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Electronic Control Weapons - Dart Mode Cases

     An officer was entitled to qualified immunity for using a Taser in dart mode to stop a suspect fleeing from the scene of a jaywalking violation, because the appeals court could not say that a fleeing non-violent misdemeanant had a clearly established right not to be Tasered in July of 2008. The court also reasoned that the use of the Taser was not so "inherently cruel" as to be objectively unreasonable per se. Cockrell v. City of Cincinnati, #10-4605, 2012 U.S. App. Lexis 3787, 2012 Fed. App. 216 (Unpub. 6th Cir.).

     Officers were not entitled to qualified immunity for using a Taser to compel a drunken suspect to come down from a tree where he had fled. The suspect had put down his rifle before climbing the tree and was allegedly not a threat to the officers and had his hands up at the time they used the Taser to make him fall. He subsequently suffered paraplegia as a result of the incident. Harper v. Perkins, #11-14416, 2012 U.S. App. Lexis 4064 (Unpub. 11th Cir.).

Electronic Control Weapons - Stun Mode Cases

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

     A deputy and an officer were both entitled to qualified immunity for using Tasers against a man who ran from his house towards a police vehicle, shouting that the deputy was a demon who had to be killed. He continued to resist even when lying on the ground and would not allow his arms to be placed behind him for handcuffing. Tasers were used against him once in dart mode and then multiple times in stun mode. The suspect died following the incident. The defendants' conduct was not clearly unlawful, and the suspect's conduct constituted assault and battery on an officer accompanying threats to kill the deputy.

     An expert witness in the case explained that "The [Taser] was classified as an electro-muscular disruptor when used to fire small probes attached to the weapon with thin wires because, in that mode, it overrides the central nervous system and makes muscle control impossible. The Taser can also be used as a pain compliance weapon in what is called the 'drive stun' mode. In the 'drive stun' mode, the weapon is pressed against a person's body and the trigger is pulled resulting in pain (a burning sensation) but the “drive stun” mode does not disrupt muscle control." Hoyt v. Cooks, #11-10771, 2012 U.S. App. Lexis 3899 (11th Cir.).

False Arrest/Imprisonment: No Warrant

     After a purse snatcher shot a woman and her mother, an officer visited them at the hospital. Another visitor mentions a neighborhood man who is rumored to be a robber. The woman identified the man from a photo array, but with some hesitation. The suspect is arrested but subsequently exonerated of the crime. The identification still was sufficient to provide probable cause for the arrest. "Identification by a single eyewitness who lacks an apparent grudge against the accused person supplies probable cause for arrest." Phillips v. Allen, #10-3559, 2012 U.S. App. Lexis 2644 (7th Cir.).

Firearms Related: Intentional Use

     Officers stopped a vehicle driving down a street late at night without its headlights on. Inside the car, two friends were high on crack cocaine. They exited the vehicle and were ordered to kneel down. One complied, but the other hopped back in the car and drove off. An officer managed to place himself in the open doorway of the car, as the driver attempted to make a U-turn in his direction. The officer continued to run alongside the vehicle as it moved forward, repeatedly warning the suspect to stop the car. The vehicle's door and frame struck the officer's body. After multiple warnings, the officer fired two shots, killing the driver. A federal appeals court found that the use of deadly force by the officer was reasonable under these circumstances. The driver was using his vehicle in a manner endangering the safety of the officer. Terrell v. Smith, #10–14908, 2012 U.S. App. Lexis 1689 (5th Cir.).

Firearms Related: Second Amendment Issues

     A man active in advocating the right to carry concealed firearms in public openly carried a holstered handgun into retail stores on two occasions. Both times, he was arrested for disorderly conduct and had his gun confiscated. He was not prosecuted and each time his gun was eventually returned. He claimed that his conduct was not disorderly and was protected under the federal and state constitutions. The officers were entitled to qualified immunity on unlawful arrest claims. The officers could not have anticipated that the U.S. Supreme Court would subsequently issue Second Amendment opinions raising an issue about whether his conduct was lawful and were not required to balance alleged firearms rights under the Wisconsin state constitution against the disorderly conduct law.

     The officers also were not liable for violating the plaintiff's rights under the federal Privacy Act by requesting his Social Security number during one of the incidents, since it was not clearly established that they had to inform him whether the disclosure of his Social Security number was voluntary or mandatory, and they had not denied him any "right, benefit, or privilege" based on his refusal to disclose the number. The court also rejected claims for unlawful seizure of his property, the handgun. Gonzalez v. Village of West Milwaukee, #10-2356, 2012 U.S. App. Lexis 1965 (7th Cir.).

First Amendment

     A city's ordinance which outlawed soliciting and door-to-door canvassing after 6 p.m. violated the First Amendment rights of a citizens' environmental advocacy group. While the city did have a legitimate interest in protecting the privacy of its residents in their homes, this was adequately handled in another ordinance provision which stated that residents could post a "No Soliciting" sign on their home to avoid being bothered. The city failed to support its claim that door-to-door activity of this type promoted crime. The city also failed to show that the ban on nighttime soliciting was narrowly tailored to support its interest in minimizing an alleged drain on municipal law enforcement resources.Ohio Citizen Action v. City of Englewood, #10-3265, 2012 U.S. App. Lexis 1904 (6th Cir.) .

Interrogation

     A prisoner was questioned for between five and seven hours in a conference room at a prison by two deputies who asked him about crimes he was accused of engaging in before his incarceration. He confessed and was later convicted, with the confession admitted into evidence despite the fact that he had been given no Miranda warnings during the questioning. The U.S. Supreme Court held that the prisoner had not been taken into custody for Miranda purposes, since he was told at the beginning and reminded later that he was free to leave and go back to his cell. Additionally, he was not physically restrained or threatened, was interviewed in a well-lit, average-sized conference room where the door was sometimes left open, and was offered food and water. These "facts are consistent with an environment in which a reasonable person would have felt free to terminate the interview and leave, subject to the ordinary restraints of life behind bars." Howes v. Fields, #10-680, 2012 U.S. Lexis 1077.

Public Protection: Disturbed/Suicidal Persons

     A teenager was discovered at home by his mother. holding a knife to his abdomen. He had made a suicide attempt approximately a month before. Police respond to a 911 call. The youth challenged officers to "fucking shoot me." An officer shot and killed him as he ignored orders to drop the knife, instead advancing on the officer while raising the knife in a threatening manner. The use of deadly force was justified. Elizondo v. Green, #10–11177, 2012 U.S. App. Lexis 2917 (5th Cir.).

     Editor's note: For more on this topic, see Disturbed/Suicidal Persons -- Part One, 2012 (2) AELE Mo. L. J. 101 and Disturbed/Suicidal Persons -- Part Two, 2012 (3) AELE Mo. L. J. 101, as well as Suicide By Cop, 2007 (8) AELE Mo. L.J. 101.

Search and Seizure: Home/Business

     A deputy sheriff responded to a 911 call indicating concerns about the welfare of a five-year-old child in the care of a mother said to be drunk and "acting weird." The mother initially prevented the deputy from entering the house to check on the child's safety, attempting to slam the door on him. She later allegedly consents to his entry and agrees to restrain her growling dogs. He discovers that the child has a fever which is dangerously high. When he said he might call child welfare authorities if she did not summon someone better able to take care of the child, she yelled “I have a gun, I knew you were a cop out there, if I was going to answer the door and you would have come in, I would have shot ya.” The officer handcuffed her, considering this a threat. A jury rejected a claim for unlawful warrantless entry.

     A federal appeals court upheld this result, and the jury instructions. The court noted that a "majority of the circuits place the burden of proof on the plaintiff in a Sec. 1983 action for a warrantless arrest or search, with some of those circuits imposing the burden of production on the defendant. A minority of the circuits place the burden of proof on the defendant." This court agreed with the majority. Der v. Connolly, #11–1048, 666 F.3d 1120 (8th Cir. 2012).

Search and Seizure: Search Warrant

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

     The U.S. Supreme Court ruled that officers were entitled to qualified immunity and could not be held personally liable for obtaining a potentially invalid overly broad warrant when they could reasonably have believed that the warrant's scope was supported by probable cause. In this case, any arguable defect in the warrant would have become apparent only based on a close examination of the warrant application and comparison of the supporting affidavit to the warrant's terms to determine whether the affidavit sufficiently established probable cause to search for all items listed in the warrant. In this case, a shotgun was confiscated while executing a search of a home under a warrant for "all guns and gang-related material." The "fact that a neutral magistrate has issued a warrant is the clearest indication that the officers acted in an objectively reasonable manner." The Court concluded that the "officers' judgment that the scope of the warrant was supported by probable cause may have been mistaken, but it was not 'plainly incompetent.'" Messerschmidt v. Millender, #10-704, 2012 U.S. Lexis 1687.

Terrorism and National Security Issues

     A federal appeals court reversed a trial court decision denying a Malaysian professor the ability to go forward on her lawsuit seeking to have her name removed from a U.S. government "no fly" list and other terrorist watchlists. The court found that the plaintiff had standing to assert her claims challenging her name's placement on the lists, and had sufficient voluntary connections to the U.S. to assert First and Fifth Amendment claims although she lives outside the country, based on her prior studies here, and her previous intention to return to this country after presenting her research at a conference abroad. Ibrahim v. Dep't of Homeland Security, #10-15873, 2012 U.S. App. Lexis 2457 (9th Cir.).

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     Privacy: "Consumer Data Privacy in a Networked World: A Framework for Protecting Privacy and Promoting Innovation in the Global Digital Economy," The White House (February 2012).

     School Bullying: "Bullying in Schools: An Overview," by Ken Seeley, Martin L. Tombari, Laurie J. Bennett, and Jason B. Dunkle (NCJ 234205) (December 2011).

     Statistics: "Indicators of School Crime and Safety, 2011," by Simone Robers (NCES), Jennifer Truman (BJS), and Jijun Zhang (NCES). (February 22, 2012 NCJ). 236021. Presents data on crime and safety at school from the perspectives of students, teachers, and principals. A joint effort by the Bureau of Justice Statistics and the National Center for Education Statistics, this annual report examines crime occurring in school as well as on the way to and from school. It also provides the most current detailed statistical information on the nature of crime in schools and school environments; and responses to violence and crime at school. Of the 33 student, staff, and nonstudent school-associated violent deaths occurring between July 1, 2009, and June 30, 2010, 25 were homicides, 5 were suicides, and 3 were legal interventions. From July 1, 2009, through June 30, 2010, there were 17 homicides and 1 suicide of school-age youth (ages 5-18) at school. In 2010, students ages 12-18 were victims of about 828,000 nonfatal victimizations at school, including 470,000 thefts and 359,000 violent victimizations, 91,400 of which were serious violent victimizations. In 2009, about 31 percent of students in grades 9-12 reported they had been in a physical fight at least one time during the previous 12 months anywhere, and 11 percent said they had been in a fight on school property during the previous 12 months. PDF (2.35M) ASCII file (132K) Spreadsheets (Zip format 337K).

     Use of Force: "Final Technical Report Draft: Assessing Police Use of Force Policy and Outcomes," by William Terrill, Eugene A. Paoline III, Jason Ingram. Federally funded research report (February 2012).

Reference

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