---

 Search the Case Law Digest

CONTENTS

     Some of the case digests do not have a link to the full opinion.

• Cases that have a Lexis or Westlaw citation can be retrieved, for a fee, via Internet.
• Most Federal District Court opinions can be accessed via PACER. Registration required. Opinions are usually free; other documents are 8¢ per page.
• Access to cases linked to www.findlaw.com may require registration, which is free.  

Assault and Battery: Physical

      A detainee showed that a police officer used excessive force against him after encountering him attempting to restrain a developmentally delayed adult who had fled a residential facility where he worked. He also showed that a second officer and a sergeant on the scene improperly failed to intervene to end the first officer's use of force. The defendants then made false reports about the incident, and caused the detainee to be maliciously prosecuted. The plaintiff prevailed against the defendants individually on both excessive force and malicious prosecution federal civil rights claims, as well as state law negligence claims. While federal claims against the city were rejected, the city was vicariously liable for the officers' negligence. Claims of racial animus were rejected. The plaintiff was awarded $125,155.20 in compensatory damages and $55,000 in punitive damages. Knapps v. City of Oakland, #05-2935, 2009 U.S. Dist. Lexis 67141 (N.D. Cal.).

Assault and Battery: Stun Guns/Tasers

     A Polk County, North Carolina deputy sheriff was convicted of criminal charges of assault for using a Taser to shock a woman when she was in custody. The woman was arrested on larceny and other charges, and became disruptive at the county jail, so that the deputy tasered her several times. The criminal charges related to his action of shocking her with the Taser again after she was handcuffed to a chair and subdued. The deputy, who is no longer employed by the sheriff's department, received a 30 day suspended jail sentence and a $500 fine. Reported in the Asheville Citizen Times, August 20, 2009.

Attorneys' Fees: For Plaintiff

     After an organization achieved success in its First Amendment claims against a city, it was awarded $40,691.25 in attorneys' fees and $456 in costs by the trial court. While additional motions were pending in the trial court, the city paid these fees and costs. A federal appeals court has upheld the actions of the trial court in declining to award the plaintiff additional attorneys' fees for time spent on a motion for additional fees, or to award post-judgment interest. The Nationalist Movement v. City of York, #08-1896, 2009 U.S. App. Lexis 17899 (Unpub. 3rd Cir.).

Defenses: Absolute Immunity

     An arrestee sued a prosecutor for allegedly wrongfully requiring him to refrain from filing a civil lawsuit against private parties with whom he had a fight in exchange for dismissing criminal charges against him. He had violated the agreement by filing a civil lawsuit, been prosecuted as a result, and was found not guilty. The federal appeals court ruled that an allegedly improper motive by the prosecutor was insufficient to defeat his defense of absolute prosecutorial immunity to the lawsuit, so long as his actions fell within the general scope of his duties as an advocate in connection with judicial proceedings. Entering into a release-dismissal agreement, like the one used in this case, falls within a prosecutor's normal duties in deciding whom to prosecute. Cady v. Arenac County, #08-1795, 574 F.3d 334 (6th Cir. 2009).

DNA

     An inmate claimed that Pennsylvania's refusal to allow him to conduct post-conviction DNA testing on evidence in his criminal case violated his due process rights. The federal appeals court noted that the U.S. Supreme Court rejected that argument in District Attorney's Office for the Third Judicial Circuit v. Osborne, #08–6, 2009 U.S. Lexis 4536, and that there is no federal constitutional right to such testing. Young v. Philadelphia County District Attorney's Office, #09-1668, 2009 U.S. App. Lexis 17799 (Unpub. 3rd Cir.).

Domestic Violence and Child Abuse

     A police detective was entitled to qualified immunity on a father's claim that his procedural due process rights were violated when the detective, acting on doctors' advice, without prior notice to the father, temporarily took the father's infant daughter into custody in order to provide the child with diagnostic tests and treatment. The mother had brought the infant to the hospital. A federal appeals court found that there had been a genuine issue of fact as to whether or not the infant had been in imminent danger when she was removed from her mother's custody. It was not clearly established, at the time of the incident, that the detective was legally required to provide pre-deprivation notice to an absent parent as well as to the parent at the hospital. Any right to post-deprivation notice that the father had was satisfied by one he received from a child protective services agency. Mueller v. Auker, #07-35554, 2009 U.S. App. Lexis 17826 (9th Cir.).

     The live-in girlfriend of a local tavern part-owner claimed that her boyfriend was well known to local police, who socialized with him at his tavern, where he allegedly bragged to them that he could "get away" with what he wanted in the village. She allegedly repeatedly called police for assistance when her boyfriend abused her, but police failed to arrest him or interview him at any length about these incidents, filing only one domestic incident report. Police allegedly refused to arrest the boyfriend even after he violated an order of protection. While a federal appeals court upheld the rejection of the woman's equal protection claims, it overturned summary judgment for officers on her due process claims, finding a genuine issue of fact as to whether the officers "implicitly but affirmatively sanctioned" the alleged abuse. The court also ordered further proceedings on whether the village's failure to adequately train its officers, or the policies and customs that it has sanctioned, caused the individual officers to violate her rights. Okin v. Cornwall-on-Hudson, #06-5142, 2009 U.S. App. Lexis 18422 (2nd Cir.).

Failure to Disclose Evidence, & Loss of Evidence/Preservation of Evidence

     A man's conviction for the abduction and sexual assault of a woman was overturned after new evidence was revealed and a key witness recanted her testimony. On retrial, the accused was found not guilty, and released, having served twelve years in prison. The accused then sued a police detective, a forensic consultant, and his alleged victim. A federal appeals court ruled that the statements of a potential witness who had not testified at the original trial should have been disclosed to the defense because they called into question, if not entirely discredited, the crime victim's identification of the plaintiff as one of her attackers, so that summary judgment was reversed on claims arising from the alleged failure to disclose exculpatory evidence. Claims against the detective for perjury, however, were barred by absolute witness immunity, since they were based on his trial testimony, instead of his role as complaining witness. Moldowan v. City of Warren, #07-2115/2116/2117, 2009 U.S. App. Lexis 17988 (6th Cir.), amended by Moldowan v. City of Warren, 2009 U.S. App. Lexis 18562 (6th Cir.).

     Despite the fact that police had obtained DNA evidence from a bite mark on a corpse excluding him as the person responsible for a murder of an old woman, he was arrested for the crime, and spent forty-two days in jail with charges pending. In a lawsuit claiming that his incarceration was the result of a state trooper's withholding of the DNA evidence, the plaintiff was awarded $400,000 in damages. A federal appeals court has upheld these damages as supported by the evidence, as well as the trial court's reduction of requested attorneys' fees from $292,463 to $118,882.50 to reflect the plaintiff's lack of success on some claims. Burke v. McDonald, #07-2691, 2009 U.S. App. Lexis 15784 (1st Cir.).

False Arrest/Imprisonment: No Warrant

     In a false arrest lawsuit brought by a 13-year-old Hispanic girl and a 14-year-old African-American girl, a federal appeals court upheld a jury verdict for police on the 14-year-old's claims, since there was probable cause for her arrest based on her physical resemblance to a robber sought on three robberies and her identification by witnesses. The 13-year-old, however, was entitled to judgment as a matter of law, since officers, at the time of her arrest, only knew that she sat on a curb with the other girl and gave her a red sweater to wear. Sherouse v. Ratchner, #08-2105, 2009 U.S. App. Lexis 17196 (10th Cir.).

     A state trooper reasonably believed that he was acting at the behest of a judge in arresting a man for violating a statute prohibiting contemptuous behavior during court proceedings for refusing to show the officer, after arriving at court, what was in a paper bag he carried. The trooper's conversation with the judge about the incident provided him with arguable probable cause for the arrest. Droz v. McCadden, #08-0241, 2009 U.S. App. Lexis 20370 (2nd Cir.).

     Based on a videotape of an arrest, it was clear that the arrestee had disobeyed a lawful order from the officer to sign a citation for lacking vehicle registration and an inoperable tag light. The court also found no evidence that the officer acted with deliberate indifference to the arrestee's medical needs, since the arrestee herself declined medical treatment and walked to the police vehicle without assistance. O'Donnell v. Derrig, #09-10827, 2009 U.S. App. Lexis 18427 (Unpub. 11th Cir.).

     Holding that an arrestee's false arrest lawsuit against former U.S. Attorney General Ashcroft could go forward, a federal appeals court panel said that the government's alleged policy of using a federal material witness statute to detain innocent persons suspected of terrorism without charges was "a painful reminder of some of the most ignominious chapters of our national history," and "repugnant." If true, the plaintiff's arrest was a violation of his Fourth Amendment rights, and Ashcroft was not entitled to qualified immunity on the false arrest claims. The defendant was acting in an investigative rather than prosecutorial role in detaining the plaintiff, barring prosecutorial immunity. There were, however, inadequate assertions of Ashcroft's personal involvement to render him potentially liable for the arrestee's allegedly harsh conditions of confinement. Al-Kidd v. Ashcroft, #06-36059, 2009 U.S. App. Lexis 20000 (9th Cir.).

     A motorist stopped for speeding was arrested for allegedly unlawfully carrying a concealed firearm in violation of a state statute. The arrestee argued that his arrest was unlawful because, although his concealed-carry permit had expired, the weapon was, at the time of the arrest, securely encased and placed in his vehicle's center console, making its transportation legal. A federal appeals court found that the officers were entitled to qualified immunity, and had arguable probable cause to make the arrest, as Florida state law was unsettled on the question of whether placing a gun in a car's center console rendered it "securely encased" in a box or container with a lid, as required by statute. Additionally, the officers acted pursuant to advice they had received from a prosecutor. Poulakis v. Rogers, #08-15425, 2009 U.S. App. Lexis 17714 (Unpub. 11th Cir.).

False Arrest/Imprisonment Unlawful Detention

     While there was probable cause to arrest a man in a bank parking lot for two vehicle offenses, the officers arguably violated the arrestee's Fourth Amendment rights by allegedly keeping him in custody for longer than 48 hours (52 hours) without a judicial determination of probable cause to engage in investigation of other possible crimes, such as his possible involvement in a bank robbery. Swanigan v. Trotter, #07-C-4749, 2009 U.S. Dist. Lexis 68395 (N.D. Ill.).

Federal Tort Claims Act

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

     Almost thirty years after four men were convicted of involvement in an organized crime "gangland slaying," the F.B.I. disclosed, for the first time, that it had all along possessed reliable intelligence undercutting the testimony of a cooperating witness whose version of the murder was the basis of the convictions, but had suppressed this information. All four convictions were vacated, but by then, two of the men had died in prison, the third had been paroled, and only the fourth was still incarcerated. The two surviving men, along with the estates of the two decedents, sued the U.S. government under the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 1346(b), 2671-2680. After a bench trial, the court found the government liable, awarding over $100 million in damages. A federal appeals court, while commenting that the damage awards were "considerably higher than any one of us, if sitting on the trial court bench, would have ordered," nevertheless upheld the awards, finding that they were not "so grossly disproportionate to the harm sustained as to either shock our collective conscience or raise the specter of a miscarriage of justice." There was no liability for malicious prosecution, the court held, as the U.S. government had not initiated the murder prosecution of the four men by the state of Massachusetts, but liability was found on the basis of a state law claim for intentional infliction of emotional distress, applicable to the U.S. government through the FTCA. Limone v. U.S., #08-1327, 2009 U.S. App. Lexis 19239 (1st Cir.).

Firearms Related: Second Amendment Issues

     The North Carolina Supreme Court held that retroactively applying a 2004 state law barring convicted felons from owning or possessing firearms violated the rights of a man convicted of felony drug possession with intent to sell and deliver whose right to possess firearms was restored in 1987 by operation of law after he completed his sentence. The court found that the application of the statute to the plaintiff was an "unreasonable regulation not fairly related to the preservation of public peace and safety," especially in light of the "absence of any exception or possible relief from the statute's operation as applied to the plaintiff." The plaintiff, the court found, does not pose a threat to public peace and safety, in light of his thirty years of law-abiding conduct, his "uncontested lifelong nonviolence toward other citizens," and his compliance in giving up his weapon when informed of the 2004 statute. The court held that this application of the statute violated the right to bear arms guaranteed by the state constitution. Britt v. North Carolina, #488A07, 2009 N.C. Lexis 815. Editor's Note: While federal law generally prohibits, among other things, the purchase or possession of firearms by felons, there is an exception for those whose civil rights have been restored by a state on the predicate state felony conviction. 18 U.S.C. 921(a)(20), in defining terms for the purposes of federal firearms law, provides that: "What constitutes a conviction of such a crime [a felony] shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms."

     The state of Montana has enacted a law, effective October 1, 2009, entitled the Montana Firearms Freedom Act, Ch. 205, Title 30 Mont. Code Annotated, that purports to exempt from all federal firearms regulations, including registration, background checks, and firearms dealer licensing, firearms and ammunition made and retained within the state. The statute asserts the Second, Ninth, and Tenth Amendments as authority for the legislation, as well as the compact entered into between Montana and the U.S. government when Montana became a state in 1889. A similar statute was recently enacted in Tennessee, and similar proposed statutes have been introduced in five other states. The federal Bureau of Alcohol, Tobacco, Firearms and Explosives has taken the position that the Montana legislation violates federal firearms laws and regulation, and that federal law supersedes it. The Second Amendment Foundation, a national gun rights group, together with a Montana group, has announced plans to file suit on October 1, 2009 to seek a court order against the enforcement of federal firearms laws against firearms and ammunition covered by the Montana statute. The Montana statute states that it does not apply to firearms that cannot be carried and used by one person, firearms with a bore diameter greater than 1½ inches and uses smokeless powder, ammunition that uses exploding projectiles or fully automatic weapons.

First Amendment

     A federal appeals court orders further proceedings to seek evidence of what adverse secondary effects result from adult businesses that carry only purchase and take home books and DVDs, as opposed to presenting live or recorded entertainment on the premises. An injunction against the enforcement of a city ordinance regulating adult businesses was improperly entered by the trial court on the basis that it violates the First Amendment because it was not narrowly tailored to achieve its objectives. The court ordered that the injunction remain in place pending the outcome of the hearing below. New Albany DVD, LLC v. City of New Albany, Indiana, #05-1286, 2009 U.S. App. Lexis 20703 (7th Cir.).

      In a lawsuit against a municipal adult entertainment licensing ordinance, a federal appeals court ordered an evidentiary hearing to determine if the city can show that the public benefits provided by the restrictions are great enough to justify any resulting infringement on First Amendment rights. The court noted that the prior studies of the secondary effects of adult businesses relied on by the city in enacting the ordinance did not show that an increase in operating hours of adult businesses caused an increase in crime in the area, The ordinance at issue, among other things, requires adult bookstores to close at night and on Sunday, which would limit sales, in light of which the public benefit to result must be supported by evidence rather than merely asserted, the court stated. Annex Books, Inc. v. City of Indianapolis, Ind., #05-1926, 2009 U.S. App. Lexis 19844 (7th Cir.).

     Participants in a federal housing program sued, claiming that they were maliciously investigated and prosecuted in retaliation for exercising their right of free speech to criticize certain federal housing practices and filing a lawsuit against a number of government agencies. The investigation and prosecution, which was ultimately dropped, involved the plaintiffs' use of housing program funds. The plaintiffs failed to show that the agent involved in the investigation and prosecution was aware of their protected activity. Additionally, the investigation and their arrests occurred before they engaged in the speech in question, and was prompted by a complaint of non-payment of amounts allegedly due to a property owner. The appeals court also rejected false arrest and malicious prosecution claims as meritless, as the arrests were based on a valid warrant. Brown v. U.S. Postal Service, #08-10991, 2009 U.S. App. Lexis 16525 (Unpub. 5th Cir.).

Governmental Liability: Policy/Custom

     A bus-station patron claimed that a police officer, without justification, compelled him to leave a bus station where he was eating. The plaintiff failed to state a federal civil rights claim against the District of Columbia, which employed the officer. At the time of the incident, it appeared, the officer did not act pursuant to any District policy or custom, but rather was working for a bus company while off-duty. Lewis v. D.C., Civil Action #08-1314, 2009 U.S. Dist. Lexis 72263 (D.D.C.).

     During a search of an arrestee, officers found a cell phone that had stored on it a number of nude photos of the arrestee and a former girlfriend in sexually explicit poses. In a lawsuit for violation of his Fourth Amendment right to privacy, the arrestee claimed that these photos were then shared with both other officers and members of the public. While stating that the alleged actions were "unprofessional and reprehensible," the court found that there was no showing that the town that employed the officers was aware, either actually or constructively, of any widespread constitutional violations by the officers. The officer who allegedly searched through the photos stored on the cell phone was entitled to qualified immunity as his alleged actions did not violate any clearly established constitutional right. Newhard v. Borders, Civil #3:09CV00020, 2009 U.S. Dist. Lexis 80387 (W.D. Va.). Editor's Note: See a related lawsuit, by the arrestee's girlfriend, reported below under the topic Privacy.

Malicious Prosecution

     An arrestee who had murder charges against him dropped could pursue malicious prosecution claims despite the fact that he was subsequently also charged, prosecuted, and convicted of evidence tampering for attempting to eat business cards in his possession at the time of his arrest. Malicious prosecution claims can be pursued on a charge-by-charge basis, and a successful malicious prosecution claim does not necessarily have to be based on a showing that the plaintiff achieved a favorable termination of all criminal charges against him. Miller v. Spiers, #07-2134, 2009 U.S. App. Lexis 17077 (Unpub 10th Cir.).

Negligence: Vehicle Related

     While it was "surely negligent" for a deputy to speed through a yellow light while responding to a non-emergency call (which still required a swift response), the family of a man killed when his vehicle was struck by the deputy's car did not show what was needed to impose liability for violation of federal civil rights. There was no indication that the deputy had any intent to harm the decedent, as required to show a substantive due process violation. Further, even under a less strict deliberate indifference standard, there was no showing that the deputy acted with conscious deliberate disregard to a risk of serious harm to the struck motorist. Green v. Post, #08-1122, 2009 U.S. App. Lexis 17736 (10th Cir.).

Positional, Restraint and Compressional Asphyxia

     An officer responding to a call about an altercation allegedly handcuffed a participant and left him on his stomach face down against the floor while questioning others present, resulting in the man dying from positional asphyxia. A federal appeals court found that there was no evidence showing that the death resulted from inadequate training policies of the city that employed the officer. Claims against the officer in his individual capacity, however, could proceed. Sanders-Burns v. Plano, #08-40459, 2009 U.S. App. Lexis 17661 (5th Cir.).

Privacy

     A police officer, during an arrest, searched the arrestee's cell phone and found stored nude pictures of the arrestee and his girlfriend in sexually compromising positions. These photos were allegedly later shared with members of the public and other officers. The girlfriend filed a federal civil rights lawsuit against officers and the town, claiming that stress from the incident caused her to suffer depression, anxiety, loss of sleep, weight fluctuation, and nightmares, as well as the loss of her relationship with the arrestee. A federal court dismissed the girlfriend's lawsuit, finding that she lacked an objectively reasonable expectation of privacy in the photos stored in the cellphone. Having lent the phone to the arrestee two months before, she did not have control or possession of it, or the ability to prevent others from accessing the photos stored on it. Casella v. Borders, Civil #3:09CV00019, 2009 U.S. Dist. Lexis 80357 (W.D. Va.). Editor's Note: See a related lawsuit, by the arrestee, reported above under the topic: Governmental Liability: Policy/Custom.

Search and Seizure: Home/Business

     Police detectives were to seize and secure two forfeited homes, pursuant to a valid court order, but allegedly entered a different home, on the same street, which had a different address, but which did not have its number clearly marked on its exterior. The trial court denied the defendants' motion to dismiss the lawsuit by the occupants of that home, which claimed unlawful search and seizure. The court noted that the correct home was on the opposite side of the street, and that the detectives allegedly did not even check if they were on the "odd" or "even" side of the street. Williams v. District Attorney's Office of Philadelphia, #08-1080, 2009 U.S. Dist. Lexis 67784 (E.D. Pa.).

     When a man asked officers to leave his home and one of them failed to comply, any consensual encounter was over. An officer lacked probable cause to support his belief that the man had violated a state's obstruction of justice statutes, and he could not, without violating the Fourth Amendment, remain present based solely on a "hunch" that the man "knew more" than he was saying. The officer was not entitled to qualified immunity as he did not act in an objectively reasonable manner under clearly established law. The officer's further act, in detaining the man handcuffed in the back of a police vehicle for three hours after he agreed to help the officer locate a suspect, constituted an unlawful arrest for which no justification was stated. The appeals court ordered a judgment as a matter of law in favor of the plaintiff and a trial on the issue of damages. Manzanares v. Higdon, #07-2156, 2009 U.S. App. Lexis 17817 (10th Cir.).

Search and Seizure: Persons

     An extensive search of the plaintiffs' persons, their car, and their cell phones, as well as taking of photographs of their bodies went "well beyond" what was justified as an investigatory stop and was not objectively reasonable. Upholding a jury verdict for the plaintiffs on an unreasonable search and seizure claim, the federal appeals court found that the jury was entitled to believe evidence presented that the plaintiffs did not consent to the searches at issue. Carter v. City of Yonkers, #08-0193, 2009 U.S. App. Lexis 18061 (Unpub. 2nd Cir.).

Search and Seizure: Search Warrants

     Summary judgment for police officers was upheld in a lawsuit over their search of a home pursuant to a search warrant, and the arrest of the occupants for contributing to a minor's delinquency. The plaintiffs failed to show that any of the statements in the affidavit for the search warrant constituted intentional or reckless misrepresentations or omissions, and there was probable cause for the warrant. Suarez v. Town of Ogden Dunes, #08-2544, 2009 U.S. App. Lexis 20322 (7th Cir.).

•Return to the Contents menu.

     Body Armor: A survey of 782 agencies nationwide, conducted by the Police Executive Research Forum (PERF) and the Justice Department's Bureau of Justice Assistance indicates that, while nearly all law enforcement agencies (99%) provide body armor for officers, only 59% require it to be worn at some time, and of those, only half had a written policy concerning its use.

     Electronic Weapons: Report of the Nova Scotia Panel of Mental Health and Medical Experts Review of Excited Delirium (June 30, 2009). Discusses the phenomena referred to as excited delirium in the context of the use of conducted energy devices (CEDs) on persons displaying agitated, aggressive, irrational conduct.

     Juveniles: "A Pivotal Moment: Sustaining the Success and Enhancing the Future of Juvenile Justice and Delinquency Prevention Act," a report by the Coalition for Juvenile Justice (CJJ), the national representative organization of governor-appointed state advisory groups on juvenile justice. (Sept. 8, 2009). The report is based on survey responses from 53 distinct U.S. states and territories, and explores the current state of the federal Juvenile Justice and Delinquency Prevention Act (JJDPA), as well as arguing for a recommitment by federal government to nationwide delinquency prevention and justice reform efforts. Press release on report.

     Search and Seizure: The U.S. Department of Homeland Security has issued a Privacy Impact Assessment for searching travelers' electronic devices at U.S. borders. (Aug. 25, 2009). The Department states that it has the right to search and seize all data on electronic devices carried across the border. The 51-page study was designed to determine how searches of the contents of electronic devices compared to physical searches of travelers' belongings.

     Videotaping: "Orwell’s Vision: Video and the Future of Civil Rights Enforcement" by Howard M. Wasserman, 68 Md. L. Rev. 600 (2009) Discuses the impact of widely available videotaping equipment on police-civilian encounters and on litigation.

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

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