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Assault and Battery: Chemical

     While a sheriff's deputy did have probable cause to arrest a city employee, there was a factual issue as to whether the use of pepper spray against the arrestee was excessive. The arrestee had allegedly elbowed the deputy while going through an employee entrance security checkpoint at a city building, and responded with a profane statement when ordered to stop. While there was probable cause to arrest the plaintiff for failing to obey a lawful order, his version of the incident, in which he denied making physical contact with the deputy or making the profane statement, if true, would render the deputy's use of pepper spray and action in taking him to the ground an excessive use of force. Howard v. Wayne County Sheriff's Office, #09-2171, 2011 U.S. App. Lexis 5270 (Unpub. 6th Cir.).

Assault and Battery: Physical

     Officers were properly denied qualified immunity on an arrestee's excessive force claim when, according to the plaintiff's version of events, they used "gratuitous" force when he had already surrendered and submitted to arrest. It was undisputed that he did not attempt to flee, resist arrest, or threaten the officers. If the officers did hit and kick him after he surrendered, as he claimed, their use of force was excessive. Wheeler v. City of Cleveland, #09-4089, 2011 U.S. App. Lexis 5755 (Unpub. 6th Cir.).

Assault and Battery: Stun Guns/Taser

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

     Officers went to a house to arrest a man under three warrants for various minor offenses. Once at the house, the officers found the back door open, and no furniture inside or any other indication that anyone was living there, but did find the suspect unclothed in a bathroom. While dressing, the suspect suddenly lunged towards a second-story window, and an officer used her Taser on him. He was hit by the Taser's two probes, but continued through the window and subsequently died of his injuries.

     A federal appeals court rejected both unlawful entry and excessive force claims. From the appearance of the house, the officers had an objectively reasonable basis to believe the house was abandoned, so they had no duty to knock and announce before entering. The officer was entitled to use force such as the Taser when it appeared that the suspect was making an active attempt to evade arrest. McKenney v. Harrison, #10-1407, 2011 U.S. App. Lexis 6248 (8th Cir.).

     There was a genuine issue as to whether a motorist was complying with police orders before he was tasered. While the officers stated that he disobeyed orders to show his hands or get out of his truck, the plaintiff arrestee contended that he had complied with orders to place his truck in park, turn off the truck's engine, and place his hands in the air, and claimed that the tasering continued even after he was handcuffed and subdued. If the plaintiff's version of the incident were true, there was an excessive use of force. No viable claim existed, however, for supervisory liability. Bell v. Kansas City Police Dept., #10-1870, 635 F.3d 346 (8th Cir. 2011).

False Arrest/Imprisonment: No Warrant

     An officer had probable cause to arrest a man based on a sworn statement by his alleged victim, a 12-year-old mentally disabled student. While the child's age and mental capacity did bear upon the trustworthiness of his statements, the statement was also reinforced by the statements of four adults who discussed the incident with him and believed that an offense had occurred: his grandmother, the school psychologist, the Dean of Students, and the arresting officer. Kilburn v. Village of Saranac Lake, #10-1559, 2011 U.S. App. Lexis 4698 (Unpub. 2nd Cir.).

     After a deputy stopped her husband's car, in which she was a passenger, and ticketed him for failing to dim its high beam lights, a woman called 911 to express her fears of the deputy, who she described as "shaking, agitated, and nervous," and requested that other officers meet the couple at a local gas station, because the deputy had activated his lights and siren and was following them. She had criticized him during the stop and been told to "shut up." At the gas station, the deputy instructed another officer to arrest the woman for obstructing an officer without violence. The other officer did so, grabbing her arm as she climbed out of the vehicle, dragging her to his patrol car, pushing her against the hood to handcuff her, and then shoving her inside.

     A federal appeals court found that the deputy did not have probable cause to order the woman's arrest under these circumstances. Her criticisms of the deputy during and after the traffic stop, even if distracting did not incite others against, interfere with, or impede the deputy from citing her husband for his traffic infraction. DeRosa v. Sheriff of Collier County, Florida, #10-14046, 2011 U.S. App. Lexis 4057 (Unpub. 11th Cir.).

     A man visiting a shopping center observed Vice President Dick Cheney exit from a grocery store, and stated into his cell phone, to a person he was talking to, "I'm going to ask him how many kids he's killed today." A Secret Service agent, hearing this, placed the man under surveillance. The man later talked to the Vice President, telling him that his policies in Iraq "are disgusting," to which Cheney replied "Thank you." Departing, the man touched Cheney's right shoulder with his open hand. When he later again returned to the area where the Vice President was speaking with crowd members, a Secret Service agent asked him whether he had assaulted or touched the Vice President, and placed him under arrest when he said he had not.

     The agent had probable cause to arrest the man for making a false statement that he had not touched the Vice President. The arrestee did, however, establish a possible claim for First Amendment retaliation by several of the agents, who may have acted against him on the basis of his opinion about the Iraq war. Further proceedings were ordered on that claim. Howards v. McLaughlin, #09-1201, 634 F.3d 1131 (10th Cir. 2011).

     Officers had probable cause to arrest a high school student for fighting with another boy, and were entitled to qualified immunity, based on a school administrator's statement about witnessing part of the fight, and injuries suffered by the other boy. C.H. v. Rankin County Sch. Dist., #10-60380, 2011 U.S. App. Lexis 4494 (5th Cir.).

Firearms Related: Intentional Use

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

     A motorist stopped for speeding by officers presented identification and claimed to be a CIA agent. Officers learned that he had a concealed handgun license. Asked to step out of his vehicle, the motorist instead fled, leading officers on a 15-minute car chase. When the motorist stopped, he appeared to be coming out of his vehicle swinging his hands, one of which was grasping an object, around towards an officer. An officer fired through the car, hitting the motorist in the back, causing injuries that killed him. While the motorist did not have a weapon on him, he had three guns in the car, one of which was within reach of the driver's seat. Officers had a reasonable basis to believe that he was about to bring a firearm to bear on them, so the use of deadly force was reasonable. Carnaby v. City of Houston, #09-20825, 2011 U.S. App. Lexis 5846 (5th Cir.).

     A deputy who fired 12 shots at a truck he claimed was coming towards him and his partner, killing the driver, was not entitled to qualified immunity in an excessive force and unreasonable seizure lawsuit brought by a passenger in the vehicle who was not shot. The plaintiff claimed that the driver was not moving his truck towards the officers, but towards the only exit available to him, eight feet from any officer. She claimed that the deputy continued firing shots after the truck went by him. The appeals court noted that by shooting the driver, the deputy intended to stop the car, effectively seizing everyone in the vehicle, including the passenger, who was injured when the car crashed. Further proceedings were ordered on her claims. Rodriguez v. Passinault, #09-1949, 2011 U.S. App. Lexis 6206 (6th Cir.).

Firearms Related: Second Amendment

     The operators of gun shows brought a lawsuit, challenging, on Second Amendment grounds, a county ordinance that prohibited bringing firearms or ammunition onto county property, effectively prohibiting gun shows that had previously been held at the county's public fairgrounds. A federal appeals court held that heightened scrutiny does not apply to Second Amendment claims unless the government regulation in question "substantially burdens" the right to keep and bears arms.

     In this case, the mere refusal of the county to allow the use of its property to facilitate the exercise of a Second Amendment right did not constitute a "substantial burden." In light of the fact that the complaint was initially drafted before several recent important U.S. Supreme Court decisions on Second Amendment rights, however, the court ruled that the plaintiff should have the opportunity to amend their complaint to attempt to present a viable Second Amendment claim. Nordyke v. King, #07-15763, 2011 U.S. App. Lexis 8906 (9th Cir.).

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

     In an appeal of a criminal conviction for child sexual abuse, the New Jersey Supreme Court has ruled that officers should not destroy notes they take while interviewing witnesses, victims, and suspects, and that such notes should be made available to defense attorneys so that they can use them to challenge police reports and testimony. "We need not take much time to state, once more, that law enforcement officers may not destroy contemporaneous notes of interviews and observations at the scene of a crime after producing their final reports," the court stated.

     "Logically, because an officer's notes may be of aid to the defense, the time has come to join other states that require the imposition of 'an appropriate sanction' whenever an officer's written notes are not preserved." The court held, however, that the trial court did not err in failing to instruct the jury in the immediate case that it could draw a negative inference based on the police losing or destroying their notes after interviews, since the accused never asked for such an instruction to the jury and did not raise the issue before his motion for a new trial. State v. W.B., #A-80, 2011 N.J. Lexis 568.

     Editor's Note: While the ruling came in a criminal case, it clearly has an impact on the scope of evidence required to be disclosed to the defense, and may have an impact on civil lawsuits for alleged failure to disclose exculpatory evidence.

First Amendment

     The trial court properly granted judgment as a matter of law to a county council chairperson on a First Amendment claim asserted by a man ousted from a council meeting when he insisted on speaking to raise an objection while the council was considering a new ordinance. Council rules allowed members of the public to speak only during a designated public comment segment of the meeting, and it did not violate the First Amendment to oust a member of the public from the meeting for failing to obey the rules. There was no evidence to support the claim that the ouster was based on the plaintiff's viewpoint or personal animus, Galena v. Leone, #10-1914, 2011 U.S. App. Lexis 7562 (3rd Cir.).

Frivolous Lawsuits

     A female member of the Army and her infant child were injured while working at the Pentagon on September 11, 2001 during the terrorist attacks. She filed a federal civil rights lawsuit against Vice President Dick Cheney, and a number of other senior federal government officials, claiming that they were involved in a conspiracy to cause the terrorist attacks on that day to create a "political atmosphere" in which they could pursue their desired domestic and international policies, and "conceal" an alleged misallocation of $2.3 trillion in defense appropriations. The lawsuit proposed a "fantastical alternative history" of the events of Sept. 11, 2011, including a contention that no plane crashed into the Pentagon, but that instead explosives were ignited there. Upholding the dismissal of the lawsuit, a federal appeals court found both the lawsuit and the appeal frivolous and ordered the plaintiff's counsel to show cause why double costs and damages of $15,000 should not be imposed as a sanction on both the plaintiff and her lawyer.. Gallop v. Cheney, #10-1241, 2011 U.S. App. Lexis 8554 (2nd Cir.).

Immigrants and Immigration Issues

     Upholding an injunction against the enforcement of portions of an Arizona state statute creating immigration-related state offenses, a federal appeals court found that issuance of the injunction was not an abuse of discretion, and that the trial court properly found that the provisions at issue were preempted by federal immigration law. Provisions enjoined included a requirement that police officers check the immigration status of anyone reasonably suspected of being in the U.S. illegally. U.S. v. Arizona, #10-16645, 2011 U.S. App. Lexis 7413 (9th Cir.).

Malicious Prosecution

     An agent from Homeland Security, dispatched by the federal government to observe but not participate in the questioning of a U.S. Customs and Border Protection Officer by Puerto Rican police officers played no active part in his prosecution on charges arising from his taking from a police vehicle and shredding of a sticker that allowed access to secured areas of an airport. The U.S. government, therefore, was not liable in his malicious prosecution claim under the Federal Tort Claims Act. Barros-Villahermosa v. U.S., No. 09-2614, 2011 U.S. App. Lexis 7750 (1st Cir.).

     A federal appeals court upheld a jury's award of $1,426,261 in compensatory damages and $75,000 in punitive damages, as well as an award of $215,037.50 in attorneys' fees against a police detective for malicious prosecution of a man for murder. The appeals court found ample evidence that the detective acted without probable cause, refrained from looking into other possible suspects, and acted with actual malice. The plaintiff was acquitted of murder charges at trial. Manganiello v. City of N.Y, #09-0462, 612 F.3d 149 (2nd Cir.2010).

Search and Seizure: Home/Business

     A man claimed that officers unlawfully exceeded the scope of their search warrant when they searched his residence. A federal appeals court rejected this claim, finding that a neutral magistrate judge reviewed the affidavits supporting the warrant and properly found probable cause, and that there was no evidence that the scope of the search permitted under the warrant was exceeded. Grimes v. Thomason, #10-10760, 2011 U.S. App. Lexis 4782 (Unpub. 5th Cir.).

     Officers could have reasonably believed that probable cause existed to search a suspect's home without a warrant. He exited the residence without the gun he was thought to have taken inside. The officers therefore had grounds to search for the gun, which they believed was evidence of a crime. They could have also reasonably feared that someone still in the house could use the weapon against them, giving them exigent circumstances to conduct the search for their own safety. Flores v. City of Maywood, #09-55046, 2010 U.S. App. Lexis 17630 (Unpub. 9th Cir.).

Strip Searches

     Arrestees charged with nonviolent, non-drug-related misdemeanors were strip searched without a showing of reasonable suspicion of possession of weapons, drugs, or other contraband. The searches were alleged in a lawsuit by demonstrators subjected to strip searches after being arrested for trespassing during protests in D.C. connected with the 2002 International Monetary Fund and World Bank meetings. Before the strip searches, they were placed in a court holding facility where they went through metal detectors and pat down searches. A federal appeals court held that the right not to be subjected to strip searches under these circumstances was not clearly established in 2002, so a defendant U.S. Marshal was entitled to qualified immunity from liability. . Bame v. Dillard, #09-5330, 2011 U.S. App. Lexis 6207 (D.C. Cir.).

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     Electronic Control Weapons: COPS 2011 Electronic Control Weapon Guidelines (April 7, 2011).

     Training: The Department of Homeland Security (DHS) has announced the availability of a new Independent Study Course titled: Active Shooter, What You Can Do (IS-907), a no-cost training course developed to provide the public with guidance on how to prepare for and respond to active shooter crisis situations. An active shooter is defined in the course as an individual "engaged in killing or attempting to kill people in a confined and populated area. In most cases, there is no pattern or method to their selection of victims." This new online training is available through the Federal Emergency Management Agency (FEMA) Emergency Management Institute (EMI) at http://training.fema.gov/EMIWeb/IS/IS907.asp.

     Vehicle Searches: "Searches of Motor Vehicles Incident to Arrest in a Post-Gant World," by Kenneth A. Myers, FBI Law Enforcement Bulletin (April 2011). "Officers must understand the narrow guidelines pertaining to searches of motor vehicles incident to the arrest of one of its occupants."

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

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