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CONTENTS

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Assault and Battery: Physical

     An arrestee adequately alleged that sheriff's deputies used excessive force against him after entering his house to arrest him for criminal contempt. He claimed that he was asleep alone at the time, and unarmed, and was cooperative when woken. Despite this, the deputies allegedly forcibly dragged him from his bed, pointed guns at him, threatened to shoot him, and violently slammed him against a wall. Ansell v. Ross Twp, #10-1402, 2011 U.S. App. Lexis 6202 (Unpub. 3rd Cir.).

Defenses: Qualified Immunity

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

     The U.S. Supreme Court held that former Attorney General Ashcroft was entitled to qualified immunity in a lawsuit by a man detained after the events of 9/11/2001 under a federal material witness statute. The plaintiff claimed that the government had a policy of using this statute to detain innocent persons suspected of terrorism without charges.

     The Court held that the objectively reasonable arrest and detention of a material witness pursuant to a validly obtained warrant cannot be challenged as unconstitutional on the basis of allegations that the arresting authority had an improper motive. Ashcroft did not violate clearly established law and thus is entitled to qualified immunity because, at the time of the arrest, not a single judicial opinion had held that pretext could render an objectively reasonable arrest pursuant to a material-witness warrant unconstitutional. Ashcroft v. al-Kidd, #10-98, 2011 U.S. Lexis 4021.

Firearms Related: Intentional Use

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

     A highway patrol officer was entitled to qualified immunity for shooting and killing a female motorist who had, shortly before, led officers on a high-speed chase, and who appeared to him to be trying to use her car as a weapon against other officers. No prior case law would have put him on notice that using deadly force under these circumstances would shock the conscience, Casey v. Markgraf (In re A.D.), #09-16460, 636 F.3d 555 (9th Cir. 2011).

First Amendment

     A member of a "flash mob" who was arrested for disobeying orders to stop dancing at the Jefferson Memorial in D.C. failed to show that her arrest violated her First Amendment rights. Expressive dancing of the type she was engaged in was properly included in the list of activities that could be prohibited by the reasonable regulations that govern the Jefferson Memorial, a nonpublic forum reserved for the tranquil commemoration of President Thomas Jefferson's legacy. Oberwetter v. Hilliard, #10-5078, 2011 U.S. App. Lexis 9923 (D.C. Cir.).

     An arrestee filed a federal civil rights lawsuit concerning his arrest and pepper spraying. While that lawsuit was pending, he picketed police headquarters with signs stating that an officer was "dirty" and a "liar." This resulted in him being charged with criminal libel, and he sought to sue the charging officer, claiming that the charges were retaliatory for his exercise of his First Amendment rights. He had, however, subsequently settled the original lawsuit, and a federal appeals court found that the settlement agreement also covered the claims made in his second lawsuit. The plaintiff argued that his claim arising from the picketing incident did not accrue until after the charges concerning it were dismissed, but the court stated that, unlike a malicious prosecution claim, a" First Amendment retaliatory-prosecution claim does not require a favorable termination of the underlying action." Mata v. Anderson, # 10-2031, 635 F.3d 1250 (10th Cir. 2011).

Governmental Liability: Training

     In a lawsuit over a deputy's shooting and killing of an unarmed motorist following a high-speed pursuit, the trial court acted erroneously in denying a number of defendants summary judgment on the plaintiffs' inadequate training claims. Other than "bare assertions" by the plaintiffs, there was "not a scintilla" of proof that the defendants acted with deliberate indifference and thereby created a training program so deficient that it caused the motorist's death. Harvey v. Campbell County, #09-5041, 2011 U.S. App. Lexis 9656 (Unpub. 6th Cir.).

Homeless Persons

     A federal appeals court has upheld the constitutionality of a municipal ordinance that limits the number of feedings of large groups that any person or organization can sponsor in parks within a two-mile radius of City Hall. The court rejected the argument of an organization calling itself "Food Not Bombs" that it had a First Amendment right to feed large groups of homeless people in any park as often as it likes. The court found that the ordinance was a reasonable time, place, and manner regulation, assuming, for purposes of argument, without deciding, that such feedings were expressive activity. First Vagabonds Church of God v. City of Orlando, #08-16788, 638 F.3d 756 (11th Cir. 2011).

Interrogation: Juveniles

     The U.S. Supreme Court has vacated a federal appeals court ruling that the decision to seize and interrogate a minor at school about suspected sexual abuse without a warrant, court order, exigent circumstances or parental consent was unconstitutional, in violation of the Fourth Amendment. The Supreme Court held that it had jurisdiction to hear an appeal of the appeals court's holding by the defendants despite the fact that they were granted qualified immunity from liability. The Supreme Court did not rule on the merits of the rule adopted by the federal appeals court as to the interrogation of juveniles at school, but vacated the ruling as moot since the minor has moved to another state and therefore no longer has a stake in a ruling concerning the practices of California governmental employees. Camreta v. Greene, #09–1454. 2011 U.S. Lexis 4016.

     Editor's Note: The now vacated Ninth Circuit Court of Appeals ruling in the case was the subject of a detailed article: Greene v. Camreta - The Ninth Circuit's Ruling on Questioning Minors in Abuse Investigations, 2010 (6) AELE Mo. L. J. 101.

Search and Seizure: Home/Business

     In an unlawful search and seizure lawsuit over officers' warrantless search of a man's home and vehicle following his arrest, officers were properly denied qualified immunity. There were genuine issues of fact as to whether the search of his home, which they characterized as a protective sweep, lasted for ten minutes or three hours, and whether they had consent to enter his home. There was also a genuine issue as to whether they had probable cause to search his vehicle, which they might not have connected to him prior to their search of his home. Asher v. McClure, #10-13751, 2011 U.S. App. Lexis 8247 (Unpub. 11th Cir.).

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Electronic Weapons

• The respiratory, metabolic, and neuroendocrine effects of a new generation electronic control device [TASER X3], Donald Dawes, et al., 207 (1) Forensic Science International 55-60 (Apr. 15, 2011). Abstract.
• Police Use of Force, Tasers and Other Less-Lethal Weapons (NIJ pdf, 28 pages, May 2011)
• Study of Deaths Following Electro Muscular Disruption (NIJ pdf, 74 pages, May 2011)

Search and Seizure

• Suspicionless Border Searches of Electronic Devices: Legal and Privacy Concerns with The Department of Homeland Security's Policy, The Constitution Project (May 18, 2011). (free registration required to download).

Statistics

• Preliminary Annual Uniform Crime Report 2010 (FBI, May 23, 2011).

Terrorism, Homeland Security, and National Security Issues

• Targeted and Entrapped: Manufacturing the "Homegrown Threat" in the United States, Center for Human Rights and Global Justice, NYU School of Law (May 2011).

Reference

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