Electronic Control Weapons: Stun Mode Cases

     An officer applied a Taser in stun mode four times to an irrational crack-intoxicated man struggling with another officer on the ground after other efforts to subdue him failed. He also attempted to use the Taser in dart mode once, but missed. The face-down man continued to struggle with officers after the four Taser contacts, and it took three officers to finally handcuff him and shackle him. He then went into cardiac arrest and stopped breathing. He was revived, but never regained consciousness and died three days later. The officer was entitled to qualified immunity on an excessive force claim. The man was clearly out of control, and was continuing to resist arrest with force. It was not clearly established in May of 2007, the date of the incident, that repeated use of a Taser against a suspect refusing to be handcuffed and actively resisting arrest constituted excessive force.

     The court stated that "[i]n determining whether there has been a violation of the Fourth Amendment, we consider not the extent of the injury inflicted but whether an officer subjects a detainee to gratuitous violence." The court further noted that, under the law of the Sixth Circuit, there could not be any municipal liability for the alleged violation of a constitutional right that is not yet clearly established. The officer was also entitled to statutory immunity under Ohio state law on an assault and battery claim since he did not act in a wanton or reckless fashion, in bad faith, or with a malicious purpose and was not shown to have violated a clearly established right. Hagans v. Franklin County Sheriff's Office, #11-3648, 2012 U.S. App. Lexis 17851, 2012 Fed. App. 280P, 2012 WL 3608510 (6th Cir.).

     Officers did not use excessive force against an arrestee when it was undisputed that he refused to obey orders to turn around and give up his right arm. Verbal commands were attempted first, followed by an attempt to grab the arrestee's arm, before a Taser was used briefly in the stun mode and quickly withdrawn. The officers then pinned the arrestee down as he kicked and screamed. When the officers realized that the arrestee was injured, with his elbow dislocated, they immediately called for help. The forces used were measured and ascending responses to noncompliance. Poole v. City of Shreveport, #11-30158, 2012 U.S. App. Lexis 17243 (5th Cir.).

False Arrest/Imprisonment: No Warrant

     Police officers lacked probable cause to arrest a female attorney for obstruction after she informed them that a woman in a nightclub they were trying to question was her client and "doesn't have anything to say to you." She did not ignore an officer's instructions, or act in any aggressive or unduly disruptive manner. Her actions showed only a purpose to ensure the respect of her client's constitutional rights, which could not be reasonably construed as hampering or impeding the officers' investigation. The officers were properly denied qualified immunity on her false arrest claims. Patrizi v. Huff, #11-4168, 2012 U.S. App. Lexis 18082, 2012 Fed. App. 284P (6th Cir.).

Firearms Related: Intentional Use

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

     A police officer was entitled to qualified immunity for shooting a drunk, out-of-control man who he had been informed was armed with a gun. He had taken cover upon arriving on the scene, and observed the man climbing out of his truck and engaging in a "nose-to-nose" argument with his brother-in-law. Under these circumstances, the officer could reasonably believe that he needed to pull his gun, and did so, ordering the man to get on the ground. When, instead of complying, the man advanced on the officer, it was reasonable to fire eight times at him. The officer did not know that the advancing man had thrown away his gun in the snow or that the object on his hip was a cell phone rather than a holster. Loch v. City of Litchfield, #11-3618, 2012 U.S. App. Lexis 18099 (8th Cir.).

First Amendment

     Members of a group devoted to expressing the belief that the September 11, 2011 terrorist attacks were "an inside job" were arrested when they displayed signs with that message on a highway overpass during rush hour. A federal appeals court ruled that the city ordinance under which they were arrested, which prohibits conduct, including speech, that has the consequence of impeding vehicle or pedestrian traffic was facially invalid under the First Amendment. The court reasoned that the ordinance did not give fair notice of what conduct was prohibited. It "criminalizes speech if it has the consequence of obstructing traffic, but the speaker does not know if his or her speech is criminal until after such an obstruction occurs." Stahl v. City of St. Louis, #10–3761, (8th Cir.).

     A federal appeals court rejected a criminal defendant's argument that his conviction for impersonating a police officer in violation of a statute should be overturned because his false speech was constitutionally protected under the First Amendment. The court ruled that the Virginia state statute prohibiting pretending to be a police officer was not facially invalid, since it served a legitimate governmental interest in public safety. False claims of being an officer could be used for dangerous purposes, such as boarding an aircraft improperly. In this case, the defendant tried to use his false claim of being a police officer to try to avoid a speeding ticket. United States v. Chappell, #10-4746, 2012 U.S. App. Lexis 16990 (4th Cir.).

     Editor's note: The defendant tried to argue that his false speech was constitutionally protected under the rationale presented by the U.S. Supreme Court's recent decision in U.S. v. Alvarez, #11-210, 2012 U.S. Lexis 4879, which held that the Stolen Valor Act, making it a crime to falsely claim receipt of military decorations or medals, including the Congressional Medal of Honor, violated the First Amendment, because false speech can be protected speech. In Alvarez, however, the appeals court reasoned, the lies, while offensive, did not threaten public safety or the rule of law. While some lies may be constitutionally protected, this does not include lies that could endanger others. Alvarez itself says that a federal statute prohibiting impersonating a federal officer is valid. Further, in this case, the defendant made his false statements for the fraudulent purpose of obtaining something of benefit--avoiding the ticket, which distinguished the case from the lies in Alvarez, which were not used to obtain employment, financial benefit, or something else of value.

Homeless Persons

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

     Homeless persons sued a city, claiming that it violated their rights under the Fourth and Fourteenth Amendments by routinely seizing their unabandoned personal property temporarily left on public sidewalks and immediately destroying it. A federal appeals court upheld a preliminary injunction against these practices granted by the trial court. The injunction required that unabandoned personal property seized could not be destroyed without giving the owners a prior meaningful notice and opportunity to be heard. The homeless persons' property was protected from unlawful seizure by the Fourth Amendment and could not be destroyed without complying with due process requirements. Lavan v. City of Los Angeles, #11-56253, 2012 U.S. App. Lexis 18639 (9th Cir.).

     Editor's note: For more on this topic, see Police Interaction with Homeless Persons – Part I – Sleeping and Possessions, 2008 (8) AELE Mo. L.J. 101.

Immigrants and Immigration Issues

     Provisions of an Alabama state law creating new state crimes for actions by illegal immigrants in the state (such as seeking work or simply being in the state unlawfully) or actions by others to assist them through employment or transportation were preempted by federal immigration law. The court declined to enjoin, however, provisions of the state law which require officers to determine a lawfully seized individual's immigration status when the officer has reasonable suspicion that the seized individual is unlawfully present in the United States by asking federal authorities for a determination. A similar request is required for any alien arrested and booked into custody. United States v. State of Alabama, #11-14532, 2012 U.S. App. Lexis 17516 (11th Cir.)

     A federal appeals court upheld a ruling that provisions of a state statute criminalizing interactions with an illegal immigrant were preempted by federal immigration law. The prohibited transactions were transporting an illegal alien, concealing or harboring an illegal alien, or inducing an illegal alien to enter the state. The ability of the state to criminalize these actions was preempted by federal immigration law presenting a comprehensive framework for regulating illegal immigration.

     It upheld against a pre-enforcement challenge, however, to provisions of the law authorizing state and local law enforcement officers to investigate the immigration status of an individual if the officer has probable cause to believe the individual has committed another crime and the individual cannot provide one of the pieces of identification listed in the statute. If the officer verifies that the individual is not lawfully present in the United States, the officer "may take any action authorized by state and federal law," including detaining the person, transporting the person to a detention facility, or notifying the Department of Homeland Security (DHS). The law prohibits consideration of "race, color, or national origin" in implementing its requirements "except to the extent permitted by the Constitutions of Georgia and of the United States." It also prohibits investigation into the immigration status of persons who witness or report criminal activity, where the reason for investigation is based on information arising from that contact. Georgia Latino Alliance for Human Rights v. Governor of Georgia, #11-13044, 2012 U.S. App. Lexis 17514 (11th Cir.),

Privacy

     A police officer placing a parking ticket underneath a car's windshield wiper blade may have violated the federal Driver's Privacy Protection Act. The court noted that the ticket disclosed the full name, address, date of birth, sex, height, weight, and driver's license number of the driver, with all that information obtained from state records. "The possibilities for identity theft are obvious," the court stated, and the municipality failed to show how the disclosed information being stated on the ticket played a role in its law enforcement efforts so as to come within an exception to the statute. The court rejected arguments by the municipality that the plaintiff motorist was required to prove that someone other than himself actually viewed the information on the ticket on his vehicle in order to pursue his claim under the statute. Senne v. Village of Palatine, #10-3243, 2012 U.S. App. Lexis 16328 (7th Cir. en banc.).

Search and Seizure: Home/Business

     A police officer made reasonable efforts to obtain a search warrant for a residence based on information from a gang informant, and the warrant was supported by probable cause. Because of the existence of multiple living units in what was mistakenly believed to be a single family residence, however, and the failure of the warrant to specify which unit to search, officers entered a unit occupied by someone other than the suspect, a woman who was over seven months pregnant. The officers, from the fact that they first found the front of the bottom floor occupied by an office, and saw that they could not get to the rest of the building from there, should have realized that the building was not a single family residence. They could see that there were separate doors for first and second floor apartments, and should have called off the search, the court reasoned. Instead, they searched for an hour before acknowledging that they were in the wrong place. The search violated the woman's Fourth Amendment rights, and the trial court improperly granted summary judgment dismissing her unlawful search claims. Guzman v. City of Chicago, # 08-2172, 565 F.3d 393 (7th Cir. 2012).

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     Drone Surveillance: "Drones in Domestic Surveillance Operations: Fourth Amendment Implications and Legislative Responses," Congressional Research Service Doc. #R42701 (Sept. 2012).

     Drone Surveillance: "Protecting Privacy From Aerial Surveillance: Recommendations for Government Use of Drone Aircraft," American Civil Liberties Union (ACLU) (Dec. 2011).

     Drone Surveillance: "Recommended Guidelines for the use of Unmanned Aircraft," International Association of Chiefs of Police (IACP) Aviation Committee (Aug. 2012).

     First Amendment: "Crowd Management: Adopting a New Paradigm," by Mike Masterson, FBI Law Enforcement Bulletin (Aug. 2012).

     First Amendment: "Picketers, Protesters, and Police: The First Amendment and Investigative Activity," by Carl A. Benoit, FBI Law Enforcement Bulletin (Aug. 2012).

     First Amendment: "The Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012," (H.R. 1627) is a federal statute signed into law on August 6, 2012. It was enacted to impose federal time, place, and manner restrictions on protests at military veteran funerals in response to demonstrations there by the Westboro Baptist Church. For a discussion of the issues involved in such protests, see Funeral Protests and the First Amendment, 2011 (6) AELE Mo. L. J. 101 and the U.S. Supreme Court decision in Snyder v. Phelps, #09-751, 131 S. Ct. 1207, 2011 U.S. Lexis 1903. The new statute bars protests within 300 feet of the premises of a military veteran's funeral, within 500 feet if they would block access roads to the funeral, or near the homes of relatives of the deceased, as well as bars the use of loudspeakers to disrupt the proceedings. The restrictions apply two hours before through two hours after the funeral. Violations are federal crimes, punishable by up to one year in prison, as well as a fine. Injunctions may be granted to bar demonstrations which would violate the statute, and protestors who disturb a funeral may be sued for actual civil damages or a statutory amount between $25,000 and $50,000 to be set by a judge, at the aggrieved family's election.

     Immigration Issues:  "Immigration Detainers - Legal Issues," Congressional Research Service Doc. #R42690 (Aug. 2012).

     Wiretapping: "Wiretapping, Tape Recorders, and Legal Ethics: An Overview of Questions Posed by Attorney Involvement in Secretly Recording Conversation," Congressional Research Service Doc. #R42650 (Aug. 2012).

Reference

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