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Assault and Battery: Handcuffs

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

     When two officers allegedly jerked a man up by his arms at a time when he was already handcuffed and under control, and did so with sufficient force to cause serious injury to his shoulder area, this claim, if true, violated clearly established law, so the officers were properly denied summary judgment. It was, however, reasonable for the officers to detain and handcuff the man, who was the roommate of a parolee whose home they were searching, since he was belligerent and refused to remain seated. Blazek v. Iowa City, #12-3785, 12-3786, 2014 U.S. App. Lexis 15008 (8th Cir.).

Assault and Battery: Physical

     A motorist who had smoked marijuana and drunk beer admitted to an officer who saw him exiting his car with a beer that he was on probation for burglary and disorderly conduct. He did not have a driver's license and started to run away when the officer told him to take his hands out of his pockets. Another officer captured him and took him to the ground, after which the first officer jumped a fence and landed on him, which broke his jaw. The plaintiff's version of events, if true, was one from which a rational jury could decide that the first officer deliberately inflicted the blow that resulted in the broken jaw. The second officer, however, could not be held liable for failure to intervene as he had no reasonable opportunity to stop the first officer from landing on the plaintiff. Miller v. Gonzalez, #11-2906, 2014 U.S. App. Lexis 15085 (7th Cir.).

Electronic Control Weapons: Dart Mode

     A mentally ill delusional man left his house naked, beat houses in the area with a stick, returned home and told his mother that he was God and that she must worship him. She went to a neighbor's home to call 911. When police arrived, she told them she was afraid her son was going to kill her. She also informed them that there was a gun in the house. The man briefly emerged from the house naked, claiming to be God, and went back inside, before again emerging. He would not obey orders, initially lying down, but then rising to a standing position with clenched fists. A Taser was fired in the dart mode because of fear that the man would attack officers, and it was activated for six full five-second cycles and an additional two-second cycle. A second officer then also fired his Taser in the dart mode and activated it for four five-second cycles. The man continued to be combative and to ignore commands, kicking and otherwise resisting. He later went into cardiac arrest and died. Product liability claims against the Taser manufacturer were voluntarily dismissed. The trial court found that the officers' uses of their Tasers were reasonable under the circumstances, as the man was uncooperative, combative, and believed to be dangerous. The court also rejected a claim that the city was liable under the Americans with Disabilities Act (ADA) for failing to accommodate the man's mental impairment during his arrest. A federal appeals court upheld the trial court's rulings, finding that even if the repeated use of the Taser was found to be excessive force, such rights were not clearly established on July 7, 2008, the date of the incident. The court noted that the decedent continued his violent and aggressive behavior at the time and was non-compliant. The officers were entitled to qualified immunity. De Boise, Sr. v. St. Louis County, Missouri, #13-2742, 2014 U.S. App. Lexis 14276 (8th Cir.).

Electronic Control Weapons: Dart and Stun Mode

     An officer who had followed a man's car to his home asked him to "come here" just as he entered his parents' home, but did not tell him he was under arrest. Five additional officers arrived and started pounding on the door of the family home, and tried to force their way in when a man opened the door. When the door was shut on them, they shattered a window on the door with the butt of a shotgun, and then stuck a Taser through the window, blindly firing it in the dart mode into the home and striking the son twice. Officers then broke through the door, used the Taser on the son again because he continued to struggle, and then allegedly dragged him outside to the driveway, beat him with batons, kicked his head, used a Taser in the stun mode on him, and called him a "black nigger," after which they placed him in handcuffs, placing him under arrest. Because the son pled guilty to resisting arrest and willfully fleeing an officer, his claims of excessive force and unlawful entry were barred. The trial court, however, improperly dismissed the parents' claims for illegal entry into their home and state law intentional infliction of emotional distress, while the appeals court upheld the dismissal of the parents' assault claims for lack of evidence. Hayward v. Cleveland Clinic Found., #13-3132, 2014 U.S. App. Lexis 13802, 2014 Fed. App. 0157P (6th Cir.).

False Arrest/Imprisonment: Warrant

    Detectives who were monitoring calls from a call center as part of an investigation of drug trafficking believed that a woman they knew was the voice making calls directing customers to drug distribution houses and obtained an arrest warrant for her based on this and an allegation that she had been seen at the houses. All charges against her were later dismissed after it was concluded by prosecutors that the wrong person had been arrested. Municipal liability claims were properly rejected as the plaintiff stated no basis for them other than the mere employment of the detective who obtained the warrant. Claims against the state and its employees in their official capacity were barred as they were not "persons" for purposes of a federal civil rights lawsuit. After the plaintiff abandoned her federal claims against the detective, remaining state law claims including false arrest and imprisonment were properly remanded to state court. Ball v. City of Indianapolis, 13-1901, 2014 U.S. App. Lexis 14234 (7th Cir.).

Interrogation

    After a man was acquitted of murder and rape charges against him were dismissed, his lawsuit failed to establish that officers violated his Fifth Amendment right against self-incrimination as he failed to show that the officer's conduct overbore his will. He voluntarily rode with the officers to the scene of the crime and during the ride the officers made no threats or promises, not was there any indication of physical coercion. No Sixth Amendment violation was shown as no statements he made without a lawyer present were used at trial. The plaintiff was advised of his Miranda rights before interrogation and signed a waiver form. An officer's statement to him that Missouri was a death penalty state was not coercive and was truthful. Dowell v. Lincoln County, Missouri, #13-2317, 2014 U.S. App. Lexis 15282 (8th Cir.).

Procedural: Jury Selection

     In an arrestee's lawsuit claiming that his arrest lacked probable cause, a federal appeals court rejected the argument that a prospective juror should have been excused because the plaintiff thought her prior belief about the possession of guns by convicted felons made her unfit to serve. The court also rejected the argument that the jury selection procedures and size should have been altered for the express purpose of ensuring that the petit jury would have jurors of a particular race. Marshall v. City of Chicago, #13-2771, 2014 U.S. App. Lexis 15376 (7th Cir.).

Malicious Prosecution

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

    An arrestee acquitted in state court on charges of aggravated battery could not pursue federal civil rights malicious prosecution claims against two officers who he alleged prepared false police reports and used them to persuade a prosecutor to file charges. Such a federal lawsuit for malicious prosecution by state officers is only permissible if the state does not provide an adequate remedy for malicious prosecution, which Illinois does. The arrestee's initial seizure was supported by probable cause and the fact that the deprivation of liberty may have lasted longer than it should have did not violate the Fourth Amendment. Llovet v. City of Chicago, #13-3351, 2014 U.S. App. Lexis 14945 (7th Cir.).

Police Plaintiff: Arrest Related

    Given eyewitness accounts of him drinking and the presence of an open bottle labeled as containing alcohol in a police officer's personal vehicle when he was stopped, there was probable cause to administer a breathalyzer test, as a reasonable person would have believed that he had committed a DUI. He was only charged with driving with an open container of alcohol when the breathalyzer detected no alcohol, and the open container charge was dropped when the liquid in the bottle was shown to have no alcohol. A police deputy superintendent who ordered him prosecuted was entitled to qualified immunity under the circumstances. Seiser v. City of Chicago, #13-1985, 2014 U.S. App. Lexis 15473 (7th Cir.).

Search and Seizure: Vehicle

     An officer's mistaken perception that the driver rather than a passenger was drinking alcohol in a double parked vehicle was objectively reasonable. Reasonable suspicion justified an investigatory stop and there was an objectively reasonable fear of danger justifying the officers drawing their weapons, handcuffing the vehicle occupants, and conducting a protective sweep of the vehicle when the driver failed to properly raise his hands and moved in the vehicle with his hands concealed. The 30 minutes taken for the stop was not unreasonable and the officers were entitled to qualified immunity on unlawful search and seizure claims. Williams v. Decker, #13-2074, 2014 U.S. App. Lexis 13727 (8th Cir.).

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     Suicide by Cop: Suicide by Cop: Broadening Our Understanding, by Tony Salvatore, FBI Law Enforcement Bulletin (September 2014).

     Use of Force: Toronto Police - Police Encounters with People in Crisis (July 2014).

  Reference:

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