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Assault and Battery: Physical

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

     Three officers forcibly removed a man from his pickup truck when he refused to comply with lawful orders to exit. He was heavily intoxicated, as well as morbidly obese and handicapped. In the course of the extraction, he suffered a serious injury that rendered him quadriplegic. He died a few months later. A federal appeals court held that the defendant officers were entitled to qualified immunity on excessive force claims because, even accepting the plaintiffs' version of the facts, they did not violate the decedent's rights. The approximately two minutes that one officer spent negotiating with him before deciding to resort to force was not objectively unreasonable, especially in light of the driver's explicit and repeated refusal to comply with requests to exit the pickup and the possibility that he might have had access to a weapon or could have tried to drive his huge, elevated truck into the police car. The officers used no weapons, only their hands. Sullivan v. Zoss, #15-51204, 2016 U.S. App. Lexis 16843 (5th Cir.).

Failure to Disclose Evidence

     A man's wife and two daughters died in a house fire and he was convicted of arson and felony murder in connection with the fire. The convictions were later overturned after advancements in fire science research and investigation methods impugned some of the evidence on which they were based. He sued, claiming that various defendants violated his due process rights by intentionally misrepresenting certain evidence, failing to disclose exculpatory evidence, and conspiring to deprive him of his rights. A federal appeals court did not set aside a trial court determination that claims could go forward against a forensic lab technician who testified at the trial. The plaintiff might be able to show that he acted knowingly or recklessly. While the plaintiff may have been “wronged,” however, he did not sufficiently allege facts to support his claims that other defendants acted with such culpable states of mind as to warrant relief under 42 U.S.C. 1983. Due process guarantees a right to a fair trial, not perfection. Using the methods of the 1980s during the 1980s did not violate the Constitution, so the other defendants were entitled to qualified immunity. Gavitt v. Born, #15-2434, 2016 U.S. App. Lexis 16181, 2016 Fed. App. 0216P (6th Cir.).

False Arrest/Imprisonment: Unlawful Detention

     Police couducted a high-risk traffic stop and detention of a male motorist based on an incident report from several hours earlier that a young man had displayed a handgun to a store clerk. Since state law permits individuals who are at least 18 years old to open carry handguns in public and the city does not restrict an individual's right to open carry except in certain locations, the incident report was not sufficient to create reasonable suspicion that the young man described had committed or was about to commit a crime. The officers could not have objectively comcluded that the young man could not legally possess a firearm. Further, no objectively reasonable officer would have mistaken the plaintiff, a 58-year-old bald man who was a double amputee, for the young man with hair described in the incident report. The trial court therefore erred in granting three officers involved in the stop qualified immunity. Duffie v. City of Lincoln, #15-2431, 2016 U.S. App. Lexis 15418 (8th Cir.).

False Arrest/Imprisonment: Warrant

     A female university student accused a male student of having sexually assaulted her in his dorm room. University police officers investigated and filed a criminal complaint for simple assault, harassment, and disorderly conduct, with an affidavit of probable cause. A warrant was issued and he was arraigned, but the charges were later dropped. He sued, claiming violation of his Fourth Amendment rights. A federal appeals court upheld summary judgment for the defendants. There was evidence corroborating in large part the female student's story and there was a period of time during which no one disputed that the two were alone together in the dorm room. Accordingly, even taking into account certain facts allegedly recklessly omitted from the affidavit of probable cause (certain witness statements, including about the conversations between the two students before they entered the dorm room), a reasonable jury could not find a lack of probable cause. Dempsey v. Bucknell Univ. #15-1328, 2016 U.S. App. Lexis 15334 (3rd Cir.).

Firearms Related: Intentional Use

     A man broke into his own home because he had forgotten his keys when returning from vacation. A babysitter present in the house had been told by the man's wife not to let him in because the couple had argued, so she called police when she heard him breaking in. She left the home, leaving two children inside, and told police that the man was not supposed to be inside and that the children were there. Officers entered the home without a warrant, based on the report and found the man holding a kitchen knife. When he refused to obey orders to drop it, an officer fired a Taser in the dart mode at him. He then fell down, dropped the knife, ran into a bathroom, and refused to come out. When the door opened, he allegedly was once again holding the knife, and a second officer fired a Taser in the dart mode at him again, but this failed to incapacitate him. He allegedly charged out of the bathroom heading towards a hallway that was the only exit from the area, with the kitchen knife raised and slashing. One officer shot him in the chest with a gun and a second officer shot him twice, with one bullet hitting him in the neck and the second in the head, killing him.

     A federal appeals court found the warrantless entry lawful based on exigent circumstances, including the presence of children. The uses of the Taser were also reasonable under the circumstances, based on the man's initial refusal to drop the knife and his continued non-cooperation and attempt to flee, even if he no longer held the knife when the second use of the Taser occurred, as the plaintiff claimed. There also could be no supervisory liability for the second use of the Taser, as it was not a constitutional violation. The use of deadly force, however, was a constitutional violation if the decedent actually was unarmed when he emerged from the bathroom, as there was no probable cause to believe he posed a threat of serious physical harm when he moved toward the only exit. He never made physical contact with the officers or explicitly threatened him. He had only committed misdemeanor offenses and was completely surrounded. His right to be free from the use of deadly force under those circumstances was clearly established, so the officers were not entitled to qualified immunity on the deadly force claim, which could proceed to trial. Smith v. LePage, #15-11632, 2016 U.S. App. Lexis 15644, 26 Fla. L. Weekly Fed. C 717 (11th Cir.).

     In a lawsuit over the death of a man shot by police in which the jury returned a verdict for the defendants, the trial court erred in failing to bifurcate the trial of liability from the trial of damages. This resulted in the jury hearing graphic and prejudicial evidence about the decedent which had little, and in large part no, relevance to the issue of liability, such as his drug use and gang affiliation. The issue on liability was whether the officer acted within the law when he shot and killed the decedent. A retrial was ordered. On retrial, if the plaintiffs were willing to stipulate that he was a gang member (which they claim they tried to do during the first trial), no expert testimony about gangs - such as gang activities, tattoos, or monikers - should be admitted. Estate of Diaz v. City of Anaheim, #14-55644, 2016 U.S. App. Lexis 15572 (9th Cir.). 

Firearms Related: Second Amendment Issues

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

     A man sent papers to a state representative accusing him of violating the Constitution and allegedly threatening violence. He said "Now you know why so many of you people or going to be shot because you're too selfish too understand the truth." There were hand-drawn crosshairs on the document. He visited the representative's office and said that he was "ready to start shooting people." The state police were informed of this and determined that he was licensed to own firearms and had some registered. An officer came to the conclusion that his "mental condition is of such a nature that it poses a clear and present danger" that he thought was sufficient under state law to justify summary revocation of firearms rights. Police removed his weapons and told him he could apply to have his firearms card reinstated, encouraging him to submit three character references and a psychologist's report with any such request. Six months later, he did so, submitting three references and a psychologist's report concluding that he was "all bark and no bite." Eventually, the firearms card was reinstated without a hearing and the firearms were returned. A federal appeals court rejected the plaintiff's argument that his Second Amendment and due process rights were violated. Summary revocation, with hearing to follow, is proper in the revocation of firearms rights when delay poses unacceptable risks. In this case, the officer was entitled to qualified immunity on the delay theory, because courts have yet to determine how quickly governmental bodies must act when the right to keep firearms is at stake. Rhein v. Coffman, #15-2867, 825 F.3d 823 (7th Cir. 2016).

Privacy

     Minnesota driver's license holders, filed suit against local counties, cities, and individual defendants alleging that they violated the Driver’s Privacy Protection Act (DPPA), 18 U.S.C. 2721-2725, by accessing or disclosing personal information from the driver's license database without a permissible purpose. The individual defendants were not entitled to qualified immunity on these claims. Some defendants argued that the law does not impose liability on a public official who merely accesses and views a person’s motor vehicle record. The statutory term “obtain” is unambiguous and controls defendants' argument that the rule of lenity entitled them to qualified immunity, which they were not. Kampschroer v. Anoka County, #14-3527, 2016 U.S. App. Lexis 16173 (8th Cir.).

Search and Seizure: Vehicle

     A taxi driver claimed that a city commission violated his Fourth Amendment rights by mandating that all city cabs install technology systems equipped with Global Positioning System (GPS) tracking abilities. He argued that this amounted to an illegal property-based search. A federal appeals court upheld summary judgment for the defendants, as the record was devoid of evidence as to whether the plaintiff had any property interest in a taxi at the time of an alleged trespass or physical intrusion. El-Nahal v. Yassky, #14-405, 2016 U.S. App. Lexis 15767 (2nd Cir.).

     An 18 year-old driving to a Michigan summer camp took a wrong turn and accidentally wound up at the Canadian border. The toll-booth operator gave him a laminated card, prepared by Customs and Border Protection (CBP) that stated: "You are being allowed to turn around without traveling to Canada. Please present this card, along with your identification to an open CBP inspection booth prior to departing. Thank you." The back said "All persons, baggage, and merchandise arriving in the Customs territory of the United States or from places outside thereof are liable to inspection and search by a Customs official." Directed to turn around without crossing the border, he merged into traffic containing cars returning from Canada. When he came to a CBP inspection booth, the officers searched his vehicle despite him saying that he had not crossed the border. Marijuana and drug paraphernalia was found and he pled guilty to state misdemeanor charges. He then sued for unlawful search and seizure. Upholding dismissal of that claim, a federal appeals court ruled that a traveler’s subjective intent not to leave the country does not provide an exception to the government’s authority to conduct suspicionless searches of vehicles at the border. D.E. v. Doe, #15-2128, 2016 U.S. App. Lexis 15670, 2016 Fed. App. 292P (6th Cir.).

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     Use of Force: Media Coverage of Use of Force and Disability, Ruderman Family Foundation (March 2016).

     Use of Force: Police Violence and Citizen Crime Reporting in the Black Community, by Matthew Desmond, Andrew V. Papachristos, and David S. Kirk, American Sociological Review 2016 Vol. 9(15) 957-976.

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