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Assault and Battery: Chemical

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

     A police officer was not entitled to qualified immunity for the allegedly unnecessary and excessive use of pepper spray against a man he arrested outside a bar, also allegedly twisting his ankle in a manner that injured him while securing him following arrest. The arrestee was then allegedly unconscious, and the officer supposedly used his foot and leg as a "lever to turn him over." The arrestee had approached the officer to complain that he had been attacked in a bar fight, and contended that he had not been told that he was under arrest or not to walk away when the officer sprayed his face with pepper spray at a time he was not actively resisting arrest. Grawey v. Drury, No. 07-2584, 2009 U.S. App. Lexis 11181 (6th Cir.).

Assault and Battery: Physical

     A motorist stopped for a traffic violation claimed that officers dragged him out of his car and used excessive force against him after learning that he had outstanding felony arrest warrants. They allegedly hit, kicked, and tasered him, as well as allowing his car to start rolling away with his nine-year old child inside. The officers asserted that they believed that the motorist was attempting to drive away. The court ruled that the officers were entitled to qualified immunity since the arrestee suffered no injuries, indicating that the force used was minimal. Such minimal force could not violate the Fourth Amendment, the court stated, in the context of a valid arrest. The court also found that the officers were entitled to immunity on an Alabama state law child endangerment claim, in the absence of evidence of malice, since they were involved in performing discretionary acts in the course of making the arrest. Wilson v. Tillman, #06-0540, 2009 U.S. Dist. Lexis 38845 (S.D. Ala.).

Defenses: Absolute Immunity

     A federal appeals court declined to grant immunity to two Iowa prosecutors, stating that "immunity does not extend to the actions of a county attorney who violates a person's substantive due process rights by obtaining, manufacturing, coercing and fabricating evidence before filing formal charges, because this is not a distinctly prosecutorial function." The U.S. Supreme Court has agreed to review that holding. McGhee v. Pottawattamie County, #07-1524, 547 F.3d 922 (8th Cir.), cert. granted, #08-1065, 2009 U.S. Lexis 3008.

Defenses: Eleventh Amendment Immunity

     A Michigan Assistant Attorney General and two state special agents were entitled to Eleventh Amendment immunity on federal civil rights claims arising from their six-hour search of a man's business pursuant to a search warrant, during which time they found evidence that he had the financial ability to meet his child support obligations. This resulted in him subsequently pleading guilty to four felony charges for failing to pay child support to four women who had his children. Claims against the defendants in their official capacities were claims against the state barred by the Eleventh Amendment. Additionally, the Assistant Attorney General was entitled to absolute prosecutorial immunity on individual capacity claims, as authorizing the issuance of a search warrant in the course of a criminal investigation and prosecuting felony refusal to pay child support was part of her prosecutorial duties. Streater v. Cox, #08-1631, 2009 U.S. App. Lexis 10597 (Unpub. 6th Cir.).

Dogs

     A local ordinance banning "pit bull" dogs was not impermissibly vague, and was specific enough that it did not encourage arbitrary enforcement. Ruling on dog owners' challenges to the ordinance, a federal appeals court held that there was no showing that the "human/companion animal" bond involved a constitutionally protected liberty interest, so that strict scrutiny analysis would not apply to the ordinance. The plaintiffs, however, did assert a possibly viable claim that the ordinance did not have a rational relationship to a legitimate government interest, so further proceedings were required on their substantive due process claims. Dias v. Denver, #08-1132, 2009 U.S. App. Lexis 11163 (10th Cir.).

False Arrest/Imprisonment: No Warrant

     A motorist himself admitted that he had not been wearing his seat belt with its shoulder strap across his chest, so that the officer had probable cause to arrest him, despite the fact that he was subsequently acquitted of the seatbelt charge, resisting arrest, and battery. The force used by the officer was not excessive because the arrestee physically resisted being handcuffed. Collier v. Montgomery, #08-30665, 2009 U.S. App. Lexis 10676 (5th Cir.).

     State conservation officers were entitled to qualified immunity for arresting men whom they found illegally transporting bows, which did not have locking devices to render them inoperable during transport. The officers had such probable cause as soon as they could see that the bows were not contained in a case and did not look inoperable. Mutter v. Sanders, #06-3259, 2009 U.S. Dist. Lexis 37243 (C.D. Ill.).

     An officer had probable cause to arrest a woman for trespass on the premises of a motel, and was therefore entitled to summary judgment in her false arrest lawsuit. Bryant v. City of Cayce, #07-2162, 2009 U.S. App. Lexis 9976 (Unpub. 4th Cir.).

     A trial court did not act erroneously by consolidating two lawsuits an arrestee had filed concerning his arrest and detention, or in excluding evidence that he was acquitted of a criminal charge stemming from his arrest. Admitting evidence of the acquittal, the court found, could have misled the jury on the plaintiff's false arrest and excessive force claims. The court upheld a jury verdict for the officers. Adams v. Szczerbinski, #08-1456, 2009 U.S. App. Lexis 9899 (Unpub. 7th Cir.).

     A police officer stopped a motorist, claiming that his radar gun recorded her driving at 50 mph in a 40 mph zone, while the motorist asserted that she had set her cruise control at 40 mph. The motorist, who was placed under arrest, refused to get out of her car because of the presence of her infant grandchild in the backseat of the vehicle, and called her husband to pick up the child. A police chief on the scene smashed the driver's window open, and she was pulled from the car and "roughly" handcuffed, suffering injuries in the process. Overturning summary judgment for the defendants, a federal appeals court found that the officer's credibility was "questionable," and that the motorist disputed the claim that she had refused to sign a traffic ticket, raising doubt about the validity of the arrest. It also found that there was a genuine issue of fact as to whether excessive force was used in response to the motorist's "passive refusal" to get out of her car until someone came to pick up her granddaughter. Deville v. Marcantela, #07-31049, 2009 U.S. App. Lexis 9403 (5th Cir.).

False Arrest/Imprisonment: Warrant

     A detective's belief that there was probable cause for arresting a father for sexually assaulting his daughter was reasonable. The arrest warrant was obtained on the basis of a videotape of the daughter presenting a detailed account of the alleged assault and any inconsistencies in her story were minor. The detective knew of no motive for her to fabricate such a story, and he could reasonably rely on the videotaped statement without interviewing the daughter. Her attempted suicide did not necessarily undermine her reliability, and the detective had no knowledge of an ongoing child support dispute. There was no indication that anything known and relevant was withheld from the magistrate that issued the warrant. The appeals court upheld summary judgment for the defendants in a false arrest lawsuit. The court also rejected the argument that a fifteen-month delay in presenting the case to a grand jury violated due process or the right to a speedy trial. The father was not indicted, and the charges were dropped. Quinn v. Roach, #08-40633, 2009 U.S. App. Lexis 9517 (5th Cir.).

     A magistrate that issued arrest warrants for the plaintiff reasonably relied on his former girlfriend's statements that he kept contacting her by phone and mail despite her written demand that he cease doing so. The magistrate also reasonably found probable cause for an arrest based on the existence of a written protective order, which it appeared the plaintiff had violated by his conduct. In the absence of anything that cast doubt on the victim's veracity, legal authorities can ordinarily rely on a victim's report of criminal conduct as the basis for probable cause for an arrest. The plaintiff failed to show that officers knowingly and intentionally, or even with reckless disregard, presented the victim's allegedly false accusations to the magistrate to obtain the warrants. Winter v. Northrup, #08-1264, 2009 U.S. App. Lexis 11483 (Unpub. 2nd Cir.).

Firearms Related: Intentional Use

     A police officer went to a suspect's home to investigate reports that he had pulled a gun on a pizza deliveryman. The officer saw the suspect approaching the door with a handgun, and the suspect refused to respond to a command to drop it. The officer then shot the suspect through a windowpane in the door, killing him. The court found that the use of force was reasonable, because the suspect posed a danger to the safety of the officer. The court found no legal authority for the argument that firing a gun into the home constituted an "unlawful search." Denning v. Metropolitan Government of Nashville and Davidson County, #08-5884, 2009 U.S. App. Lexis 10573 (Unpub. 6th Cir.).

First Amendment

     City ordinances that restricted an artist from displaying and selling his artwork in a public park were content neutral, aimed at furthering legitimate governmental interests in controlling the flow of traffic, and protecting property values, and constituted reasonable time, place, and manner regulation of First Amendment speech. Travis v. Park City, #08-4115, 2009 U.S. App. Lexis 10146 (10th Cir.).

     While a city ordinance restricting the manner and place of protests was unconstitutional, since it was too restrictive, and not narrowly tailored, anti-abortion protesters failed to show that the city engaged in a pattern or practice of discriminating against them. The court also rejected the argument that the mayor violated the plaintiffs' First Amendment rights by asking them, on the day of a city Christmas parade, to display only written messages instead of the photographs of aborted fetuses they were holding up. The court awarded the protesters $300 in damages, and stated that they could also recover costs and attorneys' fees on their challenge to the ordinance. Michael v. City of Granite City, #06-CV-01, 2009 U.S. Dist. Lexis 25563 (S.D. Ill.).

Malicious Prosecution

     Officers and a prosecutor were not liable for malicious prosecution of a man's ex-fiance for driving with a suspended license, domestic violence, and violation of a temporary protective order. There was no showing of selective or vindictive prosecution or that she was targeted for some improper reason. Claims that a police officer taunted her and that a police captain told her there would be no investigation of her complaint of stolen property did not show a violation of any constitutional right. Wiley v. Oberlin Police Dept., #07-4441, 2009 U.S. App. Lexis 10607 (Unpub. 6th Cir.).

     Probable cause existed for the prosecution of a mother for responsibility in the accidental drowning death of her eleven-month-old daughter. The mother allegedly left a sliding door in the house open and her daughter crawled out of the house and drowned in the backyard swimming pool. While the mother claimed that a police detective fabricated evidence concerning how wide the sliding door was open and whether the father had previously warned the mother that something like this could happen, his conduct was not "shocking" to the conscience. The mother only claimed a two inch discrepancy concerning how wide the door had been open, and the evidence allegedly fabricated by the detective differed so slightly from the mother's story that it was not reasonable to believe that it could have affected the jury's decision in the prosecution. The jury acquitted the mother on involuntary manslaughter and second-degree child abuse charges. Garner v. Grant, #08-1418, 2009 U.S. App. Lexis 10602 (Unpub.6th Cir.).

     An arrestee could not pursue federal civil rights claims for malicious prosecution or abuse of process when Illinois provided state law remedies for such claims. The arrestee's claim that a detective lacked probable cause or a warrant for his arrest did state a federal civil rights claim, but it was time barred under an Illinois two-year statute of limitations. Adams v. Rotkvich, #08-3998, 2009 U.S. App. Lexis 9900 (Unpub. 7th Cir.).

     Because there was no evidence that a deputy acted maliciously to withhold exculpatory evidence from a grand jury, he could not be held liable for malicious prosecution of the plaintiff, a former sheriff's department employee, for embezzlement and false pretenses. The fact that the deputy did not mention to the grand jury that the plaintiff's wife had repeatedly stated that he had not engaged in criminal conduct was insufficient to show that the deputy's testimony had tainted the grand jury process. Porter v. Farris, #08-60832, 2009 U.S. App. Lexis 9502 (Unpub. 5th Cir.).

Negligence: Vehicle Related

     A police officer responding to a disabled car cut in front of a motorist's vehicle in rush hour traffic on an expressway. While the motorist had time to stop her vehicle and avoid colliding with the police car, another vehicle struck the rear of her car. An appeals court upheld a jury verdict finding the officer 50% at fault for the accident and finding that the officer drove in reckless disregard for other's safety. The court stated that the officer came to an extremely abrupt virtual stop in front of the plaintiff motorist's vehicle, without any warning, and in 40 mile per hour rush hour traffic, doing so just seconds before the collision occurred. Tutrani v. County of Suffolk, #2006-04840, 2009 N.Y. App. Div. Lexis 3633 (A.D. 2nd Dept.).

Public Protection: Crime Victim

     A police officer allegedly arranged for a sex offender to stay at a home a few days before he raped a child there. The child's mother sued, claiming that the officer exposed the child to a danger she would not otherwise have faced, in violation of her substantive due process rights. At the time of the incident, the law was clearly established that an officer who acted with deliberate indifference to affirmatively placing a person in a danger that they otherwise would not have faced violates that person's constitutional rights. The appeals court ruled, however, that the question of whether the officer violated the child's rights when his actions were not aimed at the child, but at a third person (here the sex offender) who later harms the child had not previously been decided in the Ninth Circuit. The officer was therefore granted qualified immunity, as he did not violate clearly established law. Decoria v. County of Jefferson, #07-36066, 2009 U.S. App. Lexis 10788 (Unpub. 9th Cir.).

Search and Seizure: Home/Business

     Following the murder of a deputy sheriff, a search warrant was obtained for the residence of the parents-in-law of the suspected killer, and their property was searched. An officer subsequently ordered a stop of the suspect's sister-in-law. Both the search and the stop, a federal appeals court stated, were based on little more than the family relationship. The court held that these actions were unreasonable searches and seizures in violation of the Fourth Amendment. A family relationship is an insufficient basis to support such invasions of privacy. The officers were not entitled to qualified immunity, as the legal principles involved were clearly established at the time. Poolaw v. Marcantel, #07-2254, 2009 U.S. App. Lexis 9483 (10th Cir.).

     After receiving information that a fugitive from a house-arrest program was at another man's trailer, agents and deputies arrested him outside the trailer. They then conducted a warrantless search of the inside of the trailer. An appeals court disagreed with the trial court's determination that this search was supported by exigent circumstances, and concern for the safety of the agents and deputies. Summary judgment for the defendants was improper because of a factual dispute over whether the fugitive was arrested right near the front door of the trailer, which may have justified the search, or at the end of a 76-foot driveway, which was not in close proximity to the trailer. The court did find, however, that there was no evidence that the warrantless search was the result of a county policy or custom, so claims against the sheriff's department and the deputies in their official capacities were properly rejected. Reese v. Monroe County Sheriff's Dept., #08-60362, 2009 U.S. App. Lexis 9501 (Unpub. 5th Cir.).

     A mother and daughter failed to show that a federal agent who obtained a warrant for their residence made any material misrepresentations of fact in the affidavit seeking the warrant, either deliberately or with reckless disregard for the truth. The entry of federal agents, armed with the warrant, into the home did not amount to "assault," and their pointing of guns at the plaintiffs was reasonable since the plaintiffs tried to prevent their entry into the house, which was legally authorized. Unus v. Kane, #07-2191, 2009 U.S. App. Lexis 9955 (4th Cir.).

Search and Seizure: Person

     While a police officer's stop and seizure of a man during a street encounter was lawful, despite the fact that no arrest resulted and no contraband was found, there was a factual issue as to whether the scope of the search was unreasonable. The plaintiff claimed that the officer pulled his undershorts away from his body, both in front and in the back, shined a flashlight on his genitals, and made physical contact with his buttocks. Summary judgment for the officer was therefore properly denied. Ellison v. City of New Rochelle, 2008-05452, 2009 N.Y. App. Div. Lexis 3913 (A.D. 2nd Dept.).

Search and Seizure: Vehicle

    The highest court in New York ruled that officers may not place a global positioning system (GPS) location tracking device on a private motor vehicle without obtaining a warrant to do so. In this case, officers placed the tracking device on the defendant's car, and used it to track the vehicle's location for 65 days, including its speed and location readings approximately once a minute while the car was in motion. This was allegedly done without a clear justification. The court stated that the 24-hour a day information about a vehicle's location provides disclosure of private trips that may lead to inferences about such things as amorous, religious, and political associations. The court stated that the “potential for a similar capture of information or ‘seeing’ by law enforcement would require, at a minimum, millions of additional police officers and cameras on every street lamp,” so that the GPS tracking devices involve a higher level of privacy threat than simple tracking beepers the U.S. Supreme Court has previously allowed to be placed on cars without a warrant. "Without judicial oversight, the use of these powerful devices presents a significant and, to our minds, unacceptable risk of abuse. Under our State Constitution, in the absence of exigent circumstances, the installation and use of a GPS device to monitor an individual's whereabouts requires a warrant supported by probable cause." People v. Weaver, #53, 2009 N.Y. Lexis 944.

Search and Seizure: Warrant

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

     A sheriff was told that a farmer had some marijuana plants inside a Quonset hut on his property. Officers then searched the farm after obtaining a warrant. The farmer sued, claim illegal search and seizure. A federal appeals court held that the sheriff was not entitled to qualified immunity from liability. "Because the warrant permits a general search and seizure of 'all other evidence of criminal activity,' we hold it was a general warrant prohibited by the Fourth Amendment." The fact that the affidavit for the warrant was incorporated into the warrant by reference, the court stated, did not save the warrant's validity, since the officers only possessed probable cause to conduct a search for evidence concerning the cultivation of marijuana, but the warrant purported to authorize the seizure of any possible evidence of any crime in any jurisdiction. The court reasoned that the warrant authorized exactly the type of "rummaging" through the farmer's belongings seeking evidence of possibly unsuspected prior crimes, or of no crime at all, which it said the Fourth Amendment was intended to prevent. Cassady v. Goering, #07-1092, 2009 U.S. App. Lexis 11736 (10th Cir.).

     Two deputies reasonably relied on a search warrant approved by a prosecutor and a judge in making a nighttime search of a home during their investigation of an alleged assault by the homeowner's foster son. There was evidence to indicate that the son was at the home, and, even if the warrant was arguably overbroad with respect to evidence concerning gang membership and firearms, the deputies were entitled to qualified immunity in that they could reasonably rely on those who approved the warrant to limit its scope to items for which probable cause was shown. Millender v. County of Los Angeles, #07-55518, 2009 U.S. App. Lexis 9735 (9th Cir.).

    While the issuance of a search warrant was valid, since it was supported by information supplied by an informant and corroborated by police, officers should have called off the search of the residence at the beginning when they realized that the building did not fit the warrant's description of a single family home, but instead had various units, including a real estate office. The warrant did not specify which unit was to be searched. Officers were not entitled to qualified immunity in a lawsuit asserting that they performed an unreasonable search of a woman's home and then placed her under arrest after a search of the wrong address of a third person who was the actual subject of the warrant. Guzman v. City of Chicago, #08-2172, 2009 U.S. App. Lexis 10177 (7th Cir.).

Sexual Assault

     A woman allegedly raped by a police officer contended that the city had acted with deliberate indifference to her constitutional rights in failing to properly supervise the officer. She pointed to prior incidents, including the city becoming aware that the officer was dating and having sex with a minor, that he consumed too much alcohol or was drugged at a bar, and that he was found on the rooftop of a building with cracked ribs. She also asserted that he had previously left his badge and uniform with a minor, damaged his patrol car, did not respond in a timely manner to a car accident, and failed to perform a field sobriety test when he finally responded. While many of these incidents were not similar to the alleged rape, the fact that the city and a sergeant allegedly knew of the officer's sex with a minor who could not legally consent justified denying the city's motion for summary judgment on the claim that this made it predictable that the rape was a consequence of the failure of the city to adequately investigate, supervise, and/or fire him. Arnold v. City of San Antonio, #SA-07-CA-877, 2009 U.S. Dist. Lexis 32744 (W.D. Tex.).

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    Mental Illness: A law enforcement guide for dealing with mentally ill people was issued in May, 2009 by The Council of State Governments' Justice Center. The guide translates research findings to help policymakers and practitioners develop safe and effective interventions. Supported by the John D. and Catherine T. MacArthur Foundation, it reviews the scope and nature of the problem and a range of law enforcement responses.

      Pursuits: "Emergency Driving and Pursuits. The Officer's Perspective," by David P. Schultz, Ed Hudak, and Geoffrey P. Alpert, 78 FBI Law Enforcement Bulletin No. 4. pgs 1-7 (April 2009). "Research on officers' perceptions of emergency and pursuit driving has revealed several issues of interest."

     Statistics: 2008 Arrestee Drug Abuse Monitoring Program (ADAM II), Office of National Drug Control Policy (ONDCP), (May 2009). The federal report, which surveys drug use among booked male arrestees in 10 major metropolitan areas across the country, shows the majority of arrestees in each city test positive for illicit drug use, with as many as 87 percent of arrestees testing positive for an illegal drug. According to the ADAM II report, drug use among the arrestee population is much higher than in the general U.S. population. The percentage of booked arrestees testing positive for at least one illicit drug ranged from 49 percent in Washington, D.C. to 87 percent in Chicago. The most common substances present during tests, in descending order, are marijuana, cocaine, opiates, and methamphetamine. Additionally, many arrestees tested positive for more than one illegal drug at the time of arrest; from 15 percent in Atlanta to 40 percent in Chicago. Data on drug use, drug markets, treatment utilization, and criminal offenses were collected among booked arrestees in jails within 48 hours of their booking and in the following counties and cities: Fulton County and City of Atlanta; Mecklenburg County (Charlotte, NC); Cook County (Chicago, IL); Denver County (Denver, CO); Marion County (Indianapolis, IN); Hennepin County (Minneapolis, MN); Manhattan (New York, NY), Multnomah County (Portland, OR); Sacramento County (Sacramento, CA) and Washington, D.C. (District of Columbia).

     Terrorism and National Security Issues: Report of Justice Department under FISA and USA PATRIOT Act: (May 14, 2009). In a report to the Congress, the Justice Department revealed a substantial increase in the use of National Security Letters to acquire information on American citizens without court order. National Security Letters are an extraordinary search procedure that gives the FBI the power to compel the disclosure of customer records held by banks, telephone companies, Internet Service Providers, and others. The report stated that during 2008, the Government made 2,082 applications to the Foreign Intelligence Surveillance Court for authority to conduct electronic surveillance and physical searches for foreign intelligence purposes. The applications include permission for electronic surveillance, physical searches or both, and all applications were approved. In 2008, the FBI issued 24,744 National Security Letters pertaining to 7,225 U.S. persons compared to 16,804 requests pertaining to 4,327 U.S. persons in 2007.

     Terrorism and National Security Issues: Report, The State Secrets Privilege and Other Limits on Litigation Involving Classified Information, Congressional Research Service #R40603 (May 28, 2009).

     Use of Force: "Law Enforcement Perspective on the Use of Force," by Anthony J. Pinizzotto, Edward F. Davis, Shannon Bohrer, and Robert Cherney, 78 FBI Law Enforcement Bulletin No. 4. pgs 16-21 (April 2009). "Hands-on, experiential training can give prosecuting attorneys a better understanding of the use of deadly force."

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

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