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Animal Control Issues

     A private non-profit corporation that contracted with a city to provide animal welfare services received complaints about conditions at a local pet store. Employees of the company found, during a visit to the store, that the animals there lacked water and that the air conditioning was not working. They removed animals and business records from the store and revoked the store's permit to be a pet dealer. The store sued the city, the company, and its employees (in both their individual and official capacities), claiming that the warrantless seizures violated the Fourth Amendment and that removing the animals and revoking the store's permit without a prior hearing violated procedural due process. A federal appeals court held that one employee, who acted solely as a private animal-welfare officer, could not assert a qualified immunity defense to a personal capacity claim.

     Two other employees, however, acted both as private animal-welfare officers and also as specially commissioned city police officers. They were granted summary judgment on the basis of qualified immunity on the procedural due process claims, and Fourth Amendment claims regarding the seizure of the animals. One was granted summary judgment on claims regarding the seizure of the business records, while a second employee was denied summary judgment on the same claims. Qualified immunity was not available to any employees on the official capacity claims. The city had a strong interest in immediately seizing the animals to protect them from squalid and hot conditions without water, and the post-deprivation hearing was an adequate remedy, so their removal did not violate due process or violate the Fourth Amendment. The revocation of the store's permit violated due process, however, as neither a pre-deprivation or post-deprivation hearing was offered. United Pet Supply, Inc. v. City of Chattanooga, #13-5181, 2014 U.S. App. Lexis 17900, 2014 Fed. App. 240P (6th Cir.).

Defenses: Sovereign Immunity

     A man at a legal casino presented what appeared to be an altered driver's license while trying to collect a slot machine jackpot. He was briefly handcuffed, detained, and turned over to police. Each of these actions by an Illinois Gaming Board agent were carried out in the exercise of his statutory duties arising from his state employment, so he was entitled to sovereign immunity on false imprisonment and intentional infliction of emotional distress state law claims. Even if he acted without probable cause, he did not act beyond the scope of his authority. The intermediate Illinois appeals court upheld a jury verdict in favor of the casino and casino security supervisor on a false imprisonment claim. Grainger v. Harrah's Casino, #3-13-002, 2014 IL App (3d) 130029, 2014 Ill. App. Lexis 670.

Failure to Disclose Evidence

     A detainee, who is now deceased, was held pending trial for approximately two years on charges relating to a series of "demand-note" robberies of small retail businesses. A lawsuit contended that two detectives investigating the crimes failed to disclose that someone else had confessed to the robberies or that the robbery spree continued against the detainee was in custody. The charges against him were ultimately dismissed when his defense lawyer did obtain the information. A federal appeals court ruled that the decedent was entitled to constitutional protection against prolonged detention resulting from police withholding information strongly indicative of his innocence from prosecutors. A jury determination that the detectives withheld the information with deliberate indifference or reckless disregard for the decedent's rights met the standard for a violation of due process. The jury verdict of $106,000 on compensatory damages was upheld, along with an award of attorney's fees and cost. Tatum v. Moody, #10-55970, 2014 U.S. App. Lexis17942 (9th Cir.).

Firearms Related: Intentional Use

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

     Police were told by a confidential informant that a man was a gang member who carried a gun and sold methamphetamine. An officer learned that the man had prior convictions including one for a felony involving a gun. The informant then told the officer where the man was, what his vehicle looked like, that he was then armed and carrying the weapon on his waistband, and that he had said that "he was not going back to prison." Observing that the man's vehicle exhibited a broken tail light, officers executed a traffic stop and surrounded his vehicle in a parking lot. The suspect backed his vehicle into a patrol car, attempting to escape, but stopped. Officers claimed that he ignored orders to get on the ground as he started exiting his vehicle and was reaching for his waistband when they fired 20 shots, killing him. His dead body was tangled in and hanging from his seatbelt, and he had no weapon on him, but a loaded nine-millimeter gun was found on the passenger seat.

    Commenting on the case, a federal appeals court said "Nobody likes a game of 'he said, she said,' but far worse is the game of 'we said, he's dead.' Sadly, this is too often what we face in police shooting cases like this one." The appeals court reversed the trial court's summary judgment on four of the five officers, finding "curious and material factual discrepancies" between their version of events and contradicting evidence. A reasonable jury could find it more likely than not that the suspect did not reach for his waistband because he did not have a gun on him, and based on the testimony of the only non-police eyewitness, a jury might also find that the suspect was trying to get out of the car but got caught in his seat belt. The appeals court upheld summary judgment for the fifth officer, who stated that he couldn't see whether the man reached for his waistband, but fired his weapon because he perceived an immediate threat when he heard shots fired. Cruz v. City of Anaheim, #12-55481, 765 F.3d 1076 (9th Cir. 2014).

First Amendment

     Six "Occupy Nashville" protestors claimed that their arrests for violating a curfew while they were conducting an around-the clock presence at a public plaza violated their First and Fourth Amendment rights. The curfew, they argued, had been adopted in violation of the state's Administrative Procedures Act. A federal appeals court held that, even if that were true, state officials were entitled to qualified immunity because the claimed First Amendment right to an unrestricted 24-hour a day access to the plaza was not a clearly established constitutional right. Occupy Nashville v. Haslam, #13-5882, 2014 U.S. App. Lexis 19154, 2014 Fed. App. 0253P (6th Cir.).

     A federal judge preliminarily enjoined the enforcement of a "five second rule" against anti-police protesters in Ferguson, Missouri. The rule was purportedly used to require protesters to keep moving and prevent them from standing still for too long, under threat of arrest. The court found that the rule was so vague and enforced so arbitrarily with unfettered discretion that it violated due process and the First Amendment right to assemble. "Criminal laws must be defined in a way that allows ordinary people to understand what conduct is against the law." Abdullah v. County of St. Louis, Missouri, #4:14CV1436, 2014 U.S. Dist. Lexis 141744 (E.D. Mo.).

     A city's ordinance prohibited panhandling in its "downtown historic district," constituting less than 2% of the city's land, but containing the state capital's main governmental buildings and the main shopping and entertainment areas. A federal appeals court upheld the ordinance against a First Amendment challenge. Panhandling was defined as an oral request for an immediate donation of money, and the ordinance allowed signs requesting money or oral requests to send money later. The parties had agreed that panhandling was a form of speech protected by the First Amendment and that if the ordinance drew lines on the basis of the content of speech it would be unconstitutional. Here, the court said, the ordinance was "indifferent to the solicitor's stated reason for seeking money, or whether the requester states any reason at all," and did not interfere with the "marketplace of ideas," but instead imposed a valid restriction based on time, place, and manner. Norton v. City of Springfield, #13-3581, 2014 U.S. App. Lexis 18439 (7th Cir.).

Insurance

     A malicious prosecution lawsuit against a police officer and the city that employed him was not covered under the city's insurance policy. The insurance contract's unambiguous language indicated that the "occurrence" triggering coverage was the beginning of the allegedly malicious prosecution, which took place before the policy period, rather than the termination of the prosecution in the plaintiff's favor. St. Paul Fire and Marine Insurance Company v. The City of Zion, #2-13-1312, 2014 IL App (2d) 131212, 2014 Ill. App. Lexis 659.

Public Protection: 911 Phone Systems

     After suffering a pulmonary embolism, a woman dialed 911, telling the dispatcher that she could not breathe and needed emergency assistance. Due to a series of errors by dispatchers and emergency personnel, paramedics did not arrive for about 42 minutes, by which time she was dead. The trial court properly granted summary judgment to the defendants on a wrongful death claim. The decedent had no duty to her under the public duty rule, and no exception applied when she was not under the direct or immediate control of any defendant. Coleman v. East Joliet Fire Protection Dist., #117952, 2014 IL App (3d) 120583-U, 2014 Ill. App. Unpub. Lexis 1217.

Search and Seizure: Home/Business

     An unannounced warrantless inspection of a barbershop was conducted by officers from a county sheriff's office and employees of a state licensing agency for the purpose of finding violations of licensing laws. These actions went beyond a valid administrative inspection and constituted an unreasonable search under the Fourth Amendment. Warrantless administrative searches, it was clearly established, have to be narrowly tailored to serve the administrative need that justifies it. In this case, officers blocked entrances and exits to parking lots so no one could leave or enter, some team members entered with guns drawn, some occupants were handcuffed, etc. The "inspection" was conducted for approximately an hour as though it were a criminal raid, even though there was no indication that there was any threat to safety. Additionally, all barbers were properly licensed and the business was complying with all safety and sanitation rules. The manner in which the "supposed inspection" was conducted "was unreasonable from its inception." Berry v. Leslie, #13-14092 2014 U.S. App. Lexis 17782, 25 Fla. L. Weekly Fed. C 438 (11th Cir.).

Search and Seizure: Vehicle

     Officers had reasonable suspicion for an investigatory Terry stop when they saw a man they believed was a suspect in two homicides in a group on a porch. When they approached, the entire group fled, and it was reasonable for them to conduct further investigation, including stopping a vehicle fleeing the scene, detaining the occupants, drawing a weapon, and handcuffing a suspect while attempting to control the scene and account for those who had been on the porch. Matz v. Klotka, #12-1674, 2014 U.S. App. Lexis 19074 (7th Cir.).

•Return to the Contents menu.

     Arrest: Probable Cause to Arrest, Point of View, Alameda County District Attorney's Office (Winter 2014).

     Extremism: A New Approach to Countering Violent Extremism: Sharing Expertise and Empowering Local Communities, by the executive staff of the FBI's National Security Branch, FBI Law Enforcement Bulletin (Oct. 2014).

     Human Trafficking: Human Trafficking Task Force Strategy e-Guide: Strengthening Collaborative Responses (NCJ 248467), Bureau of Justice Assistance, Office for Victims of Crime (October 2014).

     Privacy: Privacy, Civil Rights, and Civil Liberties (NCJ 248457), Bureau of Justice Assistance-Sponsored (October 2014).

     Search and Seizure: Executing Search Warrants in the Cloud, by John M. Cauthen, FBI Law Enforcement Bulletin (Oct. 2014).

     Statistics: Socio-emotional Impact of Violent Crime, by Lynn Langton and Jennifer Truman, Bureau of Justice Statistics (Sept. 23, 2014).

  Reference:

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