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Attorneys' Fees: For Plaintiffs

     A police officer testified falsely against an arrestee at a preliminary hearing. Six years later, the city agreed to pay the arrestee $150,000 and not to oppose any motion he might bring for a declaration of factual innocence. The parties also agreed that he could seek an award of attorneys' fees under 42 U.S.C. Sec. 1988. The plaintiff sought $1,448,497 in attorneys' fees and $75,255 in costs. The trial court awarded attorneys' fees of $436,807.50 and costs of $23,935.07, and declined to apply a requested 1.5 multiplier on the fees, which the plaintiff asked for based on the "significant risk counsel has taken in litigating this hotly contested matter on a wholly contingent basis, with little prospect of settlement until the eve of trial." An intermediate California appeals court found the trial court's reasoning in reducing the fees to be awarded as inadequate in four ways: 1) arbitrarily awarding the fees at less than half the market rate without articulating a basis for reducing the fees to be awarded, (2) erroneously determining that fees were unavailable under California Code of Civil Procedure section 1021.5, (3) failing to address enhancement of the award under 42 United States Code section 1988 (section 1988), and (4) erroneously ruling that contingent risk could not be considered as an enhancement factor under state law. Reconsideration of the attorneys' fee award was ordered. Kerkeles v. City of San Jose, #H040919, 2015 Cal. App. Lexis 1132..

Domestic Violence and Child Abuse

    A man filed a lawsuit against several officers, alleging that they improperly took his two minor children from his home without a court order or reasonable cause. The officers maintained that they acted at the direction of employees of the state Department of Human Services (DHS), who had received reports that the man's live-in girlfriend, who was pregnant and the mother of one of the children and a legal guardian of the other, had tested positive for methamphetamine, and other drugs, and that the children might be in danger. The undisputed facts showed that the officers were entitled to qualified immunity in removing the children. They were not incompetent in believing that they were legally authorized to act in reliance on the DHS determination that the children were in danger. Even if the officers were mistaken in their belief that they could remove the children at the direction of DHS without court authorization, their actions were objectively reasonable under the circumstances. Sjurset v. Button, #13-35851, 2015 U.S. App. Lexis 21054 (9th Cir.).

Electronic Control Weapons: Dart Mode

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

     A doctor had his parents visiting his family. His father, who was mostly bedridden because of health problems, was unresponsive one morning, but still breathing. The father had executed a living will and did not want life-sustaining procedures, so the doctor made his father comfortable and waited until he died that evening. A firefighter EMT and a sheriff's deputy then arrived, and the doctor explained that his father had died and had not wanted life-sustaining procedures. The paperwork for the living will was not, however, then available. The EMT said that without the actual papers, they were required to "do everything." The doctor began to shout and gesture and the EMT asked the deputy for assistance. The doctor stated that they were "not going to assault my dead father in my home." The deputy pulled out his Taser and the doctor told him to go ahead and use it on him. The Taser was fired in the dart mode and the doctor fell when the prongs struck him. The doctor was handcuffed, and remained so with the Taser probes attached, for 15-20 minutes of questioning. Upholding a denial of summary judgment to the defendants on an excessive force claim, a federal appeals court found that there were genuine issues of material fact that had to be resolved, including whether the defendants felt that they were faced with an emergency, whether they thought they had a legal obligation to try to resuscitate the father, and whether the doctor was non-compliant. Case law did clearly establish that it was excessive force to use a Taser on a person who was not under arrest, posed no safety threat, made no threats, and was not physically resisting. Kent v. County of Oakland, #14-2519, 2016 U.S. App Lexis 60 (6th Cir.).

False Arrest/Imprisonment: No Warrant

     An officer carried out a traffic stop of a motorist who failed to use his turn signal before changing lanes. The driver did not cooperate with the officer and his partner, disregarding instructions, leading to a physical confrontation. A sergeant also arrived on the scene. The first officer placed the driver under arrest for resisting, but the charges were dismissed at court. In a lawsuit alleging false arrest and excessive force, a federal appeals court upheld summary judgment for the defendant officers, relying on a dashcam video of the incident and rejecting the argument that there were material issues of fact relating to the plaintiff's claims. Williams v. Brooks, #15-1763, 2016 U.S. App. Lexis 68 (7th Cir.).

     A man going through a TSA checkpoint at an airport was carrying medication with him that a TSA agent selected for testing. The man objected, worried that the testing would contaminate the medicine. A discussion about the sterility and toxicity of the sampling strip ensued and the incident ended with the man's arrest. He sued the TSA agent and a city police officer, claiming that the arrest was made without probable cause and that the two conspired to fabricate grounds for the arrest. It appeared to the officer, the court found, that the plaintiff at one point rolled his bag towards the TSA agent and hit him, providing arguable probable cause for the arrest and entitling him to qualified immunity. Claims against the agent were also rejected for failure to state a claim. Shimomura v. Carlson, #14-1418, 2015 U.S. App. Lexis 22793 (10th Cir.).

Firearms Related: Intentional Use

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

     A 15-year-old boy brandished a realistic replica of a semiautomatic pistol while playing cops and robbers with friends, and was shot by a deputy in the chest. It was disputed whether the boy complied with instructions or turned towards the deputy with the replica in his hands. He later entered a plea bargain to a misdemeanor charge of brandishing an immitation firearm so as to cause deputies and a third party fear of bodily harm. He served a term of informal probation after which the charges were dismissed. He then sued deputies and the county for excessive use of force and a jury awarded $1.1 million in damages. Attorneys' fees were also awarded. Reversing, an intermediate California appeals court ruled that the federal civil rights excessive force claim was barred by the principles in the U.S. Supreme Court decision Heck v. Humphrey, #93-6188, 512 U.S. 477 (1994), since the award would imply that the plea bargain and probation sentence were invalid, and they had not been invalidated or terminated in his favor. Fetters v. County of Los Angeles, #B252287, 2016 Cal. App. Lexis ____.

First Amendment

     A Florida city barred a man from opening a tattoo business in the city's designated historic district. He sued, claiming that this violated his First Amendment rights and further that an ordinance restricting the number of such businesses in the historic district suppressed free expression. A federal appeals court agreed that tattooing is protected artistic expression and reversed summary judgment for the city. The city failed to establish that its ordinance constituted a reasonable time, place, and manner restriction. Aside from a "vague statement of purpose," the city presented insufficient evidence that the law would actually serve the purpose of avoiding a negative impact on tourism if tourists rashly decide to get tattoos that they later regret. Buehrle v. City of Key West, #14-15354, 2015 U.S. App. Lexis 22782 (11th Cir.).

Interrogation: Juveniles

     A family member told state Children's Protective Services that a father was neglecting his son. This resulted in the agency's social worker interviewing the child at his elementary school with no court order or parental consent. The social worker then interviewed the father, who maintained that both his marijuana use and prescription drug use were medically authorized. A second interview of the child was conducted at the school with his paternal grandmother present, but still without parental consent or a court order. The social worker then obtained a court order placing the child in protective custody pending a hearing, and took the child from school. A judge returned the boy to his father, but ordered no more marijuana use and drug testing of the father. A federal appeals court found that the social worker was entitled to absolute and qualified immunity on claims that he interviewed the child without parental consent or a court order, allegedly stated falsehoods in the petition for the protective custody, and improperly removed the child from school. Barber v. Miller, #15-1404, 2015 U.S. App. Lexis 22200, 2015 Fed. App. 296P (Unpub. 6th Cir.).

Negligence: Vehicle Related

     The plaintiff sued for injuries suffered when a Texas state trooper collided with him while running a red light while pursuing a reckless driver. The state Department of Public Safety argued that a damage claim should be rejected based both on the trooper's official immunity and the emergency response exception to the state Tort Claims Act's waiver of sovereign immunity. The Texas Supreme Court overturned the lower courts' rejections of these arguments. The need to establish the "good faith" of the trooper was not equivalent to a general negligence standard, but rather protected all but the plainly incompetent. Texas Dep’t of Pub. Safety v. Bonilla, #14-0694, 2015 Tex. Lexis 1085.

Sexual Assault and Harassment

     Five female Drug Court participants claimed that a male Lieutenant in the county Sheriff's Department sexually abused them while working as a "tracker" for the Drug Court. As part of his duties, he made home visits and inspections. A federal appeals court reversed the denial of qualified immunity to the defendant county sheriff, since the plaintiffs presented no real evidence that he had knowledge of the Lieutenant's sexual misconduct. S.M. v. Krigbaum, #14-3704, 808 F.3d 335 (8th Cir. 2015).

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     Gender Bias: Identifying and Preventing Gender Bias in Law Enforcement Response to Sexual Assault and Domestic Violence, U.S. Department of Justice (December 15, 2015),

     Statistics: Police Use of Nonfatal Force, 2002–11, by Elizabeth Davis, Shelley Hyland, and Lynn Langton, Bureau of Justice Statistics (November 14, 2015 NCJ 249216).

     Suicide: Suicide Risk in Older Adults: A Growing Challenge for Law Enforcement, by Tony Salvatore, FBI Law Enforcement Bulletin (January 2016).

  Reference:

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