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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
A civil liability law publication for Law Enforcement
ISSN 0271-5481 Cite this issue as: 2017 LR March
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CONTENTS
Assault and Battery: Physical
Defenses: Qualified Immunity
Domestic Violence and Child Abuse
Firearms Related: Intentional Use
Firearms Related: Second Amendment Issues
First Amendment
Malicious Prosecution
Public Protection: Informants
Search and Seizure: Person (2 cases)
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
- 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.
Assault and Battery: Physical
Because West Virginia police officers have authority to make arrests for minor traffic offenses, including the expired inspection sticker the plaintiff motorist had, his arrest was supported by probable cause even though the officer made the arrest for assault and obstruction rather than the expired sticker. As to his excessive force claim, the plaintiff suffered only abrasions minor enough that he treated them at home and did not seek medical attention. An efficient, lawful arrest causing the arrestee to suffer only de minimis (minimal) injuries cannot support a claim for excessive force. Pegg v. Herrnberger. #15-1999, 845 F.3d 112 (4th Cir. 2017).
Defenses: Qualified Immunity
****Editor's Case Alert****
A 911 call reported that a male motorist was a drunk driver on the highway. The women who made the call followed his car with their bright lights on. He pulled over at an off-ramp to confront them, and then drove to a secluded home where he lived with his brother. Two officers went to the residence after interviewing the women. The two men inside became aware of them and asked “who are you?” and “What do you want?” The officers said “Hey (expletive), we got you surrounded. Come out or we’re coming in,” and one shouted “Open the door, State Police, open the door.” The men inside allegedly only heard “we’re coming in” and not the identification,” They armed themselves and yelled “We have guns.” One of them fired two shotgun blasts from the back door at an officer. Then the second man opened a window and pointed a handgun in an officer’s direction. An officer fired at him but missed. A third officer, who had arrived late on the scene, shot at this man and killed him. Both the trial court and a federal appeals court denied this officer qualified immunity.
The U.S. Supreme Court reversed, finding that the officer did not violate any clearly established law. The Court declined to consider whether a reasonable jury could infer that the third officer had witnessed the other officers’ deficient performance and should have realized that corrective action was necessary before using deadly force because neither lower court addressed that argument. The lower court erred in concluding that a police officer was not entitled to qualified immunity on an excessive force claim where no settled Fourth Amendment principle required the officer, who arrived late to the scene and witnessed shots being fired by one of several individuals in a house, to second-guess the earlier steps already taken by his fellow officers or shout a warning to an armed occupant before shooting, and thus, there was no clearly established law that would have placed the constitutional question beyond debate. The Court expressed no opinion on whether the first two officers were entitled to qualified immunity.
The Court found it necessary to clarify the test for granting qualified immunity to an officer:
“Today, it is again necessary to reiterate the longstanding principle that ‘clearly established law’ should not be defined ‘at a high level of generality.’ … As this Court explained decades ago, the clearly established law must be ‘particularized’ to the facts of the case. Otherwise, ‘[p]laintiffs would be able to convert the rule of qualified immunity . . . into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights.’ … The panel majority misunderstood the ‘clearly established’ analysis: It failed to identify a case where an officer acting under similar circumstances as [the third officer] was held to have violated the Fourth Amendment. Instead, the majority relied on Graham, Garner, and their Court of Appeals progeny, which—as noted above—lay out excessive-force principles at only a general level. Of course, ‘general statements of the law are not inherently incapable of giving fair and clear warning’ to officers, but ‘in the light of pre-existing law the unlawfulness must be apparent,’”
White v. Pauly, #16-67, 137 S. Ct. 548, 196 L. Ed. 2d 463, 2017 U.S. Lexis 5, 85 U.S.L.W. 4027, 26 Fla. L. Weekly Fed. S 409
Domestic Violence and Child Abuse
A child removed from her mother’s custody along with her minor sister sued the county and some of its employees, claiming that social workers maliciously used perjured testimony and fabricated evidence to secure her removal, in violation of her Fourth and Fourteenth Amendment rights to her familial relationship with her mother. A federal appeals court upheld the denial of absolute immunity to the individual defendants, as the complaint alleged conduct well outside of social workers’ legitimate roles as quasi-prosecutorial advocates presenting a case and making a discretionary decision as to whether to prosecute. In this case, the plaintiff produced more than sufficient admissible evidence to create a genuine dispute as to whether her removal from her mother’s custody violated her clearly established constitutional rights, and the defendants’ case for qualified immunity from these charges was not supported by the law or the record. The use of perjured testimony and fabricated evidence in court in order to sever a child’s familial bond with her mother, if true, was unconstitutional. Hardwick v. County of Orange, #15-55563, 844 F.3d 1112 (9th Cir. 2017).
Firearms Related: Intentional Use
A Utah state trooper tried to stop a car for speeding near an Indian reservation. The car entered the reservation and stopped about 25 miles later. The 17-year-old male driver and a 21-year-old male passenger emerged and started running away. The trooper caught the driver and requested backup. A police officer responded and allegedly shot and killed the passenger. The officer claimed that the passenger shot at him and then shot himself. An illegally purchased gun was found near the passenger. No medical assistance was allegedly provided to the passenger while awaiting an ambulance. FBI agents took charge of the scene and allegedly, along with the police, denied a tribal officer access. After the passenger was declared dead off the reservation, an officer allegedly photographed the decedent nude and manipulated his remains.
A medical examiner found that the fatal bullet entered the back of the decedent’s head above and behind his left ear. The decedent was right-handed. No soot was found on the decedent’s hands. When the investigation of the gun was concluded, the FBI destroyed it. In prior litigation under 42 U.S.C. Sec. 1983, a federal trial court found that the pursuit was reasonable, and that the decedent had fired at the officer. The U.S. Court of Appeals for the Tenth Circuit affirmed this result, finding no liability. Jones v. Norton, #14-4040, 809 F.3d 564 (10th Cir. 2015).
The decedent’s family and the Indian tribe then sued the U.S. government in the Court of Claims under a1868 treaty with the Indian tribe and alleging a violation of the United States’ trust obligations, arising out of the same circumstances surrounding the shooting death. The estate claimed that officers concocted a false story that decedent shot himself, and failed to take custody of decedent's body and to secure it against desecration and spoliation of evidence. The Claims Court ruled that the treaty was limited to affirmative criminal acts committed on reservation lands and dismissed allegations regarding failure to take custody of and secure the decedent’s body against desecration, spoliation of evidence, failure to ensure a proper autopsy, and failure to protect the tribe’s reservation boundary and sovereign interest in the crime scene. The court found allegations concerning acts on the reservation barred by issue preclusion.
The Federal Circuit vacated, holding that the Claims Court improperly limited the scope of claims cognizable under the treaty and erred in applying issue preclusion without considering the spoliation issue, an issue of the culpability of federal agents which had never been decided. Some of the alleged wrongs were a continuation of the conspiracy to cover-up the on-reservation killing; Jones v. United States, #15-5148, 2017 U.S. App. Lexis 1479 (Fed. Cir.).
Firearms Related: Second Amendment Issues
In 2010 in McDonald v. City of Chicago, #08-1521, 561 U.S. 742 (2010), the U.S. Supreme Court invalidated a Chicago ordinance prohibiting possession of handguns. Chicago then established rules that required one hour of range training as a prerequisite to obtaining a permit to possess a handgun, but banned shooting ranges by zoning throughout the city. In 2011, the Seventh Circuit held that the ban was incompatible with the Second Amendment. The city replaced it with regulations governing shooting ranges. The trial court invalidated a restriction allowing gun ranges only as special uses in manufacturing districts, but upheld a restriction prohibiting gun ranges within 100 feet of another range or within 500 feet of a residential district, school, place of worship, and multiple other uses, and a provision barring anyone under age 18 from entering a shooting range.
A federal appeals court has now invalidated all three restrictions. The manufacturing-district classification and the distancing rule together rendered only 2.2% of the city’s total acreage even theoretically available for a range, and no single shooting range yet exists, which severely limited Chicagoans’ Second Amendment right to maintain proficiency in firearm use. The court rejected the city’s “speculative claims of harm to public health and safety” as inadequate to survive the heightened scrutiny that applies to burdens on Second Amendment rights. The city also failed to adequately justify the “overbroad” age restriction; its own witness agreed that youth firearm instruction was prudent and can be conducted in a safe manner. Ezell v. City of Chicago, #14-3312, 2017 U.S. App. Lexis 900 (7th Cir.).
First Amendment
A protest group coalition challenged a 2008 federal Park Service regulation reserving areas on Freedom Plaza in Washington, D.C. for the defendant Presidential Inaugural Committee at an inauguration parade. The plaintiffs claimed that this interfered with their First Amendment right to use the same space for a large demonstration against the Presidential Inauguration. Upholding summary judgment for the Park Service, a federal appeals court held that the regulation authorizing the priority permit, including the space on Freedom Plaza for the bleachers, was not a content- or viewpoint-based speech restriction, but a reasonable time, place, and manner regulation of the use of a public forum. The First Amendment does not support the plaintiffs’ claim of a right to displace spectator bleachers with its own demonstration at the same location. The regulation left 70 percent of the parade route open to the public, including demonstrators. A.N.S.W.E.R. Coalition v. Basham, #16-5047, 845 F.3d 1199, (D.C. Cir. 2017).
Malicious Prosecution
A sheriff’s officer used a confidential informant to make a controlled buy of marijuana as part of a county-wide drug-bust operation. A warrant was issued for the plaintiff’s arrest as a result, and she turned herself in, but the charges were dismissed because of misidentification. She sued for malicious prosecution, claiming that the officer prepared a misleading police report as well as giving false grand jury testimony identifying her as the seller of the drugs. While the trial court denied the officer both absolute and qualified immunity, a federal appeals court reversed on the absolute immunity issue. The officer’s absolute immunity defense presented a question of first impression about how the U.S. Supreme Court’s provision of absolute immunity for grand jury witnesses in Rehberg v. Paulk , #10-788, 132 S.Ct. 149 (2012), intersected with the Sixth Circuit’s requirement that an indicted plaintiff asserting malicious prosecution present evidence that the defendant provided false testimony to the grand jury. The court concluded that Rehberg’s absolute immunity for false grand jury testimony precluded the plaintiff’s malicious prosecution claim because she could not rebut the indictment’s presumption of probable cause without using his grand jury testimony. Sanders v. Jones, #15-6384, 845 F.3d 721 (6th Cir. 2017).
Public Protection: Informants
After a teenage prostitute was found in possession of marijuana in her hotel room, she agreed to officers’ request that she serve as an informant. She called her drug dealer and ordered drugs. The officer arranging this planned to have other officers intercept the dealer before he arrived. The prostitute signed a confidential informant form, which provided that the “Department will use all reasonable means to protect your identity; however, this cannot be guaranteed.” The dealer’s car was stopped and the dealer and a passenger believed that the prostitute had set them up, especially as the officer stopping them told the passenger that he had ordered the drugs. The dealer and an accomplice later murdered her. The prostitute’s mother sued for failure to protect her daughter. A federal appeals court upheld a denial of qualified immunity to the officer who stopped the drug dealer’s car. A reasonable jury could find that the officer acted with deliberate indifference under the state-created danger doctrine when he essentially revealed to the passenger that the prostitute had set up the dealer. Nelson v. City of Madison Heights, #15-2441, 845 F.3d 695 (6th Cir. 2017).
Search and Seizure: Person
Officers stopped a minor motorist for a broken tail light, but it turned into a DUI investigation when alcohol was smelled within the vehicle. A federal appeals court held that the officers had arguable probable cause for the stop and a DUI investigation and arrest, given the totality of the circumstances, the relatively low .02 BAC limit under the minor DUI statute, and the absence of judicial decisions interpreting that statute. They were therefore entitled to qualified immunity with respect to the claim that they violated the driver's Fourth Amendment right to be free from unreasonable seizures, and as to the claim that they violated the driver's Fourth Amendment right to be free from unreasonable searches when she was frisked before being placed in the patrol car, as the search was incident to a lawful arrest. Schaffer v. Beringer, #15-3438, 842 F.3d 585 (8th Cir. 2016).
Two officers settled claims with two women stopped in a car who were subjected to body cavity searches at the scene by the female officers in a quest to find drugs after marijuana was smelled. On claims for bystander liability against a third officer who was present, the trial court denied qualified immunity. At the time of the incident, it was clearly established in the Fifth Circuit that an officer could be liable as a bystander in a case involving excessive force if he knew a constitutional violation was taking place and had a reasonable opportunity to prevent the harm. The trial court did not err in finding that excessive force had not been waived. In this case, while the plaintiffs never used the word "excessive force" in their complaint and were less than clear during the proceedings about exactly what theories they were advancing, they had clearly argued that they were subject to an unreasonable search and seizure in violation of the Fourth Amendment, and have alleged facts that support a claim for excessive force. Hamilton v. Kindred. #16-40611, 845 F.3d 659 (5th Cir. 2017).
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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
Justice Department Documents: U.S. Justice Department Consent Decree with Baltimore Police Department (January 12, 2017).
Justice Department Documents: Investigation of the Chicago Police Department, U.S, Department of Justice, Civil Rights Division (January 13, 2017).
Reference:
- Abbreviations of Law Reports, laws and agencies used in our publications
- AELE's list of recently-noted civil liability law resources.
Cross References
Defenses: Absolute Immunity – See also, Malicious Prosecution
False Arrest/Imprisonment: No Warrant – See also, Assault and Battery: Physical
Firearms Related: Intentional Use – See also, Defenses: Qualified Immunity
U.S. Supreme Court Cases – See also, Defenses: Qualified Immunity
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