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Assault and Battery: Chemical

     An arrestee's wife had called 911 after he hit her, but hung up without saying anything. After the call was traced to the couple's house, officers responded, but were unable to see or speak to the wife. When they tried to speak to the husband, he went inside the house. They then went around to the back, where they saw the husband sitting on the porch. He was allegedly "evasive" when they spoke to him, and they tried to arrest him as he tried to reenter the home. Officers then used pepper spray against him and tried to "stun strike" him because of his combative response. The appeals court ruled that the 911 call established exigent circumstances, and that the force used was reasonable because of the resistance exhibited by the arrestee. Nail v. Gutierrez, #08-3872, 2009 U.S. App. Lexis 16587 (Unpub. 7th Cir.).

Assault and Battery: Stun Guns/Tasers

     An officer warned a hospital patient that he would tase her if she did not comply with orders to go with medics to a psychiatric facility. Following the warning, he did tase her in bed when she allegedly refused to comply. The officer tased her a second time as she tried to remove the taser wires. In an excessive force lawsuit, the trial court ruled that federal civil rights claims were barred by a two year statute of limitations, and that the plaintiff's adding of the real names of the officers to the complaint after the statute of limitations expired was insufficient to allow the claims to go forward when it had originally been filed using fictitious names for the defendants and the plaintiff failed to diligently pursue the lawsuit, waiting five months after the filing of the lawsuit to request information about the officers' identities. A state law battery claim was still viable, however, and there was evidence that the repeated use of the taser was unreasonable, as well as a factual issue about whether the arrest of the patient for disorderly conduct was supported by probable cause. Mann v. Darden, #2:07cv751, 2009 U.S. Dist. Lexis 56373 (M.D. Ala.).

     In a case where an officer suspected a motorist had committed a misdemeanor open bottle violation, which is punishable by 90 days incarceration, a $1,000 fine, or both, a federal appeals court was not convinced that an officer's use of a Taser against the motorist was objectively reasonable. The officer was not entitled to summary judgment. The plaintiff contended that he was not actively resisting arrest or attempting to flee, and posed little or no threat to the officer or members of the public. Brown v. City of Golden Valley, #08-1640, 574 F.3d 491, 2009 U.S. App. Lexis 16071 (8th Cir.).

DNA

     A federal court has held that police can lawfully forcibly take DNA samples, including by drawing blood with a needle, from persons who have been arrested but not convicted of any crime. The court upheld a federal statute allowing the gathering of such samples from those arrested for a felony. The court rejected claims that taking such samples was overly intrusive or violates the Fourth Amendment. U.S.A. v Pool, #CR09-0015, (E.D. Cal.).

Dogs

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

     Use of a police dog to bite a suspect's arm in order to subdue him was not excessive use of force when the suspect was wanted for two serious crimes: a shooting and reckless flight from the police in a vehicle, and when the suspect was reasonably believed to be armed, and had used every method he had to attempt to evade capture. Johnson v. Scott, #08-3317, 576 F.3d 658, 2009 U.S. App. Lexis 17842 (7th Cir.).

False Arrest/Imprisonment: No Warrant

     A storekeeper's arrest by a police officer following an altercation with a former employee that was captured on videotape was supported by probable cause. The officer, having found probable cause to arrest the storekeeper for battery after watching one videotape of the incident, had no obligation to also watch a second videotape from a different camera which the storekeeper claimed better supported his version of the incident. McBride v. Grice, No. 08-3556, 2009 U.S. App. Lexis 17840 (7th Cir.).

     A police officer had probable cause to arrest a woman for burglary of her husband's residence when it was established that she did not live there any more, that the couple was going through a divorce proceeding, that the husband had changed the locks, and that she had entered the home and removed property while the husband was away. Finigan v. Marshall, #07-0964, 2009 U.S. App. Lexis 16680 (2nd Cir.).

     An arrestee claimed that various police personnel began a pattern of harassment of her, conducting surveillance of her activities, following her, asking inappropriate questions, making statements and threats about her private relationships, and falsely arresting and imprisoning her. The officers were not entitled to qualified immunity on a false arrest claim. Massachusetts state law on disorderly conduct has been interpreted by state courts in such a manner that arrests for disorderly conduct based solely on the use of offensive language have been ruled violative of the First Amendment. The officers stated that they arrested the plaintiff for disorderly conduct solely on the basis of her use of offensive language, so that a reasonable jury could find that probable cause for the arrest was lacking. Philbrook v. Perrigo, #07-11476, 2009 U.S. Dist. Lexis 64188 (D. Mass.).

False Arrest/Imprisonment: Warrant

     A man arrested under a warrant for terroristic threats and stalking with intent to place a person in fear of bodily injury was acquitted of those charges, and filed a federal civil rights lawsuit claiming that state troopers lied on their affidavit of probable cause. Rejecting his Fourth Amendment claims, a federal appeals court noted that the arrestee was convicted of harassment and stalking with intent to cause emotional distress. The jury's findings on these charges defeated the plaintiff's argument that there was no probable cause for his arrest. Shelley v. Wilson, #09-1193, 2009 U.S. App. Lexis 17111 (Unpub. 3rd Cir.).

     A certified nursing assistant at a nursing home was arrested under a warrant on accusations of involvement in abuse there, but the charges against him were subsequently dropped. Rejecting a false arrest claim, the court found that there was no showing that misstatements or omissions in a detective's affidavit for the warrant were knowing or deliberate. While the detective may have acted with reckless disregard for the truth with respect to certain omissions in the affidavit, these omissions were not material to the finding of probable cause for the arrest, and therefore were not a basis to impose liability on the detective. Collins v. Christie, #08-3781, 2009 U.S. App. Lexis 15462 (Unpub. 3rd Cir.).

Firearms Related: Intentional Use

     A suspect was wanted in connection with a number of bank robberies, including one in which he allegedly threatened to kill a bank teller, which occurred on the day of his arrest. He subsequently claimed that a deputy improperly used deadly force against him after he had surrendered, shooting him in the chest and spine. The officers encountered the suspect when he was in a motel room with a woman who they believed was a hostage. The arrestee claimed that, before exiting the room, he yelled out that he was surrendering, and then waved a white towel and made gestures with his hands that amounted to a "surrender position." The officer who shot him, however, disputed this, and stated that he appeared to be holding up a "dark object" as he exited the room. Four other officers said they saw the arrestee holding a towel and saw no weapon in his hands. Because of a dispute in material facts as to whether a reasonable officer could have believed that deadly force was justified because the suspect was armed, the defendant officer was not entitled to qualified immunity. Caruthers v. McCawley, #08-16538, 2009 U.S. App. Lexis 17476 (Unpub. 11th Cir.).

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

     In a lawsuit claiming that excessive force was used against a suspect shot and killed by police, judgment for the defendants was upheld on appeal, based in part on expert witness testimony indicating that the suspect's conduct was consistent with trying to commit "suicide by cop." The suspect's alleged resistance to the officers was made more probable by a number of facts, including his prior lawsuits against the police department, knowledge that his family might collect significant damages from a lawsuit if he was killed by police, and his writing of "rap" music lyrics in favor of the murder of police officers. The decedent had a criminal history, including two attempted kidnappings that resulted in a high-speed chase, and that indicated that he might receive a long sentence if prosecuted rather than killed. The expert witness testimony concerning "suicide by cop" satisfied legal standards for the admission of such evidence. The expert testified on his knowledge of approximately ten peer-reviewed articles and four other articles on the subject. The court found that the "suicide by cop" theory seems to be "generally accepted" in the relevant professional community. The literature indicates that persons attempting "suicide by cop" frequently have deep resentment and hatred towards police officers. Boyd v. C. & C. of San Francisco, #07-16993, 2009 U.S. App. Lexis 17615 (9th Cir.).

Firearms Related: Second Amendment Issues

     Update: As previously reported, a federal appeals court ruled that the rights guaranteed by the Second Amendment apply to the states because they are incorporated by the due process clause of the Fourteenth Amendment, but that the Second Amendment does not guarantee a right to possess guns on government property. The case involved an ordinance banning firearms at a public fairground. This was the only federal appeals court decision to date applying the Second Amendment to the states through the Fourteenth Amendment. Nordyke v. King, #07-15763, 2009 U.S. App. Lexis 8244 (9th Cir.). The U.S. Court of Appeals for the Ninth Circuit has now granted a rehearing en banc in the case, and stated in the order that the original opinion by the three-judge panel "shall not be cited as precedent by or to any court of the Ninth Circuit." Nordyke v. King, #07-15763, 2009 U.S. App. Lexis 16908 (9th Cir.).

     Residents of Iowa who were denied applications for nonprofessional permits to carry pistols claimed that these denials, by a county sheriff and his successor, violated their Second and Fourteenth Amendment rights, because no justification was provided and they met all statutory requirements for the permits. The court dismissed the "sheriff's department" as a defendant, since it was not a legal entity under state law, and the statute gave only the sheriff power and discretion to decide whether to issue the permits in question. Claims against the sheriff's "successors" were also dismissed. Dorr v. Weber, #08-4093, 2009 U.S. Dist. Lexis 59110 (W.D. Iowa).

First Amendment

     Protesters objecting to the "Gay Games," an athletic and cultural event, tried to distribute religious literature and talk to participants at three locations. At the first location, police allegedly told them to keep moving, and not to stay in one place on the sidewalk. At the second location, police allegedly told them that they needed a permit to demonstrate, resulting in the arrest of one protester for trespass after he refused to leave. In the third location, officers arrested a demonstrator for disorderly conduct because he refused to move from his spot on the sidewalk. These actions did not violate the First or Fourth Amendment rights of the protesters. The permit requirement and prohibitions on standing on the sidewalk were valid time, place, and manner regulations on expression. The arrests were supported by probable cause to believe an offense had occurred. Marcavage v. City of Chicago,  #06 C 3858, 2009 U.S. Dist. Lexis 61438 (N.D. Ill.).

     Police officers conducting a raid on a suspected drug house arrested a freelance photographer who stood nearby to take pictures while the raid was ongoing, and who disobeyed orders to leave. Rather than arresting the plaintiff in violation of any First Amendment right to take pictures, an argument that he provided no support for, the court found that the plaintiff was arrested for failure to comply with an instruction to leave the area given because he was standing directly across the street from a purported drug house, "where a high-risk search warrant was in the process of being executed." Hollins v. City of Milwaukee, #08-3505, 2009 U.S. App. Lexis 16916 (7th Cir.).

Freedom of Information

     A dentist who claimed that he was subjected to excessive force by a sheriff's deputy during a traffic stop sued the sheriff under the state Freedom of Information Act, after he requested information about any internal affairs reports concerning complaints against the deputy. Rejecting the argument that releasing such reports would violate the deputy's right to privacy, an intermediate Illinois appeals court stated that what a deputy does in his capacity as a deputy sheriff "is not his private business." Police internal affairs files, under Illinois law, are public records, regardless of whether or not an investigation indicates that an officer did anything wrong. "That a complaint against a deputy sheriff is 'unfounded' is nothing more than a conclusion of the sheriff’s office: in response to the complaint, the public body investigated itself. If the Act allowed a public body to deny access to complaints that it deemed to be unfounded, defeating the Act would be as easy as declaring a complaint to be unfounded." Some information in the files, however, such as the names of persons filing complaints, can be redacted. Gekas v. Williamson, #4-08-0733. 2009 Ill. App. Lexis 687 (4th Dist.).

Governmental Liability: Policy/Custom

     In a lawsuit filed after a motorist was shot and killed by a deputy sheriff during a traffic stop and arrest, a federal appeals court rejected a claim for county liability. Even if the plaintiff could show that the county had a policy of inadequately investigating officer-involved shootings, there was a lack of evidence that the deputy had any knowledge of this purported policy, and it therefore could not have been the "moving force" behind any alleged violation of the motorist's rights by the deputy. James v. Harris County, #07-20725, 2009 U.S. App. Lexis 17318 (5th Cir.).

     A motorist who was pulled over by police claimed that he was falsely arrested and subjected to excessive force. Summary judgment was entered for the city in the arrestee's federal civil rights lawsuit, since he failed to show that these alleged constitutional injuries were caused by a "widespread practice" permanent and well settled enough "as to constitute a custom or usage with the force of law." The plaintiff failed to show that the city "fostered a culture" of violations of citizens' rights, and statements by two officers that they acted consistently with city policies did not support the plaintiff's municipal liability claims, since the officers' version of events was one in which no constitutional violations occurred. Poole v. City of Burbank, #07 C 6355, 2009 U.S. Dist. Lexis 59024 (N.D. Ill.).

Interrogation

     Based solely on a statement by a four-year-old that she had been sexually assaulted when she was three, a police detective seized a student and interrogated him for almost two hours in the principal's office at his school. The questioning culminated in the student confessing that he had molested the child three times, which was the basis for filing juvenile criminal charges against him. The confession was subsequently suppressed as coerced, and the charges dismissed, following a determination that the four-year-old was incompetent to testify at trial. A federal appeals court granted summary judgment to the defendant detective on a Fourth Amendment claim arguing that the seizure was unlawful because it was based on unreliable statements of the four-year-old, finding that the law on the subject at the time was not clearly established. It rejected summary judgment, however, on a Fifth Amendment claim concerning the alleged coercion of incriminating statements from the suspect. Stoot v. Everett, #07-35425, 2009 U.S. App. Lexis 18079 (9th Cir.).

Negligence: Dead Body Handling/Identification

     The daughter of a decedent claimed that a county medical examiner violated her Fourteenth Amendment due process right by a failure to return her mother's brain following an autopsy. The mother had fallen at a nursing home where she lived, and died of her injuries. The autopsy was conducted at police request as part of an investigation of the daughter's suspicion that the fall was caused by neglect or abuse. After the daughter disposed of her mother's body, she found out that the brain had been incinerated as medical waste. The medical examiner was entitled to qualified immunity because any supposed constitutional right to dispose of the decedent's body was not clearly established. Any state-created property right under Michigan law to post-autopsy possession of specimens taken for purposes of a criminal investigation was not "unequivocal." State law also failed to unambiguously direct medical examiners as to how individual body parts taken for forensic examination were to be disposed of. Waeschle v. Dragovic, #08-2228, 2009 U.S. App. Lexis 16083 (6th Cir.).

Property

     A federal appeals court ruled that New York City, acting after the terrorist attacks of September 11, 2001, may have violated the constitutional due process rights of a gun dealer whose business was shut down for security reasons and whose dealer's license was suspended. The gun dealer claimed that the 58-day shutdown damaged her business and resulted in lost profits. While a federal appeals court overturned the dismissal of her due process claims, it upheld the dismissal of her Fourth Amendment claim arising from the warrantless search of her business premises, as it was objectively reasonable and carried out pursuant to existing regulations. Based on the facts presented, however, the appeals court found that the city violated due process in denying the plaintiff sufficient notice and an opportunity for a post deprivation hearing concerning the suspension of her license. The notice that was provided merely stated the conclusion that security at the business was inadequate, with no specifics concerning the purported problems. This was constitutionally inadequate notice, and the gun dealer had a constitutionally-protected property interest in her license. On remand, the trial court was directed to enter summary judgment for the plaintiffs on the due process claim and to conduct further proceedings as to the amount of damages to be awarded. Spinelli v. City of New York, #07-1237, 2009 U.S. App. Lexis 17640 (2nd Cir.).

Public Protection: 911 Systems

     In response to a 911 call reporting a potentially suicidal armed teenager, a city dispatched both an ambulance and law enforcement officers. The teenager's mother subsequently filed a federal civil rights lawsuit claiming that a failure to properly respond to the call caused her daughter to be shot and injured by an officer. The plaintiff did not establish that the city had a special duty to her or her daughter, and the court ruled that there also was no showing of negligence on the part of the city, or of a policy or custom of failing to respond appropriately to calls for emergency assistance. Perkins v. City of Rochester, #06-CV-6585, 2009 U.S. Dist. Lexis 55490 (W.D.N.Y.).

Public Protection: Rescue Situations

     Persons injured during a train derailment and volunteer firefighters filed a federal civil rights lawsuit claiming that a county and its sheriff unlawfully prevented the firefighters from engaging in rescue efforts that might have limited those injuries. A federal appeals court ruled that the sheriff's actions in barring the entry of the volunteer firefighters into the areas of the derailment did not violate the injured persons' due process rights since the sheriff did make provisions for eventual rescue of them by professional firefighters. The volunteer firefighters had no constitutionally protected interest in their volunteer positions. Excluding volunteers from a dangerous emergency situation, while allowing professional firefighters to enter was a "conceivably legitimate" governmental goal. Hale v. Bexar County, #08-50820, 2009 U.S. App. Lexis 16498 (Unpub. 5th Cir.).

Roadblocks

     After a non-Indian motorist was stopped and cited at a roadblock on a state highway crossing a Native American reservation, he sued the tribal police officers engaged in the roadblock, as well as the tribal police chief who allegedly ordered it. A federal appeals court noted that the officers were empowered to enforce tribal and state law, but not federal law. Under tribal law, the officers could conduct a roadblock to check for sobriety, drivers' licenses, vehicle registration, and possession of alcohol. The motorist refused to produce his drivers' license or state his name, claiming that the stop was unlawful. He was cited for violation of two Arizona state statutes--for failure to provide a driver's license or other proof of identity, and failure to comply with an officer's lawful order. A federal appeals court ruled that the U.S. Constitution does not restrict actions by tribal governments, so that, to the extent that the officers were acting under color of tribal law, the motorist could not proceed with federal civil rights claims. The officers, however, did not have any inherent power to arrest and book non-Indian violators of state law on a state highway running through the reservation. The officers could only stop motorists at their roadblock on a suspicionless basis for a limited time to determine whether or not they are Indians and could deliver non-Indian motorists committing "obvious" violations to state officers. "But inquiry going beyond Indian or non-Indian status, or including searches for evidence of crime, are not authorized on purely tribal authority in the case of non-Indians." To the extent that the roadblock functioned as an "instrument for the enforcement of state law" against a non-Indian motorist, the officers were not entitled to summary judgment. Bressi v. Ford, #07-15931, 2009 U.S. App. Lexis 17272 (9th Cir.).

Search and Seizure: Home/Business

     An officer was involved in the execution of a search warrant on a private industrial park containing two auto body shops, based on an alleged crime of altering a vehicle identification number. The court found that the alleged crime did not involve violence and that there was no indication that anyone at the location of the search was dangerous, armed, or offering resistance. The officer, despite these facts, wielded a 9-millimeter submachine gun, which he utilized to detain a number of people present. Subsequently, the search ended after a determination that the VIN had not been altered. The federal appeals court ruled that the use of the submachine gun was objectively unreasonable under these circumstances. The officer was not entitled to summary judgment on the basis of qualified immunity on the detainees' excessive force claims. Baird v. Renbarger, #08-2436, 2009 U.S. App. Lexis 17215 (7th Cir.).

     An animal control officer seized a wolf from the plaintiffs' home while they were absent. A federal appeals court held that the fact that the wolf may have been lawfully possessed did not mean that it could not be seized before the legality of its status was verified if the seizure was necessary to protect public safety. The officer was entitled to qualified immunity because the court could not find that a reasonable officer would have found it apparent that her actions were unlawful. There was no showing that the officer acted pursuant to an official government policy or custom, so the county could not be held liable. Walker v. Prince Georges County, #08-1462, 2009 U.S. App. Lexis 16872 (4th Cir.).

     Police officers may not remain in a residence after consent to enter, previously granted, is revoked, nor may they detain a person for the duration of an investigation on the mere basis of a hunch that they might aid a suspect if released. Summary judgment for the defendant officers was therefore reversed. Manzanares v. Higdon, No. 07-2156, 2009 U.S. App. Lexis 17817 (10th Cir.).

     Sheriff's deputies accompanied a homeowner's girlfriend into the residence's private study to help determine if he had hidden any of the girlfriend's property there. While there, the deputies observed drugs and drug paraphernalia. While the girlfriend lacked the actual authority to consent to the deputies warrantless entry into the study, the deputies were entitled to qualified immunity from liability, since the law on this subject was not clearly established at the time. The appeals court further held that the deputies were entitled to qualified immunity on due process claims, because there was no prior recognition of a "particularized" right to notice, following a warrantless search, of the search itself and the items seized. Moore v County of Delaware, #08-2426, 2009 U.S. App. Lexis 16452 (Unpub. 2nd Cir.).

Search and Seizure: Vehicle

     A federal appeals court rejected a constitutional challenge to a municipal ordinance barring the use of wireless phones without a "hands free" device while driving. Officers had probable cause to stop a motorist for violation of the ordinance, so there was no violation of the Fourth Amendment. The plaintiff also failed to show any violation of equal protection in the ordinance's enforcement. Schor v. City of Chicago, No. 08-2837, 2009 U.S. App. Lexis 17993 (7th Cir.).

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     Article: Advising Houses of Worship on a Comprehensive and Balanced Security Plan, Police Chief Magazine. "Houses of worship should be the safest places on Earth; sadly, they are not. Read how the local police can secure the houses of worship."

      Article: Providing Police Services to the Deaf, Police Chief Magazine. "This article describes how to bridge the communication gap between first responders and the deaf and hard-of-hearing communities."

     Disabilities: Autism Spectrum Disorders: A Special Needs Subject Response Guide for Police Officers, Children's Hospital and Health System, 20 pgs, .pdf. 2009).

    Terrorism, Homeland Security, and National Security Issues: Strategic Risk Management in Government: A Look at Homeland Security. A report issued by the IBM Center for the Business of Government, describing the recent history of strategic risk management in the Homeland Security Department and offering findings and recommendations for the President, DHS, and Congress.

   Terrorism, Homeland Security, and National Security Issues: The Department of Homeland Security has released a progress report on 9-11 Commission Recommendations. The recommendations pertain to guarding against terrorism and ensuring transportation security, border security; increasing "preparedness efforts;" protecting privacy and civil liberties; and improving collaboration and information sharing. The recommendations include developing a risk-based plan for transportation security, airline passenger pre-screening, airline passenger explosives screening, and checked-bag screening. The tracking and disrupting of terrorist financing, standardizing secure identification, integrating border security into larger network of screening points including transportation system are also recommended. The DHS also advised allocating homeland security funds based on risk and improving interoperability of communications at all levels of government and establishing a unified incident command system. The DHS report also recommended balancing security and civil liberties and safeguarding individual privacy when sharing information.

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

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