---

 Search the Case Law Digest

CONTENTS

     Some of the case digests do not have a link to the full opinion.

• Cases that have a Lexis or Westlaw citation can be retrieved, for a fee, via Internet.
• Most Federal District Court opinions can be accessed via PACER. Registration required. Opinions are usually free; other documents are 8¢ per page.
• Access to cases linked to www.findlaw.com may require registration, which is free.  

Assault and Battery: Pepper Spray

    State police followed a motorist to his home after observing him speeding and driving erratically. When they approached his vehicle and ordered him to exit, he did so, but began screaming obscenities at them. The motorist smelled of alcohol and he resisted being patted down, leaning backwards and knocking into an officer, and again trying to push back into the officer. He was placed under arrest, but refused to cooperate with being handcuffed, so two bursts of pepper spray were used to accomplish this. Even while handcuffed, he continued to resist, requiring a third pepper spray burst to subdue. He was convicted of DUI and resisting arrest, and sued the officers for excessive use of force. A federal appeals court ruled that the use of the pepper spray against the plaintiff, who was resisting arrest, was an objectively reasonable use of force. Revak v. Lieberum, #09-4179, 2010 U.S. App. Lexis 22466 (Unpub.3rd Cir.).

Assault and Battery: Physical

     An officer stopped a motorist because his license plate was not visible, and smelled alcohol on his breath. He was arrested for DUI and then informed the officer that he needed medications from his car for a number of illnesses, including AIDS. While the officer retrieved the medications, the arrestee had trouble breathing and spit mucus into an empty paper cup in the patrol car. The officer became afraid that the arrestee would spit on him and infect him, and called for a deputy sheriff to come to the scene with a patrol car with a protective divider to take the arrestee to jail. Walking the arrestee out of the patrol car, the officer allegedly closed the trunk lid of his car on the arrestee's thumb. The officer contended that this was an accident, while the arrestee claimed that it was in retaliation for his having spit mucus in the cup, and he sued. Upholding the denial of qualified immunity to the officer, the appeals court ruled that if the facts were as the plaintiff alleged, the force used against a non-resisting non-fleeing arrestee was excessive. Schmidt v. Gray, #09-20570, 2010 U.S. App. Lexis 22388 (Unpub. 5th Cir.).

     While EMS workers were transporting a man to the hospital following a seizure, he began kicking, fighting, spitting, cursing, and flailing in the back of the ambulance. A fire department lieutenant who is also a part-time police officer then applied joint manipulation on the man's wrist, resulting in him crying out "it hurts," but also ending his thrashing around. The man suffered no injuries from the manipulation, but nevertheless sued. An intermediate Ohio appeals court ruled that while the use of the procedure may have been negligent, it was not malicious, wanton or reckless, so that the individual defendants and the fire department should have been granted summary judgment. Christie v. Violet Township Fire Department, #09-CA-57, 2010 Ohio App. Lexis 2097 (Oh. App.5th Dis.).

Assault and Battery: Tasers

     A man suffering from bipolar disorder and schizophrenia, and known to local police from past psychotic but noncriminal episodes was reported missing by his family. In a delusional state, he wandered into a partially built new home wearing only a bathrobe. The owner was present and summoned police, who used a taser to try to subdue the delusional man, who would not comply with their commands. It was disputed how many times the man was tasered, but he ended up face down on a gravel driveway. Once he was handcuffed, officers turned him over and discovered that he was not breathing. He then died. A federal appeals court reversed summary judgment for the defendant officers, noting that it was still disputed how many times the officers discharged the taser, and to what extent the decedent attempted to evade the officers. Cyrus v. Town of Mukwonago, #09-2331, 624 F.3d 856 (7th Cir. 2010).

     Officers' use of tasers against protestor arrestees who had chained themselves to a several-hundred-pound barrel drum and refused to free themselves was objectively reasonable even though their arrest was for relatively minor crimes of trespass and resisting arrest. The plaintiffs admitted that officers at the scene considered and attempted several alternate means of removing them from the property before resorting to use of their tasers, that the officers expressly warned them that they would be tased and that it would be painful, and that the officers gave them another opportunity to release themselves from the barrel after this warning. Finally, both plaintiffs were given opportunities again to release themselves from the barrel prior to the subsequent uses of the tasers. Crowell v. Kirkpatrick, #09-4100, 2010 U.S. App. Lexis 23518 (Unpub.2nd Cir.).

Defenses: Indemnification

     A man was convicted of rape and kidnapping on the basis of testimony by a police forensic chemist that hair and semen found at the scene of the crime were consistent with samples taken from him. Seventeen years later, the man's conviction was vacated based on exculpatory DNA results. The chemist's own lab tests indicated that she should have excluded him as a possible suspect. In a federal civil rights lawsuit against the chemist and the city that employed her, the arrestee was awarded $16.5 million against the chemist. The city was found not liable. The chemist filed an indemnification cross-claim against the city, but settled it for $23,364.29 without the plaintiff's participation. A federal appeals court has upheld the trial court's rejection of the plaintiff's attempt to directly seek indemnification on his judgment against the chemist from the city, since there was no evidence of deliberate indifference by the city and the plaintiff was not the real party in interest on the chemist's indemnification cross-claim. Bryson v. Oklahoma City, #09-6143, 2010 U.S. App. Lexis 24822 (10th Cir.).

False Arrest/Imprisonment: No Warrant

     A juvenile's agreement to resolve charges of obstructing a police investigation by accepting informal probation was not a "favorable termination" of her criminal case, so that her false arrest claim was barred. The appeals court also rejected her excessive force claim against one officer, as he had not participated in her arrest. Lujano v. County of Santa Barbara, #B218145, 2010 Cal. App. Lexis 2041 (Cal App.).

     A motorist claimed that an officer framed him for DUI by falsifying the results of his field sobriety tests as part of a scheme to make phony DUI arrests to justify overtime. Rejecting his false arrest claim, the federal appeals court ruled that because there was probable cause to arrest the motorist for driving a prohibited vehicle, his false arrest claim was barred. This was true even though the motorist was not ultimately charged with that offense. Jackson v. Parker, #09-3873, 2010 U.S. App. Lexis 24683 (7th Cir.).

    In an arrestee's lawsuit claiming that he had been arrested without probable cause for impersonating a police officer, and for false imprisonment and terroristic threatening of suspected drug offenders, the appeals court upheld the denial of qualified immunity to arresting officers by the trial court, which described in detail the material disputed facts which could permit a reasonable jury to find that probable cause was lacking for each of the three charges. Aaron v. Shelley, #09-3554, 624 F.3d 882 (8th Cir. 2010).

     Off duty police officers working security at a high school football game held on private property owned by a church had probable cause to arrest a man attending the game who failed to move on when instructed to do so after he could not find a place to sit, and who stood and glared at an officer and refused to leave the premises when told to do so. Carthon v. Prator, #09-31100, 2010 U.S. App. Lexis 22896 (Unpub.5th Cir.).

     Officers had probable cause to arrest a man for obstruction when he acted with resistance to their attempts to arrest him under a warrant for driving under a cancelled license. Jacobson v. Mott, #09-2484, 623 F.3d 537 (8th Cir. 2010).

Federal Tort Claims Act

     The federal government was not liable under the Federal Tort Claims Act for the actions of a U.S. Special Agent who became involved in an auto accident during a car chase with a motorcycle rider. He did not act within the scope of his employment and acted as a private person while driving home from work in an unmarked government vehicle when he became involved in the dispute with the motorcyclist. Merlonghi v. U.S., #09-2387, 620 F.3d 50 (1st Cir.2010).

Firearms Related: Intentional Use

     A police officer was justified in using deadly force and repeatedly shooting an armed suspect who was lying in wait following a car chase and foot pursuit after fleeing from the scene of an armed burglary. The officer reasonably perceived the situation as an ambush, a situation justifying the use of deadly force for his own safety. Jean-Baptiste v. Gutierrez, #10-11129, 2010 U.S. App. Lexis 24870 (11th Cir.).

First Amendment

     Multiple injunctions against a man restricting his conduct towards the mayor and city council were properly granted when he arguably made credible threats of violence towards a city employee, making reference to an incident in another city where an angry man shot and killed five people at a city hall, and questioning whether such action was necessary to get his complaints listened to. While the man had engaged in some protected conduct in the past, such as attending city council meetings and speaking during public comment times, his threat of violence was not protected speech, and could be the basis for an injunction. City of San Jose v. Garbett, #H034424, 2010 Cal. App. Lexis 2003 (Cal.App.).

     A woman who participated in an animal rights protest outside a city-owned arena where a circus was performing claimed that police officers improperly pushed her and other demonstrators 100 feet from the arena entrance, preventing them from communicating with entering circus patrons or having their signs read. Some demonstrators were then arrested, but not the woman or two others who had purchased tickets to the circus. The city subsequently took the position that future protests should stay 80 feet from the arena entrance. Ordering further proceedings in the woman's free speech lawsuit against the city, a federal appeals court found that the trial court failed to examine in sufficient detail the necessary balance between free speech and the city's interests, creating a "sparse" record. Zalaski v. City of Bridgeport Police Dept., #08-3671, 2010 U.S. App. Lexis 15307 (2nd Cir.).

    The rules of a large regional shopping mall banning peaceful, consensual, spontaneous conversations between strangers in common areas of the mall about topics unrelated to the activities of the mall, its tenants or the noncommercial sponsored activities of the mall or its tenants violated free speech rights guaranteed by the California state constitution. The appeals court reversed summary judgment for the defendants in a lawsuit brought by a plaintiff who sought to approach young women at the mall and ask them to talk to him about Jesus. Snatchko v. Westfield LLC, #C059985, 2010 Cal. App. Lexis 1556 (Cal.App.).

Freedom of Information

    Two groups sued the Department of Homeland Security under the Freedom of Information Act, seeking disclosure of documents they believed might show evidence of government misconduct in the investigation of possible terrorist activities anticipated during the 2004 presidential election and the 2005 presidential inauguration, and specifically the alleged indiscriminate targeting of men from Muslim-majority countries and charging of them with minor immigration violations.

    A federal appeals court held that the defendant properly withheld portions of a memorandum sought by the plaintiffs under an exemption for "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law." Allan K. Lowenstein Int'l. Human Rights Project v. Dept. of Homeland Sec., #09-2225, 2010 U.S. App. Lexis 23924 (2nd Cir.).

Governmental Liability: Policy/Custom

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

     Plaintiffs who were accused of child abuse in California, but were later exonerated, had their names added to a Child Abuse Central Index, where they would remain available to various state agencies for at least 10 years. There was no state mechanism for contesting the inclusion of their names, nor had Los Angeles County created any procedure to do so. They sued the county and public officials, claiming that this violated their constitutional rights. They sought damages, injunctive relief and declaratory relief.

    A federal appeals court ruled that the Fourteenth Amendment required the state to provide those on the list with notice and a hearing, and that the plaintiffs were entitled to declaratory relief and were prevailing parties entitled to attorney's fees, including $60,000 from the county. The county objected, claiming that as a municipal entity, it was liable only if its "policy or custom" caused the deprivation of a plaintiff's federal right, but a state policy caused any deprivation here. The appeals court ruled that the plaintiffs did prevail against the county on their claim for declaratory relief because the policy or custom requirement did not apply to prospective relief claims. The U.S. Supreme Court disagreed, holding that there can be no municipal liability in the absence of a finding of an official policy or custom regardless of the type of relief sought or awarded. Los Angeles Cty. v. Humphries, #09–350, 2010 U.S. Lexis 9444

Interrogation

     Over ten years after being convicted of sexual assault and homicide, a man was exonerated by DNA evidence. He sued the city of Chicago, a number of police officers, and a prosecutor, claiming that several detectives and the prosecutor had coerced him into falsely confessing to the crimes in violation of the Fifth Amendment. A federal appeals court has rejected the prosecutor's appeal of the denial of his motion for absolute prosecutorial immunity, finding that there were unresolved disputed factual issues concerning the prosecutor's role in obtaining the confession that rendered it impossible to decide the immunity issue on appeal. If the prosecutor was acting in an investigatory role, rather than a prosecutorial role, he would not be entitled to absolute prosecutorial immunity. Further, while he could still be entitled to qualified immunity if he did not violate clearly established law, he would not be entitled to qualified immunity if he aided in coercing a false confession. Hill v. Coppleson, #09-1878, 2010 U.S. App. Lexis 23940 (7th Cir.).

Malicious Prosecution

     An award of damages against a police officer for malicious prosecution was upheld when it was clear that he influenced the decision to prosecute the plaintiffs by making various misstatements to the prosecutor. A false arrest claim was also upheld, as there was no probable cause for the arrest at the time the officer submitted a warrant application. Further proceedings were ordered, however, on the issue of whether the award of over $2.5 million in damages was excessive and should be reduced. Sykes v. Anderson, #08-2088, 2010 U.S. App. Lexis 23204 (6th Cir.).

Negligent or Inadequate Investigation

     A man arrested and convicted of the murder of a homeless Vietnam veteran, whose conviction was overturned, sued police detectives for allegedly conducting an inadequate investigation of the crime. A federal appeals court, holding that there was no clearly established constitutional right to be free of a reckless investigation in 1994, the time of the crime, ruled that the defendants were entitled to qualified immunity. Hernandez v. Terrones, #09-50659, 2010 U.S. App. Lexis 21650 (Unpub.5th Cir.).

Public Protection: 911 Systems

     An intermediate North Carolina appeals court held that a county 911 center provides a governmental function, protecting the health and welfare of the county's citizens. It also noted that the center's insurance policy provided that it does not waive the defense of governmental immunity. It further held, therefore, that a trial court acted properly in dismissing a lawsuit against the 911 operators in their official capacity, while letting claims against them in their individual capacity proceed. The lawsuit concerned the 911 center's allegedly inadequate response to calls concerning a child who had stopped breathing, and subsequently died. Wright v. Gaston County, #COA09-792, 2010 N.C. App. Lexis 1248.

Public Protection: Pedestrians and Motoring Public

      An intoxicated driver struck a motorist who had been lying injured on the road after his own apparent alcohol-related accident. He sued two highway patrolmen who responded to his accident for failure to protect him from the intoxicated driver. A federal appeals court upheld summary judgment for the defendants, as the evidence did not show that they had taken the plaintiff into custody and held him against his will, triggering a duty to protect him. The officers did not move the motorist, awaiting the arrival of an ambulance, as they feared he had suffered a spinal injury, but they did attempt to stop the oncoming vehicle driven by the intoxicated driver, who ignored their directions. Dodd v. Jones, #09-2016; 623 F.3d 563 (8th Cir. 2010).

Search and Seizure: Home/Business

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

     Officers concerned about the well-being of the young daughter of a man estranged from his wife made a warrantless entry into a home to check on her. The wife had gone to the home to pick up the daughter for court ordered visitation, received no response to the doorbell, and contacted the police after seeing a man inside she thought was her husband. Police were concerned because of past domestic disputes involving the couple, and consulted a judge, who told them they could enter. The man and his daughter were not in the home, and he later sued the officers for their warrantless entry. The federal appeals court rejected the argument that the officers' warrantless entry was justified by their "community caretaking" function, ruling that this doctrine is best viewed as applying in the context of vehicle searches, rather than home searches, since there is a lesser expectation of privacy when it comes to vehicles. The court also ruled, however, that the officers were entitled to qualified immunity, since the law on the subject was not clearly established in the 3rd Circuit at the time of the search, and some courts had, indeed, applied the community caretaking doctrine to home or business searches. Ray v. Township of Warren, #09-4353, 2010 U.S. App. Lexis 24043 (3rd Cir.).

Search and Seizure: Search Warrant

     A federal appeals court upheld a $100,000 damage award to a plaintiff suing for unlawful search of his residence, finding that the search warrant utilized was based on an affidavit lacking in probable cause. It mentioned no specific crimes thought to have probably been committed, made no link between the residence to be searched and any crime, and sought broad authority to search for any documents pertaining to the plaintiff. This was so lacking in any indicia of probable cause as to render any belief in its legality unreasonable. Ellison v. Balinski, #09-2033, 2010 U.S. App. Lexis 23409 (6th Cir.).

•Return to the Contents menu.

    Statistics: "Crime Against People with Disabilities, 2008," by Erika Harrell, Ph.D., Michael Rand, December 9, 2010 NCJ 231328. Presents findings about nonfatal violent and property crime experienced in 2008 by persons with disabilities, based on the National Crime Victimization Survey (NCVS). The report presents estimates of nonfatal violent victimization (rape/sexual assault, robbery, aggravated and simple assault) and property crime (burglary, motor vehicle theft, and theft) against persons with disabilities in 2008. It compares the victimization experience of persons with and without disabilities, using population estimates based on the Census Bureau’s American Community Survey (ACS). Data are presented on victim and crime characteristics of persons with and without disabilities, including age, race and gender distribution; offender weapon use; victim injuries; and reporting to the police. Highlights include the following: * Adjusting for the varied age distributions of persons with and without disabilities, the violent crime rate against persons with disabilities was 40 violent crimes per 1,000 persons age 12 or older, which was double the violent crime rate for persons without disabilities (20 per 1,000). * Among the types of disabilities measured in 2008, persons with cognitive disabilities had the highest risk of violent victimization. * Household burglary made up a higher percentage of all property crime against households with persons with a disability (25%) than against households without persons with disabilities (19%).

     Statistics: F.B.I. Releases 2009 Statistics on Law Enforcement Officers Killed and Assaulted. Forty-eight law enforcers were killed in the line of duty in 2009, seven more than in 2008. Forty-seven other officers were killed in accidents while performing their duties, and more than 57,000 officers were assaulted on the job. About a quarter of those were injured.

     Statistics: "Indicators of School Crime and Safety: 2010," by Simone Robers (NCES), Jennifer Truman (BJS), Jijun Zhang (NCES), November 22, 2010 NCJ 230812. Presents data on crime and safety at school from the perspectives of students, teachers, and principals. A joint effort by the Bureau of Justice Statistics and the National Center for Education Statistics (NCES), this annual report examines crime occurring in school as well as on the way to and from school. It also provides the most current detailed statistical information on the nature of crime in schools and school environments and responses to violence and crime at school. Data are drawn from several federally funded collections, including the National Crime Victimization Survey, Youth Risk Behavior Survey, School Survey on Crime and Safety, and the Schools and Staffing Survey. Highlights include the following: * In 2008, among students ages 12 -18, there were about 1.2 million victims of nonfatal crimes at school, including 619,000 thefts and 743,100 violent crimes (simple assault and serious violent crime). * During the school year 2007 - 08, there were 1,701 homicides among school-age youth ages 5 - 18. * In 2009, 31 percent of students in grades 9 - 12 reported they had been in a physical fight at least one time during the previous 12 months anywhere, and 11 percent said they had been in a fight on school property during the previous 12 months.

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

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