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Defenses: Statute of Limitations

     A man served his full ten year sentence for rape and residential burglary, after which his conviction was vacated because of newly available DNA evidence. He sued a police detective involved in his case, accusing him of fabrication of evidence. Overturning a trial court's dismissal of the lawsuit, a federal appeals court found that the claim did not accrue until the plaintiff was acquitted of all charges, so that the lawsuit was filed in a timely fashion within the applicable three year statute of limitations and was not time barred. The appeals court did not address the detective's qualified immunity defense, as the court below had not reached the issue. Bradford v. Scherschligt, #14-35651, 803 F.3d 382 (9th Cir. 2015).

Domestic Violence and Child Abuse

     A couple claimed that police officers had violated their rights by taking their children into protective custody without a warrant or court order. A jury awarded over $3 million in damages (including $2 million in punitive damages) and the trial judge ordered a new trial on compensatory and punitive damages, believing that the jury may have impermissibly awarded damages for injuries that would have been suffered even absent the constitutional violation. A jury then awarded a total of $210,002, with only compensatory damages and no punitive damages awarded. A federal appeals court found no error and upheld the reduced award, finding that the trial court could conclude that the jury in the first trial had awarded damages for emotional distress resulting from the separation from the children that was not caused by the defendant officers. Additionally, the punitive damages awarded after the first trial could have resulted from passion and prejudice rather than an assessment of what injuries the officers could properly be held responsible for. Watson v. City of San Jose, #13-15019, 800 F.3d 1135 (9th Cir. 2015).

False Arrest/Imprisonment: Warrant

      A man encountered two men fishing on a bridge near his property and fired a shotgun at them from his deck when they failed to identify themselves. A verbal altercation ensued and both sides called the police. The fishers told a deputy that the man had shot at them while he claimed to have fired away from them. The deputy's supervisor, informed of this, ordered him to seize the shotgun and to draft a complaint stating that there was probable cause hat the property owner had unlawfully used a shotgun. The deputy later admitted that he did not think that the use of the shotgun violated Missouri law. A prosecutor obtained an arrest warrant, and probable cause was found at a preliminary hearing, but the arrestee was acquitted. A federal appeals court found that, under these circumstances, the deputy was entitled to qualified immunity on a false arrest claim, as the evidence, viewed in the light most favorable to the plaintiff, did not show a violation of his constitutional rights. The deputy made no false statement as the assertion that the plaintiff had committed an offense was not a false statement of fact, but a legal conclusion. Bowden v. Meinberg, #14-3074, 2015 U.S. App. Lexis 14940 (8th Cir.).

Firearms Related: Intentional Use

      An officer shot and killed a man when responding to a reported armed robbery. There was a break between the officer firing his first five shots and the allegedly fatal final two shots. He was not entitled to qualified immunity on an excessive force claim because, based on the evidence viewed in the light most favorable to the plaintiff, a reasonable jury could conclude that the decedent would have appeared incapacitated to an objectively reasonable officer when the final two shots were fired. Mason v. City of Lafayette, #14-30021, 2015 U.S. App. Lexis 19598 (5th Cir.).

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

     City police officers assigned to provide security outside a Black Family Reunion, were told that young African American males were throwing guns over a fence to persons already inside. When the officers approached them, they ran away, heading towards downtown. An officer later saw a 16-year-old black male walking with two persons he recognized from the group outside the event. The 16-year-old was holding and trying to conceal his right side and the officer suspected that he had a weapon. he held the youth to the ground, and the youth then brandished a gun and threw it 10-15 feet away. As the youth threw his weapon, the officer rose from a crouched position and fired twice. A video of the incident showed that no more than 5 seconds elapsed between the weapon being thrown and the officer firing his second shot. The youth died, and a federal appeals court, while terming the death a "tragedy," ruled that the officer was entitled to qualified immunity, as his "split-second" decision to fire was not objectively unreasonable. Mullins v. Cyranek, #14-3817, 2015 U.S. App. Lexis 19485, 2015 Fed. App. 0273P (6th Cir.).

     An officer, following a pursuit of a man's vehicle, shot the driver through the windshield and side window, killing him. The officer's appeal of the trial court's denial of his claim for qualified immunity basically challenged the court's determination that there were genuine disputes over issues of material fact, including whether or not the motorist was attempting to run the officer down with his car, so the appeals court determined that it lacked jurisdiction over his appeal, those disputes not being resolved. Thompson v. Murray, #14-2250, 800 F.3d 979 (8th Cir. 2015).

First Amendment

     A D.C. regulation forbids anyone from camping on public property without the mayor's approval. Members of the "Occupy Movement" sued, claiming that their arrests violated their constitutiobal rights under the Fourth and First Amendments. A federal appeals court held that the officers had probable cause for the arrests as the plaintiffs clearly set up a tent as defined by the regulation on public land without authorization. Qualified immunity protected the officers from liability on the plaintiffs' claim that they were arrested in retaliation for their protests in violation of the First Amendment, as such arrests based on probable cause did not violate clearly established law. Dukore v. District of Columbia, #13-7150, 799 F.3d 1137 (D.C. Cir. 2015).

Governmental Liability: Policy/Custom

      A man was convicted of rape and murder, with the evidence against him including testimony and confessions from his five co-defendants, all of whom pled guilty to various charges in connection with the crime. 19 years later, based on DNA testing, all the convictions were pardoned or overturned. They sued the county and officers involved in the case, and in earlier proceedings, it was determined that their “evidence is sufficient to support plaintiffs’ claims that their rights to fair criminal proceedings were violated as the result of a reckless investigation and defendants’ manufacturing of false evidence,”that the evidence was sufficient to support a conspiracy claim, but was not sufficient to support a coercion claim; that members of the sheriff’s office were not protected by qualified immunity; and that the county attorney was protected by absolute immunity. A federal appeals court affirmed the denial of qualified immunity to the officers, and ruled that claims against the county should not have been rejected, since the plaintiffs “produced proof of questionable procedures” and “hasty condemnation” by officers in charge of policy-making. There was sufficient evidence that the sheriff was a final policymaker for the county, and created its applicable policies, supervised officers, and encouraged, directed, and endorsed their activities. Dean v. Cnty. of Gage, #14-1747, 800 F.3d 945 (8th Cir. 2015).

Police Plaintiffs: Search and Seizure

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

     A number of police officers claimed that two other officers violated their Fourth and Fourteenth Amendment rights when they complied with a court order to obtain DNA samples from them to exclude them as possible contributors of DNA at a crime scene. The samples were of saliva, obtained by use ol a mouth swab. A federal appeals court ruled that the court order in question satisfied the Warrant Clause of the Fourth Amendment, and that no undue intrusion occurred as the use of buccal swabs was brief and minimal, intrusions that involve almost no risk, trauma, or pain. As to a reasonable expectation of privacy, it was reasonable to require officers to produce such samples to to demonstrate that DNA left at a crime scene was not theirs and was not the result of inadvertent contamination of the crime scene by on-duty officers. Bill v. Brewer, #13-15844, 799 F.3d 1295 (9th Cir. 2015).

Terrorism and National Security Issues

     A trial court ruled that the federal government's "bulk data program" collection was an unlawful search under the Fourth Amendment. The program, started pursuant to the USA PATRIOT Act, under which Sec. 215 empowers the FBI to request, and the Foreign Intelligence Surveillance Court to enter, orders “requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation . . . to protect against international terrorism.” The trial court enjoined the government from collecting the plaintiffs' call records, but the order was stayed pending appeal. The injunction was overturned on appeal, Two separate opinions of two of the appeals panel judges determined that the plaintiffs failed to show that they had a substantial likelihood of prevailing on the merits. One judge found that the plaintiffs barely met the requirements for standing by showing that it was possible, but not substantially likely, that their own call records were collected as part of the bulk telephony metadata program, but they had not met the higher burden of proof required for a preliminary injunction. The second judge's opinion found that the plaintiffs had failed to demonstrate a "substantial likelihood" that the government was collecting data from Verizon Wireless, the phone company they used, or that they suffered any "cognizable injury." Klayman v. Obama, #14-5004, 800 F.3d 559 (D.C. Cir. 2015).

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     Freedom of Information: Want to Obtain FBI Records a Little Quicker? Try New eFOIA System, FBI website (November 30, 2015).

     Mental Illness: Responding to Persons with Mental Illness or in Crisis, by Lisa Judge, presentation at the IACP Legal Officers' Section, Chicago, Illinois (October, 2015).

  Reference:

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