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 Attorneys' Fees: For Defendants

     Both federal and state courts hearing federal civil rights claims under 42 U.S.C. Sec. 1983 have discretion to award a prevailing party (other than the federal government) reasonable attorneys' fees under 2 U.S.C. Sec. 1988. The U.S. Supreme Court, however, has restricted such awards to prevailing defendants only to cases in which the plaintiff's lawsuit was "frivolous, unreasonable, or without foundation." The Idaho Supreme Court held that it was not bound by that interpretation of the law and made a Sec.1988 award of attorneys' fees to a prevailing defendant in a Sec. 1983 lawsuit without first deciding whether the plaintiff's claim was "frivolous, unreasonable, or without foundation." The U.S. Supreme Court reversed. Sec. 1988 is a federal statute, so the Supreme Court's interpretation is final and binding on all courts, federal or state. James v. Boise, #15-493, 136 S. Ct. 685, 2016 U.S. Lexis 947.

Attorneys' Fees: For Plaintiffs

     The plaintiff filed challenges to a city's ordinances prohibiting the use of sound amplification devices on public sidewalks and prevailed, invalidating several aspects of the ordinance. He was also awarded nominal damages. As a result, the ordinance was amended to expand the permissible use of amplification devices. While a plaintiff who prevails but is only awarded nominal damages while seeking compensatory damages may be denied attorneys' fees, this lawsuit did not seek compensatory damages. Instead, the lawsuit primarily sought to change the law and succeeded in that, and therefore could be awarded attorneys' fees under federal law, while being properly denied such fees on claims brought under California law. Klein v. City of Laguna Beach, #13-56973, 2016 U.S. App. Lexis 578 (9th Cir.).

Electronic Control Weapons: Stun Mode

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

     A mentally ill man being seized for his own protection under an involuntary commitment order was seated on the ground, was hugging a post to ensure his immobility, was surrounded by three police officers and two Hospital security guards, and had failed to submit to a lawful seizure for only 30 seconds. He suffered from bipolar disorder and paranoid schizophrenia and had been poking holes in his own leg "to let the air out." Under these circumstances, the federal appeals court stated, "A reasonable officer would have perceived a static stalemate with few, if any, exigencies -- not an immediate danger so severe that the officer must beget the exact harm the seizure was intended to avoid."

     An officer used a Taser five separate times in the stun mode, seeking compliance with orders. The use of the Taser appeared to increase the man's resistance rather than to gain compliance, so he was then physically subdued. He subsequently ceased breathing and died. The record, viewed in the light most favorable to plaintiff, established that the officers used unreasonably excessive force in violation of the Fourth Amendment because he had not committed any crime, the justification for the seizure was to prevent a mentally ill man from harming himself, and immediately tasing a non-criminal, mentally ill individual, who seconds before had been conversational, was not a proportional response. At the same time, the appeals court found that the individual officers were entitled to qualified immunity on an excessive force claim since the right of the decedent not to be subjected to the Taser while offering stationary and non-violent resistance to a lawful seizure was not then clearly established.

     "Where, during the course of seizing an out-numbered mentally ill individual who is a danger only to himself, police officers choose to deploy a Taser in the face of stationary and non-violent resistance to being handcuffed, those officers use unreasonably excessive force. While qualified immunity shields the officers in this case from liability, law enforcement officers should now be on notice that such Taser use violates the Fourth Amendment." In other words, "Taser use is unreasonable force in response to resistance that does not raise a risk of immediate danger." The court also stated that "At bottom, 'physical resistance' is not synonymous with 'risk of immediate danger.'" Further, "Even noncompliance with police directives and non-violent physical resistance do not necessarily create 'a continuing threat to the officers' safety.'" Estate of Armstrong v. Village of Pinehurst, #15-1191, 2016 U.S. App. Lexis 380 (4th Cir.).

False Arrest/Imprisonment: No Warrant

     A motorist claimed that four police officers in two squad cars pulled him over as he drove home, pointed a gun at his face, threatened to kill him, handcuffed him, and engaged in a search of his car, sll without apparent reason. While the officers said they had no memory of the incident, a computer in one of their cars confirmed that they ran the driver's name through a law enforcement database at the alleged time of the stop, but found nothing that would have justified stopping and searching his car. After a jury returned a verdict for the defendant officers in a federal civil rights lawsuit, a federal appeals court ordered a new trial. The court held that the trial judge should not have admitted information about the plaintiff's prior arrest record into evidence, nor allowed the defendants' attorney to cross-examine the plaintiff about other, unrelated lawsuits he had pursued against the city, in a manner designed to undermine his credibility by depicting him as a chronic litigator. It was also erroneous to let one of the officers testify generally about when it might be justified to use handcuffs and firearms during a traffic stop. These errors were not harmless. Nelson v. City of Chicago, #12-3401, 2016 U.S. App. Lexis 959 (7th Cir.).

     A man who engaged in filming airport security procedures and was questioned there on suspicion of disorderly conduct was arrested for concealing his identity from officers by declining to show identification. He sued, claiming that he was arrested without probable cause and in retaliation for engaging in protected speech in violation of the First Amendment. A federal appeals court found that the defendant officers and Transportation Security Administration agents were entitled to qualified immunity, since a reasonable officer could have believed that he violated state law by not showing identification during an investigatory stop, and could also reasonably believe that they had probable cause to arrest him when he filmed at an airport security checkpoint. Additionally, at the time of the arrest, it was not clearly established that unlawful retaliation claims could arise from arrests supported by probable cause. Mocek v. City of Albuquerque, #14-2063, 2015 U.S. App. Lexis 435 (10th Cir.).

Firearms Related: Intentional Use

     An officer was not entitled to qualified immunity when the decedent's estate offered evidence that it claimed proved that the defendant fatally shot a man in the back while he was compliant, unarmed, lying prone, and non-resisting. If the plaintiff's version of events was true, this would constitute excessive force in violation of clearly established law. Perez v. Suszczynski, #14-13619, 809 F.3d 1213 (11th Cir. 2016).

     Police engaged in a high speed chase of a vehicle onto an Indian reservation. One of the passengers, a member of the Ute tribe, shot and killed himself with a gun after running away from the vehicle while being chased by an officer. As there was no evidence that the decedent had ever submitted to any show of authority or had been seized, there could be no possible liability for excessive force under the Fourth Amendment. While an officer did fire at the decedent, he did so only after the man fired first at him. After that, the man put the gun to his head and killed himself. Jones v. Norton, #14-4040, 809 F.3d 564 (10th Cir. 2015).

Interrogation

     Four detectives and an investigator participated in an investigation of a burglary and the sexual assault of a child. In the course of it, they interviewed an 18-year-old man with cognitive disabilities who confessed to the burglary but not the sexual assault. He was charged with both crimes, and he was placed in pretrial detention after multiple judges found probable cause, partially based on the confession. He claimed that his disability had prevented him from understanding what was happening during the interviews, and that his confession was false. A later medical exam supported his explanation, and the charges were dropped. A federal appeals court upheld the denial of qualified immunity to the detectives and investigators on a claim that they had used the confession to maliciously prosecute the plaintiff even though they knew it was untrue. The plaintiff plausibly alleged the individual defendants' knowledge or reckless disregard for the truth that his confession was untrue. He also showed that the underlying right was clearly established in 2009, when the events took place. Sanchez v. Hartley, #14-1385, 2016 U.S. App. Lexis 371 (10th Cir.).

Public Protection: 911 Phone Systems

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

     A woman who lived in an unincorporated area for which separate entities handled police emergencies and fire and ambulance services called 911, complaining that she could not breathe. The first operator who answered transferred the call to another agency's dispatcher and hung up. The next dispatcher got no response to her questions, hung up, and called the woman's number, but got a busy signal. An ambulance was dispatched for an "unknown emergency," and the crew that arrived could not enter and were not able to make a forced entrance without police. They were ordered to leave. After additional 911 calls were made by the woman's neighbors, a crew entered the home 41 minutes after the first call, but by then the woman was dead.

     Her family sued, and all defendants (a fire protection district and its ambulance crew) were granted summary judgment by the trial court, based on the public duty rule and a finding that the defendants did not owe the woman any special duty. The Illinois Supreme Court reversed and used the case to abolish the public duty rule in Illinois and its special duty exception. Further proceedings were ordered to determine whether the defendants could be held liable for alleged willful and wanton conduct under the Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/1-101 et seq., in failing to adequately respond to the 911 call. The court found that the public policy once served by the public duty rule and its exceptions were not adequately served by enacted statutory immunities that limit liability for certain types of governmental activity to willful and wanton misconduct. Coleman v. E. Joliet Fire Prot. Dist., #117952, 2016 IL 117952, 2016 Ill. Lexis 257.

Search and Seizure: Search Warrant

     A jury found that a city and its police department violated a man's rights by obtaining a warrant to search his home, while failing to disclose in seeking the warrant that he had not been living in the house for seven months prior to the gang-related shooting being investigated because he had been incarcerated for unrelated charges. In determining whether to award attorneys' fees and costs against the defendants, the appeals court held, it was appropriate to take into account the settlement the plaintiff obtained against another city also involved in the same incident, as a result of which he obtained $150,000 in damages, as well as $169,856.34 in attorney fees, and $16,208.95 in costs, while only $5,000 in damages were awarded against the first city after trial. The appeals court upheld the trial court's award of $1.023 million in attorneys' fees finding that the award was supported both by the public benefit of the lawsuit and the $150,000 settlement against another party arising out of the same facts, while ruling that further proceedings should be held on the $13,376.85 in costs awarded by the trial court, taking into account the costs recovered in the prior settlement. Bravo v. City of Santa Maria, #14-55557, 2016 U.S. App. Lexis 432 (9th Cir.).

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     Disability Discrimination: Accommodating the Violent: Analyzing Title II of the Americans With Disabilities Relevant to Arrests of the Armed, Violent, and Mentally Ill, by Ashley Torres, published by AELE (2016).

     Interrogation: When Does Handcuffing Constitute Custody for Purposes of Miranda?, by Jayme W. Holcomb, and Jayhoun Rezai, FBI Law Enforcement Bulletin (February 2016).

     Racial Profiling: Racial Disparities in Florida Safety Belt Law Enforcement, by the ACLU Racial Justice Program and the ACLU of Florida (January 2016).

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

     Use of Force: Police Use of Force in New York City: Findings and Recommendations on NYPD’s Policies and Practices, N.Y.C. Department of Investigation, Office of the Inspector General for the NYPD (October 1, 2015).

  Reference:

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