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Assault and Battery: Non-Lethal Projectile

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

     A college student suffered a permanent eye injury when he was struck by a pepperball projectile fired by a campus police officer. Campus and local police were then attempting to clear a crowd of about 1,000 students holding a party at and near an apartment complex, blocking streets to traffic. The officer who fired the projectile was not entitled to qualified immunity. The action could be found to constitute an unlawful seizure in violation of the injured student's Fourth Amendment rights. Even if the plaintiff actually heard and failed to comply with the police order to the crowd to disperse such a single act of non-compliance, without any attempt to threaten the officers or place them at risk, would not rise to the level of "active resistance" justifying the force used. A reasonable officer, the court believed, would have known that firing projectiles, including pepperballs, in the direction of individuals suspected of, at most, minor crimes, who posed no threat to the officers or others, and who engaged in only passive resistance, was unreasonable, even if there was no binding precedent specifically discussing the use of pepperball projectiles in this context. Nelson v. City of Davis, #10-16256, 2012 U.S. App. Lexis 14140 (9th Cir.).

Attorneys' Fees: For Defendant

     After a woman's federal civil rights claims against police officers were determined to be frivolous, the city employing the officers asked the court to award it $362,545.61 in attorneys' fees and costs as a sanction under 28 U.S.C. § 1927 against the plaintiff's attorney. The attorney continued to pursue his client's claims after it was clear that they were frivolous. A federal appeals court ruled that the trial court could take into consideration the attorney's claim that he had no assets and had only earned approximately $20,000 annually in the past three years, and, if true, reduce the amount of any sanction based on his inability to pay. Haynes v. City and County of San Francisco, #10-16327, 2012 U.S. App. Lexis 15102 (9th Cir.).

     Editor's note: The Second Circuit reached a similar conclusion in Oliveri v. Thompson, #1147, 803 F.2d 1265 (2d Cir.1986), while the 7th Circuit, in Shales v. General Chauffeurs, Sales Drivers and Helpers Local Union No. 330, #07-3342, 557 F.3d 746 (7th Cir.2009), rejected it.

False Arrest/Imprisonment: No Warrant

     Two teenage African-American males were arrested on accusations that they offered to sell Ecstasy to undercover officers driving by in an unmarked car. After the charges against them were dismissed, they sued the officers for false arrest. The jury returned a verdict for the officers. Upholding the verdict, the appeals court rejected the argument that lawyers for the defendant officers had improperly been allowed to ask questions about drug activity on the block where the arrests had been made, which insinuated that it was a high-crime area. The jury's verdict was supported by a reasonable interpretation of the evidence.Willis v. Lepine, #11–2224, 2012 U.S. App. Lexis 15061 (7th Cir.).

Firearms Related: Intentional Use

     A police officer was not liable for shooting and killing an intoxicated man while responding to a domestic disturbance call. The decedent had been armed with a knife, attempted to conceal it, and, before the shooting, raised his leg as if getting ready to move towards the officer. Under these circumstances, the officer could reasonably believe that the man posed a threat of substantial and imminent bodily harm, and he failed to comply with orders to drop the knife. The officer was entitled to qualified immunity. Estate of Morgan v. Cook, #11–3376, 2012 U.S. App. Lexis 14021 (8th Cir.).

Firearms Related: Second Amendment Issues

     A federal law barring individuals from transporting firearms into their state acquired in another state did not violate the Second Amendment. The plaintiff argued that the combination of New York's licensing statute, which made it difficult for him to purchase a handgun in New York, with the federal prohibition on importing the weapon purchased in Florida effectively denied him the right to own a handgun for self-defense. The court rejected this argument, pointing out that the plaintiff could have, in fact, applied for a New York permit, which provided him with an adequate alternative means to acquire a gun for self-defense. United States v. DeCastro, #10–3773, 682 F.3d 160 (2nd Cir. 2012).

     Plaintiffs who wished to hold gun shows at a county's fairgrounds challenged, as a violation of the Second Amendment, an ordinance prohibiting possessing firearms on county property. The county's subsequent interpretation of the ordinance as allowing gun shows on county property, as long as the weapons were attached by a sturdy cable to a table or other fixture, resolved any possible Second Amendment claims. Potential buyers could, under these circumstances, physically inspect the firearms as long as they were properly secured. Under the Second Amendment, there can be reasonable conditions and qualifications on commercial gun sales. Nordyke v. King, #07-15763, 681 F.3d 1041, (9th Cir. en banc. 2012)

First Amendment

     The interior sidewalks of postal facilities are not a public forum. A ban on collecting petition signatures on post office sidewalks not running along public streets does not violate the First Amendment. Initiative and Referendum Institute v. United States Postal Service, #10–5337, 2012 U.S. App. Lexis 14347 (D.C. Cir.).

     Editor's note: In reaching this conclusion, the D.C. Circuit joined five other federal appeals courts which previously adopted the same ruling. See Del Gallo v. Parent, #08-1511, 557 F.3d 58 (1st Cir.2009); Paff v. Kaltenbach, #99-6025, 204 F.3d 425 (3d Cir.2000); Jacobsen v. U.S. Postal Serv., #89-16054, 993 F.2d 649 (9th Cir.1992); Longo v. U.S. Postal Serv., #91-6141, 983 F.2d 9 (2d Cir.1992); and United States v. Belsky, #85-8689, 799 F.2d 1485 (11th Cir.1986). No court of appeals has held otherwise, except the Fourth Circuit, which was reversed by the Supreme Court in a plurality decision in United States v. Kokinda, #88-2031, 497 U.S. 720 (1990).

Off-Duty/Color of Law: Assault and Battery

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

     A corrections officer, returning home from work armed, found a naked young man hiding in the closet in her daughter's room, with her daughter naked in bed. Handcuffing him at gunpoint, she orders him to kneel or be shot and killed. She also permitted her husband to assault him, and threatened to submit a false report of the incident to discredit the young man if he later filed charges. Later, when her husband says that he believes the daughter's statements that the young man was invited, she relents and allows him to get dressed and leave. He filed a federal civil rights lawsuit against the officer and the county sheriff who employed her. His lawsuit was properly dismissed as the officer did not act under color of law, but rather as a private person. She did not discover him in the closet as the result of a law enforcement search. "(A)ny irate mother with an anger management problem could have done what [she] did." She used her weapon and handcuffs for a private purpose. Butler v. Sheriff of Palm Beach County, #11–13933, 2012 U.S. App. Lexis 13844 (11th Cir.).

Public Protection: Crime Victims

     A female college student was brought to a hospital emergency room after she passed out at a party. Despite their concern that she might have been involuntarily drugged and then raped, police officers declined to authorize the carrying out of a forensic exam. Subsequently, she sued the District of Columbia, claiming that its police were negligent in failing to investigate her possible sexual assault, and that the District negligently hired, trained and supervised the officers in the area of investigating sexual assaults. Summary judgment was properly granted for the defendant District on these claims. The officers owed a duty to investigate possible crimes to the public, not to any specific individual. Additionally, the officers did not prevent the hospital from administering any forensic test, and had its own independent authority to do so if it wished, but declined to do so. McGaughey v. District of Columbia, #11–7001, 2012 U.S. App. Lexis 14568 (D.C. Cir.)

Race Discrimination

     An African-American motorist fleeing from police stopped his car, and then started moving backwards in a circular path. An officer, believing that he might be run over, fired four or five shots, killing the driver. The decedent's mother sued the municipality, claiming that it exhibited deliberate indifference to the rights of black people. A federal appeals court rejected this claim, finding no evidence that a "policymaking official was aware of constitutional injury, or the risk of constitutional injury, but failed to take appropriate action." It noted that "isolated acts of excessive force by non-policymaking municipal employees are generally not sufficient to demonstrate a municipal custom, policy, or usage that would justify municipal liability." Jones v. Town of East Haven, #10–4731, 2012 U.S. App. Lexis 15928 (2nd Cir.).

Search and Seizure: Home/Business

     A municipal ordinance required motel and hotel owners to establish and maintain extensive records about their guests (including names and numbers of guests, method of payment, duration of stay, license plates of guests' vehicles, etc.) and to allow police to inspect them. The motel and hotel owners could not claim that this violated their Fourth Amendment rights against unreasonable search and seizure. The information required was about their guests, not about the business owners or operators, so they had no privacy right to assert. Further, while the records created were "papers" arguably protected by the Fourth Amendment, inspection of them by police did not amount to a seizure. Patel v. City of Los Angeles, #08-56567, 2012 U.S. App. Lexis 14613 (9th Cir.).

•Return to the Contents menu.

     DNA: "Post-Conviction DNA Testing and Wrongful Conviction (Research Report)," by John Roman, Kelly Walsh, Pamela Lachman, and Jennifer Yahner (Urban Institute, June 18, 2012).

     First Amendment: "Suppressing Protest: Human Rights Violations in the U.S. Response to Occupy Wall Street," The Global Justice Clinic (NYU School of Law) and the Walter Leitner International Human Rights Clinic at the Leitner Center for International Law and Justice (Fordham Law School) (July 26, 2012).

     Human Trafficking: "Identifying Challenges to Improve the Investigation and Prosecution of State and Local Human Trafficking Cases: Executive Summary," by Colleen Owens, Meredith Dank, William Adams, Additional Authors (Urban Institute, April 30, 2012).

     Psychopathy: Focus on Psychopathy. "Psychopathy An Important Forensic Concept for the 21st Century," by Paul Babiak, M.S., Ph.D.; Jorge Folino, M.D., Ph.D.; Jeffrey Hancock, Ph.D.; Robert D. Hare, Ph.D.; Matthew Logan, Ph.D., M.Ed.; Elizabeth Leon Mayer, Ph.D.; J. Reid Meloy, Ph.D.; Helinä Häkkänen-Nyholm, Ph.D.; Mary Ellen O'Toole, Ph.D.; Anthony Pinizzotto, Ph.D.; Stephen Porter, Ph.D.; Sharon Smith, Ph.D.; and Michael Woodworth, Ph.D. ; "The Predator When the Stalker Is a Psychopath," by Sharon S. Smith, Ph.D., Mary Ellen O'Toole, Ph.D., and Robert D. Hare, Ph.D.; "Looking Behind the Mask Implications for Interviewing Psychopaths," by Mary Ellen O'Toole, Ph.D.; Matt Logan, Ph.D.; and Sharon Smith, Ph.D.; "Case Study No More Bagpipes The Threat of the Psychopath," by Matt Logan, Ph.D.; "The Language of Psychopaths: New Findings and Implications for Law Enforcement," by Michael Woodworth, Ph.D.; Jeffrey Hancock, Ph.D.; Stephen Porter, Ph.D.; Robert Hare, Ph.D.; Matt Logan, Ph.D.; Mary Ellen O’Toole, Ph.D.; and Sharon Smith, Ph.D., FBI Law Enforcement Bulletin (July 2012).

     Use of Force: "The Legitimacy of Using Excessive Force during Civil Policing among Israel’s Border Guard Police Officers," by Efrat Shoham and Shirley Yehosha Stern, 3 (2) Beijing Law Review 15-23 (June 2012).

Reference

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