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Attorneys' Fees: For Plaintiff

     A homeowner sought $9,462 in compensatory damages that he claimed was needed to refurnish his home after an unreasonable execution of a search warrant by four officers. He also sought damages for emotional distress and punitive damages. A jury found for the plaintiff against only one officer and awarded only $100. He then sought an award of $116,435 in attorneys' fees as a prevailing party for 450 hours of work. A federal appeals court upheld a denial of attorneys' fees, finding that the jury award on just one of eight claims made was nominal and trivial and did not provide any public benefit. Aponte v. City of Chicago, #12-3099, 2013 U.S. App. Lexis 18111 (7th Cir.).

Domestic Violence

     A woman was shot three times by her husband before he committed suicide. She sued officials , arguing that, while there is no general obligation to protect specific people against crime, once protective services are provided, the state cannot protect men while failing to protect women. She claimed that law enforcement officers should have protected her because some relatives had told them that her husband was potentially violent and suicidal. Additionally, she asserted that she had reported that her husband hit her, obtained an order of protection, that her husband had admitted violating, and that guns he had acquired were not confiscated despite being illegally obtained. Further, when her husband was finally arrested for domestic violence, he was quickly released. A federal appeals court overturned a denial of qualified immunity for the defendants. It reasoned that the fact that the defendants had a different assessment of the risk that her husband posed to her than the plaintiff had did not prove that they engaged in sex discrimination. Bond v. Atkinson, #11-3275, 2013 U.S. App. Lexis 17815 (7th Cir.).

Electronic Control Weapons: Dart Mode Cases

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

     A federal appeals court overturned a grant of qualified immunity to an officer who used a Taser in the dart mode against a man and threatened to also use it on his wife. The Taser was used on the man, a passive bystander, who allegedly failed to immediately comply with an order to go away from the location where his neighbor was being arrested. If the facts were as the plaintiffs alleged, the man's accused offense was minor, and his actions, distance from the officers,, and demeanor did not provide a reason to believe that he posed a threat to anyone's safety. In 2008, the time of the incident, it was well known that the firing of a Taser dart was more than trivial force and would be unconstitutional if deployed against a passive bystander. The court also alleged municipal liability claims to continue as there was an issue of fact as to whether an alleged city policy allowing officers to use Tasers against a non-threatening suspect caused an unconstitutional use of force. There was also a factual issue as to whether there had been probable cause to arrest the male plaintiff for obstructing an officer. Gravelet-Blondin v. Shelton, #12-35121, 2013 U.S. App. Lexis 18595 (9th Cir.).

Electronic Control Weapons: Stun Mode Cases

     A man who smoked marijuana, then went to a bar and became intoxicated, was asked by the bar's bouncers to leave as they believed that he was harassing female patrons. At the door, he was thrown out, and then two police officers grabbed him outside, according to the plaintiff, and threw him to the ground. He claimed that they kicked, punched, and stomped on him, handcuffed him, and then used a Taser in the stun mode on his back without warning. The officers asserted that the plaintiff had been assaulting the bar's bouncers. The bouncers took him to the ground. He was noncompliant with the officers' orders, and was repeatedly warned that a Taser would be used if he did not cooperate and put his hands behind his back. When he instead put his hands underneath his body, he was stunned by the Taser and then handcuffed, according to the officers' version of the incident. He pled no contest to assault and battery and to resisting and obstructing an officer, and in the criminal trial, his attorney said that he was subject to violence and blackouts when drinking, and that his recollection of the night was "very vague."

     Officers who arrived on the scene after the arrest, handcuffing, and use of force, could not be held liable for failure to intervene. The plaintiff failed to show any basis for holding the city liable for any violation of his rights based on inadequate training or supervision. The city and two officers were granted summary judgment and the plaintiff was allowed to go forward with his excessive force and state law assault and battery claim against a single officer who used the Taser. The court rejected the argument that the "no contest" plea in the criminal case barred the civil liability claims for excessive force. Shirley v. City of Eastpointe, #11-144297, 2013 U.S. Dist. Lexis 124169 (E.D. Mich.).

False Arrest/Imprisonment: No Warrant

     A man was arrested for a suspected drug offense based on information from a confidential informant. At the police station, he was subjected to a visual body cavity search, which uncovered drugs. The man's conviction was overturned, with the search ruled illegal. The defendant officers were entitled to qualified immunity on false arrest and unlawful search claims, since there had been arguable probable cause to arrest the plaintiff and a reasonable officer at the time of the arrest would not have known that conducting a suspicionless visual body cavity search of a felony drug arrestee was unlawful. Gonzalez v. City of Schenectady, #11-5403, 2013 U.S. App. Lexis 17943 (2nd Cir.).

False Arrest/Imprisonment: Warrant

     Officers who arrested and detained a woman for two days for investigative interrogation under a material witness warrant were not entitled to absolute prosecutorial immunity. Even if the officers were following a prosecutor's instructions, execution of the warrant was a police function rather than a prosecutorial function under the New York state material witness statute and the explicit terms of the warrant itself. Further, the officers actively avoided a court-ordered material witness hearing and their failure to present the arrestee before a court left her with no means of then contesting her detention. Simon v. City of New York, #11-5386, 2013 U.S. App. Lexis 17016 (2nd Cir.).

First Amendment

     A Michigan state anti-begging statute under which two homeless adults were arrested violated the First Amendment. The statute was facially invalid since begging was a form of solicitation protected by the First Amendment and the law prohibited a substantial amount of solicitation by beggars but allowed other solicitation based on its content. One arrestee had been holding signs saying "Cold and Hungry, God Bless" and "Need Job, God Bless." The second arrestee, a veteran who needed money for bus fare, asked another person on the street whether they could "spare a little change." While there was a substantial state interest in preventing duress and fraud, the law was not narrowly tailored to serve those interests. Speet v. Schuette, #12-2213, 2013 U.S. App. Lexis 16796, 2013 Fed App. 0226P (6th Cir.).

     A street newspaper devoted to educating people about homelessness, which used homeless people as street vendors, challenged an ordinance that two of its vendors were cited for violating that barred using any part of the city street, alley, sidewalk, or public right of way to sell any goods or materials. The city altered the ordinance so that it did not bar the sale or distribution of publications or handbills. Under the revised ordinance, those activities were prohibited, however, on any portion of the street. The revised ordinance also barred handing such materials to an occupant of a motor vehicle on the street or taking action reasonably intended to cause a vehicle occupant to hand anything to the person selling or distributing the materials. The federal appeals court upheld a determination that the ordinance, as revised, did not violate the First Amendment and left open adequate available alternative channels of communication. The Contributor v. City of Brentwood, #12-6598, 2013 U.S. App. Lexis 16795, 2013 Fed App. 0225P (6th Cir.).

Other Misconduct: Medical Care

     Officers who shot and killed a man were sued for excessive force and deliberate indifference to a known serious medical need, the need for treatment of his wounds. The jury found in favor of the officers after being instructed that the plaintiffs had to prove that deliberate indifference caused the man's death. A federal appeals court upheld the trial judge's grant of a new trial on the medical indifference claim. In such a delay of treatment case, it is not necessary to show that the delay in providing medical care caused the death when a layperson would find it obvious that a delay in treatment created a risk of serious harm. The defendants failed to show that a substantial ground for a difference of opinion existed on the correctness of the trial decision. Miedzianowski v. City of Clare, #13-101, 2013 U.S. App. Lexis 17375, 2013 Fed App. 243P (6th Cir.).

Search and Seizure: Person

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

     A federal judge ruled that the stop-and-frisk tactics employed by the New York City Police Department violated the constitutional rights of many thousands of people detained. The court found that police routinely systematically stopped innocent people on the street without an objective reason to suspect them of any wrongdoing. Predominately young minority males were stopped and frisked for weapons or drugs before being let go. The searches increased over the years, the courtfound, even as crime declined, and violated the Fourth Amendment. The city acted with deliberate indifference to the widespread practice and violated the equal protection rights of minorities. The court also found that the practices that led to unconstitutional stops and frisks were sufficiently widespread that they had the force of law. Floyd v. City of New York, #08-1034, 2013 U.S. Dist. Lexis 113271 (S.D.N.Y). In an order concerning remedies, the judge appointed a federal monitor to oversee broad reforms of the stop-and-frisk practices, and mandated the officers wear body cameras in selected precincts, among other measures. Floyd v. City of New York, #08-1034, 2013 U.S. Dist. Lexis 113205 (S.D.N.Y).

     Editor's Note: For more on the stop and frisk practices involved, see The Impact of Police Stops on Precinct Crime Rates in New York City, 2003 – 2010

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     DNA: "Collecting DNA at Arrest: Policies, Practices, and Implications, Final Technical Report," by Julie E. Samuels, Elizabeth H. Davies, and Dwight B. Pope, The Urban Institute (July 2013).

     Drug Abuse: "Police custody following driving under the influence of cannabis: A prospective study," 231 (1) Forensic Sci. Intern. 92-97 (Sep. 10, 2013). [Abstract].

     Interrogation: "Criminal Interrogations of Police Officers After Use-of-Force Incidents," by Jeffrey J. Noble, J.D., and Geoffrey P. Alpert, FBI Law Enforcement Bulleting (September 2013).Ph.D.,

     Marijuana Legalization: Text of Memorandum of James N. Cole, Deputy Attorney General, "Guidance Regarding Marijuana Enforcement," (August 29, 2013). Response and letter to U.S. Attorney General Eric Holder by the Major County Sheriffs’ Association, the National Sheriffs’ Association, the Association of State Criminal Investigative Agencies, the International Association of Chiefs of Police, the National Narcotic Officers Associations’ Coalition, the Major Cities Chiefs Police Association and the Police Executive Research Forum.(August 30, 2013).

     Social Media: "COPS Report: Social Media and Tactical Considerations For Law Enforcement," Police Executive Research Forum (PERF) (May 2013).

     Social Media: "Interactive Social Media: The Value for Law Enforcement," by Timothy J. Henton, FBI Law Enforcement Bulleting (September 2013).

Reference

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