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Assault and Battery: Physical

     A motorist claimed that a trooper who stopped him screamed at him, pulled him out of the car, and injured him by beating him. The trooper claimed, and the motorist denied, that the motorist bent over as if reaching for something, and that a hammer was visible on the floor. The motorist claimed that the hammer was under the seat and not visible. Following the incident, the motorist's face was bruised and an MRI months later showed "minimal disc bulging, Her claimed neck and upper back pain. Summary judgment in favor of the defendant trooper was reversed by a federal appeals court. There were disputed issues of fact, including as to the seriousness of the plaintiff's injuries. The plaintiff's lack of a medical expert on the issue was not fatal to his claim as the injuries of the type claimed were “within the range of common experience.” A jury could weigh the credibility of the plaintiff's version of the incident versus the trooper's and compare the plaintiff's medical records and subjective assessment of pain against the trooper's medical expert testimony. Ziesmer v. Hagen, #14-2229, 2015 U.S. App. Lexis 7713 (8th Cir.).

Disability Discrimination

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

     A woman living in a group home for the mentally ill started to act erratically and threatened to kill her social worker. Two officers were sent to the home to escort her to a facility for temporary evaluation and treatment. When they entered her room, she grabbed a knife, threatening to kill them. They retreated and closed the door, but later reentered, concerned about what was going on within the room, and allegedly without considering if they could accommodate her disability. She again confronted them with the knife, and after pepper spray failed to subdue her, they shot her multiple times. She sued the city for alleged disability discrimination in arresting her without accommodating her disability, and the two officers for allegedly violating her Fourth Amendment rights. A federal appeals court ruled that the Americans with Disabilities Act applied and that the issue of whether the plaintiff's disability should have been accommodated should be decided by a jury. It also held that the officers were not entitled to qualified immunity, since it was clearly established that, in the absence of a need for immediate entry, officers cannot forcibly enter the home of an armed, mentally ill person who has been acting irrationally and threatened everyone who entered.

     The U.S. Supreme Court granted review, but dismissed its review of the issue of whether the ADA "requires law enforcement officers to provide accommodations to an armed, violent, and mentally ill suspect in the course of bringing the suspect into custody" as "improvidently granted." A review of this issue was based on the assumption that the city would argue that the ADA does not apply when officers face an armed and dangerous person. Instead, the city argued that the plaintiff was not "qualified" for an accommodation because she posed a direct threat to others, a threat which could not "be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services." Since the court below had not addressed the issues in that context, review by the U.S. Supreme Court was not proper. The Court also noted that the parties in the case had also failed to address the related question of whether a public entity such as the defendant city could be vicariously liable for damages under Title II of the ADA for an arrest made by its officers. The Court did hold, however, that the two individual defendant officers were entitled to qualified immunity on the Fourth Amendment claims. They did not violate the plaintiff's Fourth Amendment rights when they opened her door the first time, and could, without a doubt, also have opened her door the second time if she had not been disabled. Their use of force in response to her threats with the knife was reasonable. So the only remaining question was whether they violated her Fourth Amendment rights when they opened her door the second time rather than attempting to accommodate her disability. As there was no clearly established law on that issue, they were entitled to qualified immunity. City and County of San Francisco v. Sheehan, #13-1412, 135 S. Ct. 1765, 2015 U.S. Lexis 3200.

Electronic Control Weapons: Stun Mode

     An "Occupy" protester on government land in D.C. started tearing down U.S. Park Police notices from tents. The notices informed occupants that they were required to vacate the premises. He was told that he would be arrested for disorderly conduct if he did not stop his activity. He swore at police, crumpled up notices he had gathered, and threw them away. A video showed him continuing to tear down notices after ordered to stop. As he walked away, an officer tried to grab him from behind. Then a Taser was used on him in stun mode on his back as he allegedly resisted efforts to restrain him. The trial court held that, under the circumstances, no reasonable jury could find that the force used was so excessive that no reasonable officer could believe that it was lawful. The use of the Taser to effect an arrest was reasonably proportionate to the difficult and uncertain situation that the officers faced, so they were entitled to qualified immunity. Lash v. Lemke, #12-0822, 2013 U.S. Dist. Lexis 134951 (D. D.C.). On appeal, a federal appeals court agreed that qualified immunity protected the officers against liability on the Fourth Amendment claim, but on different grounds. The appellate court ruled that a person actively resisting arrest does not have a clearly established right against a single use of a Taser to subdue him. The court also granted summary judgment to the officers on a First Amendment claim because the plaintiff failed to meaningfully advance the argument on appeal. There was nothing in the record to indicate that the use of force was retaliatory for the plaintiff's First Amendment expression. Lash v. Lemke, #13-5308, 2015 U.S. App. Lexis 8011 (D.C. Cir.).

Failure to Disclose Evidence & Loss of Evidence/Preservation of Evidence

     A man's conviction for rape ad murder was reversed after 29 years of incarceration. A state judge subsequently dismissed the charges, finding that the prosecution had destroyed key exculpatory evidence. In a lawsuit against a prosecutor and state crime lab technicians, the man alleged shocking prosecutorial misconduct, including: destroying potentially exculpatory evidence from the crime scene; arranging for highly suggestive hypnosis of an eyewitness; contriving suggestive identification show-ups; concealing a later confession from a third party that was relayed by a person with no apparent motive to fabricate the report; and enlisting lab technicians to perform an inconclusive DNA test that consumed the last of a sample that could have proven the plaintiff's innocence and identified the true killer. A federal appeals court upheld the denial of qualified immunity to the defendants. At the time of the original investigation, it was clearly established that bad faith destruction of exculpatory evidence, which was alleged, would violate a suspect's due process rights. A reasonable prosecutor could not have believed that evidence could legally be destroyed or lost to avoid disclosing it. Armstrong v. Daily, #13-3482, 2015 U.S. App. Lexis 7761 (7th Cir.).

False Arrest/Imprisonment: Unlawful Detention

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

    A couple were out walking with their daughter, grandson, and a dog. The man carried a cell phone, holstered on his hip, next to a semiautomatic handgun. a motorcyclist passing by stopped to complain about the visible weapon, and after a heated argument, called 911. The dispatcher stated that the weapon was legal in Ohio with a concealed carry weapon permit. An officer was dispatched, and took possession of the man's weapon. The officer threatened to arrest the man for inducing panic and placed him in handcuffs. After the officer discovered that the man had a carry permit for the weapon, he released him while citing him for failure to disclose personal information, a charge later dropped. The man had produced his driver's license, but told the officer to look up his carry permit. While the trial court rejected First and Second Amendment charges against the officer on summary judgment, it permitted Fourth Amendment and state law claims to go forward.

     A federal appeals court upheld this result. It noted that the officer had the right to approach the plaintiff and ask him questions, but that Ohio law permitted the man, with his permit, to do exactly what he was doing, openly carry his firearm. The officer had no basis for uncertainty abut the law, and had no evidence that the man was dangerous. All that he saw was that the man was armed, and legally so. There was no basis for reasonable suspicion of inducing panic or that the man needed to be disarmed, and allowing stops in these circumstances would effectively eliminate Fourth Amendment protection for legally armed persons. The court noted that "Not only has the State made open carry of a firearm legal, but it also does not require gun owners to produce or even carry their licenses for inquiring officers." While the officer also claimed that the man made a "furtive motion" towards his weapon before being disarmed, that was disputed and was an issue of fact for a jury. A second officer, who did not arrive on the scene until after the plaintiff was already handcuffed and placed in the back of the first officer's car, however, was entitled to qualified immunity, as he had not detained, disarmed, or handcuffed the plaintiff. Northrup v. City of Toledo Police Dep't., #14-4050, 2015 U.S. App. Lexis 7868, 2015 Fed. App. 0092P (6th Cir.).

Firearms Related: Second Amendment Issues

     An Illinois municipality passed an ordinance prohibiting possession of defined "assault weapons" or large-capacity magazines (able to accept over 10 rounds). In addition to prohibiting AR-15s and AK-47s by name as "assault weapons," it also included in the definition any semi-automatic gun that can accept a large-capacity magazine and has: a pistol grip without a stock (for semi- automatic pistols, the capacity to accept a magazine outside the pistol grip); a folding, telescoping, or thumbhole stock; a grip for the non-trigger hand; a barrel shroud; or a muzzle brake or compensator. A lawsuit sought to enjoin enforcement of the ordinance as violating the Second Amendment, a claim the trial court rejected. A federal appeals court upheld this result, commenting that the rights guaranteed under the Second Amendment did not "imperil every law regulating firearms." The court declined to decide what "level" of scrutiny should be applied in Second Amendment claims. Instead, the court concluded that whether the right to possess weapons should be extended to the types of weapons at issue in the case was one that had to be decided by the U.S. Supreme Court. For now, the court noted that, while the weapons at issue could be used for self-defense, the ban left residents with many alternative defense options, and that there was data indicating that similar bans reduced the share of gun crimes involving assault weapons. Friedman v. City of Highland Park, #14-3091, 784 F.3d 406 (7th Cir. 2015).

Immigrants and Immigration Issues

     The plaintiffs, who were illegal aliens, sought to pursue Bivens civil rights claims against federal border patrol agents who allegedly illegally stopped and arrested them. A federal appeals court, noting that it had not previously extended Bivens civil rights actions to include claims arising from civil immigration apprehensions and detentions, other than those involving excessive force, declined to do so. It further found that the comprehensive rules and remedies found in immigration statutes and regulations precluded "crafting" an implied damages remedy. Allowing claims for damages in this context, which were likely to be minimal, would be unlikely to provide significant additional deterrence to illegal acts, and the court also noted that there were serious separation of powers issues that would be implicated in trying to do so. De La Paz v. Coy, #13-50768, 2015 U.S. App. Lexis 7977 (5th Cir.).

Malicious Prosecution

     The plaintiff was convicted of rape and murder, but later acquitted of those charges on retrial 19 years later. His claims for alleged due process violations and malicious prosecution against the county and its police were tried jointly with those of two other persons whose convictions for the same crime had also been vacated. The jury found in favor of the defendants. A federal appeals court upheld this result, including the trial judge's ruling denying the plaintiff a separate trial on the grounds that the statements attributable to the other two plaintiffs were admissible not on the issue of whether there was probable cause to arrest the plaintiff, but instead to show lack of malice. This ruling was not an abuse of discretion. Additionally, as most of these statements admitted did not explicitly or implicitly mention the plaintiff, they did not unfairly prejudice him. Kogut v. County of Nassau, #13-3130, 2015 U.S. App. Lexis 7934 (2nd Cir.).

Public Protection: Ill Persons

     A mother called 911 to report that her daughter was having an asthma attack and to ask for assistance. The mother claimed that the officers, in seizing her daughter when they arrived and opting to wait for an ambulance to arrive to transport the daughter to the hospital, caused a delay resulting in the girl's death. A federal appeals court upheld summary judgment for the defendant city and its officers. To the extent that there was a seizure for Fourth Amendment purposes, it was reasonable under the circumstances based on the officers' community caretaking function and their concern for the safety of everyone involved. A Fourteenth Amendment due process claim was rejected because the officers, facing a "hyperpressurized" environment, acted sensibly in waiting for the incoming ambulance, which was only "seconds away." Vargas v. City of Philadelphia, #13-4590, 783 F.3d 962 (3rd Cir. 2015).

Wiretapping

     FBI agents were conducting an authorized wiretap on a man's phone as part of a securities fraud investigation. The man's wife sued 16 FBI agents, claiming that they violated Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2522 by listening to her private conversations with her husband. The trial court denied the defendants' motion for qualified immunity and for failure to state a claim. It found that the complaint did state a claim despite its failure to mention minimization, Under Title III, it is a violation to fail to "minimize the interception of communications not otherwise subject to interception," in other words not relevant to the subject of the investigation. A federal appeals court reversed the ruling on the motion to dismiss for failure to state a claim, noting that the complaint lacked specific factual allegations and "recites only legal conclusions." The court also concluded that the trial court, in analyzing the qualified immunity defense, should have "assessed the reasonableness of the agents' minimization efforts as they relate to each defendant." The appeals court ordered dismissal "without prejudice to repleading," whereupon the qualified immunity defense could be further examined. Drimal v. Makol, #13-2963, 2015 U.S. App. Lexis 8082 (2nd Cir.).

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     Body Worn Cameras: Body-Worn Video Cameras for Law Enforcement Assessment Report, U.S. Dept. of Homeland Security, Science and Technology Directorate, prepared by the Space and Naval Warfare Systems Center (April 2015).

     Body Worn Cameras: Civil Rights Principles on Body Worn Cameras, signed by a coalition of privacy advocates (May 2015).

     Body Worn Cameras: Efficacy of Police Body Cameras for Evidentiary Purposes: Fact or Fallacy? The Police Chief (May 2015).

     Body Worn Cameras:  Office of Justice Programs Comprehensive Body-Worn Camera Program (NCJ 248833), Bureau of Justice Assistance (May 2015).

     Forensic Science: Altered Fingerprints: A Challenge to Law Enforcement Identification Efforts, by the FBI’s Criminal Justice Information Services Division, Latent and Forensic Support Unit, FBI Law Enforcement Bulletin (May 2015).

     Statistics: Crime Against Persons with Disabilities, 2009–2013 - Statistical Tables, by Erika Harrell, Bureau of Justice Statistics, May 21, 2015 NCJ 248676.

     Statistics: Local Police Departments, 2013: Personnel, Policies, and Practices, by Brian A. Reaves, Bureau of Justice Statistics, May 14, 2015 NCJ 248677.

  Reference:

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