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Assault and Battery: Physical

     A town has reached an $11.6 million settlement with a family whose home was raided without a search warrant by officers in 2003, with officers allegedly arresting five family members without probably cause and beating them up. No convictions were obtained on any of the charges. The plaintiffs claimed that one family member, a boy who was 17 years old at the time of the incident, subsequently developed a mental illness as a result of the beating and an alleged threat by one officer to kill him if he didn't leave town. They claimed that he now requires 24 hours a day supervision. Ramos v. Cicero, #1:04-cv-02502, U.S. Dist. Ct. (N.D. Ill.).

     A member of a “cop watch” group was holding a video camera on the street while talking on a cell phone. An officer told him that he had to move, and he replied that he was conducting a “cop watch.” The man compiled with orders to “come here” and walked toward a police van. When he got there, an officer allegedly exit the van, knocked the cell phone and video camera out of his hands, told him to turn around, and handcuffed him, after which two officers started to beat him. A chokehold was allegedly used on him, and he was pushed into a police van without warning, causing him to fall and strike his face against the floor. The trial court found that the officers were entitled to qualified immunity on an excessive force claim because, at the time of the incident (2008), it was not clearly established in the 8th Circuit that an officer violates the rights of an arrestee by applying force that causes only "de minimis" (minimal) injuries. Here, the arrestee's contusions and swelling were injuries classified as de minimis. The officers were not, however, entitled to qualified immunity on an unlawful arrest claim since, under the plaintiff's version of the incident, he was not trespassing or obstructing the sidewalk, and no reasonable officers could have concluded that he was committing those crimes. Robinson v. City of Minneapolis, #10-3067, 2013 U.S. Dist. Lexis 106342 (D. Minn.).

Disability Discrimination

     Officers arrived at a man's home after his mother called 911 to report that he was having a psychotic episode and had attacked a family member. The officers were told that he might have a knife or a screwdriver. He was uncooperative with orders to lie down. A struggle ensued, during which officers claimed that he reached under a pillow and pulled out a knife that he swung at an officer. An officer fired six shots from his gun, hitting him several times. In a lawsuit, the man denied attacking officers with a knife. A federal appeals court found that the officers were entitled to qualified immunity on disability discrimination claims as there was no clearly established law that the officers had a duty to accommodate the arrestee's disability of schizophrenia while trying to secure him and take him into custody. The officer who fired the shots, however, was not entitled to qualified immunity, as there was a disputed issue of fact as to whether the arrestee at that time posed an objectively reasonable threat of violence towards the officers. The court rejected a failure to train claim against the city.  Roberts v. City of Omaha, #12-3426, 2013 U.S. App. Lexis 15624 (8th Cir.).

Electronic Control Weapons: Dart Mode Cases

     Two officers were entitled to qualified immunity on an excessive force claim and public officer immunity on a North Carolina state law claim. One officer acted in an objectively reasonable manner in firing a Taser in the dart mode, after a warning, and activating it three times, and then pepper-spraying an arrestee who posed an immediate safety threat and resisted arrest. His crime of property destruction of an address sign was more than a minor crime. Before the force was used, the plaintiff had approached the officer three times, ignoring orders to get back, while saying "Sir, I have lost my mind." A second officer's action in activating his Taser three times in dart mode while the arrestee lay prone and unarmed on the ground while an officer sitting on his back in control was not clearly established as unlawful, as the plaintiff was not then "effectively secured." The Taser was also used several times in the stun mode before the arrestee was fully handcuffed. Two other officer were properly denied immunity on both federal and state claims when they allegedly punched and struck the arrestee because he did not pose an immediate safety threat and was not resisting, and they inflicted severe injury. All officers who were bystanders to the incident were granted qualified immunity as they did not have a reasonable time in which to intervene to prevent harm. Thomas v. Holly, #12-2076, 2013 WL 3722350, 2013 U.S. App. Lexis 14437 (4th Cir.).

     Officers stopped a man who fit the description of a suspect in a domestic tire-slashing incident. Before he could be patted down, he removed his hands from the hood of a car, ignoring police orders, and started running away. Multiple times, officers fired Tasers in the dart mode, and one also shot him with a gun when the Taser did not seem to stop him. The officer who shot the plaintiff claimed that he was brandishing a knife, but the plaintiff claimed he was only holding a cell phone and attempting to record the incident. There was a genuine issue of material fact as to whether the use of deadly force was justified. The initial use of the Tasers during the pursuit, however, was objectively reasonable, regardless of whether or not the plaintiff was brandishing a knife, as the officers were aware that he had a knife, he was argumentative, he fled, and he disobeyed orders to stop. The court did find that if some of the deployments of the Taser occurred after the plaintiff had been subdued (after being shot twice), summary judgment was not appropriate on those excessive force claims. Arnold v. Buck, #3:11-cv-1343, 2013 U.S. Dist. Lexis 108629 (D. Ct.).

     A combat veteran who suffered from PTSD lost touch with reality. He believed that armed men were coming to his street and threatening his family. In response, while carrying a rifle, he broke windows on neighbors' houses and went around in a threatening manner. He drove his van into one of the police cars that arrived in response. A struggle ensued after he exited his vehicle, during which the man was Tasered in the dart mode and stun mode multiple times and bitten twice by a police dog. The trial court found that the plaintiff had failed to present any evidence that would permit a reasonable jury to conclude that excessive force was used against him or was used against him after he was fully subdued. It was clear that he was resisting arrest, and his own version of events was of little value as he "admittedly has little recollection of the events." Ziolkowski v. City of Taylor, #12-10395, 2013 U.S. Dist. Lexis 107355 (E.D. Mich.).

False Arrest/Imprisonment: No Warrant

     A 14-year-old boy claimed that police arrested him without probable cause for disorderly conduct when he was standing outside a building waiting for his mother, not doing anything illegal. He further claimed that an officer later used excessive force by shoving him into a holding cell, causing him to hit his head on a hard surface. The officers claimed that he was drinking and fell because he was intoxicated. The jury returned a verdict for the defendant officers. Reversing for a new trial, a federal appeals court held that the defendants were improperly allowed to cross examine the plaintiff about a subsequent unrelated underage drinking arrest to try to convince the jury that he had been intoxicated at the time of his first arrest. They were also improperly allowed to question him about a subsequent conviction for possession of a stolen vehicle. The improper questioning was not harmless, since it could not be said that it did not substantially sway the jury. Barber v. City of Chicago, #12-2562, 2013 U.S. App. Lexis 16047 (7th Cir.).

Firearms Related: Intentional Use

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

     Sheriff's deputies were not entitled to qualified immunity for fatally shooting a 64-year-old homeowner on the patio of his residence while responding to a domestic disturbance call. While he was armed with a gun at the time, the plaintiff, claimed that the decedent had not objectively provoked the officers, was walking with the use of his walker at the time, and had his gun trained on the ground. If a jury believed the plaintiff's version of the incident, it could find that the use of deadly force was unreasonable and that the decedent had not posed an immediate threat to the officer's safety. George v. Morris, #11-55956, 2013 U.S. App. Lexis 15579 (9th Cir.).

Firearms Related: Second Amendment Issues

     A New Jersey law regulating the issuance of permits to carry handguns in public places and limited them to those who could demonstrate a "justifiable need" to carry a handgun for self-defense did not violate the Second Amendment. Assuming, for the sake of argument, that there was a Second Amendment right to carry guns outside the home, the "justifiable need" standard was a "long-standing regulation" entitled to a presumption of constitutionality. Even without that presumption, it would withstand intermediate scrutiny and was reasonable in light of the state's substantial, critical interest in public safety. The evidence also showed that the state properly engaged in an individualized consideration of each applicants circumstances and his or her objective need to carry a gun in public. Drake v. Filko, #12-1150, 2013 U.S. App. Lexis 15635 (3rd Cir.).

Immigrants & Immigration Issues

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

     Deputies, after questioning a woman at her workplace, effectively seized her when one of them gestured for her to stay seated because they had found out that there was an outstanding civil immigration warrant for her. This violated the Fourth Amendment, as they needed the express authorization or direction of federal immigration authorities to make such a seizure, but both they and the sheriff were entitled to qualified immunity, since it was not clearly established law that state and local law enforcement officers may not detain or arrest a person on the basis of a civil immigration warrant. Such qualified immunity did not apply to municipal defendants, however. Santos v. Frederick County Board, #12-1980, 2013 U.S. App. Lexis 16335 (4th Cir.).

Other Misconduct: Access to Courts

     A woman claimed that officers arrested her on false charges and subsequently conspired together with other officers to prevent her from filing a lawsuit for false arrest. There was strong evidence that two officers conspired with the arresting officers to conceal facts that could be the basis of a legal claim for false arrest and detention, so they were not entitled to qualified immunity. The woman was arrested by an officer who stopped by her own home to obtain her medicine and who was upset that the woman, her son's girlfriend, was present in the son's bedroom. When she was unable to get a ride to leave, she was arrested for trespassing. Among other things, the female officer's name was allegedly later removed from an incident report as she was on limited administrative duty at the time, without authority to participate in an arrest. L. v. Board of Police Commissioners, #12-3193, 2013 U.S. App. Lexis 16101 (8th Cir.).

Pursuit: Law Enforcement

     A sheriff's deputy, responding to a request from a 16-year-old boy's mother, sought to locate him after he left home in the family vehicle and try to bring him into custody. When he spotted the boy in the car, a high speed pursuit occurred, reaching 99 miles per hour. The boy's car veered off the road and rolled over, ejecting the by, who subsequently died. In a lawsuit against the deputy and the county by the boy's parents, the Utah Supreme Court overturned summary judgment for the deputy on a negligence claim, finding that officers engaged in a pursuit owe a duty of care to all person, even including fleeing suspects. The court did, however, uphold summary judgment for the county. Torrie v. Weber County, #2012-0500, 2013 UT 48, 2013 Utah Lexis 120.

 Sexual Assault

     A young female participant in a police department Explorer program reported that a police sergeant sexually abused her while she was in the program. He is currently serving a twenty-year prison sentence for indecency with a child and sexual assault of a child. The girl subsequently sued state officers involved in the investigation of her complaint and the eventual arrest of the sergeant, saying that they failed to intervene in a timely manner to stop the sergeant's abuse of her. A federal appeals court found that the plaintiff had not sufficiently alleged a basis for showing that the defendants had violated her rights in any way, either under a deliberate indifference or bystander liability theories. Whitley v. Hanna, #12-10312, 2013 U.S. App. Lexis 16485 (5th Cir.).

•Return to the Contents menu.

     Alcohol Abuse: "Intoxicated Offenders and Suicide Threats: Is There a Connection?," by Tony Salvatore, FBI Law Enforcement Bulletin (August 2013).

    Child Abuse and Welfare:"Domestic Custodial-Motivated Child Abductions," By Ashli-Jade Douglas, FBI Law Enforcement Bulletin (August 2013).

    Child Abuse and Welfare: “America's Children: Key National Indicators of Well-Being, 2013,”The Federal Interagency Forum on Child and Family Statistics (2013).

     Government Secrecy: "An Inquiry into the Dynamics of Government Secrecy," by Steven Aftergood, 48 Harvard Civil Rights-Civil Liberties Law Review 511 (2013).

     Statistics: "Household Burglary, 1994-2011," by Marcus Berzofsky, Jennifer Hardison Walters, Lynn Langton, and Andrew Moore (June 20, 2013 NCJ 241754).

Reference

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