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Assault and Battery: Physical

     An arrestee claimed that an officer used excessive force in grabbing him, throwing him on the floor, and twisting his arm. While he did not allege that a second officer used any force against him, he did claim that this officer was present during the arrest, so it was plausible that he had sufficient time to intervene and failed to do so, therefore the plaintiff could proceed with a claim against him. Claims against the police chief, however, were dismissed since no affirmative link was shown between the alleged use of excessive force and any alleged failure of the chief to provide training or supervision. An isolated incident of police misconduct also could not be the basis for a claim for municipal liability. Philippe v. Wallace, #09-11669, 2010 U.S. Dist. Lexis 53772 (D. Mass.).

Assault and Battery: Stun Guns/Tasers

     Officers acted in an objectively reasonable manner in their gradual escalation of the use of force against a yelling, cocaine intoxicated man who they encountered while responding to a 911 call indicating that shots had been fired. The suspect ran from the officers, threw something at them, and charged at one officer. He exhibited great strength and the officers used increased force as he continued to resist efforts to subdue him, beginning with verbal warnings, and subsequently using pepper spray, hand and arm manipulation techniques, and finally a Taser, following which the man continued to struggle, but the officers were at last able to handcuff him behind his back while he was facedown. The man died following the struggle, but the court noted that the officers had used no force at all until he attacked one of them, and that they reacted to a "rapidly evolving, volatile situation" with "measured and ascending responses." Galvan v, City of San Antonio, #08-51235, 2010 U.S. App. Lexis 11114 (Unpub. 5th Cir.).

Defenses: Qualified Immunity

     A federal appeals court ruled that a police officer was entitled to qualified immunity from liability for arresting the plaintiff for violation of a state statute that prohibited loitering in a public place for the purpose of soliciting another person to engage in deviate sexual behavior. This statute had never been repealed, was still on the books, and had even recently been revised, but had been declared unconstitutional by the highest court in New York eighteen years before. The federal appeals court found that it was unreasonable under these circumstances to expect the officer to know that the statute no longer provided probable cause for an arrest. Amore v. Novarro, #08-3150, 2010 U.S. App. Lexis 12736 (2nd Cir.).

Domestic Violence and Child Abuse

     A father claimed that his substantive and procedural due process rights were violated because he was not notified of an investigation into allegations that his daughter had been molested and that someone had coerced her to change her testimony in the ensuing trial. The appeals court ruled that the father had no clearly established constitutional right to such information and that the defendants were therefore entitled to qualified immunity. James v. Rowlands, #08-16642, 2010 U.S. App. Lexis 10723 (9th Cir.).

False Arrest/Imprisonment: No Warrant

     A man arrested for attempting to cash a fraudulent check had the charges against him dropped and filed a lawsuit for false arrest. While he did not dispute that his actions had provided the officers with reason to believe that he had satisfied the conduct ("actus reus") element of the charged crime of fraud, he argued that the officers still lacked probable cause for the arrest because there was no reason to believe that he had the required mental state to commit the crime. The appeals court rejected this argument, and held that the facts and circumstances known to the officers at the time of the arrest were sufficient to create a reasonable belief that he intended to defraud the bank. Painter v. City of Albuquerque, #09-2135, 2010 U.S. App. Lexis 12878 (Unpub. 10th Cir.).

     A motorist's actions in playing loud music, stopping her car, and rolling her window down could have indicated to an objectively reasonable officer that she was making unreasonable noise with intent to create a public annoyance. Defendants involved in her arrest were therefore entitled to summary judgment on the basis of qualified immunity. Other defendants were properly granted qualified immunity, as they did not participate in a second arrest of a man who videotaped the incident and were not the arresting officers' supervisors. Further proceedings were ordered, however, on excessive force claims arising from the arrest of the motorist. Brown v. City of Huntsville, #09-1296, 2010 U.S. App. Lexis 11480 (11th Cir.).

     A jury rejected an arrestee's claims that officers had wrongfully arrested him following an incident in which he shot his neighbor's dog in the head. He claimed that the dog had bit him, and he was acquitted of all criminal charges. On appeal, the court ruled that the trial court in the false arrest lawsuit had not acted erroneously in admitting into evidence an authenticated photograph of the dog, as both parties had made the dog's appearance relevant to the issues in the case. The plaintiff had stated that the dog was vicious, bloodthirsty, malnourished, unkempt, and looked like a wolf or coyote. The image in the photo was inconsistent with this description. Testimony about the dog's usual behavior and appearance was properly admitted for the same reasons. Grossmith v. Noonan, #09-1900, 2010 U.S. App. Lexis 11727 (1st Cir.)...

Firearms Related: Intentional Use

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

     An officer shot and killed a man driving a stolen minivan in a residential yard where officers were on foot. In a lawsuit by his estate asserting claims for excessive use of force, a federal appeals court held that the officer was entitled to summary judgment on the basis of qualified immunity because his use of force was reasonable as a matter of law. Another officer had to walk or jump out of the way of the vehicle so that he wouldn't get run over, and the shooting officer, seeing the other officer fall, actually believed that he had been run over, and that the minivan was accelerating towards him. Under these circumstances, he could use deadly force to defend both himself and others. Wilkinson v. Torres, $09-35098, 2010 U.S. App. Lexis 13720 (9th Cir.).

     The mother of a man shot in the head and killed by an officer sued the city for wrongful death. A jury awarded damages. An intermediate appeals court found that the trial judge had properly set aside $3 million in damages awarded for conscious pain and suffering, as the man's death was almost instantaneous and there was no evidence of his consciousness for any period of time following the shooting. The appeals court upheld, however, jury awards of $55,020 for loss of past economic support, $261,091 for past and future loss of services, and punitive damages of $2.7 million, finding them amply supported by the evidence. The appeals court stated that the trial judge had improperly concluded that the jury awarded punitive damages in part on a finding that the officer had negligently handled his weapon. The appeals court found that the jury award of punitive damages was based on a finding of excessive force, and conduct that was wanton, reckless or malicious. Ferguson v. City of New York, #2630, 18951/01, 2010 N.Y. App. Div. Lexis 4428 (1st Dept.).

     An officer shot a man who allegedly sat up and began to lower a weapon towards him and another officer present. The testimony of a forensic pathologist as to the pattern of the plaintiff's bullet wounds was "entirely consistent" with the officer's version of the incident. Based on this, the officer had probable cause to believe that he could use deadly force because he and his partner faced a significant threat of death or serious bodily harm. Brothers v. Akshar, #07-3204, 2010 U.S. App. Lexis 13368 (Unpub. 2nd Cir.).

Firearms Related: Second Amendment

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

     Having previously found a Second Amendment individual right to bear arms in striking down a handgun ban in the federal District of Columbia, the U.S. Supreme Court has extended that ruling, in a case involving a handgun ban by the City of Chicago. By 5-4, the Court held that the rights guaranteed by the Second Amendment also apply to the states and their subdivisions through the Fourteenth Amendment. McDonald v. City of Chicago, #08-1521, 2010 U.S. Lexis 5523. A website presents case filings, briefs, and opinions in this case at the district court, appeals court, and Supreme Court levels.

     Editor's Note: Anticipating that the U.S. Court of Appeals for the Seventh Circuit, asked to consider the Chicago handgun ban on remand in light of this ruling, would strike down the Chicago handgun ban, Chicago days later enacted a new handgun ordinance allowing the purchasing and registering of one handgun per month for every adult resident of a household, while setting forth certain city licensing, registration, and training requirements, as well as restricting possession to one functioning loaded handgun in the home, with restrictions on transport. The revised ordinance also bans gun shops and firing ranges in the city, and prohibits the transfer of weapons within the city except through inheritance. A lawsuit challenging provisions of the new ordinance was filed in federal court days later. See Benson v. City of Chicago, #10-cv-04184, (N.D, Ill. July 6, 2010). Subsequently, a second lawsuit was filed against the city, challenging the ban on gun shops. The text of the Chicago ordinance is an exhibit attached to that complaint. Second Amendment Arms v. City of Chicago, #10-cv-4257, (N.D, Ill. July 9, 2010).

     * For a more detailed discussion of the U.S. Supreme Court's decision, see "Supreme Court rules that a city’s ban on handguns is unconstitutional," by Martin J. Mayer, 2010 (8) AELE Mo. L. J. 401 (Aug. 2010).

     Officers delayed, and in some instances arrested travelers for violating New York state gun laws when they tried to send unloaded guns in checked baggage through various New York airports. The travelers argued that they were entitled to do so under 18 U.S.C. Sec. 926A, which authorizes such transport in certain circumstances, and declares that such transport shall not constitute a violation of local gun laws. In a federal civil rights lawsuit over the issue, an appeals court has held that Sec. 926A cannot be enforced under 42 U.S.C. Sec. 1983. The application of the statute in particular circumstances was complex and uncertain. Under the facts and circumstances of the arrests, the officers acted in an objectively reasonable manner in believing that they had probable cause to arrest for a violation of state gun laws, and that the requirements of the federal statute were not met. Torraco v. Port Authority of New York and New Jersey, #08-1895, 2010 U.S. App. Lexis 13379 (2nd Cir.).

First Amendment

     By 6-3, the U.S. Supreme Court rejected a First Amendment challenge to a federal statute which criminalizes providing "material aid" to designated foreign terrorist organizations even when the aid provided is purportedly aimed at facilitating training for peacefully resolving conflicts or asserting human rights claims. “At bottom,” Chief Justice Roberts wrote for the majority, “plaintiffs simply disagree with the considered judgment of Congress and the executive that providing material support to a designated foreign terrorist organization — even seemingly benign support — bolsters the terrorist activities of that organization.” Holder v. Humanitarian Law Project, #08-1498, 2010 U.S. Lexis 5252.

     Final approval has been given to a $13.7 million settlement in a lawsuit against the District of Columbia by persons subjected to mass arrests while demonstrating during a protest in 2000 near the World Bank and International Monetary Fund buildings. The lawsuit, according to the trial judge, became the basis for a 2004 revised D.C. law setting forth policies for officers to follow in responding to demonstrations, including a prohibition on officers encircling protestors in the absence of probable cause to arrest them. Each of 464 arrestees found eligible for the settlement will receive $18,000, as well as expungement of their arrest record. The settlement also requires additional training for officers on First Amendment issues, including the handling of demonstrations. The lawsuit contended that the arrestees were not doing anything illegal at the time of their arrest, but merely engaging in a peaceful demonstration. The settlement agreement provides for an award of $3,272,500 in attorneys' fees and costs, which are included in the total settlement amount. Becker v. Dist. of Columbia, #01-CV-811, U.S. Dist. Ct. (D.D.C. July 1, 2010). For the plaintiff's memo in support of preliminary approval of the settlement, click here. For the court's order granting such approval, click here.

     In a lawsuit by protestors arrested at the 2004 Republican National Convention in New York City, a federal appeals court ruled that the city can keep secret and not disclose 1,800 pages of confidential Field Reports prepared by undercover officers investigating security threats before the convention. The trial court erred in finding that the plaintiff's need for their disclosure outweighed the public's interest in their secrecy. Release of the documents "could undermine the safety of law enforcement personnel and would likely undermine the ability of a law enforcement agency to conduct future investigations."  In re the City of New York, #10-0237, 2010 U.S. App. Lexis 11784 (2nd Cir.).

Immigration Issues

     In a lawsuit claiming that the government's negligence resulted in the wrongful deportation of the plaintiff's son, brought under the Federal Tort Claims Act, the U.S. government was protected from the lawsuit by the discretionary function exception of the Act, 28 U.S.C. Sec, 2680(a). Castro v. U.S., #07-40416, 2010 U.S. App. Lexis 11241 (5th Cir.).

Interrogation

     A man being interrogated for three hours regarding a shooting was largely silent, but did not explicitly invoke his right to remain silent, or ask for an attorney. Towards the end of the questioning, he answered yes to a question as to whether he prayed to God to forgive him for the shooting. He moved to suppress his statements, arguing that his silence invoked his Fifth Amendment right to remain silent. In a 5-4 decision, the U.S. Supreme Court disagreed, noting that a suspect's Miranda right to counsel must be invoked "unambiguously," and that the same standard applies to invoking the right to remain silent. Berghuis v. Thompkins, #08-1470, 2010 U.S. Lexis 4379.

Malicious Prosecution

     A motorist filed suit for malicious prosecution on charges arising during a traffic stop and arrest for several traffic infractions, civil infractions, and drunk driving. All charges were dismissed when his blood alcohol level was determined to be 0.00%. The federal appeals court held that summary judgment was properly granted on malicious prosecution claims related to four of the seven tickets written, since they were not criminal prosecutions, but civil infractions. The court also upheld summary judgment on an unlawful search claim related to a second blood test conducted, and on claims for municipal liability. Further proceedings were ordered, however, on federal and state malicious prosecution, unlawful arrest, and excessive force claims arising out of the criminal charges. Miller v. Sanilac County, #09-1340, 2010 U.S. App. Lexis 11469 (6th Cir.).

Negligent or Inadequate Investigation/Failure to Investigate

     Parents sued a county and a number of its law enforcement personnel, claiming that they were deprived of a property interest entitled to protection under the due process clause of the Fourteenth Amendment because an inadequate investigation into their son's fatal traffic accident was conducted. Ruling that the parents had no property interest in an adequate police investigation, the court upheld the dismissal of the lawsuit. Harrington v. Cty. of Suffolk, #09-3911, 2010 U.S. App. Lexis 11375 (2nd Cir.).

Negligent or Inadequate Hiring, Retention & Supervision

     A police supervisor was entitled to summary judgment in a lawsuit seeking to hold him liable for the actions of officers who allegedly arrested a man without probable cause and used excessive force against him. Even assuming that the officers violated the plaintiff's rights, there was no showing that the supervisor acted deliberately, recklessly, or with callous indifference towards those rights. There was also no evidence that the supervisor actually knew or reasonably should have known that a particular officer would use excessive force during an arrest, particularly when prior complaints about him concerned only verbal exchanges. Gonzalez-Perez, #07-1757, 2010 U.S. Dist. Lexis 43654 (D.P.R.).

Public Protection: Crime/Accident Victims

     A woman attacked by her neighbors claimed that the city should be liable for her injuries because it failed to provide her with adequate police protection. Rejecting that claim, the court found no evidence of a special relationship between the city and the victim. The city did not affirmatively undertake to provide her with police protection, and only vague and ambiguous assurances were made to her, instructing her to call police if anything actually happened. There were no promises of protection against the complained of harassment upon which the plaintiff could have reasonably relied. Brown v City of New York, #32269/03, 2009-02098, 2010 N.Y. App. Div. Lexis 4452 (2nd Dept.).

Pursuit: Law Enforcement

     A police officer, in driving the police vehicle which struck the decedent's car in an intersection did not act so egregiously, outrageously, or conscience-shocking, in particular, he did not act with the intent to harm the decedent or harm her passenger, which was the applicable standard for civil rights liability, when the officer was responding to an emergency at the time, a 911 call reporting an assault and theft in a parking lot by two men posing as store security guards. Sitzes v. City of W. Memphis, #09-2090, 2010 U.S. App. Lexis 11355 (8th Cir.).

Search and Seizure: Home/Business

     A husband and wife claimed that officers violated their rights in making a warrantless entry into and search of their residence, arresting them, and using excessive force against the husband. The appeals court found that there was a significant disputed material issue of fact as to whether or not the officers smelled the odor of marijuana while talking to the husband. If they did not, they lacked exigent circumstances and probable cause to make their warrantless entry, and their subsequent actions were unjustified. Tubbs v. Harrison, #09-6152, 2010 U.S. App. Lexis 12883 (Unpub. 10th Cir.).

     A husband and wife claimed that sheriff's deputies violated their Fourth Amendment rights by making a warrantless entry into their garage and arresting the wife for obstruction of justice. The wife had attempted to close the garage door to bar the deputies from serving a court order on her husband, but one deputy stepped into the garage as the door was closing, breaking the electronic eye safety beam on the garage door, and causing the door to fully open, whereupon the deputies entered. They did not have a search or arrest warrant. The appeals court held that the deputies were entitled to qualified immunity, as it was not clearly established law that the couple had a Fourth Amendment right against a warrantless entry of their garage or a warrantless arrest inside it. It was also not clearly established that entry into a garage, even when attached to a home, was the same as entry into the home, or that the attached garage constituted part of the curtilage of the home when the door was open. Coffin v. Brandau, #08-14538, 2010 U.S. App. Lexis 12780 (11th Cir.).

Search and Seizure: Vehicle

     An officer pulled over a motorist, informing him that his vehicle did not have a required inspection sticker, then discovering that his driver's license was suspended and that his vehicle registration was expired. The officer told the driver to exit the car, and searched his person as well as the vehicle, despite the driver's refusal to consent to the car search, and later conducted an inventory search of the car. The driver claimed that his Fourth Amendment rights had been violated. The officer argued that, before conducting the first search of the vehicle, he had observed that the driver had bloodshot eyes as well as seeing a marijuana seed in the vehicle, which was disputed. The appeals court ruled that the officer was not entitled to summary judgment as to the first vehicle search, Viewing the facts in the light most favorable to the plaintiff, the officer would not have had probable cause to conduct the first vehicle search on the basis that there were drugs in the car. Gomez v. Markley, #08-3515, 2010 U.S. App. Lexis 13591 (Unpub. 3rd Cir.).

•Return to the Contents menu.

     Children: The Crime of Family Abduction: A Child's and Parent's Perspective. (NCJRS, 2010).

     Children: Effects of Federal Legislation on the Commercial Sexual Exploitation of Children. (NCJRS, 2010).

     Children: When Your Child Is Missing: A Family Survival Guide. (NCJRS, 2010).

     Executive Privilege: "Too Big a Canon in the President's Arsenal: Another Look at United States v. Nixon," by Eric Lane, F.A.O. Schwarz, Jr., and Emily Berman, 17 (3) George Mason Law Review 737-788 (Spring 2010).

     Geography and Public Safety: The June 2010 issue of "Geography and Public Safety" (NCJ 231108, 20 pp.) discusses the initial results of a new operational initiative that uses modern statistical analysis and geographic software to help law enforcement executives deploy resources effectively and efficiently. Other articles discuss results of the Data-Driven Approaches to Crime and Traffic Safety initiatives in various locations. (NIJ).

     Interrogation: "Interviewing Compliant Adolescent Victims," by Catherine S. Connell and Martha J. Finnegan, 79 FBI Law Enforcement Bulletin No. 5, pgs. 16-20 (May 2010).

     Police Reforms: "Making Police Reforms Endure," by Trent Ikerd and Samuel Walker, I.S. Department of Justice, Office of Community Oriented Policing Services (COPS), April, 2010. "Presents a framework that other police departments can use and test in their efforts to institutionalize police reforms."

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

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