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

     A California Highway Patrol officer, as well as the state, was immune from liability on a claim that he negligently lost or destroyed the information needed to identify an individual involved in an accident which injured the plaintiff, interfering with the ability to sue. Governmental immunity is provided by statute when the information is lost in the course of an official investigation. A $99,224.90 award to the plaintiff was therefore reversed on appeal, Strong v. State of California, #B225885, 2011 Cal. App. Lexis 1580, 201 Cal. App. 4th 1439 (2nd Dist.).

False Arrest/Imprisonment: No Warrant

     A police officer had probable cause to make a warrantless arrest of a housing developer for violating gambling laws by running a contest in which participants could, for $20, guess the number of screws, bolts, and nuts in a chest and have a chance at winning $1 million or a house. The officer was entitled to qualified immunity. Even if the contest for the big prizes didn't meet the technical definition of an illegal lottery under state law, the awarding of small weekly prizes along the way to awarding the big prizes may have fit within the prohibitions of the statute. Stepnes v. Ritschel, #11-1381, 2011 U.S. App. Lexis 24442 (8th Cir.).

Family Relationships

     Officers were entitled to qualified immunity for temporarily physically separating a twenty-one-month-old male infant from his mother. The child became entangled in a soccer net, and was extricated by his mother, who found him not breathing. Officers summoned to the scene saw strangulation marks on the child and declared the area a crime scene. The mother was taken away because she kept screaming threats of suicide. The child died, and the mother sued, claiming that the officers' actions slowed down the efforts of paramedics to save him. There was no clearly established due process duty to provide protection and medical treatment to the child in these circumstances. Cantrell v. City of Murphy, #10–41138, 2012 U.S. App. Lexis 63 (5th Cir.).

Firearms Related: Intentional Use

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

     Police responded to a 911 call concerning a schizophrenic, bipolar, and suicidal man who had stopped taking his medication and was threatening to harm his mother. The officers weren't liable for shooting and killing him when he came towards them armed with knives as they entered his locked and barricaded bedroom. They acted in reasonable self-defense, and they were entitled to qualified immunity on their warrantless entry into the bedroom based on their belief that there were exigent circumstances justifying their entry because the man constituted a threat to himself. Rockwell v. Brown, #10–11053, 2011 U.S. App. Lexis 24980 (5th Cir.).

First Amendment

     A city mayor violated a Hispanic protester's First Amendment rights by refusing to let him speak during the comments portion of the city council meeting unless he first apologized to a city community liaison officer for getting "in her face" during an earlier protest. Even assuming that his words at the earlier rally had been threatening, there was nothing to indicate that his intended speech at the council meeting would be similarly threatening. The mayor's action was not content neutral, and therefore was not merely an acceptable time, place, and manner regulation.

The mayor also violated another protester's First Amendment rights by imposing a $1,500 permit fee for her planned rally against a city ordinance allowing the impounding of cars driven by motorists without driver's licenses or car insurance. The fee imposed was based on the cost of assigning officers to patrol her protest. The court found that he would have assigned fewer officers and charged a smaller fee for a rally in support of the city's ordinance, and basing the size of the fee on the content of the speech is impermissible. Surita v. Hyde, #09-1165, 2011 U.S. App. Lexis 25558 (7th Cir.).

     An ordinance prohibiting posting of private signs on trees, sign posts, street lights, and utility poles on public property was not a violation of political candidates' First Amendment rights. The ordinance was narrowly designed to serve legitimate aesthetic and traffic safety interests of local government, was content neutral, and left open ample alternative avenues for political candidates to express their views. Johnson v. City & Co. of Philadelphia, #10–4185, 2011 U.S. App. Lexis 25812 (3rd Cir.).

Search and Seizure: Search Warrants

     A police detective sought and obtained search warrants for the homes of several gang members, based on information that the gang was involved in a drive-by shooting and had a practice of storing the weapons from such shootings at the residences of members not involved in an incident. The affidavit for one of the warrants, however, failed to disclose that the gang member living there had been in custody continuously since a time prior to the shooting taking place. A jury could reasonably conclude that the detective knew about this fact from reading the member's rap sheet and recklessly or deliberately failed to disclose it when applying for the warrant. The detective could be liable for the search. Additionally, even "if we were to conclude that cause existed for a search, there would still be no basis for authorizing night-time service. A nighttime incursion by a SWAT force is a far more serious occurrence than an ordinary daytime intrusion . . . and therefore requires higher justification beyond mere probable cause to search." Bravo v. City of Santa Maria, #09-55898, 2011 U.S. App. Lexis 24383 (9th Cir.).

Search and Seizure: Vehicles

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

     The U.S. Supreme Court held that attaching a GPS device to a vehicle to track a criminal suspect constitutes a search under the Fourth Amendment. It upheld the ruling of a federal appeals court suppressing the evidence and overturning a conviction based on it, since the device was attached without a valid warrant authorizing it. The Court declined to consider the government's alternative argument that the attachment and use of the device was a reasonable search, because it was not raised in the courts below. U.S. v. Jones, #10-1259, 2012 WL 171117, 2012 U.S. Lexis 1063.

Sexual Assault

     A member of a municipality's auxiliary police reserve stopped a motorist, despite his lack of authority under state law to do so. After arresting her and learning that she was homeless, he allegedly took her to an empty parking lot and sexually molested her under the pretext of taking her to a homeless shelter. She sued over the sexual assault as well as for a search of her car and its contents, carried out after she was under arrest and confined to the back of the officer's vehicle. The defendant could not assert a qualified immunity defense, because he was clearly acting in excess of his legal authority. The search of the vehicle violated the Fourth Amendment since the arrestee could not then reach anything in it and there was no basis to suspect that the search would produce any evidence of her supposed traffic violation or any other crime. Johnson v. Phillips, # 11–1367, 2011 U.S. App. Lexis 25572 (8th Cir.).

Wiretapping

     A federal appeals court ruled that residential telephone customers could proceed with their claims that the federal government, with the assistance of major telecommunications companies "engaged in widespread warrantless eavesdropping in the United States following the September 11, 2001, attacks," constituting a "communications dragnet of ordinary American citizens." The court found that the plaintiffs had made detailed allegations and claims of harm, that the claims were not barred by the "political question" doctrine, and that the fact that the claim of illegal wiretapping arose in the context of national security issues did not impose on the plaintiffs any heightened scrutiny requirement in terms of the details they had to provide in their complaint. Claim were asserted concerning alleged violations of the First Amendment right of association, violation of the Fourth Amendment, and violation of federal wiretapping and privacy laws. Jewel v. National Security Agency, #10-15616, 2011 U.S. App. Lexis 25951 (9th Cir.).

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     Drug Abuse: "Monitoring the Future. 2011 Data from in-school surveys of 8th, 10th and 12th grade students," financed by the National Institutes of Health (Dec. 2011). Indicates that one out of every 15 high school students smokes marijuana on a near daily basis, a 30-year peak.

     Drunk Driving: "Police Practice: Educating Young Drivers About Alcohol," by Patrick Gallagher, FBI Law Enforcement Bulletin (December 2011).

     Firearms: "Open letter to all federal firearms licensees," Bureau of Alcohol, Tobacco, and Firearms (ATF) (Dec. 22, 2011). Announces plans to drop a regulation barring sales of firearms to noncitizens who cannot document that they have resided in a state for 90 days. The rule has not applied to citizens, and the ATF has concluded that its application to noncitizens has no legal basis.

     Rape and Sexual Assault: "The National Intimate Partner and Sexual Violence Survey (NISVS)," Centers for Disease Control and Prevention (Dec. 2011). States that almost one-fifth of all U.S. women have been the victim of a sexual assault at some time, with one in four facing severe physical violence by a husband or boyfriend.

Reference

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