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Assault and Battery: Physical

     An arrestee's conviction for resisting arrest contradicted his assertion that he did not oppose being taken into custody. Any claim that no force was justified against him as he offered no resistance was therefore barred, but he could pursue claims that excessive force was used to effect his custody, and that he was beaten severely after he was taken into custody, since those claims did not contradict his conviction. Evans v. Poskon, #09-3140, 2010 U.S. App. Lexis 7846 (7th Cir.).

     A man accused two sheriff's deputies who were serving as court security officers of false arrest and excessive use of force in taking him into custody for disorderly conduct when he learned that his motion to vacate his parking ticket conviction was not scheduled to be heard by the court. The officers' motion for qualified immunity was denied by the appeals court since there were disputed issues of fact as to whether the plaintiff had been disruptive, and, if so, how much, as well as whether or not he refused to stop resisting once he was handcuffed. There were questions whether the officers had probable cause to arrest the plaintiff or to use force against hum. Levan v. George, #09-3223, 2010 U.S. App. Lexis 8787 (7th Cir.).

     A federal appeals court upheld a jury verdict in favor of a deputy sheriff in an excessive force lawsuit. It rejected arguments that a pattern jury instruction on the use of excessive force under the Fourth Amendment improperly allowed the jury to believe that the plaintiff's version of events had transpired but still rule for the deputy on the basis of failure to show that he acted with subjective malice. The instruction instead focused on a requirement that the deputy had to use force intentionally applied, instead of occurring as the result of accident, and did not mention subjective intent at all. Hernandez v. Mascara, #09-11962, 2010 U.S. App. Lexis 4399 (Unpub. 11th Cir.).

Attorneys' Fees: For Plaintiffs

     A federal statute, 42 U.S.C. Sec. 1988, provides for the awarding of a reasonable attorney's fee for the prevailing parties in federal civil rights lawsuits. In this case, concerning alleged problems with the foster care system in Georgia, the plaintiffs sought an award of $14 million in attorneys' fees--half of which was based on a "lodestone," (the number of hours worked by lawyers and their employees, multiplied by prevailing hourly rates in the community), and the other half of which represented a requested fee enhancement for purportedly superior work and results. The trial court, however, awarded fees of $10.3 million, reducing the number of hours because of "vague" billing records, but enhancing the award by 75% for superior work and results. A federal appeals court approved that result. The U.S. Supreme Court reversed, holding that the calculation of an attorneys' fee may be increased due to superior performance, "but only in extraordinary circumstances." The factors to be considered are spelled out by the Court's decision, and the Court held that the trial court in this case failed to adequately justify its 75% fee enhancement. The trial court in such cases must provide a "reasonably specific explanation for all aspects of a fee determination, including any enhancement." Perdue v. Kenny A., #08–970, 2010 U.S. Lexis 3481. Editor's Note: While this case did not involve law enforcement defendants, the reasoning would apply in cases involving such defendants.

Defenses: Qualified Immunity

     A Cincinnati man sued the city, a police officer, and the manager of a city swimming pool, claiming that that they violated his right to due process of law by taking away his pool token and banning him from the premises of all municipal recreation facilities. These actions were taken, the defendants contended, when the pool manager discovered the plaintiff engaging in inappropriate "child watching" at the pool, after which the officer took away the pool token and informed him he was now barred from city properties. Even if the plaintiff had a property interest in his $10 pool token, the appeals court commented, that interest was minimal, and insufficient to raise a due process claim. The court rejected, however, the officer's argument that he was entitled to qualified immunity for banning the plaintiff in this fashion from all city recreational facilities, as there was definitely a protected liberty interest in being able to remain in a public place. A reasonable officer should have known that he could not, without due process of law, bar a person who had not committed a crime or violated a regulation of access to public property. The court rejected the argument that the officer was immune because he only followed orders of the pool manager. Kennedy v. City of Cincinnati, #09-3089, 2010 U.S. App. Lexis 2960 (6th Cir.).

Domestic Violence and Child Abuse

     A woman whose home daycare business was subjected to an investigation sued two state childcare agency employees and a county deputy for alleged violations of her constitutional rights. The court found that there was probable cause for the suspension of the business's license based on a complaint that her son had sexually assaulted his daughter and the daughter's friend in the home. This probable cause existed regardless of the deputy's alleged retaliation against the business for failing to cooperate with his investigation. Because the alleged retaliation did not cause the license suspension, the deputy was entitled to qualified immunity. Because the plaintiff voluntarily relinquished her daycare license, her due process claims against the childcare agency employees were barred. McBeth v. Himes, #07-1165, 2010 U.S. App. Lexis 4893 (10th Cir.).

     Police officers took a man's intoxicated girlfriend from his home after she refused demands that she leave, gave her a ticket for trespassing, and released her to her mother. Shortly after that, she returned to her boyfriend's home and fatally shot him, as well as injuring two others present at the time. The injured persons, and the decedent's estate claimed that police officers acted improperly in arresting the girlfriend for trespassing instead of for domestic violence. A domestic violence arrest would have required that she be kept in custody for 29 hours, the plaintiffs argued, preventing the shootings. Upholding summary judgment for the officers, a federal appeals court ruled that the officers had not created or increased the danger to the decedent and other plaintiffs. The court also rejected equal protection and due process claims. Estate of Smithers v. City of Flint, #09-1164, 2010 U.S. App. Lexis 8201 (6th Cir.).

     A woman, on her own behalf, and on behalf of her children, sued the city of New York for damages for injuries she suffered when she was shot by her former boyfriend. The attack took place hours after a police officer, who knew that the woman had a domestic violence order of protection against the ex-boyfriend, allegedly told her that officers would immediately arrest him. The plaintiff claimed that this created a "special relationship" with her, amounting to an exception to the general rule that police have no particular duty to protect an individual against violence by another private person. Rejecting this claim of a special relationship giving rise to a special duty to provide adequate protection, an intermediate state appeals court found that the plaintiff failed to prove that she justifiably relied on the alleged assurance of protection. Her reliance, the court found, was based on little more than mere belief, as there was no visible police conduct of any sort after the officer told her there would be an arrest. Indeed, the plaintiff herself knew that if officers were to attempt to arrest the boyfriend, they would first need some time to find him. Valdez v. City of New York, #16507/97, 2010 N.Y. App. Div. Lexis 3408 (1st Dept.).

Firearms Related: Intentional Use

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

     A police officer did not use excessive force in shooting and killing a fifteen-year-old boy who modified a plastic air pistol to look like a real weapon and brought it to school. The decedent pointed the weapon directly at the officer, and refused to comply with the officer's orders to drop the weapon, so it was reasonable for the officer to believe he was in danger. Penley v. Eslinger, #09-13092, 2010 U.S. App. Lexis 9106 (11th Cir.).

     After two men robbed a restaurant, assaulting several employees, and used an employee as a hostage, they were shot by police when they exited the premises. One of them sued police officers for alleged excessive use of force and failure to intervene. Three officers shot at him, and he sustained two gunshot wounds. He claimed that he had been running away with his arms raised and slowed down to face the officers. Even if this were true, a federal appeals court held, it did not mean that the officers acted unreasonably in shooting him, since they could still reasonably believe that he posed an immediate threat to them and to the public at the time. Gilbert v. French, #08-20296, 2010 U.S. App. Lexis 2202 (Unpub. 5th Cir.).

Firearms Related: Second Amendment

     An intermediate Colorado appeals court reinstated a lawsuit challenging a state university policy banning the carrying of concealed weapons on campus by students who have state concealed gun permits. The lawsuit contends that the policy violates state law, including the state constitutional provision providing an individual right to keep and bear arms. The court noted in its opinion that nothing in the statute specifies public university campuses as an exception to the concealed gun permits. Students for Concealed Carry on Campus, LLC v. Regents of the University of Colorado, #09-CA-1230, 2010 Colo. App. Lexis 541.

First Amendment

     A small group of people gathered in downtown Minneapolis while the city was hosting a weeklong summer festival. They planned to protest the "mindless nature" of "consumer culture" by walking through the downtown area dressed as "zombies," wearing white powder and fake blood on their faces and ark makeup around their eyes. They danced down the street, playing music on their IPods, and broadcast announcements such as "brain cleanup in Aisle 5" by speaking into a wireless phone handset. Police received an anonymous 911 call complaining about the group and the noise they were making. Officers asked them to turn down their music and keep their distance from bystanders. Later, when the group stopped dancing and gathered on a sidewalk, officers asked them for identification, and when most of them could not produce any, told them they were being taken to the police station to be identified and possibly booked for disorderly conduct. Once there, they were placed in a holding cell, questioned, and searched. They were also booked on charges of displaying simulated weapons of mass destruction, a felony offense punishable by ten years imprisonment, even though it was determined that the bags they were carrying, containing various electronic equipment, did not contain explosives. They were kept in custody for two nights and released. A federal appeals court found that the officers were not entitled to summary judgment on some of the plaintiffs' claims because they did not have probable cause to arrest the plaintiffs for disorderly conduct. It was also clearly established the court stated, that a reasonable officer would have known that there was no probable cause to arrest the plaintiffs for engaging in protected expressive conduct. Baribeau v. Minneapolis, #08-3165, 596 F.3d 465 (8th Cir. 2010).

     A federal criminal statute that outlawed the selling of videos depicting cruelty to animals when the underlying conduct was illegal under applicable state or federal law violated the First Amendment. It was constitutionally overbroad and regulated expression based on its content, which made it presumptively invalid. The U.S. Supreme Court declined to carve out another category of speech as unprotected based on what was depicted and the nature of the underlying conduct, such as it had created for child pornography. The Court also rejected the argument that the statute was saved by a requirement that the banned videos lack “serious religious, political, scientific, educational, journalistic, historical, or artistic value," as the First Amendment protects not only speech with such characteristics. "The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.” The case itself involved the application of the statute to videos depicting dog fights. U.S. v. Stevens, #08–769, 2010 U.S. Lexis 3478.

Governmental Liability: Training

     The U.S. Supreme Court has granted review in a case in which a federal appeals court upheld an award of $14 million in damages and approximately $1 million in attorneys' fees to a former death-row inmate whose murder and robbery convictions were overturned. Prosecutors in the case were found to have improperly withheld blood evidence that was exculpatory during the plaintiff's trial. The appeals court found that the plaintiff showed that training about the obligation to disclose exculpatory evidence was obviously necessary, and that it was predictable that failing to provide such training could result in violating the constitutional rights of defendants in criminal proceedings. The plaintiff was not required to show that a pattern of similar violations took place. The fact that an assistant district attorney violated the district attorney's policy in intentionally hiding the blood evidence did not establish that the district attorney was not deliberately indifferent in failing to provide the required training. Thompson v. Connick, #07-30443, 578 F.3d 293 (5th Cir.2009), cert. granted sub nom., Connick v. Thompson, #09-571, 2010 U.S. Lexis 2612.

Homeless Persons

     A homeless man claimed that he was unlawfully detained and arrested by two Massachusetts state troopers and a state police officer for trespassing in a public park after it closed at night. Upholding summary judgment for the defendants, a federal appeals court found that it was reasonable for them to suspect, at 10:30 p.m., that the plaintiff was in a restricted area and therefore trespassing, based on signs designating the closing time of the park. Additionally, the area was known by the defendants to be one in which crimes had been reported, and the plaintiff's attempts to avoid contact with the officers, combined with his inability or unwillingness to provide his Social Security number, gave the officers reasonable grounds to investigate his past criminal history. This reasonable suspicion justified his one-hour detention for a warrant check, and the Florida state warrant found was sufficient to give them probable cause for his arrest. Foley v. Kiely, #09-1250, 2010 U.S. App. Lexis 7752 (1st Cir.).

Insurance

     An arrestee convicted of murder whose conviction was subsequently overturned sued the state's attorney's office and the former state's attorney for damages. The lawsuit claimed that the former state's attorney, in cooperation with police officers, "framed" and falsely prosecuted the plaintiff, coercing and threatening two key witnesses, inducing them to testify falsely, and concealing exculpatory evidence. A federal appeals court held that the county's obligation, under Illinois state law, to pay judgments against the former state's attorney or the state's attorney's office did not constitute an "occurrence" or "accident" under the terms of commercial general liability and law enforcement insurance policies issued to the county. The insurer, therefore, has no duty to defend or indemnify the county. Nat'l Cas. Co. v. McFatridge, #09-1497, 2010 U.S. App. Lexis 8762 (7th Cir.).

Landlord-Tenant Conflicts

     A tenant was found on the premises of an apartment she had been evicted from and was arrested for criminal trespass. The tenant, being legally blind, stated that she needed to go down the steps slowly, but one of the officers allegedly repeatedly told her to hurry, and she felt a shove or push from him, falling to the bottom of the landing, after which she fell twice more and the officer angrily tried to raise her by pulling on her handcuffs. The officer subsequently allegedly made a statement to her, "no rallies for you today," purportedly referring to her involvement in rallies against alleged police brutality. She sued the city for false arrest, false imprisonment, negligence, and violation of federal civil rights. The state trial court dismissed false arrest, false imprisonment, and malicious prosecution claims, which were upheld on appeal, as the police had probable cause, which was a complete defense to these claims. A jury awarded the tenant $250,000 for violation of civil rights, $600,000 for past pain and suffering, and $500,000 for future pain and suffering. The plaintiff claimed that an officer violated her civil rights by deciding not to issue her a desk appearance ticket, but the court noted that she herself declined the officer's subsequent offer to give her a desk appearance ticket since she though that the officers should transport her to a hospital instead of releasing her to go there herself. The appeals court, therefore, overturned the civil rights award, and ordered a new trial on the pain and suffering awards, unless the plaintiff agreed to their reduction to $300,000 for past pain and suffering and $150,000 for future pain and suffering, as the amounts awarded by the jury were excessive. Young v. City of New York, #2248, 25645/03, 2010 N.Y. App. Div. Lexis 2647 (1st Dept.).

Malicious Prosecution

     A husband and wife operated a bail bond company. A number of law enforcement officials and employees investigated the couple based on allegations of criminal activities and information that a suspect may have paid for his bail bond with the proceeds of a bank robbery. The investigation culminated in the issuance of search and arrest warrants, although criminal charges were subsequently dismissed. The couple sued for illegal search and seizure, falsified evidence, and failure to investigate the truth of the charges against them. An appeals court found that only a malicious prosecution claim was timely, with all other claims barred by a two-year state statute of limitations. The malicious prosecution claims, however, were frivolous, since there was no evidence of the fabrication of evidence or the use of persons of questionable veracity as agents of the investigation. The defendants were therefore entitled to an award of attorneys' fees and the rejection of all claims was upheld. Thorpe v. Ancell, #06-1404, 2010 U.S. App. Lexis 4195 (Unpub. 10th Cir.).

     Two police officers arrested a woman and her mother, claiming that the woman reached into their squad car, grabbed an officer's shirt, and was otherwise disorderly, and that the mother was also disorderly and interfered with her daughter's arrest. The arrestees claimed that they did nothing, but that the officers fabricated a story to support their arrests and the prosecution of the woman, who was acquitted. After trial, a jury returned a verdict for the officers. A federal appeals court, however, found that this result could not be upheld because the jury was exposed to a "significant amount of erroneously admitted and highly prejudicial" testimony, including opinions by a police lieutenant and two assistant district attorneys on the officers' credibility, and on the issue of probable cause for the arrests and prosecution. "The admission of these statements violated bedrock principles of evidence law that prohibit witnesses (a) from vouching for other witnesses, (b) from testifying in the form of legal conclusions, and (c) from interpreting evidence that jurors can equally well analyze on their own." A new trial was therefore granted. Cameron v. N.Y., #08-5937, 598 F.3d 50 (2nd Cir. 2010).

Police Plaintiff: Firefighters' Rule

     The highest court in New York held that the "firefighter rule," which bars negligence recovery by firefighters and police officers for injuries that result from risks associated with their employment required dismissal of a lawsuit in which a police officer was injured by the negligent operation of a security device placed in the parking lot of police headquarters, a gate designed to thwart car bombs and similar attacks. In the event of a terrorist attack, the gate can be raised with enough force to lift a car off the ground. For some reason, this aspect of the gate activated when the plaintiff was arriving for his work shift, injuring him. "The cause of the injury to plaintiff here - a high security device protecting the police headquarters parking lot - was plainly a risk 'associated with the particular dangers inherent' in police work." Wadler v. City of N.Y., #24, 2010 N.Y. Lexis 30.

     While a city police officer was helping the county sheriff's department with a drug interdiction operation, he was attacked by a suspect's dog, suffering injuries. The officer pinned the dog to the ground and an investigator shot it, but a second shot hit not just the dog but also the officer's hand, almost amputating his right thumb. The officer and his wife sued the county and sheriff's investigators for negligence and under a state statute. An intermediate appeals court found that the city and county were clearly working together on the anti-drug operation, so that claims against the county and investigators were barred by the firefighters' rule. Connery v. County of Albany, #508265, 2010 N.Y. App. Div. Lexis 2634 (3rd Dept.).

Search and Seizure: Home/Business

     A woman claimed that police violated her rights when they entered her home without a warrant and detained her son. The incident happened following two bomb threats being called in to a high school by an anonymous caller. The school was under lockdown for security purposes, and an earlier call had threatened a shooting at the school. Police suspected, based on information that they had received, that the woman's son had made the bomb threats and was involved in gang activity, and that the home was a gang hangout. When officers discovered that the threatening phone calls had not been made from either the house phone or the boy's cell phone, they left the house and stopped detaining the son. A federal appeals court ruled that the officers were entitled to qualified immunity because they reasonably acted on what they believed to be exigent circumstances, an urgent need to protect students at the high school against a possible bomb threat. Armijo v. Peterson, #09-2114 2010 U.S. App. Lexis 7572 (10th Cir.).

     Following the purchase of narcotics from a suspect by undercover informants, one seller began moving at a fast pace back to his apartment. Officers went to the building, and heard a door slam at the far end of the hallway. They encountered a scent of burning marijuana, and decided to attempt a warrantless entry into the apartment on the left of the hallway, rather than the right, on that basis. The officers knocked and announced their presence, but believed that sounds coming from inside the apartment might means that the fleeing drug seller was now destroying physical evidence within, so they entered. They saw large quantities of marijuana and cocaine in plain view and arrested occupants of the apartment. Ruling that the evidence obtained should be suppressed, the Kentucky Supreme Court stated that the officers did not have proper exigent circumstances to justify a warrantless entry into the apartment. The court reasoned that the officers were not in hot pursuit of a fleeing suspect because the fleeing suspect did not have awareness that he was being pursued. The court further believed that the warrantless entry was not justified by the imminent destruction of evidence, and that, indeed, by knocking on the door and announcing their presence, the officers "created any resulting emergency" and the possible destruction of evidence. The court believed that the proper thing to do would have been for officers to seek and obtain a search warrant. King v. Commonwealth, #2008-SC-00274, 302 S.W.3d 649 (Ky. 2010).

     An officer received an anonymous call indicating that drug sales were taking place at an apartment. On two occasions, the officer then went to the building, and a drug sniffing dog alerted to the presence of narcotics on the outside of the apartment door. Based on this, he obtained a search warrant. No drugs were found during the ensuing search. During the search the officers drew their weapons and forced the married couple who lived there to get on the floor. The couple's son was also present and was detained. A federal appeals court found that the plaintiffs adequately stated claims for excessive use of force in the execution of the search warrant, as well as continuing the residents' interrogation and the use of force against them after it had become plain that no drugs were present. The officers allegedly kept the plaintiffs at gunpoint and handcuffed for over an hour, even though they prepared a confidential operation plan for the raid stating that no firearms were anticipated to be found in the apartment. Binay v. Bettendorf, #09-1249, 010 U.S. App. Lexis 8084 (6th Cir.).

Search and Seizure: Search Warrants

     The highest court in New York has ruled that under state law police cannot use general search warrants that are issued for a specific location to search "all persons present" unless there is probable cause to believe that a particular person is involved in a crime. The ruling, which was unanimous, appears to end what reportedly was a frequent practice in the state. The court ruled in a case involving a search warrant used in a drug raid on a home, and found that the mandate in the warrant to search "all persons present" did not suffice to justify the strip search of a man found on the premises. The court ordered the dismissal of drug charges that were lodged against him following the search. The court also commented that even if the warrant had sufficed to give the police probable cause to search the man, the strip search, under these circumstances, was so intrusive that it violated both the U.S. and New York Constitutions. People v. Mothersell, #43, 2010 N.Y. Lexis 59.

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     Crime Victims: "What You Can Do If You Are a Victim of Crime" explains the rights of victims of crime and the compensation and assistance resources available to them. The recently revised brochure also includes a list of national organizations that help victims find information or obtain referrals. (Office for Victims of Crime).

     Interrogation: "Confessions and the Constitution," by Carl A. Benoit, 70 FBI Law Enforcement Bulletin No. 4, pgs. 23-32 (April 2010). "Law enforcement officers must understand the implications of obtaining confessions in violation of constitutional safeguards."

     School Violence: "Campus Attacks: Targeted Violence Affecting Institutions of Higher Education," a report b the U.S. Secret Service, U.S. Dept. of Education, and FBI. (April 2010). Analyzes 272 cases of violence on college campuses in the U.S.

     Mentally Ill Persons: "Improving Responses to People with Mental Illnesses: Tailoring Law Enforcement Initiatives to Individual Jurisdictions," BJA-Sponsored, March 2010, NCJ 229713. (68 pages).

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

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