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Assault and Battery: Physical

     A motorist arrested for DUI sued the arresting officer for allegedly using excessive force in making the arrest. Rejecting this claim, a federal appeals court noted that the arrestee resisted being arrested, trying to avoid being handcuffed, lurching to the side and stating "no, no" while clearly drunk and obstinate. The officer's actions in carrying out the initial takedown was not constitutionally unreasonable founder clearly established law. There was no case law establishing that it was unreasonable for the officer to use non-deadly punches to gain control of the arms of a drunken, actively resisting arrestee. The force used by the officer was the kind of "split-second" judgment in a difficult situation which qualified immunity was intended to protect. Griggs v. Brewer, #16-10221, 841 F.3d 308 (5th Cir. 2016).

Electronic Control Weapons: Dart Mode Cases

     Officers attempted to pull over a female motorist who ran a stop sign, but she drove on, speeding, until she stopped at an apartment complex. She ran from her truck towards an apartment. A deputy fired his Taser in the dart mode at her, with one of the darts hitting her. Allegedly, no warning was given. As she pounded on a door, the deputy began hitting and kicking her, and activated the Taser again. The woman's mother opened the apartment door. The deputy pushed the motorist inside and the struggle continued, as she refused to passively submit. The mother pled with the deputy to leave her daughter alone. The deputy then used his Taser on the mother's leg and threatened to arrest her. Additional officers arrived in respose to the deputy's dispatch call. He handcuffed the motorist and escorted her out to his car. During the encounter, he activated the Taser on the motorist nine or ten times. The Taser dart was surgically removed from her back later that night. Her injuries included two fractured ribs.

    A federal appeals court rejected excessive force, unlawful entry, and unlawful seizure claims, finding that the plaintiffs failed to meet their burden of presenting a legal argument as to why the deputy's actions violated their clearly established rights, as required to defeat his qualified immunity defense. They failed, on the unlawful entry claim, to demonstrate that it was "beyond debate" in 2009 that the Constitution prohibited a warrantless entry based on hot pursuit in the circumstances presented here. Gutierrez v. Luna County Sheriff Cobos, #15-2161, 2016 U.S. App. Lexis 20466 (10th Cir.).

False Arrest/Imprisonment: No Warrant

     Several plaintiff arrestees sued for false arrest after they were arrested for trespass at a party in an apartment. A federal appeals court overturned the dismissal of the claim, since there appeared to be a genuine issue of material fact as to whether the officers had probable cause to make an arrest for trespass. There was no reasonable basis for their belief that the building in question was in the Formal Trespass Affidavit Program, under which the police department was the lawful custodian of certain property, and a "for-sale" sign on the building "belied abandonment." Mitchell v. The City of New York, #14-0767, 841 F.3d 72 (2nd Cir.).

     Officers were engaged in arresting a juvenile who was part of a group of juveniles running in the street after being released from school. A woman motorist stopped her car and stood outside her vehicle videotaping the arrest. An officer, from 50 feet away, yelled "Ma’am, pull your car to the side or keep on going.” She replied, “I’m not going to let you hurt that young boy. I ain’t moving.” The officer moved closer, told her this was a traffic stop, and asked for her license. A struggle ensued and the woman was arrested. At a trial of her false arrest claim, the court allowed the defense attorney to present testimony that the plaintiff had been arrested three times before. The jury returned a verdict in favor of the officers on all claims. A federal appeals court ordered a new trial. The plaintiff's prior arrests were not relevant to her claim for damages for this arrest, and any probative value of those arrests was far outweighed by prejudice to the plaintiff, in violation of Federal Rule of Evidence 404(b). The trial court did not determine whether the prior arrests involved conduct remotely similar to the arrest in this case, and the defense counsel's questioning revealed that the evidence was admitted for purposes of credibility, propensity, and character of the arrestee. Smith v. Baltimore City Police Department, #15-1604, 840 F.3d 193 (4th Cir. 2016).

False Arrest/Imprisonment: Unlawful Detention

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

     A woman fell into a deep sleep after a taxing few days taking care of her Alzheimer-stricken mother. Family members were unable to rouse her and EMTs arrived, waking her up with an ammonia capsule. She declined being taken to a hospital. In the interim, an officer received a call from 911 requesting assistance at the residence. When he arrived, one of the EMTs told him that the woman had "been a little combative to herself," was upset, and had been "scruffing and hitting herself in the head. He talked to a hospital where she had previously been diagnosed as suffering from caregiver breakdown and Pick's disease, which can involve headaches and seizures, He decided to seize the woman in her bedroom and take her to the hospial for a psychological evaluation.

     A federal appeals court held that the officer had arguable probable cause to seize the woman as a possible danger to herself, rejecting her unlawful seizure and false imprisonment claims. Further proceedings were ordered, however, on whether the officer's conduct during the seizure was done in an extraordinary manner unusually harmful to plaintiff's privacy interests, such as refusing to leave her alone while she removed her nightgown and put on other clothing, which he directed her to do, forcing her to disrobe, which implicated her right to privacy and personal security. He failed to summon an available female EMT or female relative for that purpose, and there was also testimony that he attempted to pull her nightgown from her shoulder, and "used the threat of deadly force to compel her to remove her shorts, in order to first put on undergarments, by patting his gun after she initially refused." If true, the appeals court said, this violated her clearly established rights." May v. City of Nahunta, Georgia, #15-11749, 2016 U.S. App. Lexis 20501 (11th Cir.).

Federal Tort Claims Act

     Customs and Border Protection agents in Louisiana boarded a Greyhound bus and performed a routine check of passengers' immigration status. A Mongolian citizen in the U.S. on an H-1B temporary worker visa was unable to produce his immigration papers despite a law requiring him to carry them. He was therefore arrested when the agents were unable to verify his status, pursuant to the agecy's policy requiring detention under these circumstances. He sued the U.S. government, claiming false arrest and imprisonment under Louisiana law, as provided by the Federal Tort Claims Act's waiver of sovereign immunity by the federal government. The claim was rejected under the discretionary function exception to the Federal Tort Claims Act. The court concluded that an investigation into a perso's immigratio status is considered discretionary when that investigation culminates in a detainment mandated by an agency policy. Tsolmon v. United States, #15-20609, 841 F.3d 378 (5th Cir. 2016).

Firearms Related: Intentional Use

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

     Police responding to a report of a woman hacking at a tree with a knife arrived on the scene and observed a woman holding a kitchen knife walking down a driveway towards another woman. They were unable to approach the women because of a chain link fence. One of the officers shot her four times. A federal appeals court ruled that the officer was not entitled to summary judgment on the basis of qualified immunity. The record did not support the officer's perception of an immediate threat. The plaintiff did not raise the knife she was holding and did not make any aggressive or threatening actions toward the other woman. She was described by a witness as composed and non-threatening. The facts presented the police shooting a woman who was committing no crime and holding a kitchen knife. While the woman with the knife may have been acting erratically, was approaching a third party, and did not immediately comply with orders to drop the knife, a rational jury—accepting the facts in the light most favorable to plaintiff—could find that she had a constitutional right to walk down her driveway holding a knife without being shot. Hughes v. Kisela, #14-15059, 2016 U.S. App. Lexis 21186 (9th Cir.).

     A police officer fatally shot a man on the street during an attempted arrest. The officer maintained in the trial court that he shot the decedent after he grabbed his police baton. According to him, the decedent was standing upright and was swinging the baton violently toward a second officer at head height when he was shot. According to the shooting officer, the man then fell to the ground. He claimed he shot the decedent again as he was getting up and again swinging the baton. The trial court granted summary judgment to the officer based on qualified immunity. Because evidence in the record contradicts his testimony, a federal appeals court reversed and remanded. The officer's credibility was genuinely in doubt. A reasonable jury could conclude that the officers were wrong when they claimed that the decedent grabbed the baton. In the alternative, a reasonable jury could conclude, given the trajectory of the bullets through the decedent's body, that even if he had grabbed the baton the officer could not have fired his first shot while the man was standing up and swinging the baton. Newmaker v. City of Fortuna, #14-15098,2016 U.S. App. Lexis 20932 (9th Cir.).

Parking Tickets and Traffic Offenses

     A group of drivers sued a city and the company which installed and operated an Automatic Traffic Enforcement (ATE) system, claiming that the system violated their right to procedural due process, their fundamental right to travel, a state statute, and caused unjust enrichment for the city and company. Drivers who had not received citations from the system had no standing to assert their claims. While six drivers had standing to bring procedural-due-process claims because the allegations that the ATE procedure was inadequate sufficiently established an injury in fact for standing, they did not state a violation of their procedural-due-process rights, did not allege a violation of the right to travel under the Privileges and Immunities Clause, and there was no Equal Protection violation. Hughes v. City of Cedar Rapids, #15-2703, 840 F.3d 987 (8th Cir. 2016).

Search and Seizure: Home/Business

     After police conducted two warrantless searches of his home, a man sued the District of Columbia and individual officers for violations of his Fourth Amendment rights. The first search occurred after the man called a suicide hotline, and in the course of the conversation mentioned having weapons in his home. Overturning summary judgment for the defendants, a federal appeals court reasoned that, even assuming, without deciding, that the initial sweep of the plaintiff's home by the Emergency Response Team (ERT) was justified under the exigent circumstances and emergency exceptions to the warrant requirement, the second top-to-bottom search by the Explosive Ordinance Disposal Unit (EOD) after the police had been on the scene for several hours was not.

    In this case, the police had already secured the area and determined that no one else was inside the home and that there were no dangerous or illegal items in plain sight; the plaintiff had previously surrendered peacefully to custody; and the information the police had about the plaintiff failed to provide an objectively reasonable basis for believing there was an exigent need to break in plaintiff's home a second time to search for hazardous materials. And assuming, without deciding, that the community caretaking exception to the warrant requirement applies to a home, the court concluded that the scope of the second search far exceeded what that exception would allow. Because the law was clearly established at the time that the law enforcement officers must have an objectively reasonable basis for believing an exigency justifies a warrantless search of a home, and because no reasonable officer could have concluded such a basis existed for the second more intrusive search, the court concluded that the officers were not entitled to qualified immunity across the board. Corrigan v. District of Columbia, #15-7098, 2016 U.S. App. Lexis 20108 (D.C. Cir.).

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      School Security: Redefining School Resource Officers’ Roles, by Sergeant Christopher Boyd and Chief Tomas Sanchez, Hollywood, Florida, Police Department, FBI Law Enforcement Bulletin (Dec. 2016).

     Search and Seizure: Probation and Parole Searches, Point of View, Alameda County District Attorney's Office (Fall 2016).

  Reference:

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