---

 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: Non-Lethal Projectiles

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

     Investigating reports of a possibly intoxicated driver weaving all over the road in what might be a stolen vehicle, officers observed a parked car of a different model but bearing the same license plate. The female motorist inside ignored orders to exit the vehicle, instead lighting a cigarette, placing her feet out the window, and finally lying on the front seat with her feet on the ground. Officers fired a warning shot from an SL6 baton launcher. Approximately five minutes later, as she continued to ignore their commands, they fired again, hitting her leg and eliciting a yell of pain. They hit her with three further shots, causing her to slump out of the vehicle.

     The officers were not entitled to qualified immunity on an excessive force claim. Firing the number of times they did exceeded the amount of force needed to make the arrest. They also did not have a reasonable belief that they were dealing with a car thief, given the contradictory information they had. The arrestee posed no imminent threat as she was not driving the car and did not give them reason to believe that she was about to. In addition, her resistance was passive, rather than active, and she did not try to flee. The appeals court ordered that judgment as a matter of law be entered for the plaintiff and that the trial court hold further proceedings on the amount of damages to be awarded. Phillips v. Community Insurance Corporation, #10-1654, 2012 U.S. App. Lexis 8582 (7th Cir.).

Defenses: Bankruptcy

     A plaintiff who was in the midst of a Chapter 7 bankruptcy proceeding filed a federal civil rights suit against police officers seeking damages for illegal search. He failed to amend his bankruptcy filing to include the pending lawsuit claim as an asset. The officers were accordingly entitled to the dismissal of the lawsuit, since he had adopted a position in the bankruptcy court inconsistent with his claim that he was entitled to damages for unlawful search by failing to list it as one of his assets. Judicial estoppel therefore barred his claim. Guay v. Burak, #10–2513, 677 F.3d 10 (1st Cir. 2012).

Defenses: Qualified Immunity

     A U.S. citizen who had been confined as an enemy combatant and his mother filed a federal civil rights lawsuit against a former deputy assistant U.S. attorney general, asserting claims for unlawful detention and abusive interrogation, including an assertion that he had been tortured. The defendant had essentially written legal memoranda presenting the case for detaining terrorism suspects, following the September 11, 2001 attacks, as enemy combatants, and using interrogation techniques considered controversial. The defendant was entitled to qualified immunity, as, at the time of the defendant's conduct, it was not clearly established that a suspected terrorist, who was not a criminal defendant or convicted prisoner, was entitled to the same constitutional rights as they had while in military custody by Presidential order. It was also not clearly established, at the time, that the interrogation techniques allegedly involved rose to the level of illegal torture. Padilla v. Yoo, #09-16478, 2012 U.S. App. Lexis 8934 (9th Cir.).

Electronic Control Weapons - Dart Mode

     A Taser was used in dart mode to restrain an intoxicated man who was perceived as attempting to break away from an officer after resisting an attempt to handcuff him. The man had a medical condition which caused his arm to suffer involuntary tremors. The trial court found that the suspect's alleged crimes were two relatively minor misdemeanors, that he did not pose a threat to the officers, and that he did not struggle with the officers, resist arrest, or try to escape, so that the use of the Taser was objectively unreasonable if the facts were as the plaintiff alleged. The officer was not entitled to qualified immunity. The trial court did reject a failure to train claim against the county, however. The federal appeals court affirmed, and found that general constitutional principles on the use of excessive force would have put reasonable officers on notice that using a Taser on an arrestee under the circumstances alleged violated clearly established law. Shekleton v. Eichenberger, #11-2108, 2012 U.S. App. Lexis 9041 (8th Cir.).

Failure to Disclose Evidence

     Two men imprisoned for 20 years for the murder of a couple in their home were released and exonerated on the basis of multiple allegations that police officers and a prosecutor together conspired to frame them. A federal appeals court ruled that police officers were not entitled to summary judgment on claims that they had both manufactured false evidence and failed to reveal exculpatory evidence. There were disputed factual issues concerning their conduct and the prosecutor's, so the officers were properly denied qualified immunity, and the prosecutor absolute or qualified immunity. Defendant state officers could also potentially be held liable for allegedly trying to quash an investigation of the case. Whitlock v. Brueggemann, #11-1059, 2012 U.S. App. Lexis 10825 (7th Cir.).

False Arrest/Imprisonment: No Warrant

     Security guards at a "turbulent" public school board meeting allegedly pulled an activist from his seat and dragged him out of the meeting after he refused to leave when asked. He denied being one of those disrupting the meeting. Once outside, he was arrested by police based on the security guards' version of the incident. He was acquitted of disturbing the peace and resisting arrest. The officers were not liable for false arrest and were properly granted qualified immunity, as they could rely on the security guards' statements that the man had disrupted the meeting to arrest him, and were not required to investigate further. The plaintiff also failed to present a valid First Amendment claim against the school board or its security guards, as he had not shown that they threw him out on the basis of his remarks during the public comments portion of the meeting or his past activism. Green v. Nocciero, #11–2037, 676 F.3d 748 (8th Cir. 2012).

First Amendment

     It was not clearly established, at the time of a 2006 arrest, that an arrest supported by probable cause could violate the First Amendment. The plaintiff was arrested by Secret Service agents protecting Vice President Dick Cheney after he was overheard saying on his cell phone that he was going to confront the Vice President and ask him "how many kids he's killed today." He touched the Vice President's shoulder and made statements critical of the war in Iraq. The agents were entitled to qualified immunity as the U.S. Supreme Court stated that it has never held that there is a First Amendment right to be free of a retaliatory arrest supported by probable cause, and the plaintiff's action in touching the Vice President provided probable cause for the arrest for assault. Reichle v. Howards, #11-262, 2012 U.S. Lexis 4132.

Freedom of Information

    A city properly redacted information concerning crime victims and witnesses in various police reports and arrest citations released to the media under a Kentucky state Open Records law. Releasing the home addresses, phone numbers, and driver's licenses of victims and witnesses was covered by an exemption to the law for personal information which, if released, could amount to a "clearly unwarranted invasion of personal privacy." A unanimous state intermediate appeals court ruled that this exception could also be used to redact the names of all juveniles from the requested documents. Kentucky New Era v. City of Hopkinsville, #2010-CA-001742 2012 Ky. App. Unpub. Lexis 299.

Parking Tickets and Traffic Offenses

     A car owner received, over a 14 month period, 24 "bogus" traffic tickets and made seven trips to court to get them dismissed. He claimed that this harassment may have stemmed from his estranged wife's relationship with certain police officers. A federal appeals court ruled that the plaintiff had sufficiently alleged a "class-of-one" equal protection claim by stating that he had been intentionally singled out for these tickets, which served no conceivable legitimate purpose. He was not required to show that there were other similarly situated individuals who had not been subject to similar harassment. Due process claims were properly dismissed, however, as the writing of "bogus" traffic tickets did not rise to the level of conduct which shocks the conscience. Geinosky v. City of Chicago, #11-1448, 675 F.3d 743 (7th Cir. 2012).

Public Protection: Arrestees

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

     A bipolar woman who had ceased taking her medication was arrested for disruptive actions at an airport. She allegedly received no medical attention while detained, and was released in a high-crime area of town where she was first raped and then either pushed or fell out of a high-rise building, causing her to suffer permanent brain damage. While there is no general right to have police protection against the criminal acts of third parties, police can be liable for damage if they create or enhance the danger of such crimes.

     While the woman had no due process right to be kept in custody for her protection, it was "clearly established that the police may not create a danger, without justification, by arresting someone in a safe place and releasing her in a hazardous one while unable to protect herself." A number of individual defendants were not entitled to qualified immunity for their role in the woman's release in a dangerous area or failure to provide her with medical care while in custody. The court stated that “they might as well have released her into the lion's den at the Brookfield Zoo,” since “she is white and well off while the local population is predominantly black and not affluent, causing her to stand out as a person unfamiliar with the environment and thus a potential target for crime.” Paine v. Cason, #10–1487, 2012 U.S. App. Lexis 8450 (7th Cir.).

•Return to the Contents menu.

     Child Abuse: "State Secrecy and Child Deaths in the U.S.," Children's Advocacy Institute of the University of San Diego School of Law (2nd Edition, 2012).

     First Amendment: First Amendment-Protected Events for Law Enforcement Guidance and Reference Card, U.S. Department of Justice.

     First Amendment: "Police, Protestors and the Press," by the Reporters Committee for Freedom of the Press (2012).

     Search and Seizure: "U.S. v. Jones: GPS Monitoring, Property, and Privacy," Congressional Research Service #R42511 (Apr. 30, 2012).

     Stop and Frisk: "NYPD Stop and Frisk Activity 2011," New York ACLU (2012).

Reference

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