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Assault and Battery: Physical

     A jury found that an officer used excessive force in detaining a man who was involved in a late night fight outside a tavern. The jury only awarded $1 in nominal damages, however, and no compensatory or punitive damages. A federal appeals court found no inconsistency with the jury's finding that the officer used excessive force and caused injury, as it could have attributed the injury as resulting from the officer's other, lawful actions, and not from his use of excessive force. The court also ruled that an award of attorneys' fees was appropriate, since such an award would encourage the city to make sure that officers do not use excessive force after subduing a suspect. The appeals court therefore reversed the trial court's decision not to award any attorneys' fees. Guy v. City of San Diego, #08-56024, 2010 U.S. App. Lexis 12405 (9th Cir.).

    Officers executing a search warrant at a man's home did not use excessive force in taking his brother, who was present, into their police vehicle. The brother had been smoking marijuana and drinking alcohol and was found lying on the floor. Additionally, he had outstanding warrants himself, and was unable to walk due to extreme intoxication. Expert testimony on police practices was properly excluded as it was not needed to determine that the amount of force used by the officers was not excessive. Legg v. Pappas, #09-1188, 2010 U.S. App. Lexis 12288 (Unpub. 7th Cir.).

     A man who claimed that officers subjected him to excessive force in pushing him towards the floor, where he allegedly struck his head, had his claims rejected by a judge after a bench trial. In upholding the result, the appeals court noted that the incident took place in a bar on Super Bowl Sunday, that the plaintiff was drunk, refused to identify himself, refused to leave voluntarily, resisted being escorted out, and assumed a "fighting" stance both verbally and physically. Given these circumstances, the trial judge did not "clearly err" in finding that the officers' use of force was reasonable. Myser v. Spokane County, #09-35540, 2010 U.S. App. Lexis 15163 (Unpub. 9th Cir.).

Assault and Battery: Stun Guns/Tasers

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

     Update: As previously reported, in Bryan v. McPherson, #08-55622, 2009 U.S. App. Lexis 28413 (9th Cir.), the court held that, if an officer, as alleged, used a Taser against an unarmed, non-fleeing motorist, stopped for a seat belt violation, who posed no immediate threat to the officer, the force used was excessive. The court characterized use of the Taser as non-lethal force, but also as an "intermediate or medium, though not insignificant" use of force, requiring justification by a "strong governmental interest" compelling the use of such force, in light of the pain and incapacitation it causes, and the possibility of injury from resulting falls. Revisiting the case, the court has now determined, overturning its prior decision in part, that the officer was entitled to qualified immunity from liability, as the principles announced in the case were not previously "clearly established." Other than the individual grant of qualified immunity to this officer, the decision remains unaltered. Bryan v. MacPherson, #08-55622, 2010 U.S. App. Lexis 12511 (9th Cir.).

     Editor's Note: For a more detailed discussion of this case, see Taser® Electronic Control Devices (ECDs): An “Intermediate” Use of Force?, 2010 (2) AELE Mo. L. J. 101.

Domestic Violence and Child Abuse

     Police were entitled to qualified immunity in a lawsuit filed by a man who claimed that they violated his rights by entering his home without a warrant while responding to a 911 call placed by his wife. They questioned him and other family members prior to placing him under arrest for domestic battery, The 911 call, the court found, provided probable cause for their entry, particularly when police were unable to return the initial call, and the wife, who admitted making the call, subsequently gave evasive and false answers as to why she called. The officers acted reasonably in continuing their investigation and questioning the children who were present. Hanson v. Dane County, Wis., #09-1759, 608 F.3d 335 (7th Cir. 2010).

     A woman claimed that her rights, and those of her children, were violated when social workers, aided by police officers, used force to enter her home and remove her children. While all of the woman's claims were time barred, claims on behalf of her children were not barred by doctrines preventing federal courts from interfering with state court judgments. The children's claims did not seek reversal of the decision of a state juvenile court to award temporary custody of them to the state, but rather concerned the legality of the actions of the defendants that led up to the juvenile court's decision. Kovacic v. Cuyahoga County Dep't of Children & Family Serv., #08-4656, 2010 U.S. App. Lexis 10692 (6th Cir.).

False Arrest/Imprisonment: No Warrant

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

     The City of Denver reached a $175,000 settlement in a wrongful arrest lawsuit brought in federal court by a woman mistakenly arrested for purported violation of a protective order that was supposed to protect her against her estranged boyfriend. The order barred him from coming within 100 yards of her, but was not reciprocal. She was arrested for violating the order when she complained to police that her boyfriend used his truck to stop her from exiting the parking lot at a police station, resulting in her spending the night in custody. The settlement agreement also provides for additional training for officers on how to enforce protective orders. Shroff v. Spellman, #1:-7-cv-01466, U.S. Dist. Ct. (D. Colo. June 29, 2010).   Prior to the settlement agreement, a federal appeals court rejected an argument from the arresting officer that he was entitled to qualified immunity and had arguable probable cause to arrest the plaintiff. The plaintiff also claimed that her right to privacy was violated. She had to pump breast milk while in custody because she was breast feeding and the arresting officer allegedly required her to do so in a manner that exposed her breasts to a female police cadet. The appeals court found that the trial court did not err in finding that this constituted an illegal strip search under the circumstances. Shroff v. Spellman, #09-1084, 2010 U.S. App. Lexis 12066 (10th Cir).

     A settlement agreement was reached between the City of Baltimore, Maryland and the plaintiffs in a lawsuit alleging a pattern of improper and unlawful arrests by the city's police department. Plaintiffs included thirteen individual arrestees and the NAACP. The settlement includes the payment of $870,000 in damages and attorneys' fees, the issuance of a departmental directive clearly defining the authority of officers in making arrests for low-level, non-violent "quality of life" offenses (such as disorderly conduct, failure to obey, or loitering), additional training for officers on what conduct does and does not constitute such offenses, additional training on First Amendment rights and how to deal with persons demonstrating and protesting, data collection and monitoring of compliance with the settlement and reporting that will bring officers to supervisory attention if their arrest or complaint history is out of the norm, and the appointment of an independent monitor of the department's compliance. Maryland State Conference of NAACP Branches v. Baltimore City Police Dept., #06-1863, U.S. Dist. Ct, (D. Md., June 23, 2010).

     A high school teacher was investigated by her school, school district officials, and a police chief, as well as child welfare authorities, based on suspicions that she was engaging in sexual relations with a 15-year-old male student. She was indicted and arrested, but was acquitted at trial, and filed a federal civil rights lawsuit. The appeals court found that the school officials were entitled to qualified immunity on claims that their investigation was biased and deprived the teacher of due process because they coerced the male student into admitting the affair, and because one of the leading figures in the investigation had himself previously been accused, by the teacher, of sexually harassing a female student. There was no prior caselaw that reporting the teacher's alleged misconduct to other agencies that would conduct their own investigations (police and child welfare) would violate the teacher's rights. The police chief was entitled to qualified immunity, as there were sufficient indications of probable cause to arrest the teacher, including a statement from the student, statements from the student's mother, and statements from a witness who had seen the teacher and boy kiss, and heard the boy admit to the affair. Phone records also revealed over 500 phone calls between the student and teacher, including 20 calls lasting a total of three hours on Valentine's Day. Purvis v. Oest, #09-1098, 2010 U.S. App. Lexis 15972 (7th Cir.).

False Arrest/Imprisonment: Warrant

     In a case involving a prosecution for a number of sexual offenses, the California Supreme Court approved the use of a "John Doe, unknown male" arrest warrant, describing the wanted person by his unique 13-loci deoxyribonucleic acid (DNA) profile. The warrant was issued in this manner, as the statute of limitations for attempting to prosecute the offenses would have otherwise been exceeded. Peo. v. Robinson, #S158528, 47 Cal. 4th 1104, 224 P.3d 55 (Cal. 2010).

     A police officer did not act outside of his discretionary authority when he obtained an arrest warrant for the plaintiff from a judge and executed it with the cooperation of a deputy sheriff. While there may have been some discrepancies in the arrest warrant, the plaintiff failed to show that any information presented by the officer in the affidavit was false. A reasonable officer would not have questioned whether there was probable cause to arrest the plaintiff for methamphetamine possession simply because there was a date discrepancy in the warrant. Pair v. City of Parker Police Dept., #09-15073, 2010 U.S. App. Lexis 12384 (Unpub. 11th Cir.).

     Officers did not act with reckless or deliberate disregard for the truth to make materially false statements resulting in the issuance of an arrest warrant for the plaintiff. One officer had no reason to believe that a color photo array of suspects presented to witnesses was suggestive, and despite any equivocation by a witness in their identification of the suspect, a second officer had no reason to doubt the veracity of the information he reported. There were no false statements in a warrant affidavit submitted by a third officer. Matthews v. Thomas, #09-1932, 2010 U.S. App. Lexis 13537 (Unpub. 4th Cir.).

First Amendment

     A woman claimed that her arrest and prosecution for obstructing police officers who were arresting her son violated her First Amendment rights. The trial court found that the ordinance, which criminalized obstructing or resisting officers, was facially overbroad, and enjoined its enforcement. Reversing, a federal appeals court found that the ordinance's use of the words "obstruct" and "resist" only covered physical acts or "fighting words," and did not give officers unfettered discretion to arrest persons merely for engaging in speech that was critical or annoyed them. McDermott v. Royal, #09-3167, 2010 U.S. App. Lexis 15766 (8th Cir.).

     The leader of an anti-abortion demonstration in front of the Liberty Bell Center in Independence National Historical Park was arrested by a park ranger when he refused orders to move to a nearby location away from the sidewalk. While there is a legitimate interest in maintaining public order, these actions violated the First Amendment, so the conviction was overturned. The sidewalk was a traditional public forum, and the ranger's actions were based on the content of the protestor's speech. U.S.A. v. Marcavage, #09-3573, 2010 U.S. App. Lexis 12271 (3rd Cir.).

     A federal appeals court has reversed a summary judgment and injunctions in favor of a constitutional challenge to the City of Los Angeles Freeway Facing Sign and Supergraphic and Off-Site Sign ordinances. The Freeway Facing Sign ordinance bans freeway-facing billboards, with some exceptions, such as near a sports and entertainment complex known as the Staples Center. Supergraphic billboards are large format signs projected onto or hung from building walls, and off-site billboards are signs directing attention to a business or product not located on the same premises as the sign. These are also generally restricted, with some exceptions. The federal appeals court, rejecting a First Amendment challenge to the ordinances, and the city's asserted interests in traffic safety and the flow of traffic, found that the fact that limited exceptions to the ordinances were allowed did not undermine the merits or legitimacy of the city's asserted interests. World Wide Rush, LLC v. Los Angeles, #08-56454, 2010 U.S. App. Lexis 10797 (9th Cir.).

Malicious Prosecution

     A former inmate released on a habeas corpus order filed a lawsuit claiming that a prosecutor and a police sergeant, among others, conspired with a witness to frame him on murder charges. His murder conviction had been based on the testimony of a former cellmate who falsely testified that he had not been promised anything in exchange for his testimony. Both the police sergeant and the prosecutor, however, had promised to contact the parole board on behalf of the witness. The defendant prosecutor was entitled to absolute prosecutorial immunity for allegedly failing to correct the witness's statement at trial, and the sergeant was entitled to qualified immunity, since there was probable cause for the plaintiff's arrest for the murder. Beckett v. Ford, #09-3719, 2010 U.S. App. Lexis 12957 (Unpub. 6th Cir.).

     When a woman went to the police department to report that she had been raped weeks earlier, unknown to her, her alleged rapist had called police to complain about "menacing" phone calls accusing him of raping her. After she was interrogated, she withdrew her rape complaint, and was herself arrested for filing a false report. She was subsequently acquitted of this charge, and sued the city, the police department, and a detective for false imprisonment and malicious prosecution. Her false imprisonment claim was time barred as it was filed three years after the date of her arrest. Her malicious prosecution claim, which only accrued after her acquittal, was not time barred. A federal civil rights malicious prosecution claim, however, could not be based on a warrantless arrest, since that did not amount to legal process, the court held, and the pretrial conditions that she faced were not a significant deprivation of her liberty constituting a Fourth Amendment seizure. Summary judgment was granted to the defendants. Harrington v. City of Nashua, #09-2275, 2010 U.S. App. Lexis 13210 (Unpub. 1st Cir.).

     The plaintiff claimed that he was entitled to damages because his criminal conviction was the result of constitutional errors. His conviction, however, had never been overturned, and his arguments concerning the alleged constitutional violations related to his conviction had been rejected in his trial, in the direct appeal of his conviction, and in a habeas corpus proceeding. His claims were barred, both because he had had a full and fair opportunity to litigate them previously and courts had rendered decisions adverse to him, and because success on his civil rights claims would imply the invalidity of his conviction, which had not been set aside. Smith v. City of Tulsa, #10-5006, 2010 U.S. App. Lexis 12209 (Unpub. 10th Cir.).

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

     The City of New York has reached a $9.9 million settlement with a man who served nineteen years in prison for murder, who was exonerated and released. He had filed a federal lawsuit contending that he had been framed for the crime by a police detective. The detective is himself currently serving a life sentence in prison for involvement in mob-related killings. The plaintiff previously received a $1.9 million settlement from the state. The murder was of a prostitute that the plaintiff had previously had a relationship with. The lawsuit claimed that the detective coerced a witness into falsely identifying the plaintiff as the killer. The detective also allegedly withheld exculpatory evidence. Gibbs v. City of New York, #1:06-cv-05112, U.S. Dist. Ct. (E.D.N.Y.).

Property

     A California state statute that authorizes the 30-day impoundment of vehicles whose drivers have had their licenses revoked or suspended for some, but not all, violations of the state motor vehicle code does not violate the equal protection guarantees of the U.S. or California Constitutions, violate due process, or constitute an unlawful seizure. The legislature acted rationally in authorizing the impoundment of vehicles whose drivers have licenses revoked or suspended for major offenses related to traffic safety, such as DUI, but not when their license suspension is based on minor offenses or on offenses unrelated to driving, such as the failure to pay child support or civil judgments. Alviso v. Sonoma County Sheriff's Dep't, #A126241, 2010 Cal. App. Lexis 1018 (1st Dist.).

Public Protection: 911 Systems

     A man found his fiancée murdered by an unknown intruder in the apartment they shared. He filed a lawsuit against the county, which operates the local 911 emergency call system, claiming that a 911 call from the murdered woman was improperly handled, and seeking damages for negligent infliction of emotional distress he allegedly suffered as a bystander. A Wisconsin intermediate appeals court ruled that the plaintiff, as the murder victim's fiancé, was not in a category of persons "who may state a bystander claim for negligent infliction of emotional distress." State law, the court reasoned, limits such claims to the relationships between the plaintiff and the victim as spouses, parent-child, grandparent-grandchild, or siblings. Estate of Zimmerman v. Dane County, #2009AP1710, 2010 Wisc. App. Lexis 565.(Unpub. Dist. 4).

Search and Seizure: Home/Business

     Members of a family who lived together in a home sued a police department and town for an allegedly unreasonable search of their residence. While one family member allegedly gave consent for the warrantless search, the plaintiffs argued that the consent was obtained through misrepresentations, and also was negated by another family member's explicit refusal of consent. A jury returned a verdict for the defendants and the plaintiffs argued on appeal that the trial court improperly told the jury that they had the burden of proof in showing a lack of consent to the search. Because the plaintiffs had not objected at trial to this portion of the jury instructions, the plaintiffs could only prevail on this issue on appeal if they could show that the instructions amounted to "plain error." They could not do this, as the law of the Second Circuit on who bears the burden of proof as to whether there was consent to a search is not clearly established. Tirreno v. Mott, #08-2983, 2010 U.S. App. Lexis 8977 (Unpub. 2nd Cir.).

Search and Seizure: Search Warrant

     In a lawsuit by a married couple challenging the validity of a search warrant used to search their residence, which uncovered evidence leading to the subsequent arrest and prosecution of the husband, a federal appeals court ruled that the warrant was facially valid, and based on an affidavit that established probable cause for its issuance. Additionally, the affidavit described with sufficient detail both the place to be searched and the things to be seized. All those participating in the search, with only the possible exception of the officer writing the affidavit, were entitled to rely on this facially valid warrant. As to the officer writing the affidavit, his failure to sign it was unintentional and unknown to him when the search warrant was issued. Such innocent or negligent mistakes did not show a constitutional violation. Fleming v. Barber, #09-11743, 2010 U.S. App. Lexis 12500 (Unpub. 11th Cir.).

     Officers searched an attorney's law office and residence using a warrant, hoping to find stolen laptop computers and controlled substances. The plaintiff argued, in her subsequent civil rights lawsuit against the county sheriff, that the affidavit for the warrant was so clearly lacking in probable cause that the only real issue should be the amount of damages to be awarded. The appeals court stated that it was "difficult to conclude" that generalized statements about the plaintiff's alleged wrongdoing established a "substantial" basis for the search. But it also concluded that, even if the warrant lacked probable cause, that did not necessarily mean that the defendant was personally liable for damages for the search. The affidavit contained very general statements obtained from a known thief and cocaine user who claimed to have paid the attorney for legal services with a stolen laptop, and that the attorney used drugs. The affidavit for the warrant was far from ideal, but there were still a few indicia of reliability so that an officer could reasonably believe that there was probable cause. A reasonably trained officer would not be required to second guess the judge who authorized the warrant, as it was not that clearly lacking in probable cause. The defendant was therefore entitled to qualified immunity. Junkert v. Massey, #09-2908, 2010 U.S. App. Lexis 12614 (7th Cir.).

Strip Searches

     Two women protested against the war in Iraq at a 2004 Republican campaign rally for President Bush. They were arrested for trespass and subjected to strip and body cavity searches at the county jail. They sued federal, state, and county law enforcement officers, claiming violations of their First and Fourth Amendment rights. A jury awarded them $750,000 on the unreasonable search claims, but the trial judge found that excessive, and a second jury, after a new trial, awarded $55,804 in damages. On appeal, the court found that, under the totality of the circumstances, there had been probable cause for the arrest of the plaintiffs for resisting a federal agent providing protection for the President. The appeals court also agreed that the amount awarded by the first jury on the search claim had been excessive, but found that the trial court had erroneously ordered the plaintiffs to either accept a 90% reduction to $75,000 or undergo a new trial on damages. The trial court used prior cases, including a 1978 strip search award for $75,000 for comparison, but made no adjustment for inflation. After a new reduced amount is calculated, making such an adjustment for inflation, the plaintiffs may either accept that amount or undergo a third trial on damages. They were entitled to attorneys' fees for a percentage of the time spent on the first trial and for all of the work done on the second trial. McCabe v. Parker, #09-1185, 2010 U.S. App. Lexis 13327 (8th Cir.).

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     Community Safety: "Neighborhood Watch Manual" (NCJ 231132, 37 pp.) is designed for citizen organizers and law enforcement officers who work with community members. It explains how to start, manage, and expand a neighborhood watch group. (BJA)

     Female Officers: "Women in Law Enforcement, 1987-2008" (NCJ 230521, 4 pp.) presents data from the Law Enforcement Management and Administrative Statistics surveys, covering 1987 to 2007, and from the Census of Federal Law Enforcement Officers, covering 1996 to 2008. (BJS)

     "Sexting": "Sexting: Risky Actions and Overreactions." By Art Bowker, M.A., and Michael Sullivan, J.D. 79 FBI Law Enforcement Bulletin No. 7 (July 2010). "These disturbing cases require sound judgment by officers and prosecutors."

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

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