---

 Search the Case Law Digest

CONTENTS

• Some of the case digests do not have a link to the full opinion.
• Most Federal District Court opinions can be accessed via PACER. Registration required. Opinions are usually free; other documents are 10¢ per page.
• Access to cases linked to www.findlaw.com may require registration, which is free.  

Dogs

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

     While executing a search warrant on a residence, two officers shot a woman's dog, resulting in its death. A federal appeals court reversed a grant of summary judgment to the officer who first shot the dog. If a jury believed the plaintiff's version of events, it could reasonably conclude that the dog was lying down and only acted aggressively towards the officers after first being shot. As for the second officer who shot the dog, she only did so after the dog bit her hard enough to puncture her leather boots, she did not act unreasonably in believing that the dog then posed an imminent threat. The plaintiff failed to establish, however, that the District of Columbia had notice of a pattern of likely unconstitutional conduct in the shooting of dogs and responded with deliberate indifference. Robinson v. Pezzat, #15-7040, 2016 U.S. App. Lexis 5965 (D.C. Cir.).

Expert Witnesses

     An officer and his partner encounter a woman walking out into traffic with her face covered in blood. She pointed to her husband, who she said struck her, and one of the officers walked towards him, ordering him to stop, put his hands behind his back, and stop screaming. The man ignored these orders and was grabbed. He attempted to twist away, causing him to fall. After being handcuffed, he continued to struggle and fell down again. Hours later, at the police station, he complained of pain, and was taken to a hospital where an arm fracture was diagnosed. He pled guilty to resisting arrest but sued for excessive force. The trial judge stated a deadline for the plaintiff to disclose his expert witness. He failed to provide the expert's report and failed to respond to a motion to strike the expert's testimony. He was barred from presenting the expert at trial. The federal appeals court upheld a verdict for the officer. Challenges to evidentiary rulings were rejected as the plaintiff failed to provide transcripts regarding tho challenged rulings. Hall v. Jung, #15-2102, 2016 U.S. App. Lexis 6590 (7th Cir.).

False Arrest/Imprisonment: No Warrant

      A man traveled to another city to assist African-American youth. Another man, who was a local resident, offered him accommodations at what he represented as his house, giving him a garage door opener. The local resident, however, was only a squatter in the house, with no legal right to be there. The true property owner arrived while the out of town visitor was there, and summoned police, asking that they arrest him for trespass. When police arrived, they found literature referring to Moorish Science, belonging to the visitor. The officer claimed that they routinely make arrests based on trespass complaints, while the arrestee asserted that they remarked on his status as a Moor and congratulated themselves on detaining a member of that sect. He claimed, in his lawsuit, that the officers would not hsve arrested a Christian or an atheist under the circumstances. The trial court believed that the law was clearly established that an officer may not arrest someone believed to hold certain religious beliefs if they would not arrest those of other religions in similar circumstances. But the court had doubt about what a reasonable jury would infer about why the arrest was made. As the denial was based on disputed facts rather than an issue law, the federal appeals court dismissed the officer's appeal on the basis of lack of jurisdiction. Nettles-Bey v. Williams, #15-2704, 2016 U.S. App. Lexis 6753 (7th Cir.).

Firearms Related: Intentional Use

     A man left another man's home with cocaine that he had agreed to deliver for him. Police received information from a confidential informant about the drug packaging operation at the home and a description of the deliveryman's car. Two plain clothes officers in an unmarked car stopped the vehicle, exited their own car, and approached with guns drawn. The driver said he sat motionless with his hands on the steering wheel. He contended in his lawsuit that an officer shot him in that position, and he then became unable to control the car, which started to roll towards the officers. They shot 14 times and seven bullets hit him. He pled guilty to aggravated battery of an officer as well as drug charges, but sued for excessive use of force. Upholding summary judgment for the officers, the federal appeals court noted that convicted criminals may not sue for damages if their prevailing would call into question their conviction, unless it has been overturned. In this case, the plaintiff's lawsuit was based on a version of the events that would totally negate the basis for his conviction. Tolliver v. City of Chicago, #15-1924, 2016 U.S. App. Lexis 6632 (7th Cir.).

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

     Officers approached a vehicle whose African-American driver had just finished pumping gas. They believed that the vehicle was the car one of them had followed the day before, which had expired tags not registered to that vehicle. The motorist started to drive away, and one of the officers stepped in front of the car with his gun drawn. The officers then fired a total of seven shots into the vehicle, killing the driver. His estate filed a lawsuit against the city, claiming that the police department had deficient policies and customs linked to the violation of the decedent's rights. A federal appeals court upheld a trial court denial of a motion to dismiss supervisory liability claim, as the complaint alleged facts supporting that the department's director “at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending officers." He was denied qualified immunity. Peatross v. City of Memphis, #15-5288, 2016 U.S. App. Lexis 5756, 2016 Fed. App. 0074P (6th Cir.).

First Amendment

     City ordinances required licenses before businesses were allowed to offer nude or partially nude entertainment. Two businesses, the first of which had applied for a license, and a second business that had not applied, filed challenges to the ordinance, seeking both injunctive relief and damages. The ordinances were repealed, so they dropped the claim for injunctive relief, but pursued the damage claims. The trial court found that the ordinances had been based on the time, place, and manner of expression, but did not include constitutionally required procedural safeguards. The business that did not apply for a license still had standing to pursue its damage claim, since the chilling effect of the unconstitutional laws violated their right to freedom of expression. It was therefore awarded $435,000 in compensatory damages as the jury found that but for the ordinances, they would have opened a club providing nude entertainment. The other business, which applied for a license, was awarded nominal damages. Six Star Holdings, LLC v. City of Milwaukee, #15-16i08, 2016 U.S. App. Lexis 6682 (7th Cir.).

     Two men distributed pamphlets with information about "jury nullification" outside a state courthouse. They were arrested and charged with jury tampering. Plaintiffs, who similarly wanted to distribute jury nullification literature to individuals outside the courthouse who might be prospective jurors sued the city, county, and police chief, seeking to establish their First Amendment right to do so. The trial court issued a preliminary injunction against the enforcement against the plaintiffs of a police order barring all expressive activity in the area around the courthouse. A federal appeals court found that the trial court had not abused its discretion in enjoining the enforcement of the order. "[T]he government’s power to control speech in a traditional public forum is circumscribed precisely because the public has, through the extent and nature of its use of these types of government property, acquired, in effect, a 'speech easement' that the government property owner must now honor." Verlo v. Martinez, #15-1319, 2016 U.S. App. Lexis 6463 (10th Cir.).

Property

     Answering an ad for a 1997 Harley-Davidson motorcycle, man visited a dealership, test drove a 2004 motorcycle, and paid for it. The bill of sale listed the VIN, year, and mileage for the 1997 motorcycle by mistake. When he attempted to buy insurance for the vehicle, he discovered the discrepancy. When he contacted the dealership, it demanded that he return the 2004 motorcycle, contending that he had bought the 1997 vehicle, or else pay an additional amount. The dealer called the police and accused the man of theft. The police called the man and told him that he would be subject to arrest if he did not return the motorcycle. He took the motorcycle to the police station. He sued the police for violating the Fourteenth Amendment by depriving him of property without due process of law. Rejecting the claim, a federal appeals court found that there was probable cause to believe that the plaintiff's possession of the motorcycle was unlawful. Zappa v. Gonzalez, #14-3223, 2016 U.S. App. Lexis 6903 (7th Cir.).

Sexual Assault

     An officer was dispatched to a woman's home to investigate her report that her child had been harassed at school. Once inside, he allegedly pointed his gun at her and battered and raped her, telling her that he would kill her and her children if she reported the incident. A federal appeals court ruled that the trial court correctly dismissed claims against the police chief arising from the incident as the plaintiff failed to show that the chief was deliberately indifferent or had notice of the risk that the officer would assault her. The officer's prior disciplinary record, together with the other facts, was not enough to show that the harm was reasonably foreseeable for purposes of a negligence claim against the city under state law. Saldivar v. Racine, #15-1448, 2016 U.S. App. Lexis 5623 (1st Cir.).

Videotaping

     A New Jersey state board has ruled that a 2014 state law requiring all municipalities to equip new police patrol cars with dashboard cameras was unconstitutional under the state Constitution as a unfunded mandate. The board found that the $25 surcharge on driving-while-intoxicated penalties provided under the law does not generate enough money to pay for the necessary equipment. In re Complaint filed by Deptford Township (COLM-0003-15), New Jersey Council on Local Mandates (April 20, 2016).

•Return to the Contents menu.

     Insurance: How Private Insurers Regulate Public Police by John Rappaport (Feb. 15, 2016, 77 pp., 379 fn.).

     Police Reform: City of Chicago Police Accountability Task Force Report (April 2016).

     Prison Gangs: White Supremacist Prison Gangs in the United States, A Preliminary Inventory, by the Anti-Defamation League (ADL) (May 2016).

     SWAT: National Special Weapons and Tactics (SWAT) Study: A National Assessment of Critical Trends and Issues from 2009 to 2014, by the International Association of Chiefs of Police and the National Tactical Officers Association (April 2016).

  Reference:

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