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Assault and Battery: Chemical

      A federal trial jury awarded $2.58 million against a town and six officers for actions taken involving the use of pepper spray against 23 individuals attending a baptismal party at a house. No damages were awarded to another 56 plaintiffs who attended the same party. The federal appeals court ruled that the judgment appeared to have allowed 13 of the successful plaintiffs to improperly receive double recovery for their injuries--once on their federal claims against the officers and once on their state law claims against the town on the basis of vicarious liability for the officer's actions. The appeals court ordered that, on remand, the judgment be amended to avoid the possibility of double recovery. Duran v. Town of Cicero, #08-2467, 2011 U.S. App. Lexis 16360 (7th Cir.).

Failure to Disclose Evidence

     A man convicted of murder was released after more than 30 years in prison when he obtained evidence through a freedom of information request showing that witnesses in his trial had initially given different accounts to police detectives than those they testified to in court. He sued the police for alleged failure to disclose potentially exculpatory evidence to his defense. The officers were entitled to qualified immunity from liability, because in 1972 it was not clearly established that police officers, in addition to prosecutors, could be liable for failure to disclose potentially exculpatory evidence. His claim against them for alleged "deliberate deception" in intentionally permitting false testimony and concealing evidence, however, could proceed. "Deliberate concealment of material evidence by the police designed to grease the skids for false testimony and encourage wrongful conviction, unarguably implicates a defendant's due process rights." There was also a possible claim against the city for an unconstitutional policy and failure to train on the obligation to disclose exculpatory evidence. Haley v. City of Boston, #10-2064, 2011 U.S. App. Lexis 19223 (1st Cir.).

False Arrest/Imprisonment: No Warrant

     After a city's mayor complained to police that her neighbor, a single mother, was allowing her children to run wild through flower beds in the neighborhood, an officer allegedly knocked the mother to the ground and dragged her to his vehicle, placing her inside it. One of her children opened the door of the police car, and she fled the vehicle. The officer then placed her under arrest for escape. A federal appeals court upheld a verdict for the mother in her false arrest lawsuit. Based on the evidence, a reasonable jury could find that the officer initially arrested her without probable cause to do so, so that she was justified in fleeing. The court upheld an award of $57,400 in compensatory damages, but ordered the reduction of a $1 million punitive damages award to $550,000. Arnold v. Wilder, #08-6124, 2011 U.S. App. Lexis 18928 (6th Cir.), rehearing, en banc, denied, 2011 U.S. App. Lexis 21896 (6th Cir.).

     Editor's note: The appeals court ruled that the trial judge had erred in reducing the punitive damages award too far, to $229,600, "mechanically applying a four to one ratio" of punitive to compensatory damages.

Family Relationships

     The due process and equal protection rights of a divorced mother were not denied by police officers when they prevented her from having one of her permitted visitations with her children at her ex-husband's residence when the children allegedly did not welcome her visit. The children were in the father's custody. The police action deprived her "of only a short period of visitation with the children: one three-hour visit," and any liberty interest involved had been substantially reduced by the terms of the divorce order. The court further held that school officials also weren't liable for allegedly preventing her from visiting the children at their school, since it "is not clear that a parent's fundamental liberty interest . . . includes unfettered access to the children during a school day." Schmidt v. Des Moines Public Schools, #10-3411, 655 F.3d 811 (8th Cir.).

Firearms Related: Intentional Use

     A woman called 911 to report that her 72-year-old grandfather was acting peculiarly and might be having a stroke. When officers arrived to check on him, he allegedly threatened to get a gun and shoot them, after which he emerged from his residence with a shotgun in his possession. A federal appeals court ruled that no purely legal issue was present in an officer's appeal of a decision refusing to grant him qualified immunity for shooting and killing the grandfather. Disputed issue of fact first had to be resolved as to whether or not the decedent had actually pointed his weapon at the officers or others. Sabo v. City of Mentor, #10-4358, 2011 U.S. App. Lexis 18822 (6th Cir.).

First Amendment

     The District of Columbia did not violate the First Amendment rights of anti-abortion protestors by threatening them with prosecution under a statute prohibiting the defacement of public and private property when they wanted to use chalk to write their message on the street in front of the White House. They had other adequate avenues through which they could communicate their message, and were allowed to conduct an assembly and protest. The District had a strong interest in controlling the aesthetic appearance of the street in front of the White House, which the threat of prosecution for chalking was narrowly tailored to serve. Mahoney v. Doe, #09-7131, 642 F.3d 1112 (D.C. Cir. 2011).

Immigrants and Immigration Issues

     In a lawsuit claiming that there was a practice of abusive and unlawful raids of Latino homes by agents of the U.S. Immigration and Customs Enforcement (ICE), high level supervisory personnel were entitled to qualified immunity since the plaintiffs failed to assert any plausible basis to impose liability on them for the purported abuses. Many allegations in the complaint were merely conclusory, and did not adequately set forth a theory of possible liability on the part of the supervisors, such as their knowledge of or acquiescence in unconstitutional conduct. Argueta v. US Immigration and Customs Enforcement, #10-1479, 643 F.3d 60 (3rd Cir. 2011).

Procedural: Pleading

     A sheriff was sued for violation of the civil rights of the owner an outdoor stage, with the plaintiff alleging that he was compelled to hire sheriff's deputies for his private security guards under the threat of otherwise facing the closure of the road leading to his property. The lawsuit was properly dismissed after the plaintiff's lawyer failed to file a complaint that could be understood, despite being allowed three attempts. The lawyer was also ordered to show cause as to why he should not be disciplined for filing incomprehensible documents that failed to provide adequate notice of the basis of his client's claims, including an incomprehensible appeal brief, raising a question of whether he was competent to practice law. The court noted that one sentence in the complaint contained 345 words, with 23 sentences containing 100 words or more. Stanard v. Nygren, #09-1487, 2011 U.S. App. Lexis 19213 (7th Cir.).

Public Protection: Disturbed/Suicidal Persons

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

     Police could not be held liable for the successful suicide of a detainee who killed himself fourteen hours after they released him, despite having heard his threats at the police station, following his one-car accident, to kill himself. The court ruled that there had been no due process violation, in the absence of "a risk of harm created or intensified by state action." His release from police custody placed him in no worse a position than he would have been in had the officers not acted at all. Coscia v. Town of Pembroke, MA, #10-1714, 2011 U.S. App. Lexis 18933 (1st Cir.).

Search and Seizure: Home/Business

     When police attempted to stop a teen motorist for driving without taillights, he fled and hid inside his parents' house two blocks away. An officer who allegedly forced his way into the home was not entitled to qualified immunity since no reasonable officer could believe that there were exigent circumstances to justify a warrantless entry. "The intended arrest was for a traffic misdemeanor committed by a minor, with whom the officer was well acquainted, who had fled into his family home from which there was only one exit." Mascorro v. Billings, #10-7005, 656 F.3d 1198 (10th Cir. 2011).

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     Eyewitness Lineups: "A Test of the Simultaneous vs. Sequential Lineup Methods - An Initial Report of the AJS National Eyewitness Identification Field Studies," by Gary L. Wells, Nancy K. Steblay, and Jennifer E. Dysart, American Judicature Society (September 2011).

     Immigrants and Immigration Issues: "Secure Communities by the Numbers: An Analysis of Demographics and Due Process," by Aarti Kohli, Peter L. Markowitz and Lisa Chavez, The Chief Justice Earl Warren Institute on Law and Social Policy, University of California, Berkeley School of Law (October 2011).

     Less Lethal Weapons: "Taking Tasers Seriously: The Need for Better Regulation of Stun Guns in New York," New York Civil Liberties Union (October 2011).

     Technology: "Evaluating the Use of Public Surveillance Cameras for Crime Control and Prevention -- A Summary," by Nancy G. La Vigne, Samantha S. Lowry, Joshua A. Markman, and Allison M. Dwyer, Urban Institute, Justice Policy Center (September 2011).

      Use of Force: "Police Attitudes about the Use of Unnecessary Force: An Ecological Examination," by S. W. Phillips, & J. J. Sobol, 26 (1) Journal of Police and Criminal Psychology (2011).

      Use of Force: "An Examination of Contextual and Organizational Factors Influencing Police Use of Force: A Multilevel Model," by H. Lee et al., 33 (4) Policing 681 (2010).

Reference

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