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Assault and Battery: Handcuffs

     An arrestee sued arresting officers for excessive force, based on his claim that they refused to accede to his request that he be handcuffed with his hands in front of him rather than behind him. He said that he had explained that he had recently undergone stomach surgery and therefore could not have his hands cuffed behind his back. A federal appeals court held that the defendant officers were entitled to qualified immunity because the plaintiff had no clearly established constitutional right to be cuffed with his hands in front of him. The officers were aware that the plaintiff had a serious and recent criminal history, they encountered resistance from him in making the arrest, and they did look at the site of his recent surgery and believed that using the standard handcuffing technique would not cause a new injury or exaggerate an existing one, especially as his scar was on his stomach. Most of the prior cases finding excessive force incident to handcuffing involved arrestees who had injuries to their shoulders or arms. Hunt v. Massi, #14-1379, 2014 U.S. App. Lexis 23204 (1st Cir.).

Assault and Battery: Physical

     A man claimed that while he was in traffic court a deputy beckoned him to a group of officers, warning him not to "eyeball" them. When he objected that he was not doing so, an officer allegedly told him to shut up, and grabbed him. When he asked the officer to let go, he claimed, a number of officers handcuffed him, threw him against a wall, causing a nose bleed, threw him to the floor and twice deployed a Taser in the stun mode against him, before hog tying him and dragging him away. He was subsequently found guilty of disorderly conduct and refusal to submit to arrest. A federal appeals court overturned the dismissal of an excessive force claim. A finding of excessive force on the pat of the officers would not necessarily imply the invalidity of the criminal conviction fr disorderly conduct and resisting arrest, so that the conviction did not bar the civil rights claim. Colbert v. City of Monticello, #13-3037, 2014 U.S. App. Lexis 24555 (8th Cir.).

Attorneys' Fees: For Plaintiff

     A man sued the City of Chicago and a number of its officers for excessive force, false arrest, and unlawful search and seizure as well as associated claims. He accepted an offer of judgment from the defendants under Federal Rule of Civil Procedure 68(a) of $10,001 "plus reasonable attorney's fees and costs accrued to date." The plaintiff and defendants were subsequently unable to reach an agreement on the amount of attorneys' fees, with the plaintiff asking for $22,190.50. After further proceedings, the court awarded $17,205.50, less than requested. The plaintiff then requested an additional $16,773 in attorneys' fees for the time spent litigating the fees petition. While the defendants argued that an award of further fees would be violative of the settlement agreement, the trial court awarded an additional $2,000 “to compensate for time spent responding to challenges to the fees that were unsupported and improper." The federal appeals court upheld this award, finding that the trial court had the authority under 42 U.S.C. Sec. 1988 to award the additional fees and did so only for the conduct of the defendants that "fell outside" the provisions of the offer of judgment. Rule 68(a) did not limit the court's authority to fashion remedies for offending conduct. Morjal v. City of Chicago, #14-1365, 2014 U.S. App. Lexis 23980 (7th Cir.).

Dogs

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

     A woman who had been drinking wine drove her car into a ditch and then walked to a gas station where she encountered EMTs refueling their ambulance. They called police after smelling alcohol on her breath and she ran to hide behind the station. A deputy arrived with a police dog, accompanied by other officers and a civilian "ride along." The deputy told the dog to track the woman and said that he was concerned about her wellbeing because she was wearing sandals and a short-sleeved shirt despite cold and wet weather, and feared that she might be injured.

     He entered a swamp area, slipped and fell, and then looked up and heard screaming as the dog bit the woman's leg. He waited for the woman to stop moving to make sure that she had no weapons. He released her from the dog after 10 to 20 seconds, and called for EMTs to attend to her. The woman claimed that she was squatting to urinate when the deputy sicced the dog on her as officers yelled for her to put her hands on her head. The deputy stated that the woman was belligerent and on her back kicking the dog. A federal appeals court upheld a denial of qualified immunity to the defendants on excessive force claims, finding that a jury could reasonably believe, based on conflicting accounts as to whether the detention-by-canine was an accident or intentional, that the deputy intentionally detained the woman with an unconstitutional level of force. Greco v. Cnty. of Livingston, #14-1203, 2014 U.S. App. Lexis 24109 (6th Cir.).

Firearms Related: Intentional Use

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

    Riding home from a bar with his aunt and her boyfriend, a man talked about killing himself. When the car got to his apartment, he jumped out, ran inside, and locked the door. His aunt called 911 to report a possible suicide. Multiple officers arrived, heard the apartment door crash open and observed the suicidal man holding a shotgun in one and with his aunt holding his other arm. The ordered him to drop the gun, and the aunt fell, freeing his other arm. The officers stated that the man chambered a round and aimed the gun at them before they fired, hitting him in the eye, forearm, hands, groin, hip, and shin. A live round was found in the shotgun's chamber and the man was convicted of terrorizing. The aunt claimed that her nephew had been putting the shotgun down when the officers opened fire on him. Reversing a trial court denial of qualified immunity to the officers on an excessive force claim, a federal appeals court reasoned that, while it was possible that the officers were mistaken about the man aiming the gun at them, their mistake was objectively reasonable under the circumstances. Partlow v. Stadler, #14-1281, 2014 U.S. App. Lexis 24131 (8th Cir.).

First Amendment

     Ku Klux Klan members in a small city regularly distributed leaflets on streets and sidewalks wearing robes and hoods. Klan members leafleting about gun rights stood at a sidewalk near a four way stop holding up leaflets and stepping into the streets to supply one if a vehicle occupant signaled for one. Police informed them that a new ordinance prohibited distributing anything to the occupant of a vehicle. While litigation was pending, the ordinance was amended to explain that it sought to address public safety concerns, such as distracting drivers and resulting collisions. Overturning an injunction against the ordinance as not sufficiently narrowly tailored to serve an important governmental interest, a federal appeals court ruled that there was no evidence that the purpose of the ordinance was to curtail the Klan's message or limit its speech, and the record did not show an obvious, less burdensome alternative. Traditionalist Am. Knights of the Ku Klux Klan v. City of Desloge, #13-3368, 2014 U.S. App. Lexis 24422 (8th Cir.).

    Chicago police arrested 130 demonstrators from Occupy Chicago for violating a Park District Ordinance prohibiting remaining in a city park from 11 p.m. to 6 a.m. An intermediate Illinois appeals court held that the ordinance was not overbroad in violation of the First Amendment. It only applied to city parks, and only restricted presence there for seven hours at night. It did not bar anyone from engaging in expressive activities on public sidewalks or other adjacent public spaces outside the parks, thus providing ample opportunities for expressive activities outside the parks during late night hours. The ordinance was also not selectively enforced. The City of Chicago v. Alexander, 2014 IL App (1st) 122858 2014 Ill. App. Lexis 924.

Malicious Prosecution

      A man was arrested for murder based on an investigating police sergeant's affidavit for a warrant. He was subsequently convicted but the conviction was later overturned on appeal for insufficient evidence. He sued the sergeant for malicious prosecution, claiming that the affidavit for the warrant purposefully distorted a statement by a witness who saw a car containing two young men with light brown hair like the plaintiff's drive by the murdered man's home not long before the murder. A federal appeals court held that the sergeant was entitled to qualified immunity as there was ample evidence of probable cause for the arrest, including ballistics evidence showing that the plaintiff's gun, found in a duffle bag with hairs similar to his, was the murder weapon. There was no evidence that the sergeant had deliberately or recklessly misrepresented anything in the affidavit. Newman v. Twp. of Hamburg, #14-1455, 2014 U.S. App. Lexis 23366 (6th Cir.).

Search and Seizure: Home/Business

     A 22-year-old an was in his apartment at night with two friends when police knocked on the door, yelled "police, search warrant," and started to force open the front door. The man ran upstairs to his bedroom, grabbed an unloaded shotgun and pointed it at the officers as they followed him up the stairs. An officer shot him dead. The man's estate, in a lawsuit claiming that the search was conducted in an unreasonable manner, argued that there was no need to conduct it after dark because the officers were only searching for loot of "modest value." It was also argued that the man, when looking out the front window after the knocking, had seen one of the officers holding an automatic rifle, dressed in a dark hoodie, having long hair, earrings, a goatee, and sideburns, and yelled something like "we are getting robbed again" before fleeing upstairs to get the shotgun. A federal appeals court upheld summary judgment for the shooting officer, agreeing that even if he may have exceeded proper constitutional bounds in leading the search, given his undercover appearance, he was still entitled to qualified immunity. There was insufficient evidence to support claims against the county when the plaintiff's lawyer failed to authenticate an expert witness report that could not be admitted into evidence absent a signed affidavit. Estate of Brown v. Thomas, #14-1867, 771 F.3d 1001 (7th Cir. 2014).

Search and Seizure: Persons

     Under current security procedures imposed by the Transportation Security Administration (TSA), some passengers cannot pass through some security checkpoints without submitting to a pat-down that includes security personnel touching areas around the groin and breasts to search for concealed metallic and non-metallc weapons. A woman whose job required her to fly frequently, had a metallic joint replacement and was often subjected to such searches. She sued the TSA, claiming that its standard pat-down constituted an unreasonable search in violation of the Fourth Amendment, as well as violating federal disability discrimination law, specifically the Rehabilitation Act of 1973. A federal appeals court rejected both claims. The TSA could conduct pat-downs to search for weapons on passengers who triggered walk-through metal detector alarms just as it did for passengers who declined to pass through advanced imaging technology scanners. The security procedures did not discriminate against persons with metallic joint replacements as the plaintiff could not point to any government benefit, service, program, or facility to which the TSA's screening denied her meaningful access on the basis of a disability. Ruskai v. Pistole, #12-1392, 2014 U.S. App. Lexis 24350 (1st Cir.).

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     Homeless Persons: Policing the Homeless: One Community’s Strategy, by Steve Marcin, FBI Law Enforcement Bulletin (November 2014).

     In Custody Deaths: A new federal law, the Death in Custody Reporting Act of 2013, was signed as Public Law No. 113-242 (December 18, 2014).

     Statistics: Background Checks for Firearm Transfers, 2012 - Statistical Tables, by Joseph M. Durso, Ronald J. Frandsen, Jennifer C. Karberg, and Alina D. Lee, Bureau of Justice Statistics, December 9, 2014 NCJ 247815.

     Statistics: Household Poverty and Nonfatal Violent Victimization, 2008–2012, by Marcus Berzofsky, Lance Couzens, Erika Harrell, Lynn Langton, and Hope Smiley-McDonald, Bureau of Justice Statistics, November 18, 2014 NCJ 248384.

     Terrorism: Increasing Terrorism Preparedness of Law Enforcement Agencies, by Jeremy W. Francis, FBI Law Enforcement Bulletin (December 2014).

  Reference:

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