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Assault and Battery: Physical

     An officer who stopped a motorist for having a cracked windshield began to suspect that he was intoxicated. In the course of arresting him, the officer believed that the motorist was resisting, and threw him to the ground. The driver suffered a traumatic brain injury. The officer was entitled to qualified immunity on an excessive force claim, since it had not been clearly established, as of May 14, 2005, the date of the incident, that such a use of force against a possibly intoxicated person was excessive. The appeals court reversed summary judgment in favor of the city, however, as, if the driver, as he claimed, had not been resisting, and did not pose a threat to the safety of the officer or anyone else, the takedown maneuver might not have been justified. The trial court had rejected municipal liability on the basis that the plaintiff's constitutional rights had not been violated. If they were, there remained the question of whether a city policy or custom had been the moving force behind the violation. Becker v. Bateman, #11-4054, 2013 U.S. App. Lexis 4059 (10th Cir.).

Defenses: Governmental Immunity

     The Supreme Court of Mississippi found that a city was not liable for the death of a runaway female juvenile based on a beating by her boyfriend. City police had taken her into custody on a number of occasions, and the police department allegedly failed to properly investigate her claims she was having sex with an officer and by failing to apprehend her in a timely manner and return her to the custody or her parents or an appropriate agency. The city was immune from liability under a state tort claims act. The decision as to how to investigate the case or whether to investigate it was a discretionary function. A $1 million award in favor of the plaintiffs was reversed. City of Jackson, Mississippi v. Sandifer, Jr., #2011-CA-01063-SCT, 2013 Miss. Lexis 60.

Dogs

     The U.S. Supreme Court, in a unanimous decision, rejected the ruling of the Florida Supreme Court that the state had to, in every case, present an "exhaustive set of records" concerning the reliability of a drug sniffing dog used to find probable cause to search a vehicle. The proper test as to whether probable cause existed was the totalty of the circumstances test. In this case, there was evidence of the dog's training and his proficiency in finding drugs. The officer had probable cause to search the car and the defendant had not adequately contested the evidence of the dog's reliability. Florida v. Harris, #11-817, 2013 U.S. Lexis 1121.

     A number of arrestees challenged the reliance by the police department on "dog-scent lineups" to arrest, charge and hold them. Inculpatory evidence obtained from dog-scent lineups, a federal appeals court held, could raise a strong suspicion of guilt, but was "merely supportive." When used alone, or as primary evidence, it was insufficient to support a conviction. The plaintiffs failed to establish municipal liability, however, and a number of individual defendants were entitled to qualified immunity from liability. Curtis v. Anthony, #11-20906, 2013 U.S. App. Lexis 4654 (5th Cir.).

     Editor's note: Using this technique, an officer would obtain a scent sample from the suspect under investigation by wiping the suspect with a sterile gauze pad. The gauze pad, containing the suspect’s “human scent” and “skin cells,” would be stored in a Ziploc bag until the time of the lineup. At the time of the lineup, a second officer would arrange six cans, one containing the suspect’s scent pad and the other five containing scent pads from other persons of the same gender and race. The officer would arrange the cans approximately ten feet apart and positioned perpendicular to the wind so as to minimize the crossing of scents. Thereafter, a bloodhound would be exposed to a scent sample taken from the crime scene. The trained bloodhound would “alert” if the scent pad from any of the six cans matched the crime scene sample. This was repeated with a second bloodhound to confirm the first bloodhound’s alert.

Firearms Related: Second Amendment

     A federal appeals court has held that being able to be granted a permit to carry a concealed weapon is not a right protected by the Second Amendment.  "In light of our nation's extensive practice of restricting citizens' freedom to carry firearms in a concealed manner, we hold that this activity does not fall within the scope of the Second Amendment's protections. We reach the same conclusion with respect to [the plaintiff's] claim under the Privileges and Immunities Clause, which is coterminous with his right to travel claim." Peterson v. Martinez, #11-1149, 2013 U.S. App. Lexis 3776 (10th Cir.).

First Amendment

     A federal appeals court overturned the dismissal of a lawsuit claiming that a city's adoption of an ordinance prohibiting soliciting in certain areas violated the free speech rights of persons who regularly beg in those areas. The plaintiffs had adequately alleged that the city had adopted a content-based regulation that was not the least restrictive means of furthering a compelling government interest. Clatterbuck v. City of Charlottesville, #12-1149, 2013 U.S. App. Lexis 3651 (4th Cir.).

Immigrants and Immigration

     An Arizona state law made it illegal for a motorist to hire or attempt to hire a person for work from a stopped car that impedes traffic or for a person to be hired in this manner. While the city did have a significant interest in promoting traffic safety, the day labor provision, largely targeting illegal immigrants imposed restrictions on constitutionally protected commercial speech that could be viewed as more extensive than needed to serve that interest. The appeals court upheld a preliminary injunction against the enforcement of that portion of the statute. Valle del Sol v. State of Arizona, #12-15688, 2013 U.S. App. Lexis 4425 (9th Cir.).

Interrogation

     A mentally retarded adult man was interrogated by a police investigator and was subsequently charged with misdemeanor lascivious conduct with a minor after making statements in response to allegedly leading questions. He was later ruled incompetent to stand trial. A federal appeals court found that the police investigator's conduct did not violate the man's substantive due process rights as the investigation and charging decision did not "shock the conscience." Indeed, the investigator had altered his style of questioning, more fully explained the Miranda warnings, and placed the man in a "less intimidating" room for the interrogation. No reasonable jury could find that the investigator or city failed to make reasonable accommodations for the man's disability. Folkerts v. City of Waverly, #12-1083, 2013 U.S. App. Lexis 3847 (8th Cir.).

Public Protection: Motoring Public

     After an SUV collided with a center divider, a 911 operator allegedly told callers that California Highway Patrol officers were on the way. The 911 operator did not put into the computer that the disabled SUV was blocking traffic lanes, as a result of which the call was assigned to a patrol unit that was further away, rather than one close by. A Greyhound bus subsequently collided with the SUV, resulting in personal injury and wrongful death lawsuits by passengers. Greyhound argued the 911 operator's actions had helped cause the second accident. Rejecting liability, an intermediate California appeals court ruled that the California Highway Patrol had no duty to come to anyone's aid in the absence of a special relationship entered into because an officer's affirmative acts caused the peril or increased it, but no such special relationship existed with the injured bus passengers. Greyhound Lines v. Department of the California Highway Patrol, #F063590, 2013 Cal. App. Lexis 117.

Search and Seizure: Vehicle

     A police officer was sued on a motorist's claim that he violated her Fourth Amendment rights by reading a piece of her mail while he searched her car with her consent following a traffic stop. It violates a person's rights when an officer reads their private papers, the text of which was not in plain view, while conducting a search based on generalized consent to search an area in which the letter was found. The officer was entitled to qualified immunity, however, as this right was not yet clearly established at the time. Winfield v. Trottier, #11-4404, 2013 U.S. App. Lexis 4635 (2nd Cir.).

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     Abuse and Harassment: "Teen Dating Abuse and Harassment in the Digital World Implications for Prevention and Intervention," by Janine M. Zweig, and Meredith Dank (Urban Institute Feb. 19, 2013).

     Technology: "Body Worn Cameras. Tip: Don’t make assumptions that people have video-like perception skills," by Sgt. Chuck Humes, LawOfficer.com, Feb. 14, 2013.

     Vehicle Stops: "Force Science study pinpoints vehicle stop vulnerabilities," PoliceOne.com, March 4, 2013. See also, "Force Science News #202: New! Force Science seeks answers to sudden vehicle stop attacks."

Reference

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