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Code of Silence

     An arrestee claimed that three officers violated his constitutional right of access to the courts by refusing to disclose who used excessive force against him in the course of his arrest. He believed that one or more of six officers on the scene threw him to the ground and struck him several times in the back of his left thigh with a baton or flashlight. Because he was face-down on the ground, he could not identify the officer or officers responsible. He also argued that the city violated that same right by adopting a "conspiracy of silence" concerning such disclosure, preventing him from knowing who to sue. While the federal appeals court assumed, for purposes of the appeal, that the officers' alleged conduct was unconstitutional, it found that the issue of whether an evidentiary cover-up by officers could violate an individual's right of access to the courts was not clearly established. The officers, therefore, were entitled to qualified immunity, but the city was not entitled to summary judgment since the claims against it were not "inextricably intertwined" with the claims against the officers. Lynch v. Barrett, #12-1222, 2013 U.S. App. Lexis 290 (10th Circuit).

Damages: Compensatory

     A man about to take his children trick-or-treating was arrested on charges of armed robbery and attempted murder, and convicted on the basis of eyewitness testimony despite a lack of physical evidence. Ten years after the arrest, the conviction was overturned, and the case ultimately dismissed. He sued, claiming that his wrongful conviction was based on police misconduct in soliciting multiple statements to falsely implicate him, and in staging a suggestive photo lineup. A jury awarded him $73,125 in compensatory damages and $5,000 in punitive damages for his eight years of wrongful incarceration after his conviction. The trial court improperly denied his motion for a new trial, in which he argued that the average jury award for wrongful imprisonment was almost $950,000 per year. The trial court improperly refused to allow the plaintiff to present evidence of his actual innocence at trial, such as the identification of others as the possible offenders and recantations of his identification by a number of eyewitnesses. This may have impacted on the jury returning a low damage award, especially as the court had allowed evidence of the plaintiff's prior identification as the perpetrator by the eyewitnesses. Parish v. City of Elkhart, #11-1669, 2012 U.S. App. Lexis 25998 (7th Cir.).

Domestic Violence

     A man turned himself in after a warrant was issued for his arrest for misdemeanor domestic assault. The affidavit for the warrant said that the arrest would be without bail. The arrestee's request to post bail or to speak to a judge was denied. The sheriff incorrectly told him that he had to be held for at least 12 hours because of the charge of domestic assault. That requirement actually only applied when there was a specific finding that the arrestee was a threat to the alleged victim, and no such finding was made. The next morning, a judge set bail and the defendant was released. Charges were dropped ten months later. The county admitted to having a policy of holding all domestic violence arrestees for at least 12 hours regardless of circumstances.

     A federal appeals court upheld summary judgment on a lawsuit claiming that the arrestee had been denied procedural due process and the Eighth Amendment right not to be held on excessive bail. Regardless of any provisions in state law, the Eighth Amendment relates to the amount of bail, not its timing and there is no constitutional right to "speedy bail." The Eighth Amendment does not require a particularized examination before bail is set, and the use of a bond schedule to set the amount did not mean that it was excessive. Since no constitutional liberty interest was involved, the due process claim also failed. Fields v. Henry County., #11-6352, 701 F.3d 180 (6th Circuit, 2012).

False Arrest/Imprisonment: No Warrant

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

     A man and his wife traveling in a car with the wife driving encountered a police officer using a radar device. The husband knew this because he had a radar detector. He gave the officer "the finger" to express his disapproval of what the officer was doing. The officer stopped the vehicle, which had not been speeding or committing any traffic violations. When both occupants got out, they were ordered to get back in the car, which they did. Subsequently, the husband again got out of the vehicle, seeking to speak to the three officers present, and repeated twice that he felt "like an ass." He was arrested for disorderly conduct. Reversing summary judgment for the defendant officers, a federal appeals court ruled that the vehicle stop was not lawful, and that qualified immunity for the officers was improper, since a reasonable officer would not have thought that the mere insult of "giving the finger" provided a basis for initiating a law enforcement process, or that there was probable cause for a disorderly conduct arrest. A malicious prosecution claim also should not have been rejected on the basis of summary judgment for the defendants. Swartz v. Insogna, #11-2846, 2013 U.S. App. Lexis 186 (2nd Cir.).

Firearms Related: Intentional Use

     A federal appeals court upheld a jury verdict in favor of a city and its officers in a lawsuit over the shooting and killing of a suicidal cocaine intoxicated man armed with a powerful gun with a long range. Negotiations by an emergency response team sent to his apartment failed to persuade him to drop his weapon or come out, and the use of tear gas had been justified to try and subdue him because it was believed that he posed an imminent threat to others in the area. Given that the room was dark and filled with tear gas, and that the officers' accounts differed as to how far his arm was extended when an officer shot and killed him, the fact that he had not previously verbally threatened others during the standoff did not establish that he had not pointed his gun at officers as they entered. Estate of Escobedo v. Martin, #11-2426, 2012 U.S. App. Lexis 25443 (7th Cir.).

Firearms Related: Second Amendment Issues

     Illinois gun owners, in two consolidated cases, claimed that state laws broadly prohibiting carrying a gun ready to use (loaded, immediately accessible and uncased), violated the Second Amendment. The statute in question made exceptions for police, security personnel, hunters, members of target shooting clubs, a person on his own property, in his home, in his fixed place of business, or on the property of someone who has permitted him to be there with a ready-to-use gun. Aside from those exceptions, however, even an unloaded gun may not be carried in public unless carried openly outside a vehicle in an unincorporated area and when ammunition is not immediately accessible.

     Noting that the U.S. Supreme Court had not yet addressed whether the Second Amendment created a right of self-defense outside the home, the federal appeals court, by a 2-1 vote, found that the individual right to bear arms implied a right to carry a loaded gun outside the home for self-defense. Illinois failed to meet its burden of showing that its broad restrictions on carrying weapons outside the home were justified by more than a mere rational relationship to an increase in public safety. The statute was declared unconstitutional and the lower courts were told to permanently enjoin it. The appeals court gave the Illinois legislature a deadline of six months to adopt a new statute regarding the carrying of firearms in public that would comply with the court's reasoning. The court noted that Illinois has been, up to now, the only state with no legal provisions for the issuance of conceal carry permits to gun owners who are members of the general public. Moore v. Madigan, #12-1269, 2012 U.S. App. Lexis 25264 (7th Cir.).

     A federal appeals court held that the Second Amendment does not guarantee an individual right to carry handguns outside the home for self-defense. The court rejected challenges to the actions of licensing officers in denying the plaintiffs concealed handgun licenses under a state statute requiring that they show proper cause for the issuance of such a license. In the alternative, the appeals court found that the requirement of proper cause would be constitutional even if the carrying of a handgun outside the home implicated the Second Amendment individual right to bear arms. The court ruled that intermediate scrutiny was the appropriate legal standard for laws that limit Second Amendment rights and should be upheld if they are substantially related to achieving an important governmental interest. In this instance, the proper cause requirement was justified by interests in public safety and crime prevention. The state had not banned handgun possession, but limited it to those who had an actual need to carry a weapon, which did not violate the Second Amendment. Kachalsky v. County of Westchester, #11-3642, 701 F.3d 81 (2nd Cir. 2012).

First Amendment

     Officers were not liable for violating the rights of a Hispanic man who was arrested and removed from a city council meeting where he voiced opposition to the city's proposed agreement with federal authorities for immigration enforcement in the city. In a prior meeting, he had called the mayor a "racist pig," and in this meeting, he had called for his supporters in the audience to rise. He was removed and arrested under a city ordinance prohibiting "disorderly, insolent, or disruptive" actions at such official meetings. While the use of the term "insolent" made the ordinance overbroad, the deletion of the term would make the ordinance constitutional. At the time of the arrest, the officers acted in an objectively reasonable manner by believing that the ordinance was valid and justified his removal. Acosta v. City of Costa Mesa, #10-56854, 694 F.3d 960 (9th Cir. 2012).

Malicious Prosecution

     Members of the 2005-2006 Duke University lacrosse team claimed that defendant officers were responsible for false rape charges brought against them. A federal appeals court found that two officers were entitled to the dismissal of malicious prosecution claims against them when it was not alleged that they either misled or pressured the prosecutor to seek their indictments. Additionally, while affidavits they prepared contained some false statements, corrected affidavits contained enough true statements to suffice to establish probable cause to believe both that there had been a rape and that the individuals named had been involved in the crime. Evans v. Chalmers, #11-1436, 2012 U.S. App. Lexis 25660 (4th Cir.).

Search and Seizure: Person

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

     A federal judge has ruled that a portion of the New York City Police Department's "stop and frisk" practices is unconstitutional, in violation of the Fourth Amendment. The case concerns stops made by officers on suspicion of trespass outside of privately owned buildings, often done with the permission of or at the request of the buildings' private landlords. African-American and Latino residents claimed that the stops were made without reasonable suspicion. Issuing a preliminary injunction against the practice, the court found that officers frequently made such stops simply because someone was seen entering and exiting or simply exiting a building designated as a "Clean Halls" or "Trespass Affidavit Program (TAP)" building, a program that allows officers to patrol inside and around thousands of private residential buildings throughout the city. There was evidence that officers thought that the mere fact that a building was enrolled in the program made it legal for them to approach and question or stop anyone in such a building even without a reason for doing so. The court also pointed to department training materials "that continue to misstate the minimal constitutional standards for making stops."

     The court found that, as a result of these frequent stops, residents of the area feared being stopped as they approached or left their own homes or those of their friends and families. The court ordered the city to develop and adopt a formal written policy specifying the limited circumstances in which it is legally permissible under the Fourth Amendment to stop a person outside one of the buildings on suspicion of trespass, and to revise its training material and programs on the subject. Ligon v. City of New York, #12 Civ, 2274, 2013 U.S. Dist. Lexis 2871 (S.D.N.Y.).

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     Federal Civil Rights Law: "Section 1983 Is Born: The Supreme Court Stories of Tenney v. Brandhove and Monroe v. Pape," by Sheldon H. Nahmod, Chicago-Kent College of Law Research Paper No. 2013-04 (January 2, 2013).

     Mental Illness: "Statewide Law Enforcement/Mental Health Efforts: Strategies to Support and Sustain Local Initiatives," Council of State Governments Justice Center (January 8, 2013).

     Privacy: "Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping," October 9, 2012. Congressional Research Service.

     Privacy: "Privacy: An Overview of the Electronic Communications Privacy Act," October 9, 2012. Congressional Research Service.

     Statistics: "Crime Against Persons with Disabilities, 2009-2011 - Statistical Tables," by Erika Harrell (NCJ 240299, Dec. 19, 2012).

Reference

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