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Attorneys' Fees: For Plaintiff

     A jury found that a police officer used excessive force in allegedly using a Taser in the stun mode repeatedly and punching an arrestee at a police station while he was in handcuffs. It awarded $1 in compensatory damages and $7,500 in punitive damages against the officer. The trial judge then awarded $187,467 in attorneys' fees, rejecting arguments that the plaintiff could not collect attorneys' fees because the compensatory damages awarded were minimal, and holding that the plaintiff's victory was "real, not Pyrrhic" because of the sizable award of punitive damages against the officer. The plaintiff argued that the city should indemnify the officer for the attorneys' fee award. While the trial court ruled that the city was liable for the fees under the Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/9-102, a federal appeals court reversed, finding that the language of the state statute gave the city discretion as to whether to decide to indemnify an officer for an award of attorney's fees associated with an award of compensatory damages. It also rejected an argument that the terms of a collective bargaining agreement with the police union required that the city pay the attorneys' fee award, as the agreement does not explicitly address attorneys' fees, but only "damages or monies." Winston v. O'Brien, #14-1371, 2014 U.S. App. Lexis 21290 (7th Cir.).

Domestic Violence

     A woman who was a victim of domestic violence claimed that an officer made a number of statements to her concerning her husband, such as "everything is ok, everything is in process," and "he's going to be in prison for a while." The husband two days later later stabbed her with a knife. She claimed that she justifiably relied on the officer's reassurances. The highest court in New York overturned summary judgment for the defendant police department, finding that the evidence presented was sufficient to raise a triable issue of fact as to whether there was a special relationship that existed between her and the police. The court rejected negligent infliction of emotional distress claims on behalf of the woman's child, who was in a broom closet at the time of the attack, and therefore was not in the zone of danger. Coleson v. City of New York, #191, 2014 N.Y. Lexis 3344, 2014 NY Slip Op 08213.

Firearms Related: Intentional Use

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

     A federal court jury awarded a total of approximately $97.5 million for the police shooting death of a man who was the former mayor of Cottageville, South Carolina. Damages awarded included $7.5 million in compensatory damages, as well as $90 million in punitive damages--$60 million against the town and $30 million against the officer. The officer who shot the decedent had been hired by the department after being previously fired by a number of other police departments for insubordination, dangerous use of firearms, and other alleged infractions. The officer claimed that the shooting was in self-defense because the decedent threw "wild" punches at him. His attorney argued that the decedent suffered from a bipolar disorder and was enraged during the incident. The plaintiffs contended that the decedent had complained about the officer, who wrote traffic tickets worth over $600,000 from 2008 to 2011, more than any other officer on the force, and that the shooting was retaliatory for the decedent's complaints intended to get rid of the officer because of his aggressive policing. Reeves v. Town of Cottageville, #2:12-cv-02765, U.S. Dist Ct., (D.S.C. Oct. 15, 2014). In an earlier decision, the trial judge commented that evidence of the officer's departure from six other law enforcement agencies in seven years was "obviously admissible" against him with respect to the claim that the town and police department negligently hired, retained, and supervised the officer, and a claim for municipal liability for violation of civil rights. This evidence, the court ruled, had a bearing on whether the municipal defendants properly evaluated the officer's credentials befire hiring him. Reeves v. Town of Cottageville, #2:12-cv-02765, 2014 U.S. Dist. Lexis 120619 (D.S.C.).

     A deputy sheriff shot and killed a man in his home, entering without a warrant while responding to a 911 call that the man was sitting in his truck threatening to commit suicide. He had been holding a loaded gun to his head. It was not a Fourth Amendment violation to enter the home, as the deputy had an objectively reasonable belief that the decedent would imminently injure himself. The deputy was entitled to qualified immunity on excessive force claims, since the decedent was arrmed and moving toward him. The deputy fired believing it necessary to protect himself and others. Claims against the sheriff were also rejected, as was a claim to collect accidental death benefits under a life insirance policy, as there was ample evidence that the death was not accidental. Rice v. Reliastar Life Ins. Co, #13-30639, 770 F.3d 1122 (5th Cir. 2014).

     A detective did not use excessive force in shooting and killing a passenger in a moving vehicle, despite the fact that the decedent had not been the intended target. The officer was trying to stop the car by shooting at the driver who had hit him with the vehicle, and after hearing a fellow officer fire in what he thought was self-defense. The defendant officer's use of deadly force was objectively reasonable, entitling all defendants to summary judgment. The appeals court stated that the “calculus of reasonableness” takes into account the fact that police officers must often “make split-second judgments in circumstances that are tense, uncertain, and rapidly evolving,” Accordingly, an officer does not violate the Fourth Amendment where, although ultimately wrong in his or her assessment of the circumstances, “a dangerous situation evolved quickly to a safe one before the police officer had a chance to realize the change.” Cass v. City of Dayton, #13-4409, 770 F.3d 368 (6th Cir. 2014).

Freedom of Information

     A New York trial court, in a decision described as unprecedented as applied to a state or local agency, ruled that the New York Police Department could respond to a state open records request by refusing to either confirm or deny whether records that would fulfill the request exist. This is knwn as a "Glomar" response used to deny a record request and previously had only been allowed in requests to federal agencies for records that involved national security matters. The Glomar exception came in the federal case of the ship the Glomar Explorer, used in an operation to retrieve a sunken Soviet submarine. The refusal to either admit or deny that records of this operation existed was upheld in Phillippi v. CIA, #76-1004, 546 F.2d 1009 (D.C. Cir. 1976), The immediate case involved a request by a Muslim for records concerning alleged police surveillance of him and his mosque. The police department refused to disclose whether such records exist and took the position that, even if they did, they would be exempt from disclosure under a state Freedom of Information law. Disclosing "the existence of responsive records would reveal information concerning operations, methodologies, and sources of information of the NYPD, the resulting harm of which would allow individuals or groups to take counter-measures to avoid detection of illegal activity, undermining current and future NYPD investigations.” Abdur-Rashid v. New York City Police Department, #101559/2013, 992 N.Y.S.2d 870, 2014 N.Y. Misc. Lexis 4114, 2014 NY Slip Op 24271 (Sup. New York County).

Public Protection: Informants

     A man who had served as an informant to a detective was shot and killed outside a diner.. His estate sued, claiming that the county prosecutor's office and that office's former chief of detectives had improperly revealed to organized crime members his status as an informant, thereby constituting a state created danger that led to his death, in violation of his due process rights. The lawsuit also challenged a 2004 search of the decedent's home and the seizure of his property. The search and seizure claims were time barred, but a federal appeals court held that the lawsuit supported a reasonable inference that neither defendant had acted within the bounds of classical investigatory and prosecutorial function for purposes of the state created danger doctrine, so the trial court erred in viewing them as part of the state not amenable to liability. On remand, however, the trial court had to determine whether Eleventh Amendment immunity applied to the prosecutor's office. Estate of Lagano v. Bergen County Prosecutors, #13-3232, 769 F.3d 850 (3rd Cir. 2014).

Search and Seizure: Home/Business

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

     The plaintiffs claimed that an officer illegally entered the backyard of their property, going onto their deck without a search warramt. A federal appeals court ruled that these actions violated the Fourth Amendment as a matter of law, as the "knock and talk" exception to the warrant requirement mandates that officers begin such encounters at the front door, where there is an implied invitation to go. The U.S. Supreme Court unanimously reversed the appeals court's determination that the officer was not entitled to qualified immunity. A government official sued for civil rights violations under Section 1983 is entitled to qualified immunity unless they violated a statutory or constitutional right that was "clearly established" at the time of the alleged conduct. There was no clearly established precedent at the time that the "knock and talk" exception to the warrant requirement had to begin at the front door. Carroll v. Carman, #14-212, 135 S. Ct. 348, 190 L. Ed. 2d 311, 2014 U.S. Lexis 7430.

     Occupants of a home sued two officers and a city for a warrantless entry into the home's yard to investigate a tip that two guns were in an abandoned vehicle on the property, in the course of which one of the officers shot and killed the family dog. A federal appeals court found that the officers had no warrant, no probable cause plus exigent circumstances, and had not offered any other basis that would make their entry lawful. The officers therefore violated the plaintiffs' Fourth Amendment rights and were not entitled to qualified immunity as their actions, under the undisputed facts, would not have been objectively reasonable. Harris v. O’Hare, #12-4350, 770 F.3d 224 (2nd Cir. 2014).

Search and Seizure: Person

     A motorist, having driven to a store's parking lot and exited his car, was ordered to get back into his vehicle and show his driver's license, registration, and proof of insurance by an officer who exited a police vehicle that pulled in behind him. He was arrested for refusing to comply, and subsequently pled guilty to driving on a suspended or revoked license. He argued in a lawsuit that the officer had no basis for ordering him to reenter his vehicle and that the order to do so constituted an unreasonable seizure. The federal appeals court rejected a lower court ruling that the lawsuit was barred by the conviction because a judgment in the plaintiff's favor would imply that the conviction was invalid. Because the plaintiff had pled guilty, a finding of illegal seizure would have no relevance to the validity of the plea and subsequent sentence. Rollins v. Willett, #14-2115, 770 F.3d 575 (7th Cir. 2014).

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     Body Cameras: ACLU - Illinois: Suggested Guidelines on Use of Body Cameras by Police (Sep. 2014).

     Body Cameras: Are You Recording This?: Enforcement of Police Videotaping, by Martina Kitzmueller, 47 (1) Conn. L. Rev. 167-196 (Nov. 2014).

     Racial Profiling: U.S. Department of Justice, Guidance for Federal Law Enforcement Agencies Regarding the Use of Race, Ethnicity, Gender, National Origin, Religion, Sexual Orientation, or Gender Identity (December 2014).

     Terrorism and Narional Security: Senate Select Committee on Intelligence, Committee Study of the Central Intelligence Agency's Detention and Interrogation Program Executive Summary (Declassified Dec. 3, 2014). CIA Response (Approved for Release Dec. 8, 2014).

     Use of Force: Investigation of the Cleveland Division of Police, U.S. Attorney's Office, Northern District of Ohio, Findings Letter (Dec. 4, 2014). Joint Statement of Principles by the U.S. Department of Justiice and the City of Cleveland Regarding the Cleveland Division of Police (Dec. 2, 2014).

     Use of Force: Graham, M.A. Investigation of Deaths Temporally Associated with Law Enforcement Apprehension, Acad Forensic Pathol. 2014 4 (3): 366-389. Abstract.

  Reference:

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