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Dogs

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

     The U.S. Supreme Court, in a 5-4 decision, upheld a decision of the Florida Supreme Court suppressing evidence of marijuana plants and drug trafficking found in a residence during a search conducted with a search warrant. The search warrant was obtained on the basis of the fact that a drug-sniffing dog that police brought onto the front porch of the defendant's home alerted there. While the police officers could, without a warrant, approach the home and knock on the door, since any private citizen could do that, their bringing of a trained police dog to explore the area around the home in the hopes of discovering incriminating evidence was a Fourth Amendment search without probable cause, as there was no customary invitation to bring such a dog onto the porch, which was part of the home's curtilage, entitled to as much protection from search as the home itself. While this was a criminal case, the same principles would apply in a civil rights lawsuit. Florida v. Jardines, #11-564, 2013 U.S. Lexis 2542.

False Arrest/Imprisonment: No Warrant

     Police arrested a woman's son for driving a vehicle involved in an accident. The woman and her son's girlfriend, who witnessed the accident, went to the police station, where the girlfriend was told to remain and threatened with a warrant for her arrest being obtained if she left. The woman counseled the girlfriend to leave, however, and escorted her out. She was charged with witness tampering, although that charge was later dismissed. A federal appeals court found that the defendant officer was entitled to qualified immunity on as federal false arrest claim and official immunity under New Hampshire law on a state malicious prosecution claim, as there was at least arguable probable cause for the arrest. Moses v. Mele, #12-1729, 2013 U.S. App. Lexis 6150 (1st Cir.).

False Arrest/Imprisonment: Warrant

     A woman claimed that sheriff's deputies arrested her under a warrant issued without probable cause and in violation of her equal protection rights, doing so only because she was the wife of a man believed to have stolen a horse. Rejecting these claims, a federal appeals court found that the deputies, from the woman's own interaction with them, had reason to believe that she shared responsibility for the alleged wrongful possession of and refusal to surrender the horse. Williamson v. Curran, #09-3985, 2013 U.S. App. Lexis 6769 (7th Cir.).

Firearms Related: Intentional Use

     A police officer shot and killed a female motorist at the conclusion of a high-speed chase of a stolen vehicle, firing twelve rounds into the car which had stopped after ramming a police car several times. The woman had yelled "Fuck you!" in response to orders to turn off her car. The woman's children sued the officer for violation of their due process rights. The officer's motion for qualified immunity was denied, with the trial judge concluding that the jury could, based on the alleged facts, conclude that the officer had used deadly force with a purpose to harm the woman unrelated to any legitimate law enforcement objective. The jury awarded $30,000 in damages to both of the decedent's minor children. A federal appeals court upheld the pretrial denial of qualified immunity and the jury's verdict, finding it reasonable. Further proceedings were ordered, however, on an award of attorneys' fees and costs, with the appeals court finding that the trial judge should consider the amounts discussed in settlement negotiations when determining the reasonable amount of fees to award, based on an intervening change in the law reflected in In re Kekauoha-Alisa, #09-60019, 674 F.3d 1083 (9th Cir. 2012); and Ingram v. Oroudjian, #09-57022, 647 F.3d 925, 927 (9th Cir. 2011), cases decided after the fee award, but before the appeals court's decision. A.D. v. State of California Highway Patrol, #09-16460, 2013 U.S. App. Lexis 6689 (9th Cir.).

     A police officer shot and killed a motorist behind the driver's wheel of his car. The officer claimed that when he fired, the motorist was accelerating the car directly towards him, which the plaintiff, a passenger in the vehicle, suing him for excessive force, disputed. The officer was not entitled to qualified immunity as he had not shown that the plaintiff's version of events was so blatantly contradicted by the record that no reasonable jury could believe it. An accident reconstruction report and ballistic expert's findings did not disprove the plaintiff's version and could be interpreted as confirming either version, since they did not establish when, during the car's motion sequence, the officer fired. Campos v. Van Ness, #12-1109, 2013 U.S. App. Lexis 6528 (1st Cir.).

     A federal court jury awarded a total of $6.5 million to the family of a man shot twelve times and killed by officers who mistakenly believed that a water hose nozzle he was holding and possibly pointing at them was a handgun. The jury found both that the officers violated the decedent's civil rights and that they were negligent under California state law. The plaintiffs argued that the officers never gave any verbal warnings and that one officer fired by mistake, causing a second officer to also shoot, believing that he was under fire. Officers came to the area in response to reports of a man with a gun. R.S. v. City of Long Beach, #SACV11-00536, U.S.Dist. Ct. (C.D. Cal., April 4, 2013).

Immigrants & Immigration Issues

     Federal immigration authorities entered into a $1 million settlement agreement with 22 Latinos whose rights were allegedly violated when agents entered private homes in early morning raids without search warrants looking for immigration law violations. The plaintiffs included U.S. citizens, permanent residents, and some whose immigration status was in dispute. The settlement also requires the adoption of a new policy requiring that agents not enter private homes without search warrants. The settlement also mandates expanded use of Spanish speaking agents who can communicate in that language with occupants of a residence when necessary, and bars the use of evidence obtained in the raids in immigration proceedings. Aguilar v. Immigration and Customs Enforcement, #07-Civ.-8224, U.S. Dist. Ct. (S.D.N.Y. April 4, 2013).

Positional, Restraint and Compressional Asphyxia

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

     Police encountered a running naked man speaking nonsensically. When they tried to subdue him, he bit an officer and a physical altercation ensued in which an officer fell on top of both the suspect and a fellow officer. One officer folded his legs around the suspect and gripped his chin with his arm, and a third officer kneeled on the suspect's calves. One officer allegedly wrapped his arm around the suspect's neck. Two officers allegedly continued to hold the man face down after he was secured. The man became unresponsive and summoned paramedics could not revive him, so he died. The coroner concluded the death was from an acute psychotic episode with excited delirium due to LSD intoxication and cardiopulmonary arrest. The pathologist who carried out the autopsy noted injuries consistent with asphyxia, and the plaintiffs in an excessive force lawsuit presented an opinion that asphyxia caused the death. The police department had both a use of force policy and a "positional asphyxia" policy warning that those who are acting psychotic due to drugs, alcohol or mental illness can be particularly susceptible to death. Two officers stated that they had not considered that policy. The officers were properly denied qualified immunity. Martin v. City of Broadview Heights, #11-4039, 2013 U.S. App. Lexis 7094, 2013 Fed. App. 0101P (6th Cir.).

Search and Seizure: Home/Business

     A man accused by a male teenager of kidnapping and raping him sued investigating police. He claimed that they barged into his hotel room without consent or a search warrant and seized his wallet and other items. He also claimed that they did this after illegally obtaining his video rental records from a video store in violation of the Video Privacy Protection Act, 18 U.S.C. 2710 in an attempt to collaborate the teenager's story that he had spent some time in the hotel room watching specific videos. Criminal charges against the man are currently pending in state court. A federal appeals court ruled that the trial court improperly dismissed the unlawful search and privacy claims. The privacy claims were against the video store. The appeals court noted that, while constitutional claims might be litigated during the criminal trial, money damages were not available in that proceeding. The trial court should have stayed the proceeding rather than dismissed the case, because otherwise his claims might be time barred by the time the prosecution was concluded. Gakuba v. O'Brien, #12-3345, 2013 U.S. App. Lexis 5866 (7th Cir.).

Wiretapping, Video Surveillance, & Internet Legal Issues

    A photojournalist sued police officers who arrested him for taking their pictures arresting a man while on duty. The U.S. Department of Justice issued a statement supporting the constitutional rights of the plaintiff to take the pictures under the First and Fourth Amendments. The statement upholds citizens’ constitutional rights to record police officers in their public capacity without being arrested or having their recordings unlawfully seized. Garcia v. Montgomery County, Maryland, #8:12-cv-03592, U.S. Dist. Ct. (D. Md. March 4, 2013).

     Editor's Note: The Justice Department previously issued a similar letter in Sharp v. Baltimore City Police Dept., #1:11-cv-02888, Circuit Court for Baltimore City, Maryland, a case in which a man had his phone confiscated and his videos deleted when he used the device to record the arrest of a friend. For more on this topic, see Video and Audio Taping Police Activity, 2012 (7) AELE Mo. L. J. 201.

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     First Amendment: Two reports have been issued concerning allegations that the Actions of the Seattle Police Department in response to a 2012 "May Day" demonstration violated First Amendment rights. See the Seattle Police Department's own report and an Independent Review commissioned by the department.

     Gun Control: "America Under the Gun: A 50-State Analysis of Gun Violence and Its Link to Weak State Gun Laws," American Progress Center (April 2013).

     Gun Control: "Public Mass Shootings in the United States: Selected Implications for Federal Public Health and Safety Policy," Congressional Research Service (March 18, 2013).

     Gun Control and School Security: "The National School Shield. Report of the National School Shield Task Force," Asa Hutchinson, Director (April 2, 2013).

     Legal Marijuana: "Task Force Report on the Implementation of Amendment 64 Regulation of Marijuana in Colorado," (March 13, 2013).

     Tasers: "Power Down: TASERs, The Fourth Amendment and Police Accountability in the Fourth Circuit," 91 N.C. L. Rev. 606 (January 2013).

Reference

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