---

 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: Handcuffs

      An arrestee who experienced a dislocated shoulder during an arrest sued police officers, claiming that they used excessive force. When he complied with the officers' orders to lay face down on the ground and let them handcuff him behind his back, he allegedly told an officer of a prior right shoulder injury, requesting that he be picked up by the left arm. If true, this established that the officers could be found to have used excessive force in picking him up using his pre-existing injured arm, which they had no justification for, allegedly causing a dislocated shoulder. Claims against the officer who picked up the arrestee were reinstated. Jones v. Garcia, #08-1968, 2009 U.S. App. Lexis 21801 (Unpub. 6th Cir.).

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

     After a man mistakenly shot himself twice, his wife summoned police to provide assistance. He claimed that, despite the seriousness of the gunshot wounds to his bicep and stomach, the officers handcuffed him in a painful manner that aggravated his injuries. Rejecting summary judgment on the basis of qualified immunity for the officers, a federal appeals court found that the additional injuries that allegedly were caused by the officers' actions, and the manner in which they applied the handcuffs despite knowledge of the man's gunshot injuries, were sufficiently serious to support a possible constitutional claim for excessive force. Fisher v. City of Las Cruces, #07-2294, 2009 U.S. App. Lexis 22825 (10th Cir.).

     Police stopped a vehicle after money was seen flying out because an occupant had left his billfold on top of the car when leaving a gas station. The occupants, then suspected of a non-existent bank robbery, were required to kneel down. They asked for their car door to be closed so that their dog would not run out, but officers allegedly refused their request, and the dog was shot in the head when he came out of the car. A trial court did not err in refusing to grant the officers qualified immunity, as it was a question for the jury to decide if the officers used excessive force under the circumstances. The appeals court upheld a jury verdict for the plaintiffs. A reasonable officer would have known that it was an excessive use of force to slam a man to the ground while he was handcuffed and held by two officers, when he rose up reacting to his dog being shot. Smoak v. Hall, #08-5442, 2009 U.S. App. Lexis 19978 (Unpub. 6th Cir.).

Assault and Battery: Physical

      The estate of a detainee claimed that some police officers assaulted him in the course of an arrest, that other officers failed to prevent the assault, and that correctional officers subsequently failed to provide him with needed medical attention for his injuries. He then stopped breathing, and died, having suffered a neck fracture and spinal cord injury. A federal appeals court found that it lacked jurisdiction over two officers' appeal of the denial of qualified immunity, based on their claim that there was insufficient evidence that their actions caused the death to hold them liable. The court upheld the denial of qualified immunity to three officers since there was evidence that could support a finding that they unreasonably failed to stop an assault on the arrestee. Finally, the correctional officers were entitled to qualified immunity, as there was insufficient evidence that they acted with deliberate indifference to the detainee's serious medical needs, in light of the fact that the detainee himself refused several offers of medical attention, and that a medical technician, after conducting an examination, found nothing abnormal in his condition. Krout v. Goemmer, #08-2781, 2009 U.S. App. Lexis 21985 (8th Cir.).

Assault and Battery: Taser

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

     Officers encountered a man who flagged them down and appeared agitated. The man stated, "they're shooting at me," and started moving towards the officers. They shocked him with a Taser at least eight times in a two-minute period, and he subsequently died. A federal appeals court rejected qualified immunity defenses presented by the officers, stating that, viewing the facts in the light most favorable to the decedent, he was not accused or suspected of any crime at the time, and the officers made no attempt to arrest or handcuff the man either during or after any use of the Taser, as well as continuing to administer Taser shocks after he was lying on the hot pavement immobilized. A fact finder also could find that the Taser shocks caused extreme pain and the decedent's death. Oliver v. Fiorino, #08-15081, 2009 U.S. App. Lexis 23579 (11th Cir.).

     A police chief stopped a vehicle that a woman was driving, and in which her husband and two other persons were passengers, believing that he had observed traffic violations. The husband, believing that he saw the chief inappropriately touch his wife, who was being arrested for refusing to comply with a sobriety test, exited the vehicle, yelling at the chief and taking a step forward. The chief told the husband to get back in the car and shocked him with a Taser, but he got up and started running at the chief. The chief placed the wife in the front of the patrol car. The chief then allegedly instructed the husband to get in the patrol car, and when he had difficulty doing so, pushed him into the car, allegedly hitting his head on the door. A federal appeals court upheld a jury verdict for the police chief on a Fourth Amendment "improper touching" claim. The chief's use of force against the husband was objectively reasonable in light of the husband's attempted interference with the wife's arrest and the wife's own non-compliance. In the absence of a constitutional violation by the chief, the plaintiffs could not assert a liability claim against the municipality. Cook v. City of Bella Villa; #08-2712, 2009 U.S. App. Lexis 21681 (8th Cir.).

Domestic Violence and Child Abuse

    Parents' minor children were removed from their custody by county workers after a drug raid at the home found both drugs and filthy living conditions. The parents claimed that their due process rights were violated because there was no custody hearing within 72 hours, as required by a Pennsylvania state statute, but instead a hearing four days later, which decided that the children should not be returned to them. A federal appeals court held that the defendants were entitled to qualified immunity since it was objectively reasonable for them to believe they were acting lawfully under the circumstances presented. A violation of a state statute does not necessarily show a violation of federal constitutional procedural due process.  Jarovits v. Monroe County Children and Youth Services, #07-4336, 2009 U.S. App. Lexis 20875 (Unpub. 3rd Cir.).

Expert Witnesses

     In a lawsuit claiming that officers used excessive force during an arrest, causing injuries that required an arrestee's hospitalization, the trial court did not commit reversible error in excluding the testimony of a doctor who treated the arrestee's injuries at the hospital. The trial court reasoned that the testimony would have amounted to expert testimony on causation under Federal Rile of Civil Procedure 26(a)(2)(B), which requires submission of an expert report. While the appeals court noted that the trial court had failed to explain why the treating doctor's testimony would constitute expert testimony, since it would only concern his diagnosis and treatment of the injuries, any error was harmless. The doctor, who was not employed or retained to provide testimony, did not have to provide an expert report to testify. But it was plain from his deposition that he remembered nothing other than what was recorded on the plaintiff's hospital chart. That chart was allowed into evidence, and nurses provided first hand testimony concerning the plaintiff's condition when he arrived at the hospital. Blameuser v. Hasenfang, #08-1650, 2009 U.S. App. Lexis 20421 (Unpub. 7th Cir.).

False Arrest/Imprisonment: No Warrant

     The facts as they appeared at the time gave the officer probable cause to arrest a man for assaulting his wife when the arrestee himself admitting pushing his wife after she had verbally and physically provoked him. Additionally, even without this admission, the wife's statement that her husband had pushed her was sufficient to provide probable cause for arrest when the officer had no reason to disbelieve her. Holder v. Town of Sandown, #08-1582, 2009 U.S. App. Lexis 23853 (1sr Cir.).

     A detective interviewed a woman after she and her husband were arrested for carrying a concealed weapon. The woman sued the detective for wrongful arrest and detention. The detective could not be sued for illegal arrest, both because he was not present at the time of the arrest itself, and because, under the facts presented, there had been probable cause for the arrest. A gun was found hidden in a car she owned and occupied and she failed to produce a license. The detective also could not be held liable for unlawful detention, as he had not made the decision to keep her in custody. Conner v. Southfield Police Dept., #08-1516, 2009 U.S. App. Lexis 22303 (Unpub. 6th Cir.).

False Arrest/Imprisonment: Warrant

     While an arrestee claimed that he was arrested without probable cause and without a valid warrant because the wrong form was used in violation of New Jersey law, a deputy court administrator stated that the proper forms were used and that none of the forms were altered. The plaintiff failed to offer any evidence to refute these statements. The defendants presented evidence that an officer in charge of the police station was authorized to administer oaths for criminal complaints under state law, and, while the plaintiff claimed that the warrants were fraudulent because the same officer administered the oath and issued the warrants, there was evidence that the warrants were actually issued by the deputy court administrator, who had the power to do so. Lemons v. Atlantic City Police Dept., #09-1576, 2009 U.S. App. Lexis 20995 (Unpub. 3rd Cir.).

Firearms Related: Intentional Use

     Officers conducting a protective sweep of a home prior to carrying out a search authorized by a warrant encountered a fifteen-year-old lurking in a dark closet in his own bedroom. He emerged coming towards the officers with a knife held up. Because he ignored their orders to halt and drop the knife, they shot and killed him. Under the circumstances, the officers' split-second decision to use deadly force was not objectively unreasonable, entitling them to summary judgment on the basis of qualified immunity in an excessive force lawsuit. Chappell v. City of Cleveland, #08-4456, 2009 U.S. App. Lexis 24149 (6th Cir.).

     A police officer fatally shot a male motorist when responding to a report that a vehicle was idling on some railroad tracks. His surviving children sued the officer. A federal appeals court found that it was undisputed that the motorist reached under his seat and moved as if he had obtained the object he sought just prior to the shooting. Under these circumstances, the officer was entitled to qualified immunity for using deadly force. Manis v. Lawson, #08-30987, 2009 U.S. App. Lexis 22755 (5th Cir.).

First Amendment

    The Animal Enterprise Protection Act, 18 U.S.C. Sec. 43, under which an animal rights organization and various individuals were convicted, was not unconstitutional as void for vagueness and did not violate the First Amendment free speech rights of those using the organization's website to coordinate civil disobedience. There was evidence from which the jury could have believed that the object of a conspiracy among some of the defendants was to create physical disruption to an animal enterprise and intentionally cause loss of or damage to property. Participation in such illegal activity was not protected free speech activity. U.S.A. v. Stepanian, #06-4211, 2009 U.S. App. Lexis 22515 (3rd Cir.).

     Activists distributing leaflets on immigration policy by placing them on cars parked along city streets were improperly denied a preliminary injunction against sheriff's deputies' orders to stop on the basis of purported violations of a city anti-litter ordinance. A federal appeals court ruled that the city had failed to present evidence that placing the leaflets on cars would result in any litter at all, let alone more than a "minimal" amount of additional litter. The court, noting that the protection of private property is not a sufficiently substantial governmental interest to support general bans on door to door solicitation, reasoned that it was also insufficient to support a general ban on putting leaflets on the windshields of empty vehicles on the street. Klein v. City of San Clemente, #08-55015, 2009 U.S. App. Lexis 21642 (9th Cir.).

Forfeiture

     A police officer claimed that he had probable cause to seize a large amount of money found in a suspect's possession, but a federal appeals court, upholding an award of $1 in nominal damages and attorneys' fees against the officer for a Fourth Amendment violation, found that the mere fact that a large amount of money was found was insufficient to show a connection to possible drug sales. Even though the plaintiff used two different names when he checked into a hotel, had ties to New York City, and had a third-degree robbery criminal record, these additional facts also did not establish probable cause to find drug trafficking, but merely supported a brief detention of the money for further investigation, rather than the lengthy detention that occurred. The plaintiff had presented evidence that he currently resided in Vermont, explained why he used two names and did not try to conceal it, and his most recent robbery conviction occurred long ago in 1973. Diamond v. O'Connor, #08-5082, 2009 U.S. App. Lexis 21413 (Unpub. 2nd Cir.).

     The U.S. government was not entitled to the civil forfeiture of $200,000 in funds that were allegedly the proceeds of a Los Angeles medical marijuana distribution group. A federal court found that that the evidence presented was the result of an illegal search and therefore should have been suppressed. Without the suppressed evidence, there was nothing to tie the funds to any violation of federal drug laws. "Given the government's strong financial incentive to prevail in civil forfeiture actions, the application of the exclusionary sanction in these cases is likely to prove especially effective in deterring law enforcement agents from engaging in illegal activity. Applying the exclusionary rule in forfeiture proceedings also protects judicial integrity by ensuring that the courts do not serve as a conduit through which the government fills its coffers at the expense of those whose constitutional rights its agents violated." The problem with the state warrant under which the funds had been seized, along with 209 pounds of marijuana, 21 pounds of hashish and 12 pounds of marijuana oil was that the judge who signed the warrant was not told that the premises operated as a medical dispensary, and therefore might not have been in violation of California state laws. The appeals court was particularly concerned that the Los Angeles police, who obtained a search warrant and conducted the raid, turning over 80% of the money to the federal government, but retaining 20% of the funds for the local police department "might stand to profit from unlawful activity." U.S. v. $186,416.00 in U.S. Currency, #07-56549, 2009 U.S. App. Lexis 22833 (9th. Cir.).

Other Misconduct: Towing

      Federal constitutional due process did not require a city to provide advance notice each time it towed one of the plaintiff's trailers. Additionally, the mere fact that the city's towing practices allegedly violated applicable California state law did not qualify as establishing a claim for violation of federal civil rights. Lone Star Sec. & Video, Inc. v. Los Angeles, #07-56521, 2009 U.S. App. Lexis 23016 (9th Cir.).

Parking Tickets and Traffic Offenses

     A Tennessee motorist filed a federal civil rights lawsuit challenging the constitutionality of a city's court processing fee for those charged with running red lights based on photographs of their cars taken by a company that forwarded the photos to the city, which then issued a citation and assessed a $50 fine. Under the city's ordinance, motorists who choose to challenge the citation and fine are informed that, if they chose to do so, they will be assessed a $67.50 court processing fee. A federal appeal court ruled that the plaintiff motorist, while having standing to challenge the citation as improper because the processing fee amounted to more than the possible fine, had an "unripe" claim, because the city, at oral argument, had agreed to give her a hearing. Only after she actually attended such a hearing could she have "suffered a hardship" allowing her to go forwards with her claims. Williams v. Redflex Traffic Systems, Inc., #08-5545, 2009 U.S. App. Lexis 21637 (6th Cir.).

Public Protection: Crime Victims

     A Caucasian man suffered injuries when he was allegedly attacked by a group of black men while walking across a vacant lot in a town, after they told him that white people were "not allowed" in that part of town. He sued a town, the county, and the county sheriff for violation of his substantive due process rights for failing to protect him against the assault. The defendants were entitled to summary judgment on the plaintiff's federal civil rights claims, since they had not created the danger to him. The defendants did not establish or encourage any of the illegal activity that may have been going on in the area, or place the plaintiff there. Bateman v. Town of Columbia, #4:07-CV-169, 2009 U.S. Dist. Lexis 94379 (E.D.N.C.).

     An unknown person attacked a man waiting for the bus. He claimed that the county breached a duty to protect him against such assaults by failing to post security guards or police officers near the bus stop. The appeals court ruled that, under Florida state law, the county did not owe the plaintiff a special duty of protection. The exercise of its police powers was a duty owed to the public as a whole. It was immune from liability for its decision not to post guards or officers at the bus stop, as it was engaged in a discretionary function. Miami-Dade County v. Miller, #3D09-712, 2009 Fla. App. Lexis 14512 (Fla. App. 3rd Dist.).

     A city and city emergency workers were sued by a son for failing to stop him from viewing the scene of his father's suicide. A federal appeals court pointed out that the plaintiff failed to identify which particular right the defendants violated. The facts did not show that the defendants created the danger of harm to him or had any affirmative duty to protect him from any harm he might have suffered by viewing the aftermath of the suicide. Howard v. City of Girard, #08-3586, 2009 U.S. App. Lexis 20895 (Unpub. 6th Cir.).

Search and Seizure: Search Warrant

     The plaintiff claimed that the officer who executed search warrants for two apartments purportedly rented by him falsely stated that he received a phone call from a confidential informant to the effect that the plaintiff had moved his personal possessions from one apartment to the other. An appeals court addressing illegal search and seizure claims noted that the plaintiff based his assertions of fact on the officer's cell phone records, while the call at issue was made to the officer's office phone. The officer's statements in support of a warrant application regarding the purported receipt of the phone call was not so inconsistent with police reports as to create a material issue of fact. The prisoner argued that the officer failed to produce his office phone records, but he failed to pursue the records' release before the trial court's grant of summary judgment against him. Dukes v. City of Minneapolis; #07-2531, 2009 U.S. App. Lexis 16844 (Unpub. 8th Cir.).

     A homeowner claimed that police officers entered his home armed with a search warrant issued because of an officer's false statements, that two of the officers knew that the statements were false when they participated in the search, and that officers used excessive force while doing so. Dismissing federal civil rights claims against supervisory police officials, a federal court found that, even if the facts of the search were as stated, there was no evidence from which the supervisory officials could be held liable. There was evidence, for instance, that a police superintendent undertook "numerous" actions to investigate and remedy police conduct he had become aware of, and that the police commander took steps to make sure all officers received civil rights training. Cruz-Acevedo v. Toledo-Davila, #07-1844, 2009 U.S. Dist. Lexis 92018 (D.P.R.).

Wiretapping, Video Surveillance, and Internet Legal Issues

     Officers lawfully placed a video camera on a utility pole across from a house, using it to conduct surveillance on the house for a period of eight months. No vegetation, gates or fences in front of the building obstructed the public's view of the garage or the driveway from the street. The residents had no reasonable expectation of privacy in places exposed to public view. U.S. v. Bucci, #07-2376, 2009 U.S. App. Lexis 20338 (1st Cir.).

•Return to the Contents menu.

     Conductive Energy Devices: "The Effect of Less-Lethal Weapons on Injuries in Police Use-of-Force Events" by John M. MacDonald, Robert J. Kaminski, and Michael R. Smith, Am J Public Health, published 21 October 2009, 10.2105/AJPH.2009.159616. "We investigated the effect of the use of less-lethal weapons, conductive energy devices (CEDs), and oleoresin capsicum (OC) spray on the prevalence and incidence of injuries to police officers and civilians in encounters involving the use of force. Methods: We analyzed data from 12 police departments that documented injuries to officers and civilians in 24,380 cases. We examined monthly injury rates for 2 police departments before and after their adoption of CEDs. Results: Odds of injury to civilians and officers were significantly lower when police used CED weapons, after control for differences in case attributes and departmental policies restricting use of these weapons. Monthly incidence of injury in 2 police departments declined significantly, by 25% to 62%, after adoption of CED devices. Conclusions: Injuries sustained during police use-of-force events affect thousands of police officers and civilians in the United States each year. Incidence of these injuries can be reduced dramatically when law enforcement agencies responsibly employ less-lethal weapons in lieu of physical force."

     Domestic Violence: "Profile of Intimate Partner Violence Cases in Large Urban Counties." Examines the characteristics and processing of 3,750 cases of intimate partner violence, filed in the state courts of 16 large urban counties in May 2002. Topics covered include the types of charges filed against defendants, incident-specific information such as victim injury, defendant weapon use, evidence obtained, adjudication outcomes, and sentences imposed on convicted defendants. The report also examines the impact of various case characteristics on the likelihood of conviction. See also State Court Processing of Domestic Violence Cases. Highlights include the following: Most cases of intimate partner violence involved a charge of assault, either aggravated (12%) or simple (78%); an additional 5% were charged with intimidation, including stalking. A witness to the incident was present in 50% of intimate partner violence cases; half of those witnesses were children. The defendant was convicted in 56% of intimate partner violence cases. A third (33%) of cases were discontinued by the prosecution or dismissed by the court; less than 1% ended in acquittal by a judge or jury. Another 9% of defendants were in pretrial diversion or deferred adjudication status one year after their initial appearance in court. 10/09 NCJ 228193 Press release | Acrobat file (1.4M) | ASCII file (25K) | Spreadsheets (zip format 16K)

     Statistics: Law Enforcement Officer Deaths 2008. Last year, 41 U.S. law enforcement officers were feloniously killed in the line of duty, 17 fewer than the previous year, the FBI reports; 68 officers died in accidents while performing their duties; and 58,792 officers were assaulted while on duty, down from 59,201. The 41 felonious line-of-duty deaths took place during 38 incidents in 19 states. Of the 68 law enforcement officers killed in accidents while performing their duties in 2008, 39 deaths were the result of automobile accidents. The number of accidental line-of-duty deaths was down 15 from 2007. Three more officers were accidentally killed in 2008 than in 1999, when 65 officers died in accidents. Of the officers assaulted last year, 26.1 percent were injured. The largest percentage of victim officers (32.0) were assaulted while responding to disturbance calls (family quarrels, bar fights, etc.). Assailants used personal weapons (hands, fists, feet, etc.) in 80.7 percent of the incidents, firearms in 3.8 percent of incidents, and knives or other cutting instruments in 1.6 percent of the incidents.

     Supervisory Liability: Sheldon Nahmod. "Constitutional Torts, Over-Deterrence and Supervisory Liability After Iqbal (forthcoming 2010)" Lewis & Clark Law Review 14.1 (2010).

     Tasers: Taser International Training Bulletin 15.0. (Oct. 2009): "1. We have issued a new TASER Targeting Guide that will apply for the new XREP impact munition as well as ECDs such as the X26, M26 and X3. Note, we have lowered the recommended point of aim from center of mass to lower-center of mass for front shots. ... There are three reasons: a. Simplify targeting for all TASER systems to one easy to remember map, avoiding chest shots when possible and the risk of a head/eye shot in a dynamic situation, as is standard for impact munitions b. When possible, avoiding chest shots with ECDs avoids the controversy about whether ECDs do or do not affect the human heart. c. Close-spread ECD discharges to the front of the body are more effective when at least one probe is in the major muscles of the pelvic triangle or thigh region. Back shots remain the preferred area when practical. 2. When dealing with exhausted individuals or persons exhibiting symptoms of distress or agitated/excited delirium: a. Once officers engage in capture procedures, it is important to minimize the duration of the physical struggle. New research shows that physical struggle, simulated by punching a heavy bag at full intensity, can cause acidosis that can reach dangerous levels in only 45 seconds of intense exertion, starting from a resting state. Accordingly, officers engaging subjects in a physical struggle or in an exhaustive state should minimize the duration of struggle and the adverse physiological effects. The physiological effects of a TASER ECD discharge of up to 15 seconds were significantly less than that of either fleeing (simulated with a sprint) or fighting (simulated with the heavy bag). This research shows that the TASER ECD, as part of an overall capture plan, is a viable option to help minimize the duration of the struggle. b. When encountering subjects exhibiting symptoms of exhaustion, distress or agitated/excited delirium, refer to your agency’s guidelines for proper response. These subjects are at significant risk of arrest-related death. Immediate medical attention may reduce this risk. 3. The primary risk of serious injury or death during ECD deployment is risk related to falls. Users should be reminded to avoid deploying ECDs on persons on elevated platforms or other places where a fall can be more injurious."

     Terrorism, Homeland Security and National Security Issues: F.B.I. "Domestic Investigations and Operations Guide," (Dec. 16, 2008), disclosed in response to Freedom of Information Act request.

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

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