February 2017 Law Enforcement Liability Reporter

AELE Seminars

The Biometric, Psychological and Legal Aspects of Lethal and Less Lethal Force
and the Management, Oversight, Monitoring, Investigation and Adjudication of the Use of Force
April 3-6, 2017 - Orleans Hotel, Las Vegas

Public Safety Discipline and Internal Investigations

Oct. 2-5, 2017– Orleans Hotel, Las Vegas

Click here for more information about all AELE Seminars

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A civil liability law publication for Law Enforcement
ISSN 0271-5481 Cite this issue as: 2017 LR February
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Digest Topics
Dogs

False Arrest/Imprisonment: No Warrant (3 cases)

Firearms Related: Intentional Use (2 cases)

Firearms Related: Second Amendment

First Amendment

Property

Racial Profiling
Resources

Cross References

AELE Seminars

Public Safety Discipline and Internal Investigations

Oct. 2-5, 2017– Orleans Hotel, Las Vegas

Click here for more information about all AELE Seminars

MONTHLY CASE DIGEST

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

Officers obtained a search warrant for a residence, and an Emergency Response Team was involved due to the subject’s criminal history, gang affiliations, possession of firearms, and possible possession of cocaine and heroin. Approaching the door, an officer could see dogs barking aggressively and “jumping.” The dogs, owned by the plaintiff, were pit bulls, weighing about 97 pounds and 53 pounds. The officer testified that he “did not feel [the officers] could safely clear the basement with those dogs down there.” The officers shot and killed the dogs. A federal appeals court upheld dismissal of the lawsuit as there was no genuine issue of facts on either a Fourth Amendment excessive force claim or an inadequate training claim. The court agreed that the officers acted reasonably and that there was no history of “needless killing of animals in the course of searches in the municipality. The dogs posed an imminent threat to the officers while they were executing a search warrant looking for drugs in a house where a known gang member lived. Brown v. Battle Creek Police Department, #16-1575, 2016 U.S. App. Lexis 22447, 2016 Fed. App. 293P (6th Cir.).

False Arrest/Imprisonment: No Warrant

While working for a federal agency in D.C., a man drove officials to Capitol Hill. At an attended barricade, a uniformed police officer “began to chastise and yell at him for dropping off his passengers at that location.” He made a U-turn and left. The officer, claiming that the car struck his leg, called other officers. A second officer arrested him for assault on a police officer and assault with a deadly weapon, and the charges were subsequently dropped. A video of the incident showed aggressive driving by the plaintiff. A federal appeals court affirmed summary judgment in favor of the defendants, upholding a determination that no material facts were in dispute and the court’s refusal to allow Smith to conduct discovery before its ruling. The officers had probable cause to arrest Smith. A “reasonable officer” would have felt threatened by the proximity of the fast-moving vehicle.” The existence of probable cause foreclosed the plaintiff’s claims of false arrest, malicious prosecution, Fourth Amendment violations, and intentional infliction of emotional distress. Smith v. United States, #15-5238, 843 F.3d 509 (D.C. Cir. 2016).

Officers conducting surveillance for loud-music violation decided to stop a motorist driving by. He turned into a parking lot, went into a store, and then returned to his truck. An officer heard the music coming from the truck as it pulled away, and he followed. When the motorist saw the officer following, he turned down his music. He was stopped for loud music and excessive speed. Other officers arrived and the motorist allegedly refused to get out of his truck when requested. He claimed that he was threatened with a Taser, and arrested for obstruction of justice and resisting arrest. A federal appeals court upheld dismissal of the lawsuit, finding probable cause for the arrest. There was probable cause to stop a vehicle driver for speeding based on observations, even though the officers did not know the driver's exact speed, Tapley v. Chambers, #15-3013, 840 F.3d 370 (7th Cir.).

A Memphis, Tenn. Police officer was arrested at night after leaving a nightclub in the city’s Beale Street entertainment district. He filed a class action lawsuit arguing that the city’s alleged routine practice of “sweeping” Beale Street at 3 a.m. on weekend nights violated his constitutional right to intrastate travel/ A jury found that the city, in implementing the policy did not consider whether conditions in the area posed an existing, imminent, or immediate threat to public safety. Because of that finding, the judge ruled that the practice or policy was unconstitutional under strict scrutiny, enjoining its enforcement. A federal appeals court upheld this result, agreeing that strict scrutiny applied. The primary purpose of the sweep, the court said, was to impede travel. It resulted in the broad denial of access to a popular, two-block area of a public roadway and sidewalk, and was more than an “incidental inconvenience.” Under either strict or intermediate scrutiny, the city bore the burden of justifying the sweep to its stated goal of public safety. Cole v. City of Memphis, #15-5725, 830 F.3d 530 (6th Cir.).

Firearms Related: Intentional Use

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

A man engaged in a fight with a police officer that ended with the officer firing three shots and killing him. Overturning the trial court’s denial of qualified immunity to the officer on an excessive force claim, a federal appeals court found that the officer’s conduct prior to the shooting was neither excessive nor unreasonable; and because the plaintiffs had failed to demonstrate a constitutional violation, they failed to satisfy their burden of showing that the officer was not entitled to qualified immunity. The appeals court held that the trial court erred in holding that—in the absence of video evidence—eyewitness testimony should not be considered for summary judgment purposes until subject to cross examination. In this case, the appeals court gave full weight to the undisputed eyewitness testimony concerning the incident. This showed that the officer used deadly force to protect himself because by the time the officer drew and fired his weapon, the decedent—who was physically larger and stronger than the officer—had already disobeyed verbal orders, put the officer in a headlock, wrestled the officer to the ground, and repeatedly reached for the officer's firearm. Orr v. Copeland, #16-50023, 2016 U.S. App. Lexis 23100 (5th Cir.).

An officer's use of deadly force to shoot and kill a fleeing man was not reasonable as a matter of law because the record did not show that the decedent committed the violent felony of aggravated assault or that the decedent posed a significant immediate threat to the safety of the officer or other bystanders. He was not holding a firearm at the time of the shooting, and the prior physical struggle was minimal. The officer was not entitled to qualified immunity. Wallace v. Cumming, #15-3279, 843 F.3d 763 (8th Cir.).

Firearms Related: Second Amendment

The plaintiffs mounted a Second Amendment challenge to a California state law imposing a ten-day waiting period for all lawful firearm purchases. They challenged the application of the full ten-day waiting period to those purchasers who have previously purchased a firearm or have a permit to carry a concealed weapon and who clear a background check in less than ten days. Applying intermediate scrutiny analysis, the federal appeals court ruled that that the law does not violate Second Amendment rights because the ten-day wait is a reasonable precaution for the purchase of a second or third weapon, as well as for a first purchase. The burden of the 10-day wait period on subsequent purchasers who passed the background check in less than 10 days was very small, the court stated, and there was nothing new in having to wait for delivery of a weapon. Additionally, the waiting period provided time not only for a background check, but also for a cooling-off period to deter violence resulting from impulsive purchases of firearms. Silvester v. Harris, #14-16840, 843 F.3d 816 (9th Cir.).

First Amendment

A freelance photographer and a media outlet he supplied photos to sued a New Hampshire state trooper who allegedly violated their constitutional rights by seizing the photographer’s camera without a warrant at the scene of a vehicle crash. The trial court concluded that even if these actions were unconstitutional under current law, the trooper was entitled to qualified immunity from suit because constitutional standards as applied to a situation like this one were unclear at the time of the challenged conduct (August 2010). A federal appeals court affirmed, holding that the plaintiffs failed to identify clearly established law at the time of the challenged conduct showing beyond debate that the officer’s specific acts violated the First Amendment. Belsito Communications, Inc v. Decker, #16-1130, 2016 U.S. App. Lexis 23201 (1st Cir.).

Property

A motorist was arrested for speeding “wildly” while both drunk and high on drugs. His Ferrari was impounded during the incident, and a magistrate ordered that the county retain the vehicle. The motorist filed a federal civil rights lawsuit claiming that the county, in retaining the vehicle while litigation was pending (pendent lite) deprived him of constitutional due process. A federal appeals court disagreed, holding that the Due Process Clause of the Fourteenth Amendment permitted the county, after making out a prima facie case that retention was necessary to protect its interests, to shift the burden of going forward onto the title owner to identify an alternative measure that satisfied the municipality's interests in the financial value of the vehicle and/or in protecting the public from continued unsafe and illegal driving, Summary judgment for the plaintiff was reversed. Ferrari v. County of Suffolk, #15-975, 2016 U.S. App. Lexis 23280 (2nd Cir.).

Racial Profiling

A man who is of Kurdish and Turkish descent claimed that two police officers arrested him because of his ethnicity in violation of equal protection. The officers came upon him while investigating a report of a suspicious person “casing” the neighborhood, and he fit the reported description. A federal appeals court upheld summary judgment on the basis of qualified immunity on claims of selective enforcement and failure to intervene, finding that the officers’ actions had no proven discriminatory effect or purpose. Gilani v. Matthews, #16-1689, 843 F.3d 342 (8th Cir. 2016).

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AELE Seminars

Public Safety Discipline and Internal Investigations

Oct. 2-5, 2017– Orleans Hotel, Las Vegas

Click here for more information about all AELE Seminars

Resources

Law Enforcement Fatalities: Deadly Calls and Fatal Encounters, Analysis of U. S. law enforcement line of duty deaths when officers responded to dispatched calls for service and conducted enforcement (2010-2014), by the National Law Enforcement Officers Memorial Fund (NLEOMF) (2016).

Law Enforcement Fatalities: National Law Enforcement Officers Memorial Fund (NLEOMF) website.

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