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Assault and Battery: Taser

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

     An officer did not use excessive force in using his Taser on the friend of a woman he was arresting who ignored orders to stop moving towards him. His subsequent use of the Taser against a man in the crowd who said to others that the officers were "overreacting" while calling them "motherfuckers," however, could be found to be unjustified, even if the remarks, in the context, constituted disorderly conduct. "Disorderly conduct is not a serious offense [and] resisting arrest without force does not connote a level of dangerousness that would justify a greater use of force." The officer, therefore, was not entitled to qualified immunity, based on this man's version of the incident. Fils v. City of Aventura, #09-10696, 647 F.3d 1272 (11th) Cir. 2011).

     A sheriff's deputy grabbed the wrist of a motorist who had not been wearing his seatbelt, and who attempted to flee on foot when ordered to stop. When the man broke away, the deputy used a Taser on him, subsequently also using pepper spray and placing his knee on the man's back. In a lawsuit for excessive use of force, a federal appeals court upheld a jury's decision to award only a dollar in nominal damages. It rejected the plaintiff's argument that the pain of being tasered should always be enough to support a more substantial amount of compensatory damages. The court noted that the jury might have reasonably believed that the use of the Taser was justifiable in this case, and that only the subsequent force used was excessive. Frizzell v. Szabo, #10-2955, 647 F.3d 698 (7th Cir. 2011).

Domestic Violence and Child Abuse

     A woman brought five children sleeping at her house (her minor daughter and four minor grandchildren) to the hospital. She had found blood on the underwear of her daughter and learned that the boys and girls had slept together rather than in gender-separate rooms. After she refused to consent to the sedation of the girl for purposes of a sexual assault examination, she attempted to leave with the children. Medical staff members and police imposed a 72-hour hold on the girl and the boy suspected of assaulting her, and ultimately examinations of both children were carried out. Police and medical personnel were entitled to summary judgment on civil rights claims brought against them. They did not violate the Fourth Amendment or Fourteenth Amendment rights of the woman or the children under the circumstances. Doe v. Tsai, #10-2655, 648 F.3d 584 (8th Cir. 2011).

Defenses: Statute of Limitations

     A man arrested for allegedly buying cocaine died from the effects of cracked ribs he suffered during his arrest, which were allegedly caused by a police beating. His mother was unable, after his death, to find an attorney to file her federal civil rights lawsuit, however, as a police sergeant allegedly came to her home and told her that her son had died in the street due to a gang dispute over drugs. She was denied access to police reports about the arrest and an investigation into her son's death. A report filed in an internal affairs investigation indicating that there may have been a beating and a "cover-up" of the beating was unavailable to her and her prospective lawyers.

     Years later, after the FBI received an anonymous tip concerning the police beating taking place, and launched an investigation, the mother filed a lawsuit. The defendants argued that it was barred by the statute of limitations. Addressing the issue of whether the statute of limitations was "tolled" (extended) by the alleged cover-up, the appeals court ruled that she could go ahead with her claim. "Equitable estoppel" applied in a case where the plaintiff believed that she had a claim for excessive force but she was "dissuaded from bringing the claim by affirmative misrepresentations and stonewalling by the police" concerning the circumstances that led to her son's death. Estate of Amaro v. City of Oakland, #10-16152, 2011 U.S. App. Lexis 15534 (9th Cir.).

False Arrest/Imprisonment: No Warrant

     A woman voluntarily signed two lifetime exclusion forms agreeing not to frequent a casino. These forms were required to be available under state laws designed to assist problem gamblers. After the casino changed ownership, she entered the premises and was arrested for criminal trespass. She sued for false arrest after the charges were dropped. The law enforcement agent who arrested her was entitled to qualified immunity, as there was arguable probable cause for the arrest. Borgman v. Kedley, #10-3272, 646 F.3d 518 (8th Cir. 2011).

False Arrest/Imprisonment: Warrant

     A man claimed that his wife and son conspired together to have him arrested for, among other things, illegal possession and sale of Oxycontin, knowing that he lawfully possessed the drug as prescription medication for various illnesses. During execution of an arrest warrant for domestic violence and firearms offenses, a search was conducted during which a quantity of the drug was seized. He was released from custody when the status of the drug as his legal medication was shown. There was nothing in the arrest warrant, however, which would have caused a reasonable officer to question whether the warrant was valid, Moore v. City of Desloge, #10-2095, 647 F.3d 841 (8th Cir.).

First Amendment

     A city ordinance that prohibits standing on the street to solicit contributions, business or employment from motorists violates the First Amendment by regulating "significantly more speech than is necessary to achieve the City's purpose of improving traffic safety and traffic flow at two major intersections. The court found that the city could have achieved these goals through less restrictive measures, such as the enforcement of existing traffic rules. The challenge was filed by day laborer organizations. A prior case upholding the constitutionality of a similar ordinance in another municipality, ACORN v. City of Phoenix, #85-1810, 798 F.2d 1260 (9th Cir. 1986), was overruled. Comite de Jornaleros v. City of Redondo Beach,  #06-55750, 2011 U.S. App. Lexis 19212 (9th Cir.).

     A city ordinance outlawing standing within a hundred feet of an abortion clinic entrance to attempt to talk to a person seeking to enter was constitutional on its face, and was modeled after the law upheld by the U.S. Supreme Court in Hill v. Colorado, #98-1856, 530 U.S. 703 (2000). A minister who regularly stood outside such clinics seeking to engage in "friendly conversation" to persuade patients not to enter challenged the law, however, arguing that the city failed to enforce it against persons standing there to encourage patients to enter. This would amount to unconstitutional suppression of speech on the basis of its content, in violation of the First Amendment.  The appeals court ordered the trial court to fashion a remedy "that ensures that Oakland will adopt and henceforth apply a policy that enforces the Ordinance as written, that is, in an evenhanded, constitutional manner." Hoye v. City of Oakland, #09-16753, 2011 U.S. App. Lexis 15541 (9th Cir.).

Procedural: Discovery

     In a federal civil rights lawsuit against an officer alleging excessive use of force, the plaintiff asked to depose the officer's union representative. The trial court ruled that a conversation between the officer and his union representative would be privileged under federal law, but that the union representative, in this case, improperly attempted to invoke the privilege in refusing to answer even "foundational" questions. The privilege does not apply to answering questions about whether the conversation involved acting in the role of union representative. Bell v. Village of Streamwood, #10-C-3263, U.S. Dist. Court (N.D. Ill. Aug. 15, 2011).

Search and Seizure: Home/Business

     An elderly woman visiting her son's house accepted delivery of a package while sunning herself in the front yard. The package was a shipment of ketamine that sheriff's deputies were following, allowing a controlled delivery. When she took the package into the residence, leaving it inside unopened, and returned outside, a team of deputies arrived to execute a search warrant. One of them allegedly forced her to the ground, placing a foot on her back for ten minutes, after which she was detained inside on a couch inside for two hours. Her unlawful search and excessive force claims were both rejected. The officers had implicit authority, based on the search warrant, to temporarily detain occupants of the residence, including visitors. Croom v. Balkwill, #09-16315, 645 F.3d 1240 (11th Cir. 2011).

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     Body Armor: "Bulletproof Vest Partnership Initiative," BJA, Updated June 2011. This fact sheet describes the Bulletproof Vest Partnership (BVP) Program, a U.S. Department of Justice initiative designed to provide critical resources to state, local, and tribal jurisdictions for the sole purpose of purchasing bullet-resistant body armor for sworn law enforcement officers.

     Statistics: "Arrest in the United States, 1980-2009," by Howard N. Snyder, Ph.D. (September 22, 2011 NCJ 234319). Presents new annual estimates of arrests in the United States covering the 30-year period from 1980 through 2009. Based on data collected by the FBI's Uniform Crime Reporting Program, this bulletin expands the FBI's set of published arrest estimates to include offense-specific arrest estimates for various demographic subgroups. The detailed breakdown of arrests and arrest trends describes the flow of individuals into the criminal justice system over a long time period. The estimates by type of offense reveal similarities and differences among demographic subgroups that may provide policymakers, researchers, the media, and the public a greater understanding of the underlying causes for the observed arrest trends. BJS has developed the Arrest Data Analysis Tool that enables users to generate tables and graphs of national trends in arrests and arrest rates for a large set of offenses and population subgroups. Highlights include the following: The U.S. murder arrest rate in 2009 was about half of what it was in the early 1980's. Over the 30-year period ending in 2009, the adult arrest rate for murder fell 57%, while the juvenile arrest rate fell 44%. From 1980 to 2009, the black forcible rape arrest rate declined 70%, while the white arrest rate fell 31%. Between 1980 and 2009, while the adult arrest rate for drug possession or use grew 138%, the juvenile arrest rate increased 33%. Similarly, from 1980 to 2009, the increase in the arrest rate for drug sale or manufacture was greater for adults (77%) than for juveniles (31%). Press Release PDF (2.5M) ASCII file (46K) Spreadsheets (Zip format 37K).

     Statistics: "Criminal Victimization, 2010," by Jennifer L. Truman, Ph.D. (September 15, 2011 NCJ 235508). Presents 2010 estimates of rates and levels of criminal victimization in the U.S., including violent victimization (rape or sexual assault, robbery, aggravated assault, and simple assault), property victimization (burglary, motor vehicle theft, and property theft), and personal theft (pocket picking and purse snatching). It describes the annual change from 2009 and analyzes long-term trends from 1993 through 2010. The bulletin includes estimates of series victimizations (six or more similar incidents that the victim is unable to recall individually or describe in detail), injury in violent victimization, violence perpetrated by strangers, and the use of firearms and other weapons in violent victimization. It also describes the characteristics of victims. The National Crime Victimization Survey (NCVS) collects information on nonfatal crimes, reported and not reported to the police, against persons age 12 or older from a nationally representative sample of U.S. households. During 2010, 40,974 households and 73,283 individuals were interviewed twice for the NCVS. Highlights include the following: The rate of total violent crime victimizations declined by 13% in 2010, which was about three times the average annual decrease observed from 2001 through 2009 (4%). The decline in the rate of simple assault accounted for about 82% of the total decrease in the rate of violent victimization in 2010. In 2010 the property victimization rate declined by 6%, compared to the average annual decrease of 3% observed from 2001 through 2009. Strangers perpetrated 39% of violent victimizations in 2010, down from 44% in 2001. About 50% of all violent victimizations and nearly 40% of property crimes were reported to the police in 2010. These percentages have remained stable over the past 10 years. Part of the Criminal Victimization in the United States Series. Press Release PDF (1.9M) ASCII file (32K) Spreadsheet (Zip format 26K).

     Statistics: "Use of Victim Service Agencies by Victims of Serious Violent Crime, 1993-2009" by Lynn Langton (August 4, 2011 NCJ 234212). Presents data from the National Crime Victimization Survey (NCVS) on trends in the percentage of serious violent crime victims who received help or advice from a victim service agency from 1993 to 2009. This special report examines the relationship between a victim receiving assistance and criminal justice system actions pertaining to the crime, such as reporting the crime to the police, the police making an arrest, or a judge or prosecutor contacting the victim. It also examines the percentage of serious violent crime victims who received assistance by the characteristics of the victim and the victimization, including the victim's age, gender, race, the type of crime, the extent of the victim's injury, and victim-offender relationships. Highlights include the following: About 9% of serious violent crime victims received direct assistance from a victim service agency from 1993 to 2009. From 2000 to 2009, 14% of violent crime victims who reported the crime to the police received direct assistance from a victim service agency, compared to 4% when the crime was not reported. Victims who received direct assistance from a victim service agency were more likely to see an arrest made in the case and have contact with a non-law enforcement criminal justice official, such as a judge or prosecutor, than victims who did not receive direct assistance. Press Release PDF (1.6M) ASCII file (19K) Spreadsheet (Zip format 20K).

     Terrorism: "The Evolution of Terrorism Since 9/11," by Lauren B. O'Brien, FBI Law Enforcement Bulletin (Sept. 2011). "Understanding how terrorism trends have evolved can help agencies face today's current threat environment."

     Terrorism: "Sovereign Citizens: A Growing Domestic Threat to Law Enforcement," by the FBI's Counterterrorism Analysis Section, FBI Law Enforcement Bulletin (Sept. 2011). "Law enforcement must become knowledgeable and aware of sovereign-citizen extremists."

Reference

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