionally, the attorney acted as a private citizen, and not on behalf of the city, in obtaining the order. Todd v. Wismar, No. 07-55335, 2008 U.S. App. Lexis 26220 (Unpub. 9th Cir.).

     Arrest of parolee for being a felon in possession of a firearm and for attempted armed robbery, which also resulted in the revocation of his parole, was supported by probable cause, federal appeals court rules, rejecting the arrestee's claim that officers conspired to deprive him of his constitutional rights. Smith v. Gomez, No. 08-1102, 550 F.3d 613 (7th Cir. 2008).

False Arrest/Imprisonment: Warrant

     Even though a request for an arrest warrant to charge the plaintiff with murder was based on a witness's second statement, which indicated that her initial statement was untruthful, the arrestee was barred from relitigating the question of whether there had been probable cause for his arrest by the fact that such probable cause had been found at a subsequent preliminary hearing which included evidence of the first statement made by the witness, as well as her drug use, and the fact that she had altered her account of events. Since all this was presented at the preliminary hearing, there was no argument that the defendant officers had deliberately provided the criminal court with inaccurate information. Flowers v. City of Detroit, No. 08-1035, 2009 U.S. App. Lexis 1038 (Unpub. 6th Cir.).

Federal Tort Claims Act

      As previously reported, a federal appeals court panel held that a 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). On a reconsideration granted by the panel on its own motion, the court again stated that such claims were expressly allowed by the plain language of the law, and substituted a new opinion for the one previously issued. Nguyen v. U.S., No. 07-12874, 2009 U.S. App. Lexis 2127 (11th Cir.).

 Firearms Related: Intentional Use

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

     Two officers who fired shots at a vehicle that was coming towards themselves and other officers acted in an objectively reasonable manner. A third officer who fired at the driver and another occupant, believing that the shots fired by the first two officers came from within the car, was also acting in an objectively reasonable manner, since he also believed that he was acting in self-defense. No gun was found inside the vehicle, although drugs were found, and the vehicle occupants had ignored orders to raise their hands and leave the car, instead knocking an officer over and threatening police with the vehicle. Additionally, one of the occupants was observed moving his hands near his waistband and discarding something as he ran to the car. Swann v. City of Richmond, No. 07-1981, 2009 U.S. App. Lexis 1479 (Unpub. 4th Cir.).

Firearms Related: Second Amendment Issues

     In a lawsuit challenging, on Second Amendment grounds, the constitutionality of a New York State statute criminalizing the possession of nunchakus in the home, a federal appeals court held that the Second Amendment does not apply to the states, but only limits the actions of the federal government. The court also rejected a Fourteenth Amendment substantive due process claim concerning the statute, holding that the ban at issue was supported by a rational purpose, since the items at issue were designed as weapons, with no use other than to maim or kill. Maloney v. Cuomo, Docket No. 07-0581, 2009 U.S. App. Lexis 1402 (2nd Cir.).

First Amendment

     Bicycle club was not entitled to a preliminary injunction against a city's parade rules, which mandate an advance permit for any group bicycle rides involving 50 or more persons. While it might be true that not every group bicycle ride of that size would involve the disruption of traffic, the violation of traffic laws, or pose a danger to others, the fact that such an event could pose such hazards was likely to have justified the imposition of the permit requirement. Five Borough Bicycle Club v City of New York, 07-2154, 2009 U.S. App. Lexis 1620 (Unpub. 2nd Cir.).

     City's action in initially ordering demonstrators to cease their activities, utilizing its all events policy, was unconstitutional, in violation of the First Amendment, given that the protestors were engaged in the display of signs, spoken messages, and the passing out of leaflets on city sidewalks which were a traditional public forum. The policy's permit requirement did not contain any criteria for granting or denying the permit, giving the municipality's mayor and public safety director seemingly unlimited discretion which could be used to deny permits for reasons such as the content of the speech involved. Additionally, the requirement that 30 days notice be given before holding a demonstration was found unconstitutional. The city was liable to the plaintiffs. Trewhella v. City of Findlay, Case No. 3:07 CV 2372, 2008 U.S. Dist. Lexis 105281 (N.D. Oh.).

Frivolous Lawsuits

     A federal lawsuit filed by a woman who alleges that federal agencies have her under surveillance and have conducted biomedical and genetic experiments on her was dismissed by the court.. "Claims describing fantastic or delusional scenarios fall into the category of cases whose factual contentions are clearly baseless. " McBrien v. F.B.I., #09-0197, 2009 U.S. Dist. Lexis 7360 (D.D.C.).

Governmental Liability: Policy/Custom

     Minor allegedly subjected to violations of his civil rights during an interrogation by an officer which resulted in charges for sexual offenses being brought against him in juvenile court failed to show that the officer acted under an official city policy or custom as required to hold the city liable. W. P., a minor, v. City of Dayton, No. 22549, 2009 Ohio App. Lexis 70 (2nd Dist.).

     A store customer detained during the execution of a search warrant on the store, whose owner was suspected of involvement in drug transactions, failed to show that his detention, which he contended was unlawful and excessively prolonged, was carried out pursuant to an official city policy or custom or that such a policy or custom was the "moving force" behind the alleged violation of his rights. Plemons v. Amos, No. 07-10507, 2009 U.S. App. Lexis 478 (Unpub. 5th Cir.).

Interrogation

     A county and its detectives were not liable for violating an arrestee's rights by allegedly beating him and questioning him without reading him Miranda rights. Any excessive force claim was time barred, while there was no showing that any evidence allegedly obtained in violation of Miranda was used against him in a criminal proceeding, so that it was entirely possible that his conviction was sufficiently supported by other independent evidence. Large v. County of Montgomery, No. 08-3167, 2009 U.S. App. Lexis 1088 (Unpub. 3rd Cir.).

Malicious Prosecution

     In a malicious prosecution lawsuit in which the plaintiffs also claimed that police officers engaged in racial profiling in making a traffic stop, an appeals court upheld a jury verdict for the defendant officers. The plaintiffs failed to successfully carry the burden of showing the jury that the marijuana found in their vehicle was not in plain view. King v. Brando, No. 07-3678, 2008 U.S. App. Lexis 25642 (Unpub. 2nd Cir.).

Positional, Restraint and Compressional Asphyxia

     Officers were entitled to summary judgment in a federal civil rights lawsuit claiming they used excessive force resulting in the death of a suspect during an altercation. The officers encountered the man while to reports of numerous hang-up calls to 911 coming from the area. The man, who was running and screaming, said "help me help me," ran away from them, and appeared to have an object in both hands. The man ultimately collided his body with one of the officers, and was subjected to pepper spray as well as a Taser, but continued to resist. When the officers finally managed to get his hands behind him and handcuff him, he had labored breathing, and then stopped breathing altogether, and died. His estate claimed that he died from positional asphyxia, and that one of the officers sat on him, causing compression of his chest and inability to breathe. The court found that the officers acted in an objectively reasonable manner in attempting to subdue the decedent, who had been actively resisting them and creating a dangerous situation. Galvan v. City of San Antonio, Civil No. SA-07-CA-371, 2008 WL 5352945, 2008 U.S. Dist. Lexis 106894 (W.D. Tex.), Prior Order at 2008 U.S. Dist Lexis 26269

Property

     Possessor of vehicles impounded by officer after he was arrested for having stolen property failed to show that the seizure was not supported by probable cause or violated clearly established law. As a result, the officer was entitled to qualified immunity from liability. Hendrickson v. Thurston County, No. C06-5374, 2008 U.S. Dist. Lexis 105475 (W.D. Wa.).

Public Protection: 911 Systems

    Florida Supreme Court rules that claim against sheriff for negligence resulting in wrongful death may proceed when his office assumed a duty of care by responding to a woman's 911 call seeking emergency assistance but failed to have an ambulance sent to her location. Wallace v. Dean, No. SC08-149, 2009 Fla. Lexis 138.

Search and Seizure: Home/Business

     Officers who had a valid warrant authorizing no-knock entry reasonably believed that the occupant of a residence was armed and dangerous, since he had a history of having a "significant" number of guns, storing some of them in the walls within trap doors, owning a lion, and had not been seen leaving the residence before the entry. The officers acted reasonably, under the circumstances, in the amount of force used in the process of entry, which included use of tear gas and flash grenades, breaking two windows, and ramming a side door and damaging its latches. Other destructive acts once inside, including tearing through the ceiling to get to the attic, and making a hole in the wall, were justified to make sure that no persons or weapons were concealed. Cook v. Gibbons, No. 07-1754, 2009 U.S. App. Lexis 1095 (Unpub. 8th Cir.).

     Rejecting a claim that officers violated a man's rights in carrying out a warrantless search of a trailer in which he lived, a federal appeals court found that the trailer was on land owned by another person, a rancher, and that the rancher gave the officers actual and apparent permission for the search, representing that the man was his employee, lived in the trailer rent-free, and that the rancher had unrestricted rights to access the trailer. The officers, relying on those representations, were entitled to qualified immunity on the plaintiff's federal civil rights lawsuit. Morales v. Boyd, No. 07-11291, 2008 U.S. App. Lexis 26153 (Unpub. 5th Cir.).

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     Gangs: According to the 2009 National Gang Threat Assessment released by the National Gang Intelligence Center (NGIC) and the National Drug Intelligence Center (NDIC), approximately one million gang members belonging to more than 20,000 gangs were criminally active in the U.S. as of September 2008. The assessment was developed through analysis of available federal, state, and local law enforcement information; 2008 NDIC National Drug Threat Survey (NDTS) data; and verified open source information. The following agencies contributed to the report: the Bureau of Alcohol, Tobacco, Firearms and Explosives; Department of Justice, Bureau of Justice Assistance; Department of Justice, Bureau of Justice Statistics; Department of Justice, Organized Crime Drug Enforcement Task Force; Drug Enforcement Administration; Federal Bureau of Investigation; Federal Bureau of Prisons; National Drug Intelligence Center; National Gang Intelligence Center; Office of National Drug Control Policy, High Intensity Drug Trafficking Areas; United States Army Criminal Investigations Division; United States Customs and Border Protection; United States Immigration and Customs Enforcement; United States Marshals Service; numerous sate and local law enforcement agencies; and the Canada Border Service Agency.

    Child Abuse: A task force created by 49 state attorneys general to find a solution to the problem of sexual solicitation of children online has concluded that there really is not a significant problem. The Internet Safety Technical Task Force was charged with examining the extent of the threats children face on social networks like MySpace and Facebook, amid widespread fears that older adults were using these popular sites to deceive and prey on children. The 278-page report was the result of a year of meetings between dozens of academics, experts in childhood safety and executives of 30 companies, including Yahoo, AOL, MySpace and Facebook. The task force, led by the Berkman Center for Internet and Society at Harvard University, looked at scientific data on online sexual predators and found that children and teenagers were unlikely to be propositioned by adults online. In the cases that do exist, the report said, teenagers are typically willing participants and are already at risk because of poor home environments, substance abuse or other problems.

    Statistics: Law-enforcement officer deaths in the line of duty this year totaled 140, compared with 181 in 2007. The figures were announced by the National Law Enforcement Officers Memorial Fund and Concerns of Police Survivors.

     Training: "Law Enforcement Training. Factors in the Spanish-Speaking Community," by Arthur Natella, Jr., and Pablo Paul Madera, 77 FBI Law Enforcement Bulletin No. 12, page 12 (Dec. 2008). "Agencies must ensure that officers understand some basic elements of cultural differences to effectively enforce the law."

     • Abbreviations of Law Reports, laws and agencies used in our publications.

     • AELE's list of recently-noted civil liability law resources.