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Defenses: Statute of Limitations

     A Marine sergeant was accused of having committed a sexual assault while on a recruitment detail at a middle school. A lawsuit was filed against the U.S. government for the sexual assault under the Federal Tort Claims Act (FTCA). The claim accrued when the plaintiff became aware of her injury, not when she claimed to have learned of the Marine Corp's negligence. Since she did not file an administrative claim until four years after the incident, the FTCA's two-year statute of limitations would ordinarily bar the claim, but during the appeal of the lawsuit's dismissal, the 9th Circuit ruled in Wong v. Beebe, #10-36136, 732 F.3d 1030 (9th Cir. 2013) that equitable tolling of the statute of limitations was available in FTCA cases. The appeals court therefore ordered that the trial court hold further proceedings to consider the plaintiff's equitable tolling arguments. Gallardo v. United States, #12-55255, 2014 U.S. App. Lexis 6964 (9th Cir.).

False Arrest/Imprisonment: No Warrant

     Worried that a tractor-trailer stopped on the shoulder of a highway ramp posed a safety hazard, a state trooper approached and observed that the engine was running with no one visible in the cab. Knocking on the door caused the driver to emerge from the sleeper area of the cab. His breath smelled of alcohol, his eyes appeared red and glassy, his speech was slurred and he admitted having consumed a "couple" of "small pitchers" of beer at a truck stop an hour before. He could not explain why he stopped on the ramp to sleep rather than going to a rest stop 200 to 300 feet away. After he failed two sobriety tests, and almost lost his balance, he was arrested, and a breathalyzer recorded a .111% blood-alcohol content. A jury acquitted him after a state court found probable cause for the arrest. A federal appeals court found that the state court finding of probable cause in the criminal proceeding did not preclude a federal civil rights lawsuit for false arrest. Ohio, in its state law, did not give trial courts the final word on probable cause, and the plaintiff had not had an opportunity to appeal the probable cause issue since he was acquitted. Bradley v. Reno, #13-3983, 2014 U.S. App. Lexis 7279, 2014 Fed App. 0081P (6th Cir.).

     A man sued Chicago police who arrested him on drug possession charges, as well as solicitation of an unlawful act. After he spent 19 days in jail, the charges were dismissed for want of probable cause. The plaintiff and the officers had differing accounts of the events that led to his arrest, which did involve someone in the vicinity shouting "rocks," referring to drugs. In a false arrest, malicious prosecution, and illegal search lawsuit, a jury returned a verdict for the defendant officers. A federal appeals court upheld the jury verdict. “This was a swearing contest, and nothing precluded the jury from crediting the defendants’ account of what occurred.” Venson v. Altamirano, #12-1015, 2014 U.S. App. Lexis 7334 (7th Cir.).

     Officers were not entitled to qualified immunity for making a warrantless arrest of a woman who was nursing her baby in her home and leading her out of her home based on an invalid recalled arrest warrant for failing to appear in court to contest a simple traffic violation. Following a strip search and a body cavity search, she was held in jail overnight, which was the first time she had been separated from her infant. A federal appeals court found that no reasonable officer could actually believe that the warrantless arrest was lawful under the alleged facts. Bechman v. Magill, #13-1142, 745 F.3d 331 (8th Cir. 2014).

Firearms Related: Intentional Use

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

     A unanimous U.S. Supreme Court ordered further proceedings in an excessive force lawsuit brought by a unarmed man who a police officer fired three shots at, with one of the bullets puncturing his right lung. At the time, the plaintiff was approximately 15 to 20 feet away from the officer on the front porch of his parents' home. The Court found that the appeals court, in upholding summary judgment on the basis of qualified immunity for the officer, had erred by failing to view the evidence on summary judgment in the light most favorable to the plaintiff on the facts. Instead, the appeals court improperly resolved disputed issues concerning the lighting present, the demeanor of the plaintiff's mother, the plaintiff's positioning during the shooting, and whether he had shouted a direct threat, in favor of the officer, the moving party on the summary judgment motion. Tolan v. Cotton, #13-551, 2014 U.S. Lexis 3112.

First Amendment

     A city required adult bookstores to remain closed all day Sunday and between midnight and 10 a.m. every other day, restrictions that were not applied to other retail businesses. A federal appeals court rejected the general justification that the restriction would curtail negative secondary effects of the bookstores such as crime. On remand, a trial was held after which the district court accepted the city's claim that there were fewer armed robberies at or near adult bookstores because of the restrictions. On further appeal, the appeals court reversed and ordered the entry of an injunction against the enforcement of the law. The city failed to control the statistics used for other potentially important variables, including the presence of late night taverns in the same area. The court found that the differences in the number of armed robberies cited were not statistically significant, and that the city failed to show that such robberies would be more likely at adult bookstores than at late night liquor stores or convenience stores not covered by the law. Annex Books, Inc. v. City of Indianapolis, #13-1500, 740 F.3d 1136 (7th Cir. 2014).

Interrogation

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

    Two children were found dead, sexually assaulted, and mutilated in the basement of an apartment building in which a 24-year-old man lived with their mother. The killer was ultimately determined to be a neighbor with a record of attempted sexual assault. Police instead initially focused on the man who lived with the children's mother, who was mildly mentally retarded. He was taken to a police station, isolated in an interview room, falsely told that he had failed a polygraph exam, and confronted with false evidence. After several days of interrogation, and in a state of great fear, he signed a false confession, including details of the crime that he could not have known, which were allegedly fed to him by investigators. Convicted and sentenced to life, he was released 22 years later, when his innocence became clear. A federal appeals court overturned a grant of qualified immunity, noting that without the false confession, there would have been no direct evidence linking the plaintiff to the crime. If an officer fabricates evidence to obtain a confession, it violates a defendant's due process rights. There was sufficient evidence for a rational jury to conclude that defendants who had interrogated the plaintiff had coerced him into signing a false confession. Halsey v. Pfeiffer, #13-1549, 2014 U.S. App. Lexis 7696 (3rd Cir.).

     A man was convicted twice of first degree murder. In the first conviction, however, the prosecutor relied on evidence obtained in violation of his Miranda rights, and that conviction was later thrown out on habeas corpus. The second conviction was obtained without the illegally obtained evidence. A federal appeals court found that the plaintiff's Fifth Amendment violation claim was not barred by his subsequent conviction. The plaintiff might be able to show that he was entitled to at least nominal damages on the Fifth Amendment violation. The plaintiff adequately stated a municipal liability claim against the county sheriff's department, which was subject to suit for its investigative activity. The plaintiff would also be allowed to amend his complaint to attempt to state a claim against the prosecutor. Jackson v. Barnes, #09-55763, 2014 U.S. App. Lexis 6962 (9th Cir.).

Search and Seizure: Vehicle

    The totality of the circumstances gave a California Highway Patrol officer reasonable suspicion that a driver was intoxicated based on his pickup truck matching the description of a vehicle that a 911 caller reported as having run her off the road. The officers smelled marijuana as they approached, and they found 30 pounds of it when they searched the truck's bed. Reasonable suspicion considers “the totality of the circumstances,” and depends “upon both the content of information possessed by police and its degree of reliability.” The 911 call had adequate indicia of reliability based on the short time before the suspect vehicle was spotted and the caller's claim of eyewitness knowledge. A reasonable officer would conclude that a false tipster would think twice about calling 911. Reasonable suspicion for a brief investigative stop does not require that an officer "rule out the possibility of innocent conduct." The fact that the officer failed to observe additional suspicious conduct during the short period that he followed the truck did not destroy the reasonable suspicion of drunk driving. The traffic stop did not violate the Fourth Amendment. Navarette v. California, #12-9490,188 L. Ed. 2d 680, 2014 U.S. Lexis 2930.

Wiretapping

    While investigating a suspected misdemeanor violation of a domestic violence injunction, a detective and a sergeant monitored, intercepted, and listened to a privileged conversation between the suspect and his attorney in an interview room in the county sheriff's office, acting without a warrant or any notice. They also seized, from the attorney, without a warrant, a statement written by the suspect. The defendants were not entitled to qualified immunity on the claim that the warrantless interception of the private privileged conversation violated the Fourth Amendment. The trial court also found that the surreptitious electronic eavesdropping and recording violated the Federal Wiretap Act, 18 U.S.C. § 2510 et seq., which was not an issue on appeal. The defendants failed to properly assert in the trial court their argument that the warrantless seizure of the suspect's written statement from his attorney was permitted by exigent circumstances. Gennusa v. Canova, #12-13871, 2014 U.S. App. Lexis 6410, 24 Fla. L. Weekly Fed. C 1195 (11th Cir.).

•Return to the Contents menu.

     Officer Safety: Improving Officer Safety and Citizen Support: Solving the Puzzle, by Mike Masterson, FBI Law Enforcement Bulletin (May 2014).

     Shooting Incidents: The Police Response to Active Shooter Incidents, Police Executive Research Forum (PERF) (Mar. 2014).

     Technology: Body-Worn Cameras for Criminal Justice: Market Survey, National Institute of Justice (Mar. 2014).

Reference

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