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Assault and Battery: Physical

     An arrestee claimed that a police chief used excessive force when arresting him in his home, and that, when his wife tried to drive him to the hospital, the chief reached into the car and squeezed his wife's breast. The 75-year-old arrestee, who was charged with failing, after a warning, to remove debris from the home's driveway, claimed that the chief applied handcuffs too tight and kneed him while placing him in a patrol car. After the arrestee complained of pain from a prior back injury, and refused treatment from paramedics summoned to the scene, the chief stated that he was either going to a hospital or to jail, whereupon the wife started to drive to the hospital. Upholding summary judgment for the defendant police chief on the excessive force claim and a jury verdict for the chief on the wife's assault and battery claim, a federal appeals court found that the chief used minimal force which caused no physical injury and was insufficient to show a constitutional violation, acting in an objectively reasonable manner. The wife did not tell her husband about the chief allegedly squeezing her breast until several days after the incident, and she returned home without reaching the hospital after the chief ticketed her for lack of insurance, invalid plates, and failure to signal. Cavataio v. City of Bella Villa; #08-2708, 2009 U.S. App. Lexis 14807 (8th Cir.).

     While police officers who handcuffed an arrestee outside a nightclub and allegedly threw him against the hood of a car and then pulled him off the hood by his arms did not use excessive force, the court declined to enter summary judgment on claims against an officer who allegedly slammed his face against the roof or door frame of his car, which knocked out his teeth. There was no showing of a municipal policy of allowing excessive force, or of inadequate training, discipline, or supervision, and therefore no municipal liability. Edwards v. Two Unknown Male Chicago Police Officers, #06 C 6399, 2009 U.S. Dist. Lexis 47832 (N.D. Ill.).

Attorneys' Fees: For Plaintiff

     Plaintiffs who successfully challenged the constitutionality of a city's parade and mass gathering ordinances as violative of the First Amendment were awarded a total of $83,264.78 in attorneys' fees and costs, including $6,000 for their attorneys' work in pursuing the fee request. The plaintiffs prevailed on challenges to five aspects of the ordinances, including bonding and insurance requirements for parades and marches, standing to challenge a 30-day notice requirement, the 30-day notice requirement itself, proper calculation of an administrative fee, and a meet and attempt to agree provision. Their success on some, but not all, of their claims entitled them to 50% of their fee request. Sullivan v. City of Augusta, #CV-04-32, 2009 U.S. Dist. Lexis 48602 (D, Maine).

DNA

     A man was convicted of kidnapping, sexual assault, and assault after the prosecution elected not to conduct DNA testing on materials from the victim's person and her clothing. His requests for DNA testing in connection with post-conviction proceedings were denied in state court. In a federal civil rights lawsuit seeking access to the materials for DNA testing, denying this request, a federal appeals court ruled that there is no due process right to post-conviction access to evidence for DNA testing, and nothing constitutionally inadequate in Colorado's post-conviction procedures applied in this context. McDaniel v. Suthers, #08-1400, 2009 U.S. App. Lexis 13613 (10th Cir.).

Defenses: Qualified Immunity

     Public housing residents claimed that "precipitous" seizures and "cruel" killings of their pet cats and dogs by city personnel violated their Fourth and Fourteenth Amendment rights. Upholding the denial of qualified immunity to a city's mayor on procedural due process and Fourth Amendment claims, a federal appeals court found that killing a pet without the owner's consent is a Fourth Amendment seizure. The appeals court, relying on caselaw from other federal circuit courts of appeal, rejected the argument that the law on the subject was not clearly established. The court did, however, grant the mayor qualified immunity on the plaintiffs' substantive due process claims because of his lack of sufficiently direct personal involvement in the killings, applying the analysis adopted by the U.S. Supreme Court in Ashcroft v. Iqbal, #07-1015, 129 S. Ct. 1937 (2009). Maldonado v. Fontanes, #08-2211, 2009 U.S. App. Lexis 12716 (1st Cir.).

Domestic Violence and Child Abuse

     After school officials saw red marks on a boy's nose, they called child protective services and a social worker took the child into custody. The child stated that he had been hit and pinched by his father and was afraid to go home, so he was placed into a child receiving home rather than allowed to go home on the school bus. The boy's parents filed a federal civil rights lawsuit for violation of their son's Fourth Amendment rights and violation of their own Fourteenth Amendment rights to familial association. Under these circumstances, and given the very short time period within which to decide, a federal appeals court found, the social worker could have reasonably believed that her actions were lawful and needed to protect the boy against the danger of serious bodily harm. Even if these actions did violate the parents' rights, the social worker was entitled to qualified immunity. Springer v. Placer County, #08-15392, 2009 U.S. App. Lexis 13112 (Unpub. 9th Cir.).

False Arrest/Imprisonment: Consular Rights

     A Mexican citizen convicted of murder could not show that he had a right to relief based on officials' failure to advise him of his rights, under the Vienna Convention on Consular Relations, to consular notification and assistance. The prisoner based his claim on a 2005 Presidential Memorandum that directed state courts to give effect to a 2004 decision of the International Court of Justice (ICJ) concluding that the United States had violated the rights of 51 Mexican nationals then on death row, including the petitioner, by failing to comply with the Vienna Convention. The U.S. Supreme Court subsequently rejected claims similar to the petitioner's, and held that neither the Presidential Memorandum nor the ICJ decision preempted state procedural limits on filing successive habeas corpus petitions. The prisoner was barred from raising the issue involved sine he had previously done so and had been denied relief on the merits of the claim. In re Martinez, #S141480, 2009 Cal. Lexis 6016.

False Arrest/Imprisonment: No Warrant

     Police officer investigating a report of a civilian car using police-like strobe lights had probable cause to arrest a motorist found driving such a vehicle with the strobe lights activated and charge him with impersonating an officer. Given the arrestee's admission that his vehicle had rear strobe lights, his dispute as to whether the vehicle also had front strobe lights was not relevant. Baker v. Moskau, #08-17236, 2009 U.S. App. Lexis 14343 (Unpub. 11th Cir.).

     While police were arresting someone in front of a crowd, shots were heard, and one of the officers identified a man standing in front of a building as the shooter, and he was arrested for firing a gun. Despite later dismissal of the charges, there was probable cause for the arrest and other officers did not act unreasonably in relying on a fellow officer's identification of the arrestee as the shooter. One punch to the arrestee's body did not show excessive used of force when he had been "doing something" with his hands, rendering him difficult to handcuff. Husbands v. City of New York, #07-3657, 2009 U.S. App. Lexis 14122 (Unpub. 2nd Cir.).

     A police officer arrested a motorist for fleeing and eluding after an attempted traffic stop for speeding. While the charges were subsequently dismissed because the officer did not appear at the trial, this did not alter the fact that there had been probable cause for the arrest. The motorist did not dispute the fact that the officer's emergency lights were activated well before a stoplight, or that he failed to pull over before traveling approximately a quarter of a mile after the stoplight. Hardesty v. City of Ecorse, Civil #08-14498, 2009 U.S. Dist. Lexis 46289 (E.D. Mich.).

     A motorist was arrested during a traffic stop while he was on his way to the police department with a loaded handgun observed on the console of his truck. Probable cause existed to arrest him for assault, since the officers then knew that he had stated that he was on his way to the police department to shoot an officer who had arrested him during a previous incident, that he had loaded his gun, and that he had taken his gun with him in the vehicle. Rejecting claims of false arrest and excessive force, an appeals court ruled that, given these facts, it was reasonable to believe that he was searching for the intended victim of his planned violent act with the intent to use force with a dangerous weapon. Rome v. Guillory, #08-31221, 2009 U.S. App. Lexis 13739 (Unpub. 5th Cir.).

First Amendment

     Secret Service agents were entitled to qualified immunity in a lawsuit claiming that they violated demonstrators' First Amendment rights by ordering the relocation of a protest. The plaintiffs' allegation that the defendants acted for an impermissible motive based on the content of their expression was "conclusory," and was not entitled to be assumed to be true for purposes of a motion to dismiss the lawsuit. Moss v. U.S. Secret Serv., #07-36018, 2009 U.S. App. Lexis 15694 (9th Cir.).

     Federal appeals court upholds the constitutionality of a statute that established a fixed "buffer zone" around abortion facilities barring demonstrators from protesting near clinic entrances. Nothing in the statute itself or its legislative history indicated that it was not "content neutral," and it was a valid time-place-and-manner regulation promoting a substantial governmental interest without restricting free speech any more than necessary to accomplish it, as well as leaving open alternative means of communication. McCullen v. Coakley, #08-2310, 2009 U.S. App. Lexis 14927 (1st Cir.).

     Because the state has a compelling interest in preventing the intimidation and confusion of the public, a state statue prohibiting the solicitation of voters within 100 feet of any polling place did not violate First Amendment rights. Citizens for Police Accountability Pol. Comm. v. Browning, #08-15115, 2009 U.S. App. Lexis 13785 (11th Cir.).

Freedom of Information

     The plaintiff, submitting an information request under the Freedom of Information Act, 5 U.S.C. Sec. 552, sought to obtain records of the F.B.I.'s investigation of the bombing of the federal building in Oklahoma City in 1995, specifically records relating to a legal organization and its founder. After the F.B.I. provided some redacted records, the plaintiff sought permission to depose the convicted bombing conspirator and a death row inmate, asserting that these depositions would produce evidence that government informants were involved in the bombing and that the F.B.I. acted in bad faith in responding to his information request. A federal appeals court ruled that such discovery could not be justified because the evidence showed that the F.B.I. conducted an adequate search for the requested records, and there was no basis to believe that the depositions would result in evidence that other unproduced records existed. Trentadue v. F.B.I., #08-4207, 2009 U.S. App. Lexis 14475 (10th Cir.).

Malicious Prosecution

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

     Homicide investigators were not entitled to summary judgment in a malicious prosecution lawsuit brought by former inmates who served almost 13 years in prison on a murder conviction before being found factually innocent. The obligation to reveal exculpatory evidence to the accused's defense attorney applies to police, not just to prosecutors. There was evidence that the investigators were told by a person that they had arrested the wrong person, identified the actual shooter, and described the murder in a manner consistent with the evidence. These facts, if true, should have been disclosed instead of being "buried" in a police file. The investigators' inconsistent and contradictory statements concerning when they received this evidence, which contradicted the testimony of the key prosecution witness at the criminal trial, showed that there were factual issues as to whether they violated their duty to disclose exculpatory evidence. Tennison v. City and County of San Francisco, #06-15426, 2009 U.S. App. Lexis 13885 (9th Cir.).

     An arrestee was convicted of kidnapping, assault with intent to commit murder, and criminal sexual conduct. The conviction was reversed, based on new evidence and discredited testimony. After a new trial, the arrestee was acquitted, but he spent a total of twelve years in incarceration. The arrestee sued, claiming that nine law enforcement defendants fabricated evidence against him, failed to disclose exculpatory evidence, and pursued his prosecution and his retrial without probable cause. A federal appeals court rejected all claims based on testimony presented at trial, for which absolute immunity exists. A police detective's alleged suppression of a witness's statement, which cast serious doubt on, if not entirely discrediting, the identification of the arrestee as the offender, if true, would have violated the duty to disclose exculpatory evidence. A police officer who destroyed certain evidence, however, was not shown to have had any idea that it could have exonerated the arrestee, and therefore could not be held liable. Moldowan v. City of Warren, #07-2115/2116/2117, 2009 U.S. App. Lexis 14238 (6th Cir.).

     In a malicious prosecution lawsuit, the trial court erred in holding that the existence of a grand jury indictment conclusively proved the existence of probable cause. The indictment only established a rebuttable presumption of probable cause, and the plaintiff could prevail if he showed that the indictment was produced by "fraud, corruption, perjury, fabricated evidence, or other wrongful conduct undertaken in bad faith." Moore v. Hartman, No. 08-5370, 2009 U.S. App. Lexis 14942 (D.C. Cir.). Editor's Note: In earlier proceedings in the case, which has a long history going back to the 1980s, the U.S. Supreme Court ruled that lack of probable cause is an essential element of a federal civil rights claim for retaliatory prosecution, rejecting an argument that government officials are barred from bringing charges that they would not have pursued absent retaliatory motive regardless of whether the had probable cause to do so. Hartman v. Moore, #04-1495, 547 U.S. 250 (2006).

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

     A federal jury awarded $21 million to a reputed gang leader who claimed that a former Chicago police detective framed him for a murder. After his murder conviction was reversed on appeal, a gang member stated at a second trial that the detective had coerced him and directed him to pick the arrestee out of a lineup and identify him as the killer. The award includes $21 million in compensatory damages and $15,000 in punitive damages against the detective. Claims against the city were not tried during the trial of claims against the detective, and remain pending. The plaintiff served over eleven years in prison before his conviction was overturned on the basis that his identification was tainted. Johnson v. Guevara, #05C1042 (N.D. Ill. June 22, 2009). Click here to read the complaint in the case.

Procedural: Class Action

     Federal court certifies a class action lawsuit on behalf of all residents of a city allegedly falsely arrested and maliciously prosecuted for alleged violations of a loitering law after that law had been declared unconstitutional. Casale v. Kelly, #08 Civ. 2173, 2009 U.S. Dist. Lexis 50304 (S.D.N.Y.).

Property

     A deputy sheriff, acting without a warrant, ordered a man to destroy marijuana plants he was growing in his home. The man, a qualified medical marijuana patient under California state law, was a member of a seven-patient group that agreed to contribute comparable amounts of money, property, and labor to the cultivation of the marijuana, and then to share the crop. The plaintiff contended that the deputy, in forcing him to destroy all but 12 of 41 medical marijuana plants, violated his state constitutional rights. Upholding the trial court's refusal to dismiss the lawsuit, a California appeals court ruled that, under state law, the question of whether the deputy had probable cause to issue the order to destroy the property had to include a consideration of the plaintiff's qualification as a medical marijuana patient. It also noted that the deputy was acting under color of California law, not federal law, so that would be the basis for determining whether his conduct was proper. County of Butte v. Superior Court of Butte County (Williams, Real Party in Interest), #C057152, 2009 Cal. App. Lexis 1079 (3rd Dist.).

Public Protection: Crime Victims

     A mother and the adoptive father sued a county and prosecutors for alleged violations of their child's Fourteenth Amendment equal protection rights by declining to prosecute the child's biological father for child sexual assault. The right to assert an equal protection claim is available to those subject to or threatened to discriminatory prosecution, the appeals court stated, but has never been recognized as extending to crime victims who claim to have been injured by the failure to prosecute an offender. As the plaintiffs' claimed injury was from the failure to prosecute the biological father, rather than based on failure to provide police protection, the court upheld dismissal of the lawsuit. Parkhurst v. Tabor, #08-2610, 2009 U.S. App. Lexis 13774 (8th Cir.).

Roadblocks

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

     D.C. resident motorists were denied entry into an area at a neighborhood checkpoint because of their refusal to provide requested information to the police concerning where they were going. A federal appeals court overturned a trial court's denial of the motorists' request for a preliminary injunction against the police checkpoint program, intended to establish a "neighborhood safety zone" following violence in the area. The motorists were stopped, the court reasoned, based on a possibility, without individualized suspicion, that they might possibly perpetrate undetected, perhaps uncommitted, crimes. Setting up such checkpoints simply based on a general interest in crime prevention violates the Fourth Amendment, according to the court. The plaintiff motorists had the right to drive on public streets in the absence of a constitutional reason to restrict their access. Mills v. District of Columbia, #08-7127, 2009 U.S. App. Lexis 15324 (D.C. Cir.).

Search and Seizure: Person

     A pregnant woman was detained and searched at an airport based on suspicion that she might be smuggling drugs contained internally in her body. A federal appeals court, rejecting claims of unlawful search, ruled that preliminary searches and seizures are "per se reasonable" when occurring at the border due to the government's "long-standing right" to protect its territorial integrity. The defendants, in detaining the plaintiff and transporting her to a hospital for more intensive examination, acted in a reasonable manner. Denson v. U.S., 05-15572, 2009 U.S. App. Lexis 15634 (11th Cir.).

Search and Seizure: Home/Business

     Police officers lacking a warrant or probable cause, according to an appeals court, broke into a man's home based of a statement from a third party that the occupant had been involved in an "extremely minor traffic incident, an incident so minor that it did not cause as much as a scratch on either of the vehicles involved, and that he appeared to have been drinking." The officers entered with flashlights shining and guns drawn, handcuffing the man, removing him from the house, and placing him under arrest. The officers subsequently explained that, hearing that the man had the smell of alcohol on his breath, they feared that he was on the brink of a diabetic coma and sought to provide "medical assistance." One officer stated that they entered with guns drawn because persons suffering from diabetic emergencies may be "combative." The appeals court noted, however, that the man was not suffering from a diabetic coma and was not combative, but was simply watching television in his bedroom when encountered. Two officers who entered the home were not entitled to qualified immunity, as their conduct, if as described, violated the homeowner's clearly established constitutional rights. A third officer, who did not enter the home, but instead remained outside, was a "mere bystander" to the incident, and could not be held liable for the warrantless entry. Hopkins v. Bonvicino, #07-15102, 2009 U.S. App. Lexis 15689 (9th Cir.).

     A man was convicted of drug and firearms-related crimes based on evidence seized from his apartment during a search conducted pursuant to a search warrant. The search warrant was issued because the plaintiff had been observed by federal agents driving a person to a vehicle used in a bank robbery. While the search was for evidence of involvement in the bank robbery, it uncovered a gun, drugs, and drug paraphernalia. The plaintiff's lawsuit was barred because success in his illegal search claim would necessarily imply the invalidity of his conviction, and his conviction had not been overturned on appeal or otherwise set aside. Crawford v. Frimel, #07-3452, 2009 U.S. App. Lexis 15012 (Unpub. 3rd Cir.).

     Police officer's warrantless entry into a home was justified by exigent circumstances when he suspected that the house was being vandalized and that there was a possibility that a missing teenage girl was inside. The officer was responding to a neighbor's 911 call indicating that she thought the homeowners were on vacation and that she feared that burglary or vandalism was occurring. The officer saw lights inside the house turn off as he approached, no one answered the doorbell, and he noticed that a formerly closed garage door had been opened when he returned to his patrol car. Additionally, the owner of a vehicle parked outside the house told the officer that he did not know why the car, which was his stepdaughter's vehicle, was there, and that he was worried about her safety because she did not answers calls to her cell phone. Additionally, two weeks earlier, a vacant house in the area had burned down because of unauthorized use. Hunsberger v. Wood, #08-1782, 2009 U.S. App. Lexis 13925 (4th Cir.).

Search and Seizure: Vehicle

     A police officer ticketing the plaintiff's car near a crime scene saw bolt cutters in plain view in the backseat. While the plaintiff was detained for suspected burglary of another construction site, he admitted to owning the car and receiving a ticket. After a detective confirmed, by a visual examination, that a paint chip and damaged parts found at a crime scene matched the car, there was probable cause to seize the car. The appeals court rejected the plaintiff's claim that officers had to obtain a warrant to seize the car under these circumstances. Morgan v. Township of Glencoe, #08-2003, 2009 U.S. App. Lexis 14595 (Unpub. 7th Cir.).

Towing

     A vehicle owner's claim that the towing of his vehicle violated state law failed to raise a federal civil rights claim, so that summary judgment for the plaintiff in a federal civil rights lawsuit had to be overturned on appeal. Lone Star Security & Video, Inc. v. Los Angeles, No. 07-56521, 2009 U.S. App. Lexis 15280 (9th Cir.).

Wiretapping

     At the time that a police chief and former mayor were allegedly involved in the surreptitious recording of phone calls made from a village's finance department, it was clearly established that government employees have a reasonable expectation of privacy in the workplace. The defendants were not, therefore, entitled to qualified immunity in a lawsuit brought by the village's former comptroller on behalf of a class of employees claiming that the recording violated Fourth Amendment rights and a federal statute. Narducci v. Moore, #06-3427, 2009 U.S. App. Lexis 15107 (7th Cir.).

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     Electronic Weapons: "Compliance Report. Wisconsin's Electronic Control Device training compared with USDOJ recommendations made to Orange County, Florida," Wisconsin Department of Justice Training and Standards Bureau. (May, 2009).

     Electronic Weapons: "Comparison Report. Wisconsin Electronic Control Device training and Amnesty International recommendations," Wisconsin Department of Justice Training and Standards Bureau. (May, 2009).

     Immigration: A July 10, 2009 announcement from the U.S. Department of Homeland Security requires all 66 local police agencies empowered by the federal government to enforce immigration law ("State and Local Immigration Enforcement Partnerships") to sign a new uniform memorandum within 60 days, agreeing, among other things, to pursue criminal charges that caused an illegal immigrant's detention. The announcement also indicated that eleven additional police agencies have entered into such agreements.

     Immigration: "Constitution on ICE: A Report on Immigration Home Raid Operations," by the Immigration Justice Clinic of Benjamin N. Cardozo School of Law at Yeshiva University (July 22, 2009). Alleges that there has been a prevalence of constitutional violations, including home raids without warrants or other legal authority, carried out by agents of the U.S. Immigration and Customs Enforcement (ICE) agency. The report was prepared under the guidance of an advisory panel, chaired by Nassau County, New York, Police Commissioner Lawrence W. Mulvey. Press release on publication of the report.

     Immigration: 2009 Immigration Detention Reforms (August 6, 2009). The U.S. Immigration and Customs Enforcement agency (ICE) has announced a series of reforms of the immigration detention system designed to "address the vast majority of complaints about our immigration detention, while allowing ICE to maintain a significant, robust detention capacity to carry out serious immigration enforcement." These actions include creating an Office of Detention Policy and Planning (ODPP) to design and plan a civil detention system tailored to addresses ICE's needs. The ODPP will evaluate the entire detention system in a methodical way, with seven areas of focus, each with benchmarks for progress: •Population Management: To ensure the best location, design, and operation of facilities reflecting the unique nature of civil detention; •Detention Management: To ensure appropriate custodial conditions and address day-to-day detention functions, including classification, discipline and grievances; •Programs Management: To ensure the provision of religious services, family visitation, recreation and law libraries; •Health Care Management: To ensure the timely provision of medical, dental and mental health assessment and services; •Alternatives to Detention Management: To develop a national strategy for the effective use of alternatives to detention including community supervision; •Special Populations Management: To provide attention to women, families, the elderly and vulnerable populations; and •Accountability: To ensure ICE employees perform the core functions of detention oversight, detainee classification and discipline, and grievance review. Other immediate actions include: •Discontinued use of family detention at the T. Don Hutto Family Residential Facility in Texas. In place of housing families, we will propose that the Texas facility will be used solely as a female detention center. Presently, Hutto is used to detain families and low custody female detainees. Detained families will now be housed at Berks Family Residential Center in Pennsylvania. •Formation of two advisory groups of local and national organizations interested in ICE's detention system. These groups will provide feedback and input to the Assistant Secretary. One will focus on general policies and practices, while the other will focus on detainee health care. •Appointment of 23 detention managers to work in 23 significant facilities - facilities which collectively house more than 40 percent of our detainees. These 23 federal employees will directly monitor the facilities and ensure appropriate conditions. •Establishment of an Office of Detention Oversight (ODO) whose agents will inspect facilities and investigate detainee grievances in a neutral manner. The ODO will be part of ICE's Office of Professional Responsibility.

     Media and Law Enforcement: Ethical Guidelines for Covering Law Enforcement Actions. Ethical Guidelines for Reporting Bomb Threats. Ethical Guidelines for Airing 911 calls. The Radio-Television News Directors Association (RTNDA), The Association of Electronic Journalists. http://www.rtnda.org

     Tasers: "A Multi-Method Evaluation of Police Use of Force Outcomes," University of South Carolina TASER ECD Three-Year Study. Summary. Full NIJ Report.

     Terrorism, Homeland Security, and National Security Issues: "Unclassified Report on the President's Surveillance Program," prepared by the Offices of Inspectors General of the Department of Defense, Department of Justice, Central Intelligence Agency, National Security Agency, and Office of the Director of National Intelligence. (July 10, 2009). A report on the President's Surveillance Program initiated by President Bush following the September 11, 2001 terrorist attacks, including interception of certain communications into and out of the U.S. The report is designed to be a comprehensive review of the program mandated by Title III of the Foreign Intelligence Surveillance Act Amendments Act of 2008. A separate classified report was also submitted to Congressional committees.

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

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