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Assault and Battery: Flashbangs

     An informant told police that a man was engaged in selling crack cocaine from his apartment and answered his door with a handgun in hand. A SWAT team executed a “High Risk Warrant Services” form. Their plan for the raid called for a "dynamic entry" by 20 officers to secure the premises within 30 seconds and authorized the use of flashbang grenades. At the time of the raid, the man's mother was visiting and another of her sons was present along with the suspect's girlfriend. The officers breached the door with a battering ram, and one of them saw the suspect's mother move towards the door. Another officer looked through the doorway, saw no one, and tossed a flashbang inside. The blast severely injured the mother's leg. The raid found narcotics and a handgun. A federal appeals court upheld a jury verdict for the defendants on the mother's excessive force claim as supported by the evidence. A jury statement that “While we agree that this was a horrible instance ... the errors made by the Chicago Police Department as a whole cannot fall on the shoulders of these two defendants” was consistent with the verdict. Flournoy v. City of Chicago, #14-3776, 2016 U.S. App. Lexis 13343 (7th Cir.).

Dogs

    A woman walking her brown Labrador retriever, named "Dog." encountered a gray and white pit bull off its leash which lunged at Dog's neck. An officer, driving to another location, received a radio report of a pit bull attacking another dog. The woman spoke to the officer and described her dog. The officer was colorblind, but had not informed the department of this. He shot at the animal that he thought was the aggressor, hitting Dog. The pit bull ran away, and Dog died. A federal appeals court upheld a verdict for the officer in an excessive force lawsuit, which was not against the manifest weight of the evidence. The officer's written responses to discovery questions did not constitute a "script" which he had to recite verbatim in his trial testimony. Saathoff v. Davis, #15-3415, 2016 U.S. App. Lexis 11067 (7th Cir.).

False Arrest/Imprisonment: No Warrant

     An officer, standing by his patrol car after 2 a.m. talking with a local resident, observed a pickup truck with headlights off approach a store and then disappear behind it. He activated his flashing lights and went in pursuit. He subsequently arrested the driver for public intoxication. Another individual walking by refused to answer whether he had been in the pickup truck, obey orders, or produce identification, and challenged what the officer was doing. He was himself arrested. A federal appeals court upheld an award of qualified immunity to the defendant officer on a false arrest claim by this arrestee. At the time of the arrest, the officer could have reasonably believed that the plaintiff was interfering with his investigative detention of the driver. A prior interpretation of a Wyoming state statute suggested that speech alone might rise to the level of interference with a police officer in the performance of his official duties. Culver v. Armstrong, #15-8028, 2016 U.S. App. Lexis 14583 (10th Cir.).

False Arrest/Imprisonment: Warrant

     A woman who told officers that she would need to speak to her son who was in the other room in response to their statement that they had a warrant for his arrest did not obstruct justice and it was objectively unreasonable for them to seek a warrant for her arrest. In fact, she told her son not to flee and that he had to go with the officers. The record contained no indication of any action by the officers that the woman could be said to have "obstructed." The officers were not immune from suit because they obtained an arrest warrant when their decision to request a warrant in these circumstances was outside the range of professional competence expected of the officers. Graham v. Gagnon, #15-1521, 2016 U.S. App. Lexis 13672 (4th Cir.).

     A narcotics investigation known as "Operation Blue Knight" was carried out over a two-year period by the FBI and Chicago Police Department. Towards the end, an officer applied for dozens of arrest warrants. Other officers had observed the plaintiff arrestee and his brother sell heroin to an informant. The observations were in a comprehensive report that the officer used as the basis for his arrest warrant application. The arrest was carried out, but the charges were later dropped, and the arrestee sued. Upholding the dismissal of the lawsuit, a federal appeals court held that the written application for the warrant, supported by his oral testimony about the investigative report or surveillance of the drug deal provided probable cause for the arrest. White v. City of Chicago, #15-1280, 2016 U.S. App. Lexis 13326 (7th Cir.).

Firearms Related: Second Amendment

     A Massachusetts state law prohibiting a handgun purveyor to transfer to a customer any handgun “which does not contain a load indicator or magazine safety disconnect" did not violate the Second Amendment and did not violate due process. The state Attorney General informed firearms dealers and consumers that Glock, Inc.’s third and fourth generation pistols lacked an adequate load indicator, and thus could not be transferred. The statute was not unenforceably vague in violation of due process, as its definition of "load indicator" as a device which plainly indicated that a cartridge was in the firing chamber provided anyone of ordinary intelligence fair notice that what was required was a readily perceptible signal that a gun was loaded. Draper v. Healey, #15-1429, 2016 U.S. App. Lexis 11003 (1st Cir.).

     The plaintiffs applied for concealed-carry permits under an Illinois permit system adopted after a Seventh Circuit ruling held that states must permit law-abiding and mentally healthy persons to carry loaded weapons in public. They were rejected because law enforcement agencies objected. They were not informed of who in particular objected or why. After a lawsuit was filed, Illinois changed its regulations to require that such information be given and that the applicant be allowed to respond. The trial court then rejected plaintiffs’ claims, stating that the plaintiffs’ proper recourse was to apply for licenses under the new rules. None of the plaintiffs filed another application. A federal appeals court rejected a "facial" challenge to the law, reasoning that a court should not easily assume that a state would "choose the unconstitutional path" when a valid one was open. The court rejected a challenge to the very existence of a permit requirement as a "prior restraint," reasoning that the state was entitled to check on an applicant's mental health and record of convictions close to the date they propose to go armed on the streets. The appeals court did, however, uphold the statute's placing of the burden on the state to justify any denial of a permit, using a preponderance of the evidence standard. Berron v. Ill. Concealed Carry Licensing Review Bd., #15-2404, 825 F.3d 843 (7th Cir. 2016).

Public Protection: 911 Systems

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

     A motorist called 911 to report that several men had thrown a bottle and broken his car's windshield. He told the operator who answered the call that the incident occurred at a certain location in Detroit but that he and his passengers had fled to safety to Wheat Ridge, a nearby municipality. For unclear reasons, the 911 operator told him that he had to return to Detroit to receive any help from the police. While he was driving back to Detroit, he was shot and killed. His estate sued the 911 operator for violation of his civil rights. The trial court granted the defendant operator summary judgment on a variety of claims, with the sole exception of a 14th Amendment substantive due process claim based on a theory of state-created danger. Reversing, a federal appeals court ruled that the law was not clearly established that a reasonable 911 operator would have known that the conduct at issue violated the decedent's rights. The 911 operator was unlike any of the defendants in the Tenth Circuit's state-created danger cases, he was not a police officer, firefighter, or other similar first responder. Further, he did not impose any limitation on the deceased's freedom to act. Estate of Pal Reat v. Rodriguez, #15-1001, 824 F.3d 960 (10th Cir. 2016).

Search and Seizure: Person

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

     An assistant principal's decision to strip search a 12-year-old 7th grade student may have been reasonable at its inception because there were reasonable grounds to suspect that the search would have turned up evidence that the student was violating marijuana drug laws. But he was not entitled to qualified immunity for the manner in which he carried out the search. By forcing the minor student to strip naked in front of his peers, the assistant principal exposed the student to an unnecessary level of intrusion that rendered the search excessive in scope and, therefore, unconstitutional, under the Fourth Amendment, because the assistant principal's decision to have the student fully remove all of his underclothing in front of his peers bore "no rational relationship" to the purpose of the search. D. H. v. McDowell, #14-14960, 2016 U.S. App. Lexis 13810, 26 Fla. L. Weekly Fed. C 581 (11th Cir.).

Search and Seizure: Vehicle

     After a woman reported that her former boyfriend had attacked and threatened to shoot her, police found the ex-boyfriend in a car they stopped nearby and handcuffed him, putting him in their squad car. The driver consented to a vehicle search that revealed a gun in a shopping bag, which the ex-boyfriend admitted was his. Sentenced to prison for being a felon in possession of a firearms, he sued over the stop of the vehicle. A federal appeals court stated that while the search of the vehicle was consensual and the arrest was not unlawful, the stop of the car, which the defendants admitted that they lacked probable cause to stop, was an unreasonable seizure of the plaintiff's person, entitling him to damages. Giddeon v. Flynn, #15-3464, 2016 U.S. App. Lexis 13735 (7th Cir.).

•Return to the Contents menu.

     Asset Forfeiture: Asset Seizure and Forfeiture: Ethical Issues, by Colin May, FBI Law Enforcement Bulletin (September 2016),

     Justice Department Report: Justice Department report on investigation of Baltimore Police Department (Aug. 10, 2016). Agreement with Baltimore P.D. in principle.

     Law Enforcement Policy: State of Policy in Law Enforcement - PowerDMS, in collaboration with the Police Foundation, conducted a survey of law enforcement agencies nationwide to gauge the current state of policies and training. This survey establishes a baseline for how agencies update their policies, ensure officers see those policies, and conduct training. The results — a benchmark for best practices — are presented in this critical report.

  Reference:

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