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Assault and Battery: Physical

     An arrestee claimed that a deputy used excessive force while arresting him for stealing a purse, hitting him in the head with a gun and creating a wound that took 21 stitches to close. A federal appeals court upheld a jury verdict for the defendant, ruling that the deputy could be found to have acted reasonably, as the arrestee had refused to obey orders to stop running and get on the ground. The deputy could have believed that the force he used was necessary because the arrestee posed a danger to himself and members of the public and might have been armed. Zaken v. Kelley, #09-10631, 2010 U.S. App. Lexis 6886 (Unpub. 11th Cir.).

     The city of Portland, Oregon has reached a $1.6 million settlement in a wrongful death lawsuit filed by the family of a mentally ill man who died after a confrontation with police for urinating on a sidewalk in which they allegedly threw him face-first into a concrete sidewalk, further assaulted him, and covered up the incident, to which there were numerous witnesses. An officer claimed to paramedics and other witnesses that he had found cocaine on the suspect, when he allegedly knew that what he bagged as evidence were bread crumbs. The city intended to argue at trial, before the settlement was reached, that he died of excited delirium, and that fractures to his ribs were the result of three CPR attempts by police and ambulance personnel. The county previously reached a $925,000 settlement with the plaintiffs, and an ambulance company settled claims against it for $600,000. Chasse v. Humphreys, #3:07-cv-00189, U.S. Dist. Ct. (D. Ore.). Court dismissal order upon settlement. News article on settlement, Portland News May 11, 2010. Plaintiff family's press release.

Assault and Battery: Stun Guns/Tasers

     An arrestee stated that he had been sitting in his truck outside a wedding with the groom when police started to spray mace into a crowd that had gathered. He called to report this and the police dispatcher allegedly told officers on the scene that he was on the phone "bothering" her. Officers then pulled him from his truck, threw him on the ground face first, and started kicking him. One officer shocked him twice with a Taser. Upholding the denial of qualified immunity to the officer who used the Taser, a federal appeals court found that, if the facts were as alleged, and the plaintiff was not resisting arrest, an officer could not reasonably have thought that the use of the Taser was legal under the circumstances. Kijowski v. City of Niles. #09-3764, 2010 U.S. App. Lexis 7222 (Unpub. 6th Cir.).

     The City of Fort Worth, Texas has reached a $2 million settlement with the family of a man with a history of mental illness who died after being shocked two times with a Taser by one of three police officers attempting to restrain him in front of his home after receiving complaints that he was creating a disturbance. The officers surrounded the man, and one of them drew and fired her Taser, just as the other two officers were allegedly about to take the man down. The two darts struck him on the right side of his lower neck, and in the chest. The officer allegedly mistakenly held the trigger for 49 seconds, later indicating that she was unaware that the darts would continue to shock the man if she failed to release the trigger, according to the medical examiner's report. When the man did not comply with orders to put his hands behind his back, she released the trigger for a second and then pulled it a second time, with the second shock lasting five seconds, after which the man stopped breathing and was pronounced dead. Jacobs v. City of Fort Worth, #4:09-cv-00513, U.S. Dist. Ct. (N.D. Tex. May 2010). Complaint.

Business Permits and Regulations

     A book collector challenged a city's interpretation of its ordinance requiring that secondhand book dealers apply for and obtain a police permit. He argued that he only bought books for his enjoyment, as a hobby, and was not engaged in reselling them for profit. The court agreed, finding that the ordinance in question was aimed at those engaged in buying and selling books as a business, not at hobbyists like the plaintiff. Under the city's interpretation of its ordinance, any person who bought a secondhand book would have to obtain a police permit, which would be "absurd." The trial court's judgment on the pleadings for the city was reversed. Hopp v. City of Los Angeles, #B215265, 2010 Cal. App. Lexis 473 (2nd Dist.).

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

    A man was prosecuted by the U.S. government for conspiring to provide material support or resources to terrorists and related charges. He sued, claiming that the prosecutor had maliciously and intentionally withheld and failed to disclose exculpatory evidence. Finding that these claims only related to the nondisclosure in connection with the prosecution, and not with the underlying investigation, a federal appeals court held that the prosecutor was entitled to absolute immunity from liability. Koubriti v. Convertino, #09-1016, 2010 U.S. App. Lexis 2283 (6th Cir.).

False Arrest/Imprisonment: No Warrant

     A state trooper stopped a car for a burned out license plate light. He decided to give the motorist a verbal warning and show him the problem. As the driver exited the vehicle and started to walk towards the car's rear, the trooper observed a bulge in his pocket, which he determined, during further investigation, to be cocaine. Charges were later dismissed when the drugs were suppressed as evidence, and the motorist sued the state for false arrest, false imprisonment, and malicious prosecution. Rejecting these claim, the New York Court of Claims found that the trooper lawfully stopped the vehicle for a violation, did not prolong the detention excessively, and made his observations that led to the discovery of the drugs during a lawful detention. Anderson v. The State of New York, #113255, 2010 N.Y. Misc. Lexis 963 (Ct. of Claims).

     Persons arrested and prosecuted for attempting to enter a federal building with objects resembling police badges filed a lawsuit challenging their arrests and prosecutions under a city ordinance and state statute prohibiting the unauthorized possession of items that resembled symbols of police authority, such as uniforms and badges. A federal appeals court found that any First Amendment claims had been waived because they were not previously raised, and that, in addition, the facts alleged did not support any such claims. The arrests and prosecutions were supported by probable cause. In addition, the court rejected arguments that the city ordinance at issue was unconstitutionally vague. Dickerson v. Napolitano, #09-2167, 2010 U.S. App. Lexis 9887 (2nd Cir.).

     A traveler was arrested at a New Jersey airport by Port Authority of New York and New Jersey police for violating New Jersey gun laws by possessing a handgun and ammunition. The traveler, who had flown to New Jersey from Utah, had a handgun and ammunition in separate locked cases in his checked luggage. Because of a delay, he had to stay overnight in a hotel in New Jersey, and he retrieved his checked luggage before doing so. The next day, when he attempted to fly on to his destination in Pennsylvania, the gun and ammunition were detected during x-raying and he was arrested. He had declared the presence of the gun and ammunition when checking his bags in Utah, where he was licensed for the weapon. He sued for false arrest, claiming that the arrest was unlawful under 18 U.S.C. Sec. 926A, which allows a licensed gun owner to travel from one state through a second, en route to a third, provided that he is licensed to carry the weapon in the first and third state and that it is not readily accessible to him during transport, such as checked in luggage, or locked in a compartment in a vehicle. Upholding summary judgment for the defendants, a federal appeals court found that the plaintiff's conduct did not meet the requirements of the federal statute, since he retrieved his luggage containing the gun and ammunition before going to his New Jersey hotel, and had with him the keys to the locked containers, making the gun and ammunition readily accessible to him, whether or not he actually accessed them. Revell v. Erickson, #09-2029, 598 F.3d 128 (3rd Cir. 2010).

False Arrest/Imprisonment: Warrant

     Police officers, seeking a person named "Jacquelyn O. Walker" sought under a capias warrant issued in a civil case, arrested a person with a similar name, "Jacquelyn R. Walker," and took her to a jail where she was held for an extended period of time. They allegedly failed to follow departmental procedures requiring officers to carefully verify the identity of persons taken into custody on capias warrants, in order to avoid such problems. In a false arrest lawsuit, an intermediate Ohio appeals court rejected defenses of sovereign immunity for the defendant city and qualified immunity for the defendant arresting officers. It found that the alleged ignoring of departmental procedures could be "reckless or wanton misconduct," constituting an exception to the otherwise applicable state immunity statutes. Claims against the county sheriff's department, however, were dismissed, as it followed normal jail booking procedures. Walker v. City of Toledo, #09-1004, 923 N.E.2d 688 (Ohio App. 2009).

     The fact that a prosecutor and judge had approved the issuance of an arrest warrant did not insulate a deputy from liability for signing the affidavit, which was the basis of the warrant. Under the warrant, the plaintiff was arrested on charges of engaging in a fraudulent land sale, but he claimed that, at the time he signed the affidavit, the deputy had evidence that clearly showed that the crime was not committed by him, but allegedly by another man with the same first and last name. Fletcher v. Burkhalter, #09-7003, 2010 U.S. App. Lexis 10480 (10th Cir.).

False Arrest/Imprisonment: Unlawful Detention

    The City of Chicago has approved a $15.5 million settlement of a federal class action civil rights lawsuit claiming that officers engaged in abuse and unlawful detention practices in the handling of suspects. The lawsuit claimed an "institutionalized system of police torture," and included allegations of unlawful arrests without warrants, the unnecessary shackling of suspects to walls or benches for prolonged periods of time, and the denial of food and water or opportunities to use a bathroom. The class was composed of persons detained overnight by Chicago police from March 1999 through March of 2010. Over 500,000 people could be eligible to share in the settlement, according to news reports, with most receiving between $90 and $3,000. The city will pay $15 million towards the settlement with the rest paid by an insurer. Up to $5 million in fees will go to the plaintiffs' attorneys in fees and costs. Dunn v. City of Chicago, #04-CV-6804, U.S. Dist. Ct. (N.D. Ill. May, 2010). Complaint.

Firearms Related: Intentional Use

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

     In a lawsuit filed by a man shot by a Bureau of Alcohol Tobacco and Firearms (ATF) agent, a federal appeals court noted that a court considering the issue of summary judgment on the basis of qualified immunity must ordinarily consider disputed facts from the perspective most favorable to the plaintiff. That was not true, however, when there is clear contrary video evidence of the incident at issue. The man shot by the ATF agent had been an occupant of a vehicle transporting crack cocaine for a planned sale, and the confrontation, which involved ATF agents dressed in plainclothes, as well as a uniformed state trooper, occurred in a parking lot, and the occupants attempted to drive off, at one point placing one of the agents in possible danger. The driver was shot in the head and the plaintiff suffered a gunshot wound to his leg. The appeals court noted that the use of deadly force is justified when an officer is threatened by a weapon, which may include a vehicle attempting to run over an officer, as arguably occurred here. The agent argued that the car was accelerating towards him and that he had no way to escape, justifying the use of deadly force. While there was a dispute about the speed of the car, this could be observed on the marked patrol car's videotape. While the plaintiff claimed that the car slowed or perhaps even stopped, the court found that this was contradicted by the video evidence. Indeed, the vehicle did strike the agent. Under these circumstances, the officer's use of deadly force was reasonable. The court rejected the plaintiff's argument that the vehicle occupants were "harmless" individuals who had merely been stopped for a routine traffic violation, since the driver engaged in an assault on the agents, narrowly missing one with his car and actually striking the other. Thomas v. Durastanti, #07-3343, 2010 U.S. App. Lexis 11458 (10th Cir.).

First Amendment

     Overturning the issuance of an injunction against the enforcement of a city ordinance prohibiting the act of standing on a highway or street for the purpose of asking for business, contributions, or employment from vehicle occupants, a federal appeals court found no violation of First Amendment rights, but rather a valid content neutral time, place, or manner restriction justified by a significant governmental interest in traffic flow and safety, and narrowly tailored to serve those interests. Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, #06-55750, 2010 U.S. App. Lexis 11733 (9th Cir.).

Malicious Prosecution

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

     A man was prosecuted and convicted of molesting his adopted daughter. After the conviction was overturned, he was reprosecuted and acquitted. He sued his ex-wife, as well as his ex-wife's current husband, who was the police officer who investigated the molestation charge, claiming conspiracy to violate his rights and suppression of exculpatory evidence. The jury found that the defendant officer conspired with his wife (the plaintiff's ex-wife) to violate the plaintiff's due process rights. The officer allegedly steered the investigation to benefit his wife. He allegedly failed to tell prosecutors the "full extent" of his relationship with the plaintiff's ex-wife, and also allegedly did not preserve the purported victim's diary, which did not support the molestation claim. The jury awarded $14 million in actual damages against both defendants, and punitive damages of $1 million each against both of them, for a total of $16 million. A federal appeals court upheld this result, rejecting arguments that the amount of punitive damages was excessive, since they amounted to only 7% of the compensatory damages. White v. McKinley, #09-1945, 2010 U.S. App. Lexis 9980 (8th Cir.). Editor's note: In a prior decision in the case, the appeals court held that the officer was not entitled to qualified immunity, since no reasonable officer could have believed that his alleged actions were proper. White v. McKinley, #07-1002, 514 F.3d 807 (8th Cir. 2008).

Negligence: Vehicle Related

     An officer and the city that employed him were both entitled to immunity under Ohio law in a lawsuit seeking damages by a motorist whose car the officer collided with, causing her serious injuries. At the time of the accident, the officer was engaged in responding to an emergency, an accident, and he clearly slowed down as he entered the intersection, and warned other motorists by activating his sirens and overhead lights, as well as checking the intersection for traffic. Under the circumstances, there was insufficient evidence to show that he acted willfully and wantonly, as required to impose liability in the face of the immunity statutes. Browning v. City of Fostoria, #13-09-28, 2010 Ohio App. Lexis 1771 (3rd Dist.).

Police Plaintiff: Vehicle Related

     A police officer fell and was injured while climbing down an embankment to reach a vehicle that had had an accident when the driver swerved to avoid a deer on the road, resulting in the vehicle leaving the road and coming to a stop on its side at the bottom. Seeking to see if vehicle occupants were injured and needed assistance, he did not then know that the two occupants, a newspaper delivery person and an assistant district sales manager, had left the scene, leaving a note stating that they had done so and would later retrieve the vehicle. Granting dismissal of the officer's personal injury claims against the newspaper distribution company, a New York intermediate appeals court found that the vehicle occupants, after the accident, had no duty to remain on the scene or to contact police, and the distribution company also had no duty of care to the officer. Mojica v. Gannett Company, Inc., #20712/05, 2009-01571, 2010 N.Y. App. Div. Lexis 2505 (2nd Dept.).

Public Protection: Crime or Accident Victims

     A woman injured in an auto accident while she was a passenger in a car driven by an intoxicated person sued a police officer who came to the scene, arguing that her paraplegia was not the result of the driver's intoxication, but of the officer's failure to call an ambulance. Rejecting this claim, the appeals court noted that the plaintiff herself was "adamant" in her repeated refusals of help from the officer, who repeatedly said that he would summon an ambulance if she wanted one. The officer breached no duty to the plaintiff, and there was no evidence that he made any misrepresentation to her that she relied on to her detriment. He did not promise to call an ambulance and then fail to do so, or tell the plaintiff that she was fine while actually believing that she was injured. He also did not tell others to move her while actually believing that she should stay still. The appeals court overturned a jury's award of $2,690,608 to the plaintiff. "Police routinely respond to emergencies, but they do not have a 'legal duty' to do so. By that, we mean that an officer's failure to respond to a request for assistance will not result in tort liability for the officer even if a member of the public is injured by the officer's failure to act, i.e., his or her nonfeasance. If they do respond and their affirmative acts negligently cause harm to a person in need of assistance, their misfeasance may create a special relationship and result in tort liability [...T]his tragic case involves an officer's nonfeasance that did not alter the risk of harm to the person in need." Camp v. State of California, #B209176, 2010 Cal. App. Lexis 695 (2nd Dist.).

     A motorist died in a traffic accident at an intersection where a deputy was directing traffic. The county was entitled to immunity, as the deputy could not be found negligent for failing to remove an obstruction from the intersection. The court declined, however, to uphold summary judgment for the deputy, as there was some evidence from which it could be argued that he acted recklessly towards a known risk of harm while directing traffic. Just before the accident, he allegedly waved a motorcycle into the intersection despite oncoming traffic that required the motorcyclist to stop to avoid a collision. Widen v. County of Pike, #09CA794, 2010 Ohio App. Lexis 1794 (4th Dist.).

Racial/National Origin Discrimination

     A motorist sought to assert a claim for unlawful racial profiling--selective law enforcement by a New Jersey state trooper. The plaintiff was a native of Colombia, and the two passengers in his vehicle were Hispanic. He was stopped by the trooper for alleged speeding and during the stop, the trooper noticed that a passenger had a white powdery substance in his mustache, causing the trooper to request consent to search the car, which was granted, leading to the finding of cocaine in the vehicle, and the motorist's arrest by a second trooper who arrived on the scene. The motorist was convicted on the drug charges nine years later, and sentenced to fifteen years in prison. Almost three years later, however, the state moved to vacate his conviction, stating that "colorable issues of racial profiling" existed at the time of arrest. Approximately a year and a half later, or fourteen years after the initial arrest, the motorist sued, asserting claims for false arrest and selective enforcement. Holding that the motorist's claims were time barred, a federal appeals court found that the motorist did not have to wait until his conviction was overturned to bring his lawsuit, since his claim for selective enforcement, in particular, did not necessarily depend on the invalidity of his conviction. But his claim did not accrue until he was aware of facts indicating racial profiling and selective enforcement. In this case, that was at least by July of 2001, when his attorney became aware of extensive documents describing the state's alleged selective enforcement practices. Since it was over two years later that the plaintiff filed his lawsuit, his claims were time barred by a two-year statute of limitations. Dique v. New Jersey State Police, #05-1159, 603 F.3d 181 (3rd Cir. 2010).

Search and Seizure: Home/Business

     A man purchased 6.70 acres of land within three miles of a city's limits, in an area in which the city had statutory planning and zoning authority. The property included a forested area, a ravine, a house, and a "dilapidated" two-story structure built by a prior owner without building permits that the city had placarded for condemnation. The city subsequently notified the owner that it had evidence that he was dumping building rubble and demolition debris on the property illegally, and ordered such activity to cease. A health inspector entered the property and photographed the debris, accompanied by a city code inspector. The owner was charged with a littering violation, which was eventually dismissed for technical reasons related to speedy trial requirements. The owner filed a federal civil rights lawsuit asserting Fourth Amendment search and seizure claims. A federal appeals court ruled that an inspector who was lawfully on the property and who saw apparent public health sand safety violations from the exterior of a garage structure did not need a warrant to look in a window to confirm the apparent violations. Summary judgment for the defendants was affirmed. Nikolas v. Omaha, #09-1679, 2010 U.S. App. Lexis 9974 (8th Cir.).

Search and Seizure: Person

     A federal trial court erred in granting summary judgment for police officers in a lawsuit claiming that they lacked probable cause to stop a vehicle for a traffic offense, which led to the seizure of drugs. A state court had previously ruled that one of the officers provided an "equivocal" reason for why he stopped the vehicle, and this officer, in a deposition, admitted that he had not observed the motorist's unlawful tinted window prior to stopping his car. Additionally, the officers failed to provide any reason to support dismissal of claims relating to the allegedly "offensive" manner in which a passenger was searched, including pulling his pants partially down and pulling his underwear away from his body. The court did uphold, however, a determination that state law claims, including false arrest and malicious prosecution, had been waived. Carmichael v. Village of Palatine, #09-1010, 2010 U.S. App. Lexis 10378 (7th Cir.).

Sexual Assault

     A 16-year-old boy who was allegedly sexually molested by a village's fire chief while participating in a fire cadet program, sued the village for alleged violations of his federal civil rights, arguing that the sexual assault was facilitated by the deliberate retention of the fire chief, despite his alleged prior misconduct with other minors. Upholding summary judgment for the defendants, a federal appeals court found that a quorum of the village's board of trustees, which agreed to retain him, had no knowledge of his alleged prior sexual misconduct, and that the plaintiff failed to present sufficient evidence to support his assertion that the board president knew that acting to retain the chief would create a substantial risk of harm to the plaintiff or other minors. Wragg v. Village of Thornton, #08-3766, 604 F.3d 464 (7th Cir. 2010).

Strip Searches

     Eleven students sued a school district and various school personnel claiming that they, and every other student in a high school nursing class, were subjected to unconstitutional strip searches after students in the class reported that a credit card and other items were missing. A federal appeals court upheld the denial of qualified immunity to the defendants, finding that prior case law clearly established that strip searches of students under these circumstances were unconstitutional. While some search of students and their effects may be warranted when substantial property has been reported recently stolen, these strip searches, carried out on a substantial number of students (an entire class) without individualized suspicion, went too far, the court believed. Cases cited in support of the legality of such searches, the court found, were all distinguishable by the presence of individualized suspicion of possession of drugs or weapons, rather than monetary items. Knisley v. Pike County Joint Vocational Sch., #08-3082, 2010 U.S. App. Lexis 9860 (6th Cir.).

     Editor's note: The case was decided by the appeals court on remand from the U.S. Supreme Court, Knisley v. Pike County Joint Vocational Sch. Dist., #08-1125, 129 S. Ct. 2893 (2009), which asked the appeals court to reconsider its previously unpublished order affirming the denial of qualified immunity in light of Safford Unified School District #1 v. Redding, #08-479, 129 S. Ct. 2633 (2009), invalidating a strip search of a female student but granting qualified immunity to the defendants because of a lack of prior clearly established law in the Ninth Circuit. The Sixth Circuit, however, ruled that its own prior decision in Beard v. Whitmore Lake School District, #03-1904, 402 F.3d 598 (6th Cir. 2005), clearly established the same principles established by the U.S. Supreme Court in Redding.

     Police officers arrested a man for trespassing within the gated area of a housing cooperative, and took him to a local police station where they searched him for contraband, finding nothing, and then released him after giving him a trespassing citation. He was never prosecuted. The arrestee sued for false arrest and unreasonable search and seizure. While finding that probable cause existed for the trespassing arrest, a federal appeals court found that, viewing the evidence in the light most favorable to the plaintiff, a reasonable jury could find that he underwent an unreasonable strip search at the station (following a pat-down search at the scene of the arrest), making him remove his shoes and socks, pull his pants down to his ankles, and bend over and cough, as well as looking inside his boxer shorts. An arrestee charged with minor offenses, the court stated, may be strip searched only if there is reasonable suspicion that he is carrying or concealing contraband or a weapon, unless the arrestee is being introduced into a general jail population, which was not the case here. The officers did not testify that they had reasonable suspicion that the arrestee had contraband or a weapon, although they also disputed whether they had actually carried out a strip search. In light of this, qualified immunity was not available as a defense nor was summary judgment on the unreasonable search claim otherwise available. Edgerly v. San Francisco, #05-15080, 599 F.3d 946 (9th Cir. 2010).

•Return to the Contents menu.

     Drugs: National Drug Control Strategy, Office of National Drug Control Policy (NCJ 229210, 127 pgs. May 2010). This document emphasizes collaboration and innovative strategies and outlines 5-year goals for reducing drug use and its consequences through a balanced policy of prevention, treatment, enforcement, and international cooperation.

     Elder Abuse: Elder Abuse Special Feature. This resource provides links to publications and Web sites that address elder abuse by caregivers, domestic violence among the elderly, and fraud and financial abuse targeting elders. It also includes statistics on elder mistreatment victimization. (NCJRS May 2010).

      Interrogation: "Fifth Amendment Protection and Break in Custody" by Kenneth A. Myers, 79 FBI Law Enforcement Bulletin No. 5, pgs. 26-32 (May 2010). "Law enforcement officers must have an understanding of the legal significance of a break in custody in terms of the Fifth Amendment privilege against compelled self-incrimination."

     Juvenile Offenders: "Addressing the Unmet Educational Needs of Children and Youth in the Juvenile Justice and Child Welfare Systems," by Peter Leone and Lois Weinberg, Center for Juvenile Justice Reform Georgetown University (74 pgs., May 2010).

     Housing and Public Safety: "A Full Response to an Empty House: Public Safety Strategies for Addressing Mortgage Fraud and the Foreclosure Crisis" (NCJ 230465, 42 pp.) provides an overview of law enforcement and government responses to mortgage fraud, foreclosure, and abandoned property. (BJA).

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

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