---

 Search the Case Law Digest

CONTENTS

     Some of the case digests do not have a link to the full opinion.

• Cases that have a Westlaw citation can be retrieved, for a fee, via Internet.
• Most Federal District Court opinions can be accessed via PACER. Registration required. Opinions are usually free; other documents are 8¢ per page.
• Access to cases linked to www.findlaw.com may require registration, which is free.  

Assault and Battery: Handcuffs & Restraints

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

     A deaf man arrested in a domestic violence situation involving him and one of his deaf children stated a viable disability discrimination claim. He asserted that handcuffing him in the back prevented him from writing notes in order to communicate with the deputies. "The injury is the failure to make communication as effective as it would have been among deputies and persons without disabilities." The deputies were entitled to qualified immunity from liability, however, based on the exigent circumstances involved in a domestic violence situation. With the deputies concerned about their own safety and the safety of the man's family, it was reasonable to try to accommodate his disability by calling an American Sign Language trainee to assist in communication, and by attempting to use his father as an interpreter, even though those accommodations were not the best practices. Seremeth v. Board of County Commissioners Frederick County, #10-1711, 2012 U.S. App. Lexis 5105 (4th Cir.).

Defenses: Absolute Witness Immunity

     In a federal civil rights lawsuit claiming that the chief investigator for a prosecutor's office conspired to present, and did, in fact, present false testimony to a grand jury, the U.S. Supreme Court ruled that the investigator was entitled to absolute witness immunity on all claims arising from his grand jury testimony. A witness in a grand jury proceeding is entitled to absolute immunity just as is a witness who testifies at a trial.

     The Court found that there is no reason to distinguish law enforcement witnesses from lay witnesses in civil rights actions. The rule that a grand jury witness has absolute immunity from any civil rights claim based on the witness’ testimony may not be circumvented by claiming that a grand jury witness conspired to present false testimony, or by using evidence of the witness’ testimony to support any other claim concerning the initiation or maintenance of a prosecution. Rehberg v. Paulk, #10-788, 2012 U.S. Lexis 2711.

False Arrest/Imprisonment: No Warrant

     After officers arrested a man for drinking on a public way, they found heroin and crack cocaine on him during a search incident to arrest. Subsequently, after the drinking charge was dropped, a trial judge ruled that there was no probable cause for the drug arrest. In a false arrest lawsuit, a verdict for the defendant police officers was returned following testimony by an assistant prosecutor that it was common for drug charges to be dismissed if the amount of drugs found was relatively small. A federal appeals court held that the plaintiff was entitled to a new trial, as that testimony should not have been allowed without first disclosing that the assistant prosecutor would be testifying as an expert witness and following the procedures to present her evidence as such. Tribble v. Evangelides, #10-3262, 670 F.3d 753 (7th Cir. 2012).

False Arrest: Warrant

     U.S. Marshals teamed up with local police to conduct a roundup of fugitives in 24 states that resulted in 10,733 arrests. One of the arrestees turned out not to be the arrestee sought, but someone else with the same name, due to a clerical error by a city's police department. That arrestee's lawsuit against the U.S. government was barred under the discretionary function exception to the Federal Tort Claims Act (FTCA), 28 U.S.C.S. § 2680(a). Officers making the arrest did not have the arrest warrant in their possession at the time the arrest was made, and were not required to have it under the city's existing arrest policy. The plaintiffs also failed to produce any evidence that the officers intended to falsely arrest the arrestee, so a law enforcement exception to the intentional tort exception of the FTCA did not apply. Milligan v. United States, # 10-5615, 670 F.3d 686 (6th Cir. 2012).

Firearms Related: Intentional Use

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

     A man and a woman running away from police officers leave a stolen car and go into a pickup truck. The man drove the pickup into a police vehicle, with officers standing behind it. He then put the truck in reverse and backed up at a high rate of speed, moving towards an officer who shot and killed him. In an excessive force lawsuit by the decedent's parents, a federal appeals court ruled that the claim was barred under the principles in Heck v. Humphrey, #93-6188, 512 U.S. 477 (1994), as a judgment against the officers on the claim would tend to undermine the validity of the conviction of the decedent's female accomplice for assault of an officer with a deadly weapon during the incident. The jury that convicted the accomplice had already determined that the officer's use of force was not excessive. Beets v. County of Los Angeles, #10-55036, 669 F.3d 1038 (9th Cir. 2012).

Firearms Related: Second Amendment

     During an arrest, officers seized a pistol owned by the arrestee. The weapon was not returned after the prosecution against him was dropped. He claimed that the failure to return his weapon and an alleged prosecutor's policy not to return firearms seized during arrests violated the Second Amendment right to keep and bear arms. A federal appeals court rejected these claims, since the "right protected by the Second Amendment is not a property-like right to a specific firearm." The plaintiff did not show that the defendants interfered in any way with his right or ability to obtain or retain other firearms. The court also found no violation of due process, since there were adequate remedies under state law for any wrongful withholding of personal property. Houston v. City of New Orleans, #11-30198, 2012 U.S. App. Lexis 5370 (5th Cir.),

First Amendment

     Sheriff's deputies were entitled to qualified immunity for asking anti-abortion demonstrators to remove the large graphic signs displaying aborted fetuses they were holding during their roadside demonstration. Even if the order to do so were found to be an impermissible content-based violation of First Amendment rights in a public forum, the deputies did not act in an objectively unreasonable manner in deciding that they could lawfully make the request in order to shield the public from traffic hazards potentially arising from the proximity of the signs to the road, and in order to prevent children from seeing the images displayed. The officers were ordered to refrain from impermissible content based restrictions on free speech in the future, but the plaintiff anti-abortion group was not entitled to attorneys' fees as it was not a prevailing party. Lefemine v. Wideman, #10-1905, 2012 U.S. App. Lexis 4490 (4th Cir.).

Governmental Liability: Policy/Custom

     A no-knock entry was made into a house with a battering ram to execute a search warrant based on a confidential informant's tip that methamphetamine was being sold from the residence. After no drugs were found during the search, the occupants sued the detective who obtained the warrant and the city for the failure to knock and announce the officers' identity and purpose before entering the home. The appeals court ruled that it was clearly established that neither safety concerns based on generalities about the dangerousness of drugs dealers nor the disposable nature of drug evidence were enough, standing alone, to justify that type of entry. The detective, therefore, was not entitled to qualified immunity. The court ruled that the city also could be held liable, based on the plaintiffs' claim that its officers customarily used no-knock entry as their default method of executing all drug-related searches, and that this was consistent with the police department's policies. Bishop v. Arcuri, #11-50010, 2012 U.S. App. Lexis 4978 (5th Cir.).

Off Duty: Color of Law: Firearms Related

     An off-duty police officer driving home was upset by a van's driver tailgating his vehicle. Exiting his car, he pulled out his weapon and shot the van's driver a total of nineteen times, hitting him with eight shots and killing him. The officer claimed that the motorist had threatened him with a weapon, but none was found. The officer later committed suicide. A jury found that the officer had used unreasonable force under color of law and awarded $1.85 million in damages. It also found, however, that the officer was not acting within the scope of his employment when he fired his weapon, with the result that the judgment could only be collected from the officer's small estate rather than from the city. A statute required the city to pay judgments against officers for actions taken within the scope of their employment and off-duty officers were required to take action against lawbreakers.

     A federal appeals court held that a "police officer can grossly exceed his authority to use force and still be found to have acted within the scope of his employment." It ordered further proceedings on the issue of whether the officer was acting within the scope of his employment in this case, finding that the jury had not been properly instructed on the issue. The jury may also have been confused by the admission into evidence of the homicide and perjury charges lodged against the officer prior to his suicide death. Javier v. City of Milwaukee, #10-3816, 670 F.3d 823 (7th Cir. 2012).

Public Protection: Disturbed/Suicidal Persons

     Police took a man into custody in response to his parents' report that he might be a danger to himself or others. They intended to transport him to a mental health facility. During a search of his person, they found his wallet, but failed to discover a razor blade concealed within it, letting him retain possession of the wallet. While being transported in their squad car, the man used the razor blade to kill himself. Rejecting a claim that the officers acted with deliberate indifference to the decedent's risk of suicide, a federal appeals court noted that the officers acted with compassion and a desire to protect him as evidenced by the very fact that they searched him and inspected the contents of his wallets, albeit imperfectly. Rosario v. Brawn, #11-2072, 670 F.3d 816 (7th Cir. 2012).

•Return to the Contents menu.

Report non-working links here

     Officer Deaths: Statistics compiled by the Federal Bureau of Investigation showed that 72 officers were killed by perpetrators in 2011, a 25 percent increase from the previous year and a 75 percent increase from 2008.

     Search and Seizure: "The Exigent Circumstances Exception After Kentucky v. King," by Michael T. Pettry, FBI Law Enforcement Bulletin (March 2012).

     Terrorism: "Detention of U.S. Persons as Enemy Belligerents," Congressional Research Service, Report No. R42337 (Feb. 2012).

     Training: :"Focus on Training: Training for Deadly Force Encounters," by Timothy Hoff, FBI Law Enforcement Bulletin (March 2012).

Reference

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