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Assault and Battery: Physical

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

     A motorist suffered a diabetic episode resulting in the loss of control of his vehicle, striking two other cars. A chief of police who arrived at the scene of the accident received no response from the motorist when he tried to question him, and mistakenly thought that he was drunk. The motorist was suffering convulsions. The chief was concerned that the motorist might try to flee, as he appeared to be ignoring requests to turn off his engine, and forcibly removed him from his car, throwing him to the ground and handcuffing him. The motorist later sued, claiming excessive force was used in doing so, causing him a broken hip and bruised lung. A federal appeals court upheld the denial of qualified immunity to the defendant, finding that the plaintiff had adequately alleged that the chief's belief that he was intoxicated was unreasonable, especially as he was wearing a medical alert necklace, which the chief did not check for before using force to remove him. McAllister v. Price, #10-1213, 2010 U.S. App. Lexis 16685 (7th Cir.).

Defenses: Qualified Immunity

     An officer was not entitled to qualified immunity in a lawsuit for making a traffic stop of an African-American motorist for no apparent reason, prolonged detention of him and his passengers, and handcuffing of the motorist. It was not a reasonable mistake for the officer to believe that the car's windows were rolled up and tinted in light of evidence that they were rolled down and could not be viewed at all. Liberal v. Estrada, #08-17360, 2011 U.S. App. Lexis 957 (9th Cir.).

     A former prisoner in an Ohio facility claimed that a correctional officer had sexually assaulted her on two consecutive nights, and sued two superintending prison officers, a case manager on her living unit, and a prison investigator. She claimed that the case manager failed to take any action to prevent the second assault after she reported the first one, and that the investigator retaliated against her for her accusations by placing her, shackled and handcuffed, in solitary confinement in a cell without adequate heat, clothing, bedding, or blankets. The trial court denied the defendants summary judgment on the basis of qualified immunity, finding that there were disputed material issues of fact, and the defendants did not appeal that ruling.

     After a full trial, a jury awarded the plaintiff $350,000 in compensatory and punitive damages against the case manager and $275,000 against the investigator. The defendants did not then file a motion seeking judgment as a matter of law after the verdict, nor did they seek a new trial. Instead, they argued, on appeal, that the trial court should have granted their motion for summary judgment on the basis of qualified immunity. A federal appeals court agreed, and reversed the jury's verdict.

     The U.S. Supreme Court disagreed, reversing the appeals court, and holding that a party may not appeal a denial of summary judgment after a district court has conducted a full trial on the merits. There was no "purely legal" issue of qualified immunity preserved for appeal, as the dispute was not over what the pre-existing law was, but instead what the facts were--such as whether the case manager was adequately informed, after the first attack, of the assailant's identity. The defendants could not argue, on appeal, that the plaintiff had not proven her case, as they failed to raise an issue of the sufficiency of the evidence by a post-judgment motion for judgment as a matter of law. Ortiz v. Jordan, #09–737, 2011 U.S. Lexis 915

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

     A man who founded a company that sold memberships in an investment club to African Americans was investigated by the F.B.I. and S.E.C. and convicted of mail fraud and money laundering. His attempts to appeal the conviction or otherwise have it set aside were unsuccessful, but he sued several attorneys and an accountant employed by the S.E.C. who allegedly created a spreadsheet for the criminal prosecution tracking his companies' financial transactions, but refused to disclose it to him or the prosecution in violation of Brady v. Maryland, #490, 373 U.S. 83 (1963).

     Rejecting this claim, a federal appeals court noted that a "meritorious Brady claim, by definition, implies the invalidity of the attendant criminal conviction." The plaintiff failed to show how the disclosure of the spreadsheet would have led to a different result in his criminal prosecution. Additionally, the information supposedly withheld was "known by and available" to the plaintiff, and the government has no duty to furnish a criminal defendant with information he already has or can obtain himself with any reasonable diligence. Dukes v. Pappas, #10-3380, 2010 U.S. App. Lexis 26371 (Unpub. 3rd Cir.).

False Arrest/Imprisonment: No Warrant

     An African-American electric meter reader alleged that she was falsely arrested for supposedly taking pictures of houses in an almost entirely white neighborhood while working. She was charged with obstructing an officer, and had actually not been taking pictures, but merely using binoculars to see if house gates were open so she could read meters, or whether dogs were in a yard, etc. The officers were not entitled to qualified immunity, as they could not identify any single circumstance about her actions that could have supported a reasonable belief that she was engaged in a criminal activity under any federal or state law. Jones v. Clark, #09-3574, 2011 U.S. App. Lexis 707 (7th Cir.).

     A patient advocate employed in a hospital emergency room asked a police officer to get off his cell phone, believing that such phone use was prohibited in the area where the officer was. The officer refused, and during the ensuing argument, the officer allegedly poked and grabbed the hospital employee, twisted his arm while attempting to handcuff him, and arrested him for "terroristic threats," obstruction of administration of the law, resisting arrest, and disorderly conduct. In a false arrest lawsuit, a jury returned a verdict for the officer. A federal appeals court rejected the plaintiff's argument that evidence of the officer's prior use of excessive force was improperly excluded, noting that excessive force claims asserted by the plaintiff were not even before the jury at trial, having been previously rejected by the trial court. Fanor v. Alvarado, #08-2907, 2010 U.S. App. Lexis 19094 (Unpub. 3rd Cir.).

     A Florida man claimed that officers who came to his house in response to a phone call about a dispute between two women entered the residence without performing any investigation, immediately handcuffing him, pushing him to the ground, dragging him outside, and arresting him. The appeals court overturned the dismissal of a false arrest claim, finding that the plaintiff sufficiently alleged that the officers arrested him without probable cause to believe that he had committed any crime. Heflin v. Miami-Dade County, #10-10407, 2010 U.S. App. Lexis 17287 (Unpub. 11th Cir.).

     An officer observed a motorist driving with tinted windows and an untinted but dirty plastic cover over her license plate. He pulled next to her to read the plate number, and found that it was not listed as stolen. He then activated his emergency lights, pulling behind her. She did not pull over, and he activated his siren. A pursuit ensued, and only ended after another officer pulled his car in front of the motorist. A federal appeals court ruled that the officers had at least arguable probable cause to arrest the motorist for obscuring her license plate and trying to elude an officer. Perry v. Greene County, Georgia, #10-10143, 2010 U.S. App. Lexis 17099 (Unpub. 11th Cir.).

False Arrest/Imprisonment: Warrant

     A man went to retrieve his car, which had been impounded when he parked near his work site without a required permit. He was then arrested because his New York state ID number matched that of a suspect sought on a "John Doe" warrant. Held for two days, he was released when it was discovered that the warrant was for someone else who was erroneously issued the same state ID number. Under the circumstances, the arresting officer could reasonably have believed that the warrant was valid and was for the plaintiff, so he was entitled to qualified immunity. Caceres v. The Port Authority of New York & Jersey, #09-3064, 2011 U.S. App. Lexis 1929 (2nd Cir.).

     A trial judge acted erroneously in granting summary judgment to the defendants in a false arrest lawsuit. If the crime victim's deposition was true, she did not identify the arrestee as her attacker, but another person, which would mean that the officer's arrest warrant affidavit falsely indicated that the arrestee had been identified from a photo array. Lawson v. Veruchi, #10-1318, 2011 U.S. App. Lexis 1783 (7th Cir.).

     The trial court properly dismissed a false arrest lawsuit by a man mistakenly arrested and detained for 37 days before it was determined that he was not the parole violator sought in the arrest warrant. The suspect actually sought had the same name, day and month of birth, and the same first three digits of his Social Security number as the arrestee. The arrestee's continued detention after his arrest was reasonable, particularly as he gave inconsistent statements regarding whether he was or was not the individual named in the warrant. Atkins v. City of Chicago, #09-2998, 2011 U.S. App. Lexis 1459 (7th Cir.).

     A man arrested for armed robbery under an arrest warrant claimed that the officer failed to conduct an adequate investigation before seeking the warrant. He claimed that the robbery victim was not a credible witness, as he waited three days before reporting the alleged robbery, and said that the robbery took place at the home of himself and his girlfriend, even though they were actually homeless. But the officer indicated that he did not know that the victim was homeless, and had no reason to doubt his story. As any failure to further investigate before seeking an arrest warrant amounted to, at most, negligence, the plaintiff's claims were rejected. Shadley v. Grimes, #10-60250, 2010 U.S. App. Lexis 25870 (Unpub. 5th Cir.).

     Police received a phone call stating that a bar and grill was going to "blow tonight," which they interpreted as a bomb threat. They suspected that the call had been made by a man who had previously complained about noise coming from the business. Over two months later, an arrest warrant was issued for this man based on alleged similarities between the voice of the recorded bomb threat and the man's voice, and his frequent complaints about the bar's noise. Charges were later dismissed, however, after the dispatchers who had received the bomb threat could not identify the arrestee's voice.

     The appeals court upheld the trial court's determination that, after "problematic" statements in the warrant affidavit concerning the basis for the officer's alleged identification of the arrestee's voice were excluded, the remainder of the affidavit did not support probable cause. The plaintiff made the required showing that the officer "engaged in deliberate falsehood or reckless disregard for the truth" concerning an "unprofessional" voice identification, so that the false arrest claim could go forward. Wolgast v. Richards, #08-1724, 2010 U.S. App. Lexis 16458; (Unpub. 6th Cir.).

Firearms Related: Intentional Use

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

     During a shootout between an officer and a suspect, the officer accidentally shot a female innocent bystander who died. A federal appeals court upheld summary judgment for the officer and the city in a federal civil rights lawsuit brought by the woman's estate. The officer was returning fire at a suspect who was armed with a shotgun and who had previously threatened another man with that gun. The officer had no intention of harming the decedent, and did not even know that she was in the line of fire. Bystanders are not "seized," for purposes of a Fourth Amendment claim "when struck by an errant bullet in a shootout." Simpson v. City of Fort Smith, Arkansas; #09-2617, 2010 U.S. App. Lexis 16666 (Unpub. 8th Cir.).

First Amendment

     An adult bookstore challenged a city ordinance requiring the dispersal of adult businesses. The trial court erroneously granted summary judgment to the plaintiffs on the issue of whether they had presented "actual and convincing" evidence that cast "doubt" on the city's purported rationale for the ordinance, combating the effects of concentrations of adult businesses on crime in the surrounding areas. Alameda Books v. City of Los Angeles, #09-55367, 2011 U.S. App. Lexis 1769 (9th Cir.).

      A Florida county ordinance aimed at regulating sexually-oriented businesses through zoning and prohibitions on public nudity was reasonably designed to reduce negative secondary effects associated with such businesses, and was not a violation of the First Amendment rights of the business owners. Peek-a-Boo Lounge of Bradenton, Inc. v. Manatee Cty., #09-16438, 2011 U.S. App. Lexis 1191 (11th Cir.).

Malicious Prosecution

     A school district employee was indicted and arrested in connected with an allegedly false report concerning high school dropout statistics sent to the state of Texas, purportedly changing records to show no drop-outs from a high school that actually had 30. He subsequently claimed that a variety of defendants had intentionally withheld information and manipulated evidence to procure his indictment.

     A federal appeals court ruled that there could be no "free-standing" federal malicious prosecution claim. The initiation of criminal charges without probable cause may set in play events that violate explicit constitutional rights, but the plaintiff must show that government officials violated specific constitutional rights in connection with a malicious prosecution claim. This plaintiff failed to do so, and explicitly waived any false arrest claim. Two separate grand juries indicted the plaintiff, and there was no showing that any of the defendants knowingly withheld allegedly exculpatory evidence prior to these indictments. Cuadra v. Houston Independent School District, #09-20715, 2010 U.S. App. Lexis 23623 (5th Cir.).

Negligence: Vehicle Related

    The City of New York and one of its officers were not liable for the death of a man struck and killed by the officer's vehicle while he was responding to a radio call of an officer in need of assistance. There was no evidence that the officer acted in reckless disregard for the safety of others, as he activated his vehicle's emergency lights and siren and was passing through an intersection where he had a green light before striking the decedent. The failure to see the decedent before striking him could not be described as reckless. Perez v. City of New York, # 4127, 2011 N.Y. App. Div. Lexis 433 (1st. Dept.).

     A federal appeals court, in an Oregon state law lawsuit over the death of a woman struck and killed by a police cruiser as she walked across a highway, has certified some questions to the Supreme Court of Oregon for an interpretation of state law: "1) is plaintiff's negligence action constitutionally protected under the Oregon constitution's remedy clause, Or. Const. art. I, section 10, irrespective of the jury’s finding of comparative negligence? To what extent, if any, do the common law defenses to contributory negligence of last clear chance, the emergency doctrine, and gross negligence effect this determination? 2) If plaintiff's action is protected, is $200,000 an unconstitutional emasculated remedy despite the jury’s finding of comparative negligence? To what extent, if any, do the common law defenses to contributory negligence of last clear chance, the emergency doctrine, and gross negligence effect this determination?" Howell v. Boyle, #09-36153, 2011 U.S. App. Lexis 756 (9th Cir.).

     Editor's note: In this case, at trial, the jury found that both the officer and the woman were negligent, and that each was 50% responsible for the accident. The trial judge reduced the jury's verdict under Oregon's comparative negligence law to $507,500, after which the officer and city asked the court to cap the damages at $200,000 under a state tort claims law, but the trial court ruled that the cap was unconstitutional under a provision of the Oregon state constitution guaranteeing remedies for harm, and declined to reduce the damages further. The Supreme Court of Oregon's answer to the certified questions, which will be reported on in this publication later when rendered, will determine whether this result is upheld.

Privacy

     A man who enlisted in the Army had his military service terminated when he failed a background check because a court clerk sent the recruiter his juvenile criminal record after receiving a request to do so. He sued the court clerk for alleged violation of his due process rights. A federal appeals court upheld the dismissal of the complaint for failure to state a claim for a violation of his right to privacy. He lacked a legitimate expectation of privacy in his juvenile records due to release forms he signed in connection with his enlistment, and the clerk's disclosure was "neither shockingly degrading nor egregiously humiliating." Van Zee v. Hanson, #10-1588, 2011 U.S. App. Lexis 859 (8th Cir.).

Property

    A county official's failure to provide any notice and an opportunity to respond to the estate before he entered the home of a recently deceased man and removed personal property, some of which was sold and some of which he stored violated due process, when there were no extraordinary circumstances justifying these actions. The official, the county public administrator, was, however, entitled to qualified immunity for making a warrantless entry into the home after being informed of the death, for the purpose of securing the property of the estate, although not for taking it away. Mathis v. County of Lyon, #08-17302, 2011 U.S. App. Lexis 1956 (9th Cir.).

Public Protection: Arrestee

     A Bureau of Indian Affairs (BIA) law enforcement officer came to a home to arrest a man for federal sex crimes, sex relations with three girls under the age of 16 on Indian Territory. When informed of his arrest, the arrestee told the officer that he would go willingly as soon as a relative arrived to take care of his little brother, and asked to go to his bedroom to clean up while waiting. The officer agreed, and the arrestee then shot and killed himself in his bedroom. His mother sued for wrongful death under the Federal Tort Claims Act, claiming that the officer had failed to adequately supervise, secure, and detain her son after arresting him. A federal appeals court uphold the dismissal of the lawsuit, finding that the officer's on-the-spot decisions about how to carry out the arrest fell within a discretionary function exception to liability under the Act in the absence of any mandatory directive to the contrary. Hart v. U.S., #10-1604, 2011 U.S. App. Lexis 498 (8th Cir.).

Public Protection: Ill Persons

     When three officers were engaged in executing a search warrant, a woman complained of or exhibited some health problems. The officers allegedly denied her request for access to her anti-anxiety medication. Twenty minutes later, the officers summoned EMS personnel to treat her, which they did, leaving the scene, only to be called back later to transport the woman to the hospital. At some point, she suffered cardiac arrest and went into a coma, remaining in it. A lawsuit accused the officers of violating her civil rights through deliberate indifference to her need for immediate medical care while she was, in essence, a pretrial detainee. A federal appeals court upheld a ruling that the officers were entitled to qualified immunity. They had no subjective knowledge at first that the woman was in serious need of immediate medical attention, and when this became clear to them, they summoned medical personnel and did not interfere with their treatment. Their actions might have been, at worst, negligent, but did not violate her constitutional rights. Flores v. Jaramillo, #10-40096, 2010 U.S. App. Lexis 16520 (Unpub. 5th Cir.).

Search and Seizure: Home/Business

     Police who seized a paint sprayer alleged to be stolen from a pawn shop during business hours without a warrant did not violate the Fourth or Fourteenth Amendment, since the item was in plain view. The trial court did not have to find that the alleged victim of the theft was, in fact, the owner of the item in order to justify the item's seizure under the plain view doctrine. PPS, Inc. v. Faulkner Cty., Ark., #09-3540, 2011 U.S. App. Lexis 577 (8th Cir.).

     Officers went to a student's home to investigate suspicions that he planned to "shoot up" the school. Encountering his mother at the door, two of them were denied permission to enter, but did so anyway when she went inside to get her husband, following her in. Two other officers who had not been close enough to hear the conversation also went in. After a discussion with the student and his family, the officers decided that there was no threat to the school from the student. In a lawsuit over the alleged unlawful warrantless entry without consent, only the two officers who had not heard the refusal of consent were entitled to qualified immunity, as only they could reasonably believe that consent to entry had been given. No exigent circumstances justifying a warrantless unconsented entry existed. Huff v. City of Burbank, #09-55239, 2011 U.S. App. Lexis 493 (9th Cir.).

     Police officers were not entitled to qualified immunity for executing a search warrant on a residence for evidence of child pornography in a no-knock manner. There were no circumstances indicating danger to the officers in executing the warrant, and the fact that some residents had permits to carry concealed weapons only showed that they were citizens in good standing who passed a background check. Bellotte v. Edwards, #10-1115, 2011 U.S. App. Lexis 520 (4th Cir.).

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     Homosexual Youth: "Criminal Justice and School Sanctions Against Nonheterosexual Youth: A National Longitudinal Study," by Kathryn W. Himmelstein and Hannah Bruckner, Pediatrics (Jan. 2011). The article states that lesbian, bisexual and gay youth are singled out more than their heterosexual counterparts for punishment from authorities, including police and school officials, according to a new study. It found that lesbian, gay and bisexual adolescents are about 40% more likely to be expelled from school, arrested by police and convicted by courts than their peers.

     Identity Theft: President Obama has signed into law the "Social Security Protection Act of 2011," aimed at reducing identity theft by prohibiting government agencies from printing social security numbers on checks and prohibiting prison inmates' access to social security numbers.

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

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