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Assault and Battery: Chemical (Pepper Spray (OC), Tear Gas and Chemical Agents)

     An arrestee seated in the booking room of a jail was subjected to a short burst of pepper spray, and subsequently placed in the back of a patrol car for approximately an hour. He claimed that he was never allowed to decontaminate, and that his repeated complaints of breathing problems and repeated requests for medical attention after he was removed from the car were ignored. In an excessive force lawsuit, he claimed that he developed Reactive Airway Dysfunction Syndrome (RADS) from the lengthy pepper spray exposure. A federal appeals court held that the plaintiff had adequately established that an officer was aware of his serious need for medical attention, but ignored it, which stated a claim for violation of his Fourteenth Amendment rights. Nasseri v. City of Athens, #09-11473, 2010 U.S. App. Lexis 7297 (Unpub. 11th Cir.).

Assault and Battery: Physical

     An arrestee sued officers, claiming that they lacked probable cause for her arrest, and that they used excessive force in taking her into custody and taking her to a hospital for mental evaluation. The arrestee herself, however, stated in her deposition that, based on her statements to them, the officers could have reasonably concluded that she was drug intoxicated. Her husband and 911 callers had told officers that she was high on drugs, and probable cause existed, under the circumstances, to believe that she possessed cocaine. Officers encountering her heard her make "paranoid" comments, and the officers had reports that she had been seen under a car with her son, screaming that someone was trying to kill her, and that she would kill herself. She also clearly was actively resisting arrest, so the use of force to subdue her was reasonable. Luchtel v. Hagemann, #09-35446, 2010 U.S. App. Lexis 20736 (9th Cir.).

Business Permits and Regulations

     The owners of a bar/restaurant claimed that the city and city employees filed false bribery charges against them and selectively enforced various regulatory laws against them for the purpose of harming their business. A denial of qualified immunity was upheld in part as to claims against an officer as the court found that, in the absence of any offering of money, there had been no bribery, and therefore no probable cause for the officer to make an arrest. The court granted qualified immunity, however, to city employee defendants whom the plaintiff failed to prove conspired with the arresting officer to maliciouslu prosecute the plaintiffs. Grider v. Auburn, #09-13261, 2010 U.S. App. Lexis 18693 (11th Cir.).

     The owner of a pub claimed that local police and prosecutors violated his right to equal protection of law by insisting that he "operate within the law," while allegedly tolerating unlawful activity at a bar across the street from his business that is owned by a former city police officer. The plaintiff conceded doing everything which resulted in sanctions against his business, such as occasionally serving minors and allowing illegal gambling on his premises, but asserted that he was "sure" that the bar across the street has "done worse" and been sanctioned less often. Rejecting the plaintiff's equal protection claim, a federal appeals court reasoned that it amounted to nothing less than an objection to the principle of prosecutorial discretion, which is constitutionally permissible. It is no defense, when someone concedes breaking the law, that others who have done the same have not been prosecuted. The plaintiff could not impose liability on the defendants for their failure to prosecute his business rival. Beales v. City of Plymouth, Wisconsin, #10-1400, 2010 U.S. App. Lexis 18068 (Unpub. 7th Cir.).

Dogs

     An arrestee claimed that officers illegally entered his home and then used excessive force in attempting to arrest him, including a restrained police dog and the brief display of a shotgun when he emerged suddenly from a bathroom. A federal appeals court found that a female resident of the home consented to their entry. The decision to enter the premises with a restrained police dog and to briefly display the shotgun was not excessive given the arrestee's prior flight from officers, and his involvement in a crime of aggression, child molestation, which he was subsequently convicted of. Harris v. Smith, #09-1130, 2010 U.S. App. Lexis 15599 (Unpub. 7th Cir.).

     Following a traffic stop, and during investigative detention of the occupants of the vehicle, one passenger laying prone on the sidewalk in compliance with the officers' orders was mistakenly bitten by a K-9 police dog. An officer had ordered the dog to bite or apprehend one of the other passengers. The appeals court, upholding the dismissal of the bitten passenger's federal civil rights lawsuit, found no clearly established law that a Fourteenth Amendment affirmative duty of protection applied to those detained during a Terry-style investigative detention. Forrester v. Stanley, #10-12003, 2010 U.S. App. Lexis 18122 (Unpub. 11th Cir.).

Emotional Distress

     A former inmate, released from custody after he was exonerated of a murder that he had previously been convicted of, filed a lawsuit asserting claims for false arrest, false imprisonment, and intentional infliction of emotion distress. He claimed that his conviction was caused by a number of acts of police misconduct, including the threatening of witnesses and the fabricating of evidence. All claims were dismissed as time-barred, under the theory that they accrued at the time of his arrest, rather than when he was exonerated. Reversing this result as to the emotional distress claim, a federal appeals court found that the emotional distress claim was not complete at the time of his arrest, but rather at the time of his conviction. The conviction had led to the emotional strain and mental anguish the plaintiff suffered, and this claim was therefore not time barred under the statute of limitations. Parish v. City of Elkhart, #09-2056, 2010 U.S. App. Lexis 15747 (7th Cir.).

Expert Witnesses

    An officer started following a group of young men on bicycles. Two of the bicyclists then jumped a curb and rode away and the officer activated his lights and followed them onto the grassy area of a school's grounds. He allegedly saw one bicyclist pass a gun to the other. The officer continued chasing the youth with the gun, and the chase ended when the officer shot and killed him, believing that his own life was in danger. A jury returned a verdict for the officer in an excessive force lawsuit. The appeals court found that expert witness testimony that the youth did not have a gun in his hand in seven images from the school's surveillance cameras was properly excluded at trial. This opinion would have not aided the jury, but instead told it what result to reach. Evidence that the youth was a gang member should have been excluded, but its admission was harmless. Lee v. Andersen, #09-2771, 2010 U.S. App. Lexis 16702 (8th Cir.).

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

     A man was at the scene where a group of people beat a victim to death, and he and three other people were arrested for the murder. He was acquitted at trial, and subsequently claimed that investigating officers had withheld evidence of an exculpatory statement made by the eyewitness who purportedly identified him during a lineup. The plaintiff's claim for violation of the duty to disclose exculpatory evidence was rejected, a federal appeals court ruled, because even if the witness had not told the police that he saw the plaintiff participate in the beating, there would have still been enough evidence for the prosecutor to go after the plaintiff under an "accountability" theory of murder under Illinois state law. Mosley v. City of Chicago, #09-3598, 2010 U.S. App. Lexis 15616 (7th Cir.).

False Arrest/Imprisonment: No Warrant

     A federal appeals court found that an officer who arrested a woman for assaulting her husband was entitled to qualified immunity on her false arrest claim. At the time of the arrest, the woman admitted to clawing her husband's neck, and he had visible marks on his neck. Additionally, he had called 911 to report the incident, and the wife lacked any similar injuries. The court rejected the argument that a reasonable officer would have believed that probable cause was dissipated simply because the wife wanted him to talk to a third party on the telephone, who had not been present during the incident. The officer, once probable cause to arrest was established, had no obligation to investigate whether some affirmative defense to the assault charge existed. Steinmetz v. City of Camas, #09-35657, 2010 U.S. App. Lexis 16061 (Unpub. 9th Cir.).

     A police chief was not entitled to summary judgment in a false arrest lawsuit filed by a man taken into custody for allegedly interfering with official police conduct. The record in the case showed that the arrestee cursed at and "distracted" the police chief, whose car was blocking access to his business. This conduct did indicate that the arrestee intended to prevent the chief from completing the traffic stop he was engaged in. Additionally, purely expressive conduct, even if distracting, is protected under the First Amendment. There was also sufficient evidence to support claims against the chief for excessive use of force. Municipal liability claims were rejected, however, as the chief was not a final policymaker for the city. Copeland v. Locke, #09-2485, 2010 U.S. App. Lexis 15762 (8th Cir.).

Firearms Related: Intentional Use

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

     An arrestee fled on foot when a deputy attempted to arrest him with a warrant. The deputy gave chase, and mistakenly drew his gun when he actually intended to draw his Taser to apprehend the fleeing suspect. He shot the arrestee in the elbow. The arrestee filed an excessive force lawsuit, but the trial court held that the deputy's mistake in drawing his firearm rather than his Taser under these circumstances was a reasonable one, so that he was entitled to summary judgment. The appeals court held that the trial court erred in its analysis by focusing solely on the adequacy of the deputy's weapons training instead of looking at the totality of the circumstances the deputy faced. The appeals court ruled that the deputy could not have been on notice that confusing his firearm for his Taser was clearly established as an excessive use of force because there was no prior caselaw to provide him fair warning on the issue. Summary judgment was overturned, however, on state law claims. Henry v. Purnell, #08-7433, 2010 U.S. App. Lexis 19823 (4th Cir.).

     A man who encountered deputies while armed and investigating a possible trespass on his land claimed that they used excessive force in disarming him. A federal appeals court upheld the denial of qualified immunity to the deputies. There were genuine issues of fact as to whether they identified themselves to him, what position his gun was in at the time, and whether one deputy should have intervened to prevent the other deputy's use of force. While the deputies claimed that they identified themselves and repeatedly warned him, a radio transmission from the scene of the incident did not record them speaking before they fired their guns. Additionally, the deputies provided inconsistent statements about the position of the man's gun during the incident, as well as admitting that the plaintiff, a white male, did not match the description of the suspects they were searching for, who were Hispanic, and that they thought it likely that the plaintiff was the owner of the property they were on. Given all this, a reasonable jury could find that the deputies violated the plaintiff's clearly established rights through their use of force. Swofford v. Eslinger, #09-16162, 2010 U.S. App. Lexis 18281 (Unpub. 11th Cir.).

First Amendment

     Two organizations that organize marches on city streets for various political or social causes challenged the constitutionality of an ordinance under which the city imposes fees on such marches or parades for the purpose of paying for cleanup and traffic control expenses. A federal appeals court, rejecting a First Amendment challenge to the imposition of such fees, found that the city's subsidy for certain parades, such as Martin Luther King Day and Veteran's Day, by waiving such fees, was not impermissible viewpoint discrimination. Such waivers were provided to events with a "broad appeal, historic tradition, cultural significance, and [provision of] other public benefits.” International Women's Day March Planning Comm. v. San Antonio, #09-50692, 2010 U.S. App. Lexis 18781 (5th Cir.).

     A federal appeals court has struck down as unconstitutional and violative of the First Amendment two Oregon statutes criminalizing giving sexually explicit material to minors. The intent of the statutes as written was to prohibit adult sexual predators from engaging in the practices of "luring" and "grooming" minors, exposing them to sexually explicit materials to attempt to have sex with them. As written, however, the statutes could apply to the sale of a book to a minor by an ordinary bookstore, even though the store clerk had little or no knowledge of the contents of the book, and there was no intent or attempt to have sex with the minor. Powell Books v. Kroger, #09-35153, 2010 U.S. App. Lexis 19520 (9th Cir.).

     A business owner's request to a city councilman for help with difficulties he was having operating his business constituted a "petition" for redress of grievances for purposes of the First Amendment, although it was oral rather than written. The business operated a fleet of motorized three-wheel rickshaws as a taxi service for visitors to the city's downtown area. The plaintiff presented evidence that, if true, would support a claim that he was subjected to unlawful retaliatory harassment for exercising their First Amendment rights. A police sergeant was not entitled to qualified immunity because a reasonable officer would have known that her alleged actions of refusing to issue the business permits or allow its rickshaws to pick up passengers at a downtown premier event venue were unlawful, when she allegedly did them because of her displeasure in the business going over her head to seek help from the city councilman. Holzemer v. City of Memphis, # 09-5086, 2010 U.S. App. Lexis 19226 (6th Cir.).

Governmental Liability: Policy/Custom

     A New York attorney sued the city for alleged violations of his Fourth Amendment rights. He claimed that city police officers entered his apartment and seized him unlawfully. Because he offered no evidence and pled no facts that would show that the officers acted pursuant to an official city policy or custom, the city was entitled to summary judgment. The court also mentioned that with a plaintiff acting as his own attorney, as this one was, it ordinarily might be inclined to construe the complaint as also asserting claims against individual police officers. In this case, however, the plaintiff was not a "typical pro se litigant," but a licensed attorney, who previously served as an assistant district attorney, and should be expected to be familiar with the requirements for proving municipal liability claims. He was therefore not given the "same degree of leniency." Fenner v. City of New York, #10-0158, 2010 U.S. App. Lexis 19217 (Unpub. 2nd Cir.).

Malicious Prosecution

     A woman and her sister, who received citations for retail theft, were found not guilty after trial, and filed a malicious prosecution lawsuit against the police officer who wrote the citations, as well as the store's loss prevention officers. The defendants had probable cause to commence the prosecution, the appeals court ruled, based on both the store officers' observations of the sisters, who appeared to have picked up a bracelet at a jewelry counter and then failed to return it to the counter, and the citing officer's receipt of the store officers' statements and viewing of a store security videotape of the incident. The bracelet was subsequently not found in the store, and the sisters, when they realized that they were being observed, departed in different directions before they could be apprehended. Under these circumstances, the defendants were entitled to summary judgment. Anderson v. Mesure, #09-4405, 2010 U.S. App. Lexis 19508 (Unpub. 3rd Cir.).

Property

    A number of arrestees sued the city of Chicago, challenging its' policies governing the return of seized funds to arrestees. Overturning summary judgment for the defendant city in part, a federal court found that notices that the city sends out to persons regarding how to claim seized funds were misleading and provided incomplete information, in possible violation of due process. Further, there were conflicts in the evidence provided on the due process issue, and deficiencies in the city's purported legal justification for shifting the burden to arrestees of having to prove their entitlement to the return of their seized money at the conclusion of their criminal prosecutions. Restitution claims, however, were properly dismissed, as the city had now returned the full amounts the plaintiffs requested in their restitution claims. Gates v. City of Chicago #08-1455, 2010 U.S. App. Lexis 19940 (7th Cir.).

Search and Seizure: Home/Business

     Officers in SWAT gear, with the word "POLICE" displayed on the officers' chests, entered a home to serve a search warrant. An occupant ran towards his bedroom. When the officers knocked down the door, and entered the bedroom, yelling "Police," the man raised and pointed a gun at them, and they shot and killed him. An unreasonable search and seizure claim against the city failed, as the plaintiff could not establish that the city had a custom or policy of entering homes to execute search warrants without first knocking and announcing police presence. Ample testimony established that standard police procedure was to knock and announce, and the plaintiff's ability to point to a small handful of cases in which officers did not do so was insufficient to show an unconstitutional policy or custom. Whittier v. City of Sunrise, #10-10032, 2010 U.S. App. Lexis 19140 (Unpub. 11th Cir.).

     Officers armed with a valid warrant carried out a search of the plaintiffs' farm. In the lawsuit filed asserting search and seizure claims, the plaintiffs claimed that the search resulted in their cattle losing weight, that a stove was left on while they were detained during the search, and that a number of kittens died. It was the arrival of the officers, which was necessary to carry out the search, which caused the cattle to become "spooked," bolt, and break through a fence. The fact that this occurred as a result of the officers' arrival did not render the search unlawful. The officers acted reasonably in denying one of the plaintiffs her request to enter her house to turn off her stove and check on her cat, as the search warrant mandated a search for a number of small items, including a ring, a watch, photos, and papers, which could have easily be moved, destroyed, or concealed if she entered the house. The detention of the plaintiffs during the search, which lasted less than an hour, was reasonable. Lykken v. Brady, #09-3008, 2010 U.S. App. Lexis 19569 (8th Cir.).

Search and Seizure: School Premises

     In a case involving alleged "sexting" by a 17-year-old high school student (transmitting semi-nude photos of herself over a cellphone), a lawsuit against a school district on behalf of the student has been settled for a total of $33,000 to be paid to the girl and her attorneys with no admission of fault by the school district. The lawsuit contended that the school unlawfully searched the student's cellphone, punished her for storing semi-nude photos of herself on it, and subsequently referred her case to the local district attorney's office for possible criminal prosecution under child pornography laws. Fourth and First Amendment claims were asserted as well as common law privacy claims. The phone was initially seized because the student used it in the bathroom in violation of school rules, and the principal then searched the phone's stored messages, and discovered the photos, some of which showed the girl's naked breasts and one of which showed her fully naked. The photos were intended to be seen by only the student and her long-time boyfriend, and were not circulated to other students at the school. Claims in the lawsuit against the prosecutor's office, individual prosecutors, and a police detective are still pending and were not settled. N.N. v. Tunkhannock Area School District, #3:02-at-06999, (M.D. Pa. 2010). Various documents about the case and the settlement can be found on a website.

     Two parents sued a school district and various individual defendants, claiming that a visitor management policy implemented at a school violated their rights against unreasonable search and seizure, as well as rights of due process, privacy, and free speech. The policy, adopted after a sex offender gained access to a school in the district, and exposed himself to a child, required every visitor to district schools to show a state-issued photo ID card or be denied access to secure areas of the school where children might be present. The mother had been denied access to an area of her child's school because she refused to allow the school to either scan her driver's license or enter the information from it manually. Rejecting the parents' claims, a federal appeals court ruled that the plaintiffs had failed to show that they had a fundamental right to access the school's secure areas. The defendants were granted summary judgment and awarded costs. Meadows v. Lake Travis Independent School District, #09-50850, 2010 U.S. App. Lexis 18802 (Unpub. 5th Cir.).

Search and Seizure: Search Warrants

     A plaintiff sued an officer who drafted an affidavit used to obtain a warrant used to search his property, claiming that his Fourth Amendment rights were violated. A federal appeals court, in rejecting this claim, noted that to survive summary judgment in a federal civil rights lawsuit, a claim for judicial deception in the obtaining of a search warrant must establish that the officer engaged in deliberate falsehood or reckless disregard for the truth in the affidavit, and show that, but for this dishonesty, the search warrant would not have established probable cause. As the plaintiff failed, in this case, to show that the officer deliberately or recklessly made false statements or omissions in his affidavit that were material to the finding of probable cause, the officer was entitled to qualified immunity. Littlefair v. Gosner, #09-35806, 2010 U.S. App. Lexis 19264 (Unpub. 9th Cir.).

Wiretapping, Video Surveillance, and Internet Legal Issues

     A police officer was not entitled to qualified immunity on Fourth Amendment claims arising out of his arrest of a man for filming his actions during a traffic stop. At the same time, as the right to videotape police officers during traffic stops was not clearly established, the officer was entitled to qualified immunity on the arrestee's First Amendment claim. The arrestee was a passenger in a vehicle stopped for speeding, and he used a video camera he had with him to record the officer, allegedly without the officer's knowledge or consent. The officer believed that this was a violation of a Pennsylvania wiretapping and electronic surveillance law. The officer called a prosecutor, and contended that he relied on the prosecutor's advice in placing the passenger under arrest. The officer believed that the passenger was violating the statute, as it requires police officers to inform people when they record traffic stops. While the officer's reliance on the prosecutor's advice in placing the passenger under arrest might give rise to a presumption that he was entitled to qualified immunity, the appeals court ordered further proceedings to determine whether that reliance was objectively reasonable. Kelly v. Carlisle #09-2644, 2010 U.S. App. Lexis 20430 (3rd Cir.).

     A motorist stopped by two Maryland state troopers recorded his interaction with the officers without informing them he was doing so. The recording included both video and audio. He later posted the recordings on the YouTube website. He was subsequently arrested and then indicted on charges that included, among other things, making the recordings of an oral private conversation. The trial judge ruled that the recorded audio exchange between the arrestee and the officers was not a private conversation as intended by the provisions of a state wiretap statute. "There is no expectation of privacy concerning a traffic stop on a public street. The law is clearly established that a traffic stop is not a private encounter." Charges concerning making and disseminating the recording were dismissed, while charges concerning traffic violations arising from the same incident will go forward. "Those of us who are public officials and are entrusted with the power of the state are ultimately accountable to the public. When we exercise that power in public fora, we should not expect our actions to be shielded from public observation." State of Maryland v. Graber, #12-K-10-647 (Circuit Court, Harford County, Md. 2010).

     Editor's Note: For more on this topic, see Officer Privacy and a Citizen’s Right to Video-Record Police Activity, 2009 (5) AELE Mo. L.J. 201.

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       Litigation Documents: The U.S. Department of Justice has filed a lawsuit against Arizona's Maricopa County and its Sheriff Joe Arpaio alleging that they have refused to provide information or cooperate in the DOJ's investigation of alleged racial profiling by police in Maricopa County -- specifically, alleged discrimination based on perceived country of origin. The complaint asserts that the sheriff's office is obligated to provide information and comply with the DOJ's investigation as a condition of federal funding it receives.

     Privacy: Department of Homeland Security Privacy Office 2010 Annual Report. This year’s report details the establishment of privacy officers within each component of the Agency. The report also provides updates on Fusion Centers, Cybersecurity, and Cloud Computing activities of the agency.

     Quality of Life Policing: "Money Well Spent: How positive social investments will reduce incarceration rates, improve public safety, and promote the well-being of communities," a report by the Justice Policy Institute (JPI) (2010). Using Washington, D.C., as a case study, the report focuses on the nexus of public safety and poverty. The institute says police should focus their efforts on the most serious offenses rather than "quality of life offenses that are often directed at low-income communities and people who are homeless." The institute also advocates addressing "practices that create racial and income disparities in arrest and incarceration."

Reference:
     • Abbreviations of Law Reports, laws and agencies used in our publications.
     • AELE's list of recently-noted civil liability law resources.