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Criminal Conduct

     A federal appeals court upheld the criminal convictions of four police officers on charges related to the beating death of a detainee while he was in their custody. The court rejected an argument that the trial court erred by sentencing one of the defendants using the federal sentencing guidelines in effect at the time of the sentencing, rather than the more favorable provisions of a guidelines manual in effect at the time of the crime. The court rejected an argument that this violated the constitutional provision against ex post facto punishments. U.S. v. Pagan-Ferrer, #10-1518, 2013 U.S. App. Lexis 23566 (1st Cir.).

Defenses: Indemnification

     The highest court in New York ruled that a municipality in the state may withdraw from defending or indemnifying current and former officials and employees in a civil lawsuit if they fail to accept a reasonable settlement offer. While the context of the case was not law enforcement activity, the reasoning would appear to also apply in that context. Lancaster v. Incorporated Village of Freeport, #181, 2013 N.Y. Lexis 3156, 2013 NY Slip Op 7652.

Defenses: Official Immunity

     When a man was taken by ambulance from his home to a hospital, his two dogs remained behind. In the emergency room, and concerned as to whether he would live, he claimed that a deputy sheriff pressured him to sign a release form regarding his dogs, which authorized county animal control to destroy them, which he didn't realize, as he did not have his glasses and therefore could not read the form. The dogs were killed before he recovered, and he sued the deputy, the hospital, the sheriff, and the county's animal shelter provider. While the trial court granted summary judgment to all defendants, an intermediate appeals court ruled that, while state law official immunity protected the deputy from liability for his decision to ask the plaintiff to sign the form, it did not protect him from liability for the execution of his decision to do so. The Supreme Court of Georgia disagreed. It noted that the owner said that the deputy told him to "Just sign this d* *n form," when the owner was under medication. Such facts, if true, could raise a question of whether the deputy was engaged in an act performed with malice or an intent to injure, which could defeat the immunity. Roper v. Greenway, #S12G2030. 2013 Ga. Lexis 951.

Electronic Control Weapons: Dart Mode

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

     A 17-year-old boy died after being struck in the chest with a Taser dart. A jury awarded about $10 million against the manufacturer of the Taser. The plaintiffs asserted a products liability claim against Taser, arguing that the current of an X26 captures the heart rhythm of those subjected to it, speeding up and disorganizing the rhythm of their son's heart, and causing a ventricular fibrillation, a lethal arrhythmia which caused his death. The plaintiffs claimed that Taser failed to provide adequate warnings or instructions. The jury's award was ruled excessive by the court, which initially reduced it to $4,372,399, but subsequently amended that reduction to $5,491,503.65. The plaintiff also received a settlement of $625,000 from the city on an excessive force claim, as well as $40,000 from a workers' compensation award. The teenager was Tasered by the officer at the store he refused to leave after being fired for insubordination. In the most recent development, a federal appeals court ruled that judgment was properly entered for the plaintiff on the liability aspect of the case based on the jury's verdict on a failure to warn product liability claim. The manufacturer's motion for judgment as a matter of law was properly denied as there was evidence from which it could be found that a failure to warn caused the death and that the warnings provided were inadequate. But the damages awarded were not adequately supported by the evidence so further proceedings were ordered on that aspect of the case. Fontenot v. Taser Int'l, Inc., #12-1617, 2013 U.S. App. Lexis 23510 (4th Cir.).

False Arrest/Imprisonment: Wrongful Detention

     A woman was detained by police in her employers home while they were investigating her alleged misconduct, and they ordered her to leave without taking with her a $10,000 check written to her by her employer. A federal appeals court found no basis for liability on the part of the officers. They had reasonable grounds for suspecting that she had improperly obtained the check since she had only worked for the employer for 88 hours providing him home care. Forcing her to leave without the check was not seizure of her. Her employer had severe cognitive impairments as a side effect of his Parkinson's disease and officers would have been acting irresponsibly if they allowed her to leave with the check, given their suspicions. Hamilton v. Village of Oak Lawn, #12-3174, 2013 U.S. App. Lexis 23481 (7th Cir.).

Firearms Related: Intentional Use

     The daughter of a man shot and killed by police while responding to a domestic disturbance call did not have standing to bring federal civil rights claims when she failed to allege that she was the personal representative of his estate or his successor in interest. The court also upheld the rejection of a substantive due process claim, as there was absolutely no evidence that the officers fired for any reason except self defense when the man was armed with a knife. Further proceedings, though, were ordered on California wrongful death claims because reasonable jurors could find that the use of deadly force was not objectively reasonable and whether he posed a threat to the officers was a disputed issue. Hayes v. County of San Diego, #09-55644, 736 F.3d 1223, 2013 U.S. App. Lexis 23939 (9th Cr.).

Medical Care

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

     The family of a female arrestee who died while held in a cell in a police station without needed medical attention for over 24 hours was awarded $1 million in damages by a jury. According to the plaintiffs, the woman's lawyer and several family members repeatedly let officers know that she was seriously ill, and she herself informed them of this also. She was obese, diabetic, and had asthma. The jury found that a police practice of holding detainees in cells in police stations without medical attention for up to two days was unconstitutional. Ortiz v. the City of Chicago, #04-C-7423, U.S. Dist. Ct. (N.D. Ill. Nov. 4, 2013).

Negligence: Vehicle Related

     The trial court properly awarded $250,000 in damages as well as attorneys' fees and costs to the surviving family of a male motorist who died after his vehicle collided with a police car. The officer was traveling in excess of the speed limit and did not have his lights or siren activated as he entered the intersection. The trial judge did not abuse its discretion by excluding evidence of the decedent's consumption of alcohol before the collision as there was no evidence that he was intoxicated nor did the defendants offer expert testimony as to what the effect on his driving would have been from the amount of alcohol he consumed. Further proceedings were ordered though on the calculation of the attorneys' fees, including whether the fees charged for paralegals and office staff were reasonable. Las Vegas Metro. Police Dep't v. Yeghiazarian, #59382, 2013 Nev. Lexis 96.

Search and Seizure: Person

     A New York City Police Department order requires that any officer who fires his weapon and such firing results in injury or death to be administered a breathalyzer. Rejecting a Fourth Amendment challenge to the order, a federal appeals court found that the order was aimed at both personnel management and bolstering public confidence in the police, and thereby fell within the definition of "special needs" when analyzing the reasonableness of the search under the Fourth Amendment. These concerns were different from ordinary law enforcement concerns, so the warrant and probable cause requirements applicable to law enforcement searches did not apply. These warrantless suspicionless tests were reasonable as a matter of law since the special needs involved outweighed any privacy interests of the officers concerning whether they had consumed alcohol. Lynch v. City of New York, #12-3089, 2013 U.S. App. Lexis 23074 (2nd Cir.).

     There was ample evidence to support a jury's verdict in favor of four officers involved in the search and seizure and arrest of the plaintiff on drug charges. The officers observed what appeared to be open drug sales of crack cocaine in a lot involving four men and a juvenile with passersby attracted into a lot by yells of "rocks, rocks," referring to cocaine. There was probable cause for the search, seizure and arrest, so there could be no liability despite the fact that the plaintiff was later acquitted. The plaintiff's argument that one officer arranged to have three others join him in fabricating a drug bust to bolster the possibility that he would be assigned to the narcotics squad was characterized as "far fetched." Morrow v. May, #12-1329, 735 F.3d 639 (7th Cir. 2013).

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     Privacy: "The Dangers of Surveillance," by Neil M. Richards, 126 Harvard L. Rev. 1934 (2013).

     Privacy: "Information Resellers: Consumer Privacy Framework Needs to Reflect Changes in Technology and the Marketplace," U.S. Government Accountability Office (Sept. 2013).

Reference

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