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Assault and Battery: Physical

     In an excessive force lawsuit, officers contended that an arrestee placed in a patrol car attempted to exit the vehicle and struggled when they tried to subdue him, compelling them to use pepper spray and physical force. The arrestee argued that the officers had placed him in the vehicle with the heat running and the windows closed, sprayed him with mace, and beat him with a flashlight, causing injuries that included black eyes, a broken blood vessel, a damaged mouth, loose teeth, and lacerations. A federal appeals court found that the injuries suffered were more than minor. While the officers certainly were entitled to take action when the plaintiff refused to put his feet back in the vehicle and subsequently broke a car window, their alleged actions of dragging him out of the car, followed by kicking, punching, and hitting him with a flashlight, if true, were disproportionate to the force needed to subdue the handcuffed arrestee. Summary judgment for the officers was improper, as there was a genuine issue of fact as to whether the force used was excessive. Goffney v. Sauceda, #08-20233, 2009 U.S. App. Lexis 15440 (Unpub. 5th Cir.).

     A police sergeant, attending a movie in plainclothes, flashed his badge and arrested a woman's friend. When she attempted to intervene, he allegedly threw her down a flight of stairs in the theater. The sergeant claimed that the woman tripped and fell down the stairs. The trial court erred in failing to give the jury a Fourth Amendment excessive force instruction, as there was sufficient evidence from which it could find that he intended to throw her down the stairs, and therefore seized her in his capacity as a police officer. The trial judge, in assuming that the officer's actions were unintentional for purposes of the jury instructions, improperly intervened into the role of the jury as a finder of fact, so a new trial was required. Arnold v. Curtis, #08-4064, 2009 U.S. App. Lexis 28718 (Unpub. 10th Cir.).

    A police officer sued for excessive use of force was improperly denied summary judgment on the basis of qualified immunity, since a videotape of the incident in question showed that, as a matter of law, his actions were objectively reasonable. After the plaintiff, a motorist operating a motorized scooter, refused to sign a citation she was being given for a defective muffler and wearing an improper helmet, she claimed that the defendant deputy grabbed her by the breast and threw her against a police vehicle with enough force to cause bruising, then threw her into the street, causing her to injure her head on the pavement. The court found that a videotape of the incident, produced by a camera in a police vehicle, clearly showed that the deputy did not grab the woman by the breast, throw her against a police vehicle, or throw her on the street. What it did show was the plaintiff resisting the deputy's efforts to handcuff her after she refused to sign the citation, and her responding to his minimal use of force by striking him across the face with her right hand, after which she lost her balance and fell to the ground. Wallingford v. Olson, #09-1271, 2010 U.S. App. Lexis 1505(8th Cir.).

Assault and Battery: Stun Guns/Tasers

     The use of a Taser against a husband in a domestic violence case did not violate his rights, given the close quarters in which the officers and the plaintiffs encountered each other and the intoxicated state the husband was in, which indicated that the officers faced a very real threat of immediate harm. Mattos v. Agarano, #08-15567, 2010 U.S. App. Lexis 694 (9th Cir.).

Defenses: Sovereign Immunity

     A suspect left unrestrained in a running police vehicle jumped in the driver's seat and drove away. Occupants of another car were subsequently injured when their vehicle was struck by another police car pursuing the suspect. A jury awarded $4,052,572 and $159,069 to the two injured plaintiffs on claims against the city, after the trial court directed a verdict for the defendant officer on a claim that he acted in a willful and wanton manner by failing to turn off the engine, remove the car keys, restrain the suspect, or place the suspect in a vehicle with a protective divider or lock or secure the vehicle's rear door. The city was held, on appeal, to be entitled to sovereign immunity under a statute immunizing municipalities for failure to provide adequate police protection or service or failure to prevent a crime, as well as for injuries resulting from the actions of an escaped prisoner.  The city could not be liable for the result of the officer's actions where the officer was not liable. As for claims relating to the conduct of other officers in pursuing the suspect, a section of the statute providing an exception to immunity for willful and wanton misconduct applies to municipal employees, and not to municipalities themselves, and the city was the only remaining defendant. Ries v. City of Chicago, #1-07-3085, 2009 Ill. App. Lexis 1177 (1st Dist.).

Domestic Violence and Child Abuse

     A caseworker and a deputy sheriff seized and interrogated one of a woman's daughters for two hours in a private office at her school, allegedly without a warrant, probable cause or parental consent, because they suspected that the woman's husband had been sexually molesting her. The caseworker later obtained a court order removing both of the woman's daughters from her home and subjected them to "intrusive" sexual abuse examinations. A federal appeals court found that the "special needs" search doctrine could not apply to justify the seizure, given the deep involvement of law enforcement personnel and purposes. The decision to seize and interrogate the first daughter without a warrant, court order, exigent circumstances or parental consent was unconstitutional, in violation of the Fourth Amendment. But the defendants were entitled to qualified immunity because the application of the Fourth Amendment to an in school seizure of a suspected sexual abuse victim was not clearly established. The caseworker was not, however, entitled to qualified immunity on a claim of having made a false representation. Further proceedings were required on due process claims regarding the obtaining of the child removal order and the exclusion of the mother from her daughter's medical examinations. Greene v. Camreta, #06-35333, 2009 U.S. App. Lexis 26891 (9th Cir.).

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

     A man served 34 years in prison on a conviction for murdering his sister-in-law's boyfriend. At his trial, his wife and sister-in-law testified that they saw him outside the apartment of the victim on the day before the murder. He was never exonerated of the murder, but was released from custody by a state court after the existence of an exculpatory police report was revealed. The report indicated that the wife and sister-in-law had not reported his presence outside the victim's residence in their statements to the police. The plaintiff claimed that officers had violated his rights to due process and a fair trial in failing to disclose this exculpatory report. A federal trial court held that the officers were entitled to qualified immunity because his right to the disclosure of the prior inconsistent statements was not clearly established at the time of his trial. Haley v. City of Boston, #09-10197, 2009 U.S. Dist. Lexis 121565 (D. Mass.).

False Arrest/Imprisonment: No Warrant

     An officer had probable cause to arrest a motorist for DUI at the scene of a traffic stop and to transport her to central breath testing, given her erratic driving, unusual behavior, and difficulties in performing field sobriety tests. The officer, based on information then available to him, did not act unreasonably in failing to accept the motorist's excuses for her erratic driving. The plaintiff would be allowed, however, to amend her complaint to claim that, while probable cause existed for her arrest, it "evaporated" after she was taken to central breath testing. Mathis v. Coats, #2D09-193, 2010 Fla. App. Lexis 43 (Fla. App. 2nd Dist.).

False Arrest/Imprisonment: Warrant

     A detective investigating the theft of gas station gift cards from a school learned that an individual with the plaintiff's same name had stolen the cards, and, viewing a videotape of someone using the gift cards, believed that the person shown was the plaintiff. He was unable to contact the plaintiff or his employer and obtained an arrest warrant for him. After the arrest, it was learned that the plaintiff was not the real offender. The detective was entitled to qualified immunity in a false arrest lawsuit, since his application for the warrant was based on probable cause, given the facts known at the time. Brown v. King, #2008-CA-00165, 2009 Ohio App. Lexis 4210 (Ohio App. 5th Dist.).

Firearms Related: Intentional Use

     Officers were justified in using deadly force against a suspect they knew had been convicted of multiple felonies and had a history of fighting with police, after he dragged a hostage into a bathroom and began to kick through a wall. At the time, the suspect allegedly yelled that he was going to cut the hostage's throat in order to kill her. An officer fired one shot, hitting the suspect in the face, and fired a second shot, which killed him, several seconds to a minute later. The fact that it was disputed whether the suspect was incapacitated or standing and yelling at the time the officer fired the second, fatal, shot did not alter the result. The officer faced a dangerous and chaotic situation, and had to make split-second decisions, the court reasoned. Pethel v. West Virginia State Police, #08-2098, 2009 U.S. App. Lexis 28727 (Unpub. 4th Cir.).

     Three officers who were not shown to have fired any shots at the plaintiff were entitled to summary judgment since there was no showing that they participated in any conduct that resulted in the deprivation of any right. There was also no showing of any municipal policy or practice on which to base departmental liability, and summary judgment was also properly granted on state law claims of negligent training and supervision. Bryan v. Las Vegas Metropolitan Police Department, #08-15992, 2009 U.S. App. Lexis 22102 (Unpub. 9th Cir.).

First Amendment

     A group called "Critical Mass" held a mass bicycle ride on city streets with 150 participants, to promote the benefits of using bicycles for transportation. Several persons were arrested for disorderly conduct and parading without a permit. A New York court found that the parade permit law applied to any group of persons moving on public streets, including small groups, and was therefore unconstitutionally overbroad. It placed a burden on more speech and expressive conduct than required to satisfy legitimate goals of traffic and crowd control. Additionally, the law gave the police commissioner, acting on behalf of the city, improperly broad discretion to decide what events needed a permit. The convictions under the permit law were overturned, while the disorderly conduct convictions were upheld. People v. Beck, #570357/06, 2010 N.Y. Misc. Lexis 3 (A.D. 1st Dept.). [Note: While this is a criminal case, the principles announced would also be applicable in a civil lawsuit).

Immigrants and Immigration Issues

     Occupants of a van, containing between twelve and fourteen passengers, questioned by an officer following a traffic stop, claimed that he violated their civil rights by asking about their immigration status. The appeals court found that it was not clear that the brief questioning on the issue by the officer or the few minutes it took him to receive a response from immigration had resulted in the unreasonable extension of the time of the stop, or that he was required to have independent reasonable suspicion to make a brief inquiry into immigration status. The officer was entitled to qualified immunity on civil rights claims arising from asking the plaintiffs' status and contacting immigration, as well as requiring that the van go to the local immigration office, particularly as it appeared that many passengers in the van essentially admitted to being in the country illegally. The officer was also entitled to qualified immunity on claims under the Rhode Island Racial Profiling Prevention Act. Estrada v. Rhode Island, #09-1149, 2010 U.S. App. Lexis 2390 (1st Cir.).

Interrogation

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

     As a 14-year-old boy, one of the plaintiffs, now an adult, allegedly falsely confessed to murdering his younger sister, following a series of "coercive" and "grueling" interrogations. He and his accused 15-year-old accomplice, who also sued, were allegedly isolated and subjected to many hours and days of questioning, during which time they were lied to, threatened, cajoled, and pressured by teams of police officers. A federal appeals court overturned summary judgment for the defendant police detectives, finding that such tactics, if true, violated the Fifth Amendment, and also "shock the conscience" in violation of substantive due process. 'Psychological torture' is not an inapt description," the court stated. The defendants were not entitled to qualified immunity on claims relating to the interrogations, which allegedly resulted in coerced statements used in various proceedings. Qualified immunity applied, however, to claims relating to the arrest and search warrants, since the warrant applications, while arguably omitting some exculpatory information, did not demonstrate reckless disregard of the boys' rights or deliberate falsification. A vagrant who suffers from schizophrenia was later convicted of voluntary manslaughter in connection with the sister's death after the sister's DNA was found on one of his shirts. Crowe v. County of San Diego, #05-55467, 2010 U.S. App. Lexis 894 (9th Cir.).

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

     A man was charged with murdering his wife who had been raped and killed while jogging near her home. He was released after eight months and another man, a serial rapist, was convicted of the crime, based in part on DNA evidence. The freed man claimed that he had been subjected to excessive interrogation totaling 38 hours, deprived of sleep, harassed, and humiliated, all to try to coerce him into making a false confession, after which a confession was falsified, resulting in his incarceration while the defendants ignored or neglected exculpatory evidence in their possession. A jury awarded the plaintiff $5.2 million in damages, along with punitive damages against some defendants. (One punitive damage award was reduced by the trial judge, and other punitive damage awards were overturned). An intermediate Maryland appeals court has upheld this result. The court upheld the award of liability against the county based on a finding that there was a pattern and practice of coercive interrogation techniques, such as sleep deprivation, a manual advising officers that they could read a suspect his rights "or wait until after he admits," and past lengthy interrogations, including one lasting 72 hours, and violations of a rule requiring that a suspect be presented before a court within 24 hours, as required by state law. Prince Georges County Maryland v. Longtin #1818, 2010 Md. App. Lexis 9.

Malicious Prosecution

     The plaintiff claimed that he had been maliciously prosecuted for forgery. The appeals court noted that his arrest was made pursuant to a grand jury indictment, which established probable cause. The plaintiff also failed to show that a defendant deputy who testified before the grand jury maliciously withheld pertinent information, so the deputy was entitled to qualified immunity. Trois v. Long, #08-51231, 2010 U.S. App. Lexis 1397 (Unpub. 5th Cir.).

Negligent or Inadequate Hiring, Retention, and Supervision

     A police director was not entitled to qualified immunity on claims based on the actions of two officers who allegedly interrogated an arrestee for several hours, placed an ammonium packet under his nose, and kicked and punched him. Supervisory personnel can be held liable for constitutional violations carried out by subordinates, based on either personal participation or a causal connection between the supervisor's actions and the alleged violations. If the plaintiff's allegations were true, there had been numerous prior instances in which one of the officers used force on arrestees. These prior incidents, if they occurred, would have been enough to give the director notice of misconduct that was rampant enough to require corrective action, yet he allegedly failed to take any. Williams v. Santana, #09-10198, 2009 U.S. App. Lexis 18014 (Unpub. 11th Cir.).

Privacy

     After a motorist was decapitated in a car crash, two highway patrolmen allegedly e-mailed nine "gruesome" death pictures of the body to family members and friends on Halloween for their "shock value." The pictures later were posted on the Internet. The decedent's family sued for invasion of privacy and intentional infliction of emotional distress. A California appeals court found that the trial court improperly rejected the privacy claim, since the dissemination of the photos in this manner served no legitimate law enforcement purpose or public interest, appearing to be for the purpose of "pure morbidity and sensationalism." The plaintiffs also had a valid cause of action for negligent infliction of emotional distress, the court ruled, since it was foreseeable that the display of the pictures would cause them "devastating trauma." Catsouras v. Calif. Highway Patrol, #G039916, 2010 Cal. App. Lexis 113 (4th Dist.).

Public Protection: Arrestees

     After an officer received a report of a man running up and down a street hallucinating, he encountered the individual, who stated that he had smoked crack cocaine. EMTs summoned to the scene decided not to transport the man to a hospital, and he was instead placed under arrest. At the jail, he was examined by a nurse, restrained, tased, and subsequently released. He became unconscious, went into a coma from multi-organ failure due to the drug use, began to cough up blood and shake, and subsequently died eleven months later. The arresting officer was entitled to qualified immunity in a lawsuit for failing to provide the arrestee with needed medical attention, as he properly relied on the EMTs and jail nurse for their medical expertise. Spears v. Ruth, #09-5408, 2009 U.S. App. Lexis 26851 (6th Cir.).

Public Protection: Crime/Accident Victims

     A township and its emergency responders were not liable for allegedly failing to provide medical care to a car accident victim or for allegedly spreading false information that he was already dead, resulting in other emergency responders also not treating him, and his subsequent death. The decedent was not in custody at the time, as the defendants had not restrained him and the only restraint was the circumstances of the accident. The state-created danger doctrine did not apply, as his injuries were caused by the accident, not the defendants' actions. The responders, at the time, were at the scene of a multi-vehicle accident where they had to evaluate where their efforts would be most useful, and could not be held liable for how they made that determination. Willis v. Charter Township of Emmett, #08-2100, 2010 U.S. App. Lexis 194 (Unpub. 6th Cir.).

Public Protection: 911 Systems

     A village and its board could not be held liable for the death of a woman's husband based on the alleged electronic equipment failure of the 911 system. While state law imposes a duty to provide a 911 emergency call system, that duty is owed to the public at large, not to specific individuals. Donovan v. The Village of Ohio, #3-08-0776, 2010 Ill. App. Lexis 10 (3rd Dist.).

Racial Discrimination

     A racially and ethnically Korean motorist adequately alleged racial bias in the failure of two racially and ethnically Micronesian police officers to investigate a crime of intoxicated driving or to arrest a Micronesian motorist for DUI after his vehicle crashed into the Korean motorist's car. Both a failure to investigate and a failure to arrest, if based on racial bias, can violate the right to equal protection of law, which is clearly established. Elliot-Park v. Manglona, #08-16089, 2010 U.S. App. Lexis 723 (9th Cir.).

Search and Seizure: Home/Business

     The team leader of a SWAT team that participated in a raid during which a woman's son, sought for drug offenses, was shot and killed, was entitled to summary judgment on the claim that he should be liable for the death due to the allegedly no-knock way in which the search warrant was executed. Whether or not a knock-and-announce occurred, which was disputed, the team leader was entitled to qualified immunity because knowledge of the nature of the drug trafficking, combined with information that the son was armed, provided reasonable suspicion that there were exigent circumstances justifying a no-knock entry. Whittier v. Kobayashi, #08-12998, 2009 U.S. App. Lexis 19488 (11th Cir.).

Search and Seizure: Person

     A traveler was stopped and searched by customs inspectors at a South Florida airport because she allegedly fit the profile for alimentary canal drug smugglers. She allegedly acted in a nervous manner, carried no luggage, provided inconsistent reasons for her trip, failed to remember her husband's phone number or who bought her plane ticket, and was a pregnant black female traveling alone and returning from a brief stay in a known source country for illegal drugs, Jamaica. She also had notes in another person's handwriting that appeared to provide her with a "cover story." No x-rays were used, because of her pregnancy, and she was instead taken to a hospital for two days, given laxatives, and subjected to a pelvic exam, after which no drugs were found. The customs inspectors were entitled to qualified immunity, and acted reasonably under the Fourth Amendment. Because they acted under federal law in performing their official duties, Florida state law claims for assault, battery, and false imprisonment were barred by the Supremacy Clause of the U.S. Constitution, art.VI, cl. 2. Denson v. U.S.A., #05-15572, 2009 U.S. App. Lexis 15634 (11th Cir.).

Sexual Harassment

     A woman claimed that a police officer, after repeatedly urging her to have her husband arrested, then insisted that she ride in his vehicle, rather than her own, to go to the police station. In the car, he allegedly touched and caressed her hand, stating that he wanted to date her. Upholding the denial of summary judgment for the officer in the woman's lawsuit for violating her Fourth Amendment rights, a federal appeals court found that a seizure occurred, in that the woman was captive in a moving police car under the officer's control, and had a clearly established right to be free of his sexual overtures and repeated touches while in his control. Wilson v. Wilkins, #09-5416, 2010 U.S. App. Lexis 976 (Unpub. 6th Cir.).

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     Community Relations: Building Trust Between the Police and the Citizens They Serve: An Internal Affairs Promising Practices Guide for Local Law Enforcement, November 10, 2009. This guide is for law enforcement executives who strive to prevent misconduct within their departments, properly address misconduct, should it occur, and build and maintain community trust and confidence. The Office of Community Oriented Policing Services (the COPS Office), U.S. Department of Justice and the International Association of Chiefs of Police (IACP) partnered to create the publication.

     Gangs: A new National League of Cities toolkit on "Preventing Gang Violence and Building Communities Where Young People Thrive" is now available. (2009). The toolkit draws on lessons learned over the past three years from the California Cities Gang Prevention Network. The 13-city network was formed in 2007.

     Statistics: Crime Against People with Disabilities, 2007. Presents the first findings about non-fatal violent and property crime experienced by persons with disabilities, based on the National Crime Victimization Survey (NCVS). The report includes data on non-fatal violent victimization (rape/sexual assault, robbery, aggravated and simple assault) and property crime (burglary, motor vehicle theft, theft) against persons with disabilities in 2007. It compares the victimization experience of persons with and without disabilities, using population estimates based on the Census Bureau’s American Community Survey (ACS). Data are presented on victim and crime characteristics of persons with and without disabilities, including age, race and gender distribution; offender weapon use; victim injuries; and reporting to the police. Highlights include the following: Persons with disabilities were victims of about 47,000 rapes, 79,000 robberies, 114,000 aggravated assaults, and 476,000 simple assaults. Age-adjusted rate of nonfatal violent crime against persons with disabilities was 1.5 times higher than the rate for persons without disabilities. Females with a disability had a higher victimization rate than males with a disability; males had a higher rate than females among those without a disability. 10/09 NCJ 227814.

     Terrorism: A Review of the Federal Bureau of Investigation's Use of Exigent Letters and Other Informal Requests for Telephone Records, January 2010. A report by the U.S. Department of Justice's Inspector General.

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

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