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Assault and Battery: Chemical

     After a traffic stop for an expired registration, a motorist drove off, and the officer pursued him, stopping him a second time and using pepper spray against him. The motorist pulled a gun and shot the officer four times before running him over twice, killing him. A civilian witness to the incident approached the shooter and asked him to drop his gun. When he refused, the witness himself drew a gun and shot and killed him. He feared that the man might shoot either him or his son, who had gone to try to assist the dying officer. The dead motorist's father filed a federal civil rights lawsuit against the dead officer, the town and its police officials and the civilian shooter. A federal appeals court upheld summary judgment for the dead officer and the town, as the plaintiff failed to present any evidence showing that the officer had violated the motorist's rights in any way. There was no evidence that the initial stop was without grounds, and he had not shown that the car's registration was then current. The court also rejected arguments that excessive force had been used by the officer during the second stop. Kenney v. Floyd, #12-163, 2012 U.S. App. Lexis 24699 (1st Cir).

Assault and Battery Physical

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

     A federal jury in Chicago returned a verdict in favor of a plaintiff and against the city on a claim that the city had a persistent widespread custom or practice of protecting officers from citizen complaints. The suit had been brought by a female bartender who had been assaulted by an off-duty officer. A persistent widespread custom or practice had been alleged to constitute a de facto policy of concealing or suppressing investigations into police officer misconduct, along with a “code of silence” within the police department. The jury also found that the officer conspired with others under color of law in violation of the plaintiff’s First Amendment rights to free speech. It awarded $850,000 in damages.Obrycka v. City of Chicago, #07 C 2372, U.S. Dist. Court (N.D. Ill. November 13, 2012).

     The court subsequently denied a motion to vacate the judgment concerning the "code of silence." The court found that the "judgment’s precedential value weighs against granting the parties’ motion to vacate the judgment." Obrycka v. City of Chicago, #07 C 2372, 2012 U.S. Dist. Lexis 179990 (NJ.D. Ill.). The city stated that would pay the plaintiff compensatory damages in the amount of $850,000, plus costs and reasonable attorney’s fees in an amount yet to be determined. The city also stated that it will forego its right to appeal pursuant to the parties’ postjudgment settlement. In an earlier decision, the trial judge found that there was evidence that the defendant officer tried to intimidate and threaten the victim from disclosing the videotape of the incident because he knew, that without the tape, there would be no case against him. Obrycka v. City of Chicago, #07 C 2372, 2012 U.S. Dist. Lexis 22818 (N.D. Ill.).

     Editor's note: For a detailed discussion of the case, see Code of Silence Litigation: Officer Use of Force, 2013 (1) AELE Mo. L. J. 101.

     Police stopped a motorist driving a stolen car. Police officers smashed the car's window and dragged the driver through it. The trial court found that this use of force was reasonable but allowed the issue of whether the officers used excessive force by allegedly beating him with batons after removing the arrestee from the car to go to the jury, which returned a verdict for the officers. The appeals court ruled that because of a factual dispute as to whether the arrestee's hands were on the steering wheel or making furtive gestures when the officers smashed the window, it had been erroneous to grant summary judgment on the initial use of force, since this was relevant to whether he then posed a threat to the officers. The erroneous jury instructions stating that the initial use of force was reasonable as a matter of law required reversal of the jury verdict also, since it prevented them from properly considering the totality of the circumstances. Coles v. Eagle, #11-16471, 2012 U.S. App. Lexis 24923 (9th Cir.).

Attorneys' Fees: For Plaintiffs

     Police officers were sued for preventing demonstrators from carrying pictures of aborted fetuses during anti-abortion demonstrations. The plaintiffs were granted a permanent injunction against this practice as violating their First Amendment rights but were not awarded attorneys' fees under the theory that they were not "prevailing parties" for purposes of 42 U.S.C. Sec. 1988 since they had not been awarded money damages. The U.S. Supreme Court vacated this decision, noting that the plaintiffs had prevailed because the injunction ordered the defendants to change their behavior in a way that directly benefitted the plaintiffs. Lefemine v. Wideman, #12-168, 2012 U.S. Lexis 8566 (per curiam).

     Plaintiffs entered into a $30,000 settlement agreement with a city and police officers on claims arising out of their arrest. The settlement was offered by the defendants under Federal Rule of Civil Procedure 68. Subsequently, the trial court awarded a total of $290,997.94 in costs to the plaintiffs under 42 U.S.C. Sec. 1988, including $286,065.00 in attorneys' fees. The appeals court rejected the argument that the Rule 68 offer of judgment to settle all claims should have been interpreted to include any costs, including attorneys' fees, when that was not specified. It also rejected the argument that the fee award was disproportionate to the success achieved in the litigation, as the defendants had not preserved that argument for appeal. Barbour v. City of White Plains, #11-2229, 2012 U.S. App. Lexis 23386 (2nd Cir.).

Dogs

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

     A man and woman were attacked and bitten by the same canine unit police dog in separate incidents. A federal appeals court upheld the denial of summary judgment to the dog's handler, the chief of police, and the city on excessive force, failure to supervise, and failure to properly train claims. There was evidence that the dog was involved in biting incidents with growing frequency and that his certifications had lapsed. The handler had told supervisors that he had been unable to keep up with maintenance training of the dog and asked repeatedly for time to attend training sessions, only to have those requests denied. The handler was also not entitled to qualified immunity, since there was evidence which could be interpreted as showing that he violated clearly established law by using an inadequately trained dog to attempt to apprehend two non-fleeing suspects, and did so without giving any warnings. There were disputed facts suggesting that the police chief failed to create a needed training policy and ignored complaints about the dog. Summary judgment was also properly denied on state law assault and battery claims since there was evidence to suggest that the handler used the dog with a malicious purpose. Campbell v. City of Springboro, #11-3589, 2012 U.S. App. Lexis 24548, 2012 Fed. App. 393P (6th Cir.).

     Editor's note: For more on this topic, see: Civil Liability for Use of Police Dogs, 2007 (1) AELE Mo. L.J. 101.

False Arrest/Imprisonment: No Warrant

     Police lacked probable cause to make a warrantless arrest of a man for third-degree menacing. The information that they had merely indicated that he had approached a woman in her driveway and insisted that her car had hit his. She asked him to leave and ran into her house, and he left. The woman never said that she felt physically threatened or that the arrestee took any assaultive actions. Summary judgment was improper on a false arrest claim. Ackerson v. City of White Plains, #11-4649, 2012 U.S. App. Lexis 24612 (2nd Cir.).

     Police received a 911 call reporting that a 15-year-old girl had made statements indicating that she planned to kill herself by taking ibuprofen pills. Three officers and emergency medical personnel went to the girl's home where the girl admitted to the statements but said she had changed her mind. An officer told her she had to go to the hospital, and while the girl's parents first disagreed, they relented after the officer said they could be charged with assisted manslaughter if their daughter then killed herself. The girl's mother first refused to accompany her daughter to the hospital, but then did so, later suing for false arrest based on a claim that the officer had insisted that she accompany her daughter. In a false arrest lawsuit brought by the girl's mother, the officer was entitled to qualified immunity as the mother was not seized in violation of the Fourth Amendment. There was no indication that the officer displayed a weapon, physically touched the mother, or intimidated her with a threatening presence to compel her to go. James v. City of Wilkes Barre, #11-3345, 2012 U.S. App. Lexis 24592 (3rd Cir.).

First Amendment

     Police officers did not violate the First Amendment rights of demonstrators at the Madison Square Garden 2004 Republican National Convention by arresting those who failed to comply with orders to move from an area were demonstrating was prohibited to a designated demonstration zone. The restriction of protest to the designated zone was content neutral, and was narrowly tailored to achieve significant governmental interests concerning sidewalk congestion and convention security. The demonstration zone, which was equipped with a stage and sound amplification equipment, provided an adequate alternative channel of expression. Marcavage v. City of New York, #10-4355, 689 F.3d 98 (2nd Cir. 2012).

Search and Seizure: Home/Business

     A homeowner sued an officer for his warrantless entry into her front yard. She claimed to have suffered injuries when he kicked down the yard's front gate to enter in pursuit of a fleeing suspect who had, at most, committed a misdemeanor offense of disobeying an officer's lawful order to halt. Overturning qualified immunity for the officer, the appeals court ruled that a reasonable officer should have known that his warrantless entry into the curtilage of the home under these circumstances amounted to an unconstitutional search not justified by exigent circumstances or the emergency exception to the warrant requirement. Sims v. Stanton, #11-55401, 2012 U.S. App. Lexis 24803 (9th Cir.).

Search and Seizure: Person

     A husband and wife, on their own behalf and on behalf of their child, sued to challenge the use of advanced imaging scanners and purportedly invasive pat-down searches at airport screening. The trial court properly dismissed the lawsuit since the Transportation Security Administration's standard operating procedures for airport screenings constituted an order that 49 U.S.C. Sec. 46110 states can only be initially challenged in a federal appeals court. This did not deprive the plaintiffs of meaningful judicial review or due process. Other arguments about the constitutionality of the searches would only have been reached if the plaintiffs first sought review in a federal appeals court. Blitz v. Napolitano, #11-2283, 2012 U.S. App. Lexis 24664 (4th Cir.).

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      Department of Justice Document: DoJ Inspector General's "Memorandum on Performance Challenges: National Security, Cyber Security, Federal Prisons, Protecting Civil Rights, Fraud and Financial Offenses" (11-7-2012).

     Dogs: "The Problem of Dog-Related Incidents and Encounters," C.O.P.S., U.S. Department of Justice (Aug. 2011).

     Drugs: Seattle Police Department "Marijwhatnow? A Guide to Legal Marijuana Use In Seattle," (2012).

     Social Media: "Social Media and Law Enforcement," by Gwendolyn Waters, FBI Law Enforcement Bulletin (November 2012).

     Statistics: "Hate Crime Statistics 2011," FBI (Dec. 2012).

     Supreme Court Cases: "Supreme Court Cases, 2011-2012 Term," by Kevin Chechak, FBI Law Enforcement Bulletin (November 2012).

Reference

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