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Assault and Battery: Physical

     An excessive force claim against a police chief lacked merit where he was not involved in the removal of an allegedly suicidal man from his parked car by force, including the firing of pepper balls at him. He also was not in a supervisory role over those who removed the man, who were members of an inter-departmental emergency response team. Backes v. Village of Peoria Heights, #10-3748, 2011 U.S. App. Lexis 22652 (7th Cir.).

Assault and Battery: Electronic Control Devices

     Police investigating a possible car theft in progress encountered a man fitting the suspect's description walking with a companion. The men began running away when they saw the officers, and an officer tackled the suspect, using his Taser to subdue him because he was allegedly resisting being handcuffed. In light of the suspect's claim that he was not resisting, but was then cooperative, there was a factual issue as to whether the use of the Taser was justified or excessive. The officers did not claim that the suspect took aggressive action against them or assaulted them, and no weapon was found on him. Bennett v. Krakowski, #10-2455, 2011 U.S. App. Lexis 23039 (6th Cir.).

Firearms Related: Second Amendment Issues

     An officer stopped a motorist and took him into custody on an outstanding arrest warrant. In the course of the arrest, the officer retrieved the man's legally purchased and licensed handgun from his vehicle and confiscated it. The charges against the arrestee are later dropped, but the arrestee is told that his gun will not be returned and that he should go to court to seek a replevin order if he wants it. The initial seizure of the gun pursuant to a valid arrest was not a violation of due process, but the court rules that the subsequent refusal to return the weapon with no legal grounds to support it could form the basis for a valid due process claim. When "an established state procedure deprives one of property, post-deprivation remedies generally fail to satisfy" due process requirements. The court also holds, however, that the city could not be held liable for a violation of the Second Amendment, since that "confers a right only to keep and bear arms generally, not a right to possess a particular firearm." Walters v. Wolf, #10-3597, 660 F.3d 307 (8th Cir. 2011).

     Editor's Note: For more on Second Amendment issues, see Supreme Court rules that a city's ban on handguns is unconstitutional, 2010 (8) AELE Mo. L. J. 401.

False Arrest/Imprisonment: Warrant

     A caretaker at a daycare center tried to gently shake a baby when he showed no signs of life, and then administered CPR. The baby died. The caretaker was arrested once without a warrant, questioned, and then arrested a second time under a warrant, and charged with murder, but never tried on that charge. The second arrest of the caretaker violated the Fourth Amendment, as there was then evidence that the mother had allegedly shaken the baby days before and threatened to kill it, likely causing the several days of lethargy and fever the baby experienced before stopping breathing. The mild shaking of the baby by the daycare worker was a justified precursor to doing CPR. There were also allegations that the principal arresting officer was romantically interested in the mother, which could form part of the basis for a malicious prosecution claim. After the first arrest, when the arrestee phoned a lawyer, all questioning should have stopped, but did not, which could form the basis for an unlawful interrogation claim. Aleman v. Village of Hanover Park, # 10-3523,   2011 U.S. App. Lexis 23241 (7th  Cir.).

First Amendment

     An officer arrived at the home to investigate complaints that a woman and her parents had taken unauthorized control of an elderly woman's property and care there. The officer confronts a caretaking woman outside the home, and asked her about the location of the elderly woman. When she refused to answer his question, and attempted to flee inside the house, he placed her under arrest for obstruction, grabbed her arm, and handcuffed her after a struggle. A federal appeals court rejects First Amendment and Fifth Amendment claims, ruling that there was no clearly established law that the woman had a right to refuse to answer the officer's questions during a Terry investigative stop. The officer was entitled to qualified immunity, as he could reasonably, under these circumstances, believe that her refusal to answer his question amounted to obstruction. The court also rejected a claim that the officer handcuffed the woman too tightly, finding that any injury was de minimis (minimal). Koch v. City of Del City, #10-6105, 660 F.3d 1228 (10th Cir. 2011).

Negligence: Vehicle Related

     Two police vehicles sped towards the scene of a 911 call concerning a domestic disturbance. The officer in the lead car stopped his vehicle, and told two men walking along the road a distance from the house to stay put. After they complied, the second police car came along, and hit the rear end of the first, then hit and injured one of the men. The officer who hit the man with his vehicle did not violate his civil rights, as he did not do so intentionally. The first officer properly asked the men to stop, as he could reasonably have suspected that one of them was the reported ex-boyfriend who had allegedly just "trashed" a woman's porch. Both officers were entitled to qualified immunity on the injured pedestrian's claims. Eldredge v. Town of Falmouth, #11-1151, 2011 U.S. App. Lexis 23329 (1st Cir.).

Public Protection: Disturbed/Suicidal Persons

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

     Police responded to a 911 call concerning an intoxicated man threatening to kill himself with a pocket knife. He ignored their orders to drop the knife, instead holding it to his throat. The officers used a beanbag shot gun to subdue and disarm him. When he stepped away, and moved towards his parents' house, they shot and killed him. A federal appeals court ruled that the use of the beanbag shotgun may have been excessive, noting that the officers had the option of using the less extreme force of a Taser, but did not do so. The court stated that it was not aware of any published cases holding it reasonable to use a significant amount of force to try to stop someone from attempting suicide." The subsequent gunfire may also have been excessive. Summary judgment for the defendants was reversed, and further proceedings were ordered on the excessive force claims. Glenn v. Washington County, #10-35636, 661 F.3d 460 (9th Cir. 2011).

Search and Seizure: Home/Business

     Armed with an arrest warrant for a drug dealer, officers from a joint federal-state task force enter a residence, believing that the suspect is within. Doing so over the owner's objection, they did not find the suspect on the premises. In a civil rights lawsuit against the federal officers, they were entitled to qualified immunity on a Fourth Amendment unlawful search claim. No Fourth Amendment violation occurs if officers enter a third party's home under the reasonable belief that the target named in the arrest warrant resides at the dwelling in question and will be present at the time of the entry." Solis-Alarcon v. United States, #09-2406,  2011 U.S. App. Lexis 23501 (1st  Cir.).

     Two undercover animal services officers visited a couple's home, where they observed some puppies that the couple advertised in a local newspaper. The couple had bred their two pet bulldogs to produce the puppies for sale. Uniformed animal service officers then knocked on the door, entering and seizing all nine of the dogs, claiming, erroneously, that the couple had violated an ordinance about breeding dogs. All dogs were taken to an animal shelter, where they had microchips placed in them, and the adult dogs were neutered. The couple was asked for over $1,000 for the return of the dogs. It turned out that the couple was not violating the ordinance, as they were not operating an unlicensed Class A kennel, as defined in the ordinance.

     The initial entry by the undercover officers did not violate the Fourth Amendment, as it was pursuant to the couple's newspaper ad inviting the public to come inspect the dogs for sale. The subsequent entry by the uniformed officers without a warrant, for law enforcement purposes, however, raised valid Fourth Amendment claims. The officers may have also violated procedural due process by depriving the couple of their property, the dogs and the ability to breed them, without written notice of the alleged violation on which the seizure was based. O'Neill v. Louisville/Jefferson County Metro Government, #10-5699,  2011 U.S. App. Lexis 22530 (6th Cir.).

Search and Seizure: Search Warrants

     A man arrested for burglary told an officer that his alleged accomplice had a girlfriend at whose apartment the stolen goods from 18 burglaries had been stored. After an officer obtained a search warrant and used it to seize various items at her apartment, the girlfriend sued, claiming that the warrant affidavit was insufficient to provide probable cause. The defendant officer was entitled to qualified immunity on the issue of whether the affidavit sufficiently provided probable cause, as there was no evidence that a reasonable officer would have noticed the alleged discrepancies, such as the fact that only four of the categories of property described to be seized could be linked to the two burglaries described in the warrant. He was not entitled to qualified immunity, however, on claims that items were seized that were not described with sufficient detail in the warrant. Some items described were common household items, giving the officer no ability to distinguish between allegedly stole goods and other goods belonging to the girlfriend. As an example of this, the warrant authorized the seizure of cameras without specifying the makes or models of the stolen cameras, although these details were easily available in the reports on the burglaries. The court stated that it simply requires "additional details, if they are available, to help distinguish between contraband and legally possessed property." Wheeler v. City of Lansing, #10-1128/, 660 F.3d 931 (6th Cir. 2011).

     Editor's Note: For more on this issue, see Civil Liability for Exceeding the Scope of a Search Warrant, 2010 (1) AELE Mo. L. J. 101.

•Return to the Contents menu.

     College and School Crime: "Education Under Arrest: The Case Against Police in Schools," Justice Policy Institute (Nov. 15, 2011).

     College and School Crime: "Policing in Public Schools: Beyond the Active Shooter," by Gary D. Rudick, F.B.I. Law Enforcement Bulletin, p. 16 (Nov. 2011).

     First Amendment: “Guidelines For First Amendment-Protected Events for State and Local Law Enforcement Agencies," U.S, Department of Justice (Draft, Oct. 2011).

     Hate Crimes: "Hate Crime Statistics, 2010 Annual Report," F.B.I. (November 2010).

     Supreme Court Decisions: "Supreme Court Cases 2010-2011 Term," by Michael J. Bulzomi, F.B.I. Law Enforcement Bulletin, p. 23 (Nov. 2011).

     Terrorism, Homeland Security, and National Security Issues: "Cyber Terror," by William L. Tafoya, F.B.I. Law Enforcement Bulletin, p. 1(November 2011).

Reference

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