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Assault and Battery: Physical

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

     A police officer threw a man down on the ground and arrested him for public intoxication. He did this while responding to a domestic violence call when he saw the man advancing towards another man who was allegedly backing up with his hands raised in a nonthreatening position. The arrestee, who had heart problems, died three years later and his estate sued he officer. A federal appeals court ruled that the officer's action amount to an arrest rather than an investigative detention, and that the facts did not support probable cause for an arrest at that time, since the man was unarmed and was not within reach of the other man. The officer's use of force may have been excessive, as the man was not trying to resist arrest or flee and posed little threat to the safety of others. His right under these circumstances not to be subject to a forceful takedown was clearly established. The officer was not entitled to qualified immunity. Morris v. Noe, #11–5066, 672 F.3d 1185 (10th Cir. 2012).

Defenses: Qualified Immunity

     A firefighter sued a city and a private attorney hired by the city to conduct an internal investigation of his conduct for violation of his civil rights under 42 U.S.C. Sec. 1983. The firefighter was suspected of malingering while supposedly off work on account of illness. The firefighter argued that the attorney's order to him to produce building materials stored at his home violated his Fourth and Fourteenth Amendment rights. He had been seen buying the building supplies and the issue was whether he had been installing the building materials rather than being ill. The U.S. Supreme Court held that the private attorney was entitled to qualified immunity along with other individual defendants despite not being a city employee. A private individual temporarily retained by a city to carry out its work is able to seek qualified immunity from civil rights liability. In this case, the city needed the attorney's experience and expertise in employment law. Filarsky v. Delia, #10–1018,   132 S. Ct. 1657; 2012 U.S. Lexis 3105.   

False Arrest/Imprisonment: No Warrant

     A singer and his manager were involved in a fight with a nightclub owner and security personnel. After they were badly beaten and deposited outside, police were called, and they were arrested after the club told officers they had tried to come in without paying an entrance fee, and that the singer hit the club owner in the face. They sued for false arrest, claiming that police improperly took the word of the nightclub staff, and should have reviewed an available videotape, which would have shown that the club's version of events was inaccurate. The appeals court found that the statements the club made to police were sufficient to furnish probable cause for arrest, after which the officers had no obligation to view the video or seek out other exculpatory evidence. Matthews v. City of East St. Louis, #11–1168, 675 F.3d 703 (7th Cir. 2012).

     Police knocked on a man's door after a motorist whose car had been vandalized reporting seeing him first in the parking lot and then entering the apartment. When he came out of his door, he saw police and turned around to go back inside. The officers grabbed him, and subjected him to a leg sweep, and he chipped a tooth during the encounter. There was no probable cause for an arrest or reasonable suspicion for a detention based solely on the man's prior presence in the lot where the car had been vandalized. Under these circumstances, the man had a right to walk away. The court found that the unlawful arrest claim could continue, and ruled that the trial court should evaluate the excessive force claim independently, as it was not necessarily dependent on whether or not any arrest or detention was proper. Romero v. Story, #11–2139, 672 F.3d 880 (10th Cir. 2012).

False Arrest/Imprisonment: Unlawful Detention

     Detainees in the custody of the county sheriff on Saturday night were not brought before a judge within the normal 48-hour deadline for a probable cause determination because the county judges do not work on weekends, and the chief judge took off early that Monday. The arresting sheriff was not available on Monday morning and no other judge was available Monday afternoon. An appeals court ruled that no individual defendant was responsible for the delay, that the arresting officer could not have known that he had to make alternate arrangements, since the unavailability of any judge Monday afternoon was unanticipated. Additionally, no unconstitutional policy caused the delay, so the county could not be liable. Jones v. Lowndes County, #10–60941, 2012 U.S. App. Lexis 7805 (5th Cir.).

     A prisoner now serving a life sentence after a murder conviction sued a sheriff and other defendants for failing to meet the 48-hour deadline after his arrest for a probable cause hearing. The federal appeals court ruled that the delay was excusable and caused by the need to determine where the murder occurred so that officers could decide which court the arrestee should be brought before for jurisdictional purposes. As soon as that was determined, the defendants promptly attempted to arrange a hearing before the appropriate magistrate. The subsequent overnight delay was because of the magistrate's unavailability. On these facts, the jurors properly found that the delays were justified. Brown v. Sudduth, #09-60037, 675 F.3d 472 (Unpub. 5th Cir. 2012).

First Amendment

     When President Bush was dining at a restaurant during his 2004 reelection campaign, groups of demonstrators both in favor of and opposed to his re-election attempted to gather outside. A federal appeals court has ruled that, if the facts were as alleged, Secret Service agents violated the First Amendment by forcing protesters opposed to the President to move further away from the restaurant than where they permitted supporters of the President to rally. This was enforcement of a content-based restriction. The agents were not entitled to qualified immunity. The court also found that state and local police supervisors could not be held liable for the alleged use of excessive force against the anti-Bush demonstrators, including the use of pepper spray, clubs, and shoving, since there was no indication that they were personally involved. Moss v. United States Secret Service, #10-3615, 2012 U.S. App. Lexis 7077 (9th Cir.).

Insurance

     A man was arrested and convicted of sexual assault and home invasion. Later, he was exonerated and pardoned, and was awarded $9 million in a wrongful arrest and conviction lawsuit against a police officer. The city was required to indemnify the officer and the city sought to obtain payment of the judgment from its liability insurers. The appeals court noted that even though the city properly notified its insurers of the lawsuit, they all refused to help the city and officer defend the claim or provide any indemnification. Additionally, they did not go to court to seek a declaratory judgment that the claims were not covered under their policies. Only after it was all over was the current lawsuit filed, seeking a declaratory judgment that insurers had no obligation to pay. The company providing the insurance policy as of the date of the arrestee's exoneration will be required to pay the judgment. The insurer could also be held liable under a state statute for an unreasonable and vexatious failure to provide a defense. American Safety Casualty Insurance Co. v. City of Waukegan, #11-2775,  2012 U.S. App. Lexis 5496 (7th Cir.), rehearing denied by, rehearing, en banc, denied by: American Safety Casualty Insurance Co. v. City of Waukegan, #11-2775, 2012 U.S. App. Lexis 8722 (7th Cir. Ill.).

Public Protection: Motoring Public

     A jury found state troopers not liable for the death of a motorcyclist struck by another motorcycle at a roadblock that had been created to stop speeding motorcycles. The appeals court upheld this verdict and rejected the argument that the jury should have received instructions concerning the use of deadly force and what justifies its use. There was no indication that the troopers used any force likely to have deadly effects, so such an instruction would have been improper. A traffic stop of cars to prevent speeding motorcycles from racing down a highway is not the equivalent of firing a gun at a person. A general instruction about excessive force, with no mention of deadly force or its requirements was adequate. Terranova v. State of New York, #09-5025, 2012 U.S. App. Lexis 7587 (2nd Cir.).

Privacy

     When protesters gathered outside a meeting of the International Monetary Fund (IMF) and vandalized the lobby of the hotel where delegates were staying, a photojournalist took pictures of the mayhem. A county police officer reviewing the hotel's security tapes found out that she had been present taking pictures. Deputized as a federal marshal, he helped obtain a search warrant for her home, where it was believed her computer equipment containing the photos of the protesters would be found. During the execution of the warrant, her computer hard drive was seized. She sued the federal government, claiming that the search violated the Privacy Protection Act, 42 U.S.C. Sec. 2000aa et seq. She sought damages for the search, although she was neither arrested nor charged. The appeals court found that a suspect exception to the Act applied to the claim because the circumstances provided probable cause to believe that she was involved with criminal activity with vandals at the hotel. The mere fact that the officer knew that she was a journalist did not destroy probable cause. Sennett v. United States, #11-1421, 667 F.3d 531 (4th Cir. 2012).

Wiretapping, Video Surveillance, & Internet Legal Issues

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

     An Illinois eavesdropping statute violated the First Amendment to the extent that it could be applied to prohibit the open audio taping of police officers in public performing their official duties. Any supposed governmental interest in protecting conversational privacy was not implicated when officers performing their duties engage in communications audible to those witnessing the events. In restricting more speech than necessary to protect legitimate privacy interests, the statute was likely to violate the free speech and free press guarantees of the First Amendment. An injunction against enforcement of the statute was therefore ordered. ACLU of Illinois v. Alvarez, #11-1286, 2012 U.S. App. Lexis 9303 (7th Cir.).

     Editor's note: The amicus brief filed in the above case by the Reporters Committee for Freedom of the Press, et al. is of interest.

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     Crowd Control: California POST has issued “Crowd Management, Intervention and Control Guidelines." (77 pp. PDF 2012).

     Money Laundering: "Money Laundering and Asset Forfeiture," by Douglas Leff, FBI Law Enforcement Bulletin (April 2012).

     Pepper Spray: Task Force Report, University of California Police (Davis campus) pepper spray incident in Nov. 2011. (190 pp. PDF 2012).

     Search and Seizure: "Focus on Searches: Characteristics and Implications of Diversion Safes," by Megan C. Bolduc, FBI Law Enforcement Bulletin (April 2012).

     Statistics: National Crime Victimization Survey (NCVS) Victimization Analysis Tool (April 2012).

Reference

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