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Assault and Battery: Physical

     DEA agents who executed a search warrant at a mobile home occupied by suspected drug dealers allegedly pointed weapons at and handcuffed two adults and two children who were present. They also pushed one of the adults onto the floor. Rejecting assault and battery claims against the agents for the force used against the adults, an appeals court found that the dangerous situation of carrying out a search on premises occupied by drug traffickers justified the force used. There were genuine issues of material fact, however, as to whether the force used against the 11 and 14 year old children was reasonable. The lawsuit was brought under the Federal Tort Claims Act. Avina v. U.S., #11-55004, 681 F.3d 1127 (9th Cir. 2012).

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

     Officers allegedly detained a man at a gas station, pointing a gun at him and handcuffing him. They then drove him to his apartment where he claimed they planted a gun and some marijuana and proceeded to conduct a search. When he refused to sign a consent to the search, an officer hit him in his ribs with his fists and tried to choke him, according to the plaintiff. Qualified immunity was not available on the excessive force claim, regardless of whether the injuries suffered were minimal. No amount of force was justified for the purpose of coercing a consent to a search. Hemphill v. Hale, #11-3116, 677 F.3d 799 (8th Cir. 2012)

Electronic Control Weapons: Dart and Stun Mode

     In a wrongful death action, a Ninth Circuit panel concluded that Taser International was under no duty to warn that repeated exposure to its M26 could lead to fatal levels of metabolic acidosis. The district court properly awarded summary judgment in favor of the manufacturer "because the risk of lactic acidosis was not knowable in 2003." The deceased had been Tasered multiple times in the Dart and Stun mode. Rosa v. Taser Int., #09-17792, 2012 U.S. App. Lexis 14025 (9th Cir.), affirming Rosa v. City of Seaside, #C05-03577, 675 F.Supp.2d 1006 (at 1013-15) 2009 U.S. Dist. Lexis 117933 (N.D. Cal.).

Expert Witnesses

     The dismissal of an arrestee's excessive force claim on the basis that he could not prevail without offering expert witness testimony on what level of force would have been reasonable was erroneous. In the immediate case, the court concluded that there was nothing about the particular use of force that required an expert witness to determine what a reasonable officer would have done under the circumstances. The officers used a Taser against the plaintiff twice in stun mode, as well as using direct physical force while they engaged in a dispute with him over the alleged violation of a child custody order and he brandished a rake. Allgoewer v. City of Tracy, #C067636, 2012 Cal. App. Lexis 782 (3rd Dist.).

False Arrest/Imprisonment: No Warrant

     A state trooper compelled a female motorist, stopped for failing to dim her lights, to perform field sobriety tests. He stated that he did so because her pupils were constricted, and then placed her under arrest for DUI. Subsequently, a urine test showed that she had not been drinking, and the charges were dismissed. A federal appeals court stated that this, combined with a videotape indicating that she had performed the field sobriety tests with only minor mistakes and no real difficulty, showed that the officer may have lied about her pupils being constricted. A reasonable jury could find that there was no reasonable suspicion to conduct the field sobriety tests or place the motorist under arrest. Qualified immunity for the officer would be inappropriate. Green v. Throckmorton, #10-4487, 681 F.3d 853 (6th Cir. 2012).

Firearms Related: Intentional Use

     Police responded to 911 calls indicating that a man had threatened to kill his ex-girlfriend's parents. They believed that he might be armed with a gun. In a heavily wooded area, he ignored orders to show his hands, allegedly yelled that he had a gun, and had been drinking and acting in a mentally disturbed manner. An officer's attempt to use a Taser on him failed because of a heavy coat he had on. He brandished a silver object which turned out to be a phone. An officer who believed it might have been a gun shot and killed him. Under these circumstances, the use of deadly force was justified, despite the fact that, with hindsight, it turned out that he was unarmed. Simmonds v. Genesee County, #10-1470, 2012 U.S. App. Lexis 12347 (6th Cir.).

Immigration

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

     The U.S. Supreme Court upheld an appeals court ruling enjoining three major provisions of an Arizona state law attempting to take measures to decrease the impact of illegal immigrants on the state and its residents. Struck down were sections of the statute making it a misdemeanor for an illegal resident to work, making it a misdemeanor not to comply with federal alien registration requirements, and a section authorizing officers to make warrantless arrests of any person believed to have committed an offense making them removable from the U.S. These three provisions were deemed preempted by federal immigration law. The Court did conclude, however, that it had been improper to enjoin a section of the law that requires an officer making arrests, detentions, or stops to make an effort to verify a person's immigration status. The provision could be construed by the state's courts in a manner that did not conflict with federal immigration law and it was premature to enjoin it without allowing the state courts to do so. Arizona v. U.S., #11-182, 2012 U.S. Lexis 4872.

Search and Seizure: Person

     A man returning home to the U.S. after a trip abroad had his laptop computer seized by an Immigration and Customs Enforcement agent. The hard drive of the equipment failed while being detained, which destroyed the plaintiff's business software and other information on the machine. He filed a lawsuit against the U.S. government seeking damages for an unlawful Fifth Amendment taking as well as for breach of contract. A federal appeals court dismissed both claims, finding no plausible mutual intent to contract and that there was no voluntary delivery of his property, as required for a bailment contract. The seizure of the computer also did not amount to a taking of it for a public purpose giving rise to a right to compensation. Kam-Almaz v. U.S., #2011-5059, 2012 U.S. App. Lexis 12581 (Fed. Cir.).

Search and Seizure: Vehicle

     The operators of a shuttle bus service in Arizona brought a federal civil rights lawsuit claiming that Border Patrol agents who repeatedly stopped their bus violated their Fourth Amendment rights. The buses never crossed the border with Mexico. Five supervisors of the agents were entitled to dismissal of the claims against them as there was no clear allegation that these five defendants, through their own actions, violated the plaintiffs' constitutional rights. A viable claim was alleged as to one defendant, however, as the plaintiffs plausibly asserted that he had them stopped on the sole basis of the apparent Mexican ancestry of themselves and their passengers. A reasonable Border Patrol supervisor could have known that this was a characteristic insufficient to create reasonable suspicion sufficient to justify a stop. Chavez v. U.S., #10-17659, 2012 U.S. App. Lexis 12555 (9th Cir.).

     Officers who saw a vehicle "filled to the brim" with piles of clothing and other personal items going around apparently at random in a high crime neighborhood at 1:30 a.m. had reasonable suspicion to stop the car. Once stopped, the officers saw a child sitting in a child seat with diapers and clothes in his lap. They soon learned from a dispatcher that his wife had reported him as attempting to leave town with the child. They then had sufficient grounds for a more prolonged detention and investigation based on these factors and the man's nervousness. They also had a basis to transport him to the police station based on information about a domestic incident with his wife. When he failed to be able to produce a driver's license, there was probable cause for an arrest. He was a Marine back from duty in Iraq and allegedly mentally disturbed. Subsequently, the officers acted lawfully in detaining and committing him for psychiatric evaluation. His rights were not violated. Hoover v. Walsh, #11-1333, 2012 U.S. App. Lexis 11929 (6th Cir.).

Weapon Confusion

     California appellate court affirms the conviction of a BART police officer who mistakenly discharged his firearm, when he intended to deploy his M26 Taser -- killing a man who was resisting arrest. The officer was sentenced to two years confinement for involuntary manslaughter, but was acquitted of second degree murder and voluntary manslaughter. He was sentenced to two years confinement. Documents in the trial court can be accessed by clicking here. An appeal was taken, and a three-judge panel unanimously confirmed the conviction. People v. Mehserle, #A130654, 206 Cal. App. 4th 1125, 142 Cal. Rptr. 3d 423 (2012).

     The panel wrote: “We find sufficient evidence that his conduct of mistakenly drawing and firing his handgun instead of his taser constitutes criminal negligence under the second prong of manslaughter liability: that defendant committed a lawful act in an unlawful manner, or without due caution and circumspection -- i.e., he believed he was tasing an arrestee, but mistakenly, and criminally negligently, drew and fired his handgun with lethal results. [...] The jury also heard evidence that in the past 10 or 11 years, several hundred thousand, if not a million, tasers had been deployed by 13,000 police agencies across the United States. In all that time, with all those deployments, the jury was told there were only six documented instances of taser/handgun confusion in the United States and Canada. The jury could reasonably have concluded ‘inattentional blindness’ is uncommon and is not something suffered by a reasonably prudent person. Finally, the jury could reasonably have concluded the situation on the platform was not an extreme high-stress situation at the time of the shooting itself. There were seven officers on the platform, the detainees were under control, and the crowd from the train was being held back."

     Editor's note: Click here to view a detailed visual presentation of the controversial shooting, by Capt. Greg Meyer (LAPD Ret.) who served as a litigation consultant in the criminal case.

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     Drugs: "The Arrestee Drug Abuse Monitoring (ADAM II) 2011 Annual Report," Office of National Drug Control Policy, Executive Office of the President (May 2012).

     Firearms Related: "Restraint in the Use of Deadly Force," by Anthony J. Pinizzotto, Edward F. Davis, Shannon B. Bohrer, and Benjamin J. Infanti, F.B.I. Law Enforcement Bulletin (June 2012).

     Medical Marijuana: "Exploring the Ecological Association Between Crime and Medical Marijuana Dispensaries," by Nancy J. Kepple and Bridget Freisthler, 73 Journal of Studies on Alcohol and Drugs Issue 4 (July 2012).

     Use of Force: Las Vegas Metro Police Dept. Use of Force Policy (2012).

Reference

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