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

Failure to Disclose Evidence

False Arrest/Imprisonment: No Warrant (2 cases)

Firearms Related: Intentional Use (2 cases)

Firearms Related: Second Amendment

First Amendment

Public Protection: Crime Victims

Search and Seizure: Person (2 cases)

Resources

Cross References

AELE Seminars

Public Safety Discipline and Internal Investigations

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

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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.
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Failure to Disclose Evidence

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

Six years after a woman was raped and strangled to death, police arrested a man who was convicted of the crime. He spent six years in prison before DNA evidence showed that someone else, a serial killer linked to nine similar homicides, was responsible. The plaintiff claimed that police detectives made up a fake confession and got jailhouse informants to falsely incriminate him. He further argued that they violated Brady v. Maryland, #490, 373 U.S. 83 (1963), requirements by failing to disclose impeachment evidence about the informants false statements. A jury found two detectives liable for violating the plaintiff’s due process rights by fabricating the confession, and also found the city liable, awarding $1 million in damages. A federal appeals court upheld this result, and held that the trial court improperly granted summary judgment to the defendants on the Brady violation claims. The fact that the plaintiff knew that the informants’ statements were false did not relieve the detectives of their duty to disclose possible impeachment evidence. Avery v. City of Milwaukee, #15-3175, 847 F.3d 433 (7th Cir. 2017).

False Arrest/Imprisonment: No Warrant

After a person was murdered and several others were shot, a man was arrested without a warrant, on suspicion of involvement in these crimes. He admitted to having a gun and could have, at a minimum, been charged with felony unlawful use of a gun by a felon. But a prosecutor told the officers to delay charging him until lab results came in establishing whether his gun had been used in the shootings and murder. After 55 hours in custody, he sued for alleged violation of his Fourth and Fourteenth Amendment rights because he was not provided with a judicial determination of probable cause within 48 hours. The next day, a judge made a probable cause determination. The plaintiff then sought class action certification that the city had a policy or practice authorizing officers to detain persons arrested without a warrant for up to 72 hours before permitting the arrestee to appear before a judge.

The city made a Rule 68 offer of judgment granting him relief as to "all claims brought under this lawsuit,” which he accepted. Despite that, he appealed the denial of certification of a proposed class of all “persons who will in the future be detained.” A federal appeals court dismissed the appeal, finding that the plaintiff was not an aggrieved person with a personal stake in the case as required under Article III of the Constitution. Additionally, the offer of judgment accepted did not exempt the class certification issue. Wright v. Calumet City, #16-2219, 2017 U.S. App. Lexis 2823 (7th Cir.).

A man who was arrested while he was video recording a police station from a public sidewalk and refused to identify himself sued three officers and the city, claiming that the arrest violated his Fourth and First Amendment rights. He had been handcuffed and placed in the back of a patrol car, and released after a supervisor arrived. The individual defendants were entitled to qualified immunity as to plaintiff’s First Amendment claim because there was no clearly established right to record the police at the time of his activities. The appeals court ruled prospectively, however, that a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions. The officers were also entitled to qualified immunity as to the plaintiff's Fourth Amendment unlawful detention claim, but his unlawful arrest claim survived because the officers’ actions were disproportionate to any potential threat that he posed or to their investigative needs. Turner v. Driver, #16-10312, 2017 U.S. App. Lexis 2769 (5th Cir.).

Firearms Related: Intentional Use

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

A man was shot by a police officer while he was trying to defuse a situation where his former schoolmate had pulled out a gun and pointed it at a crowd. The man was in possession of the gun because he had taken it away from his schoolmate. He was shot several times and is now paralyzed from the neck down. He sued the officer for excessive force. A federal appeals court found that the officer’s use of deadly force was objectively reasonable and the trial judge did not err in granting his motion for summary judgment based on qualified immunity. The officer ordered the plaintiff to stop, but the plaintiff did not hear him, continuing to run toward another officer with the gun in his hand. The plaintiff was two to three feet from the other officer before the defendant officer reasonably fired his gun. Malone v. Hinman, #15-3465, 847 F.3d 949 (8th Cir. 2017).

A male motorist was driving a vehicle containing three persons, including his infant son, at 3 a.m. He saw that he was being followed by a police car with its lights and siren activated, but continued to drive on. Other officers responded to the scene, the motorist pulled over, several officers exited their vehicles, and one stepped in front of the stopped car. When the car started to move forward, that officer fired two rounds from a shotgun at the driver, severely injuring him. The officer was entitled to qualified immunity in an excessive force claim because it was objectively reasonable for him to use deadly force in self-defense when the car moved forward. Several officers were entitled to qualified immunity in the driver’s other excessive force claim because the video evidence refuted any claim that excessive force was used in removing him from the car. The officers were also entitled to qualified immunity for the infant child passenger’s unreasonable seizure claim based on the shots fired at the car because the law as to Fourth Amendment protection for a passenger in this situation was not clearly established. Carabajal v. City of Cheyenne, #15-8139, 847 F.3d 1203 (10th Cir. 2017).

Firearms Related: Second Amendment

In a case challenging the constitutionality under the Second Amendment of Maryland’s Firearm Safety Act (FSA), a federal appeals court, ruling en banc, found that the banned assault weapons and large-capacity (over 10 rounds) magazines are not protected by the Second Amendment. The court majority held that it had no power to extend Second Amendment protection to the “weapons of war” that the U.S. Supreme Court decision in District of Columbia v. Heller, #07-290, 554 U.S. 570 (2008) decision “explicitly excluded” from such coverage.

The court majority also found it prudent to rule that — even if the banned assault weapons and large-capacity magazines were somehow entitled to Second Amendment protection — the trial court properly subjected the FSA to intermediate scrutiny and correctly upheld it as constitutional under that standard of review, despite a vacated appeals court panel decision that adopted strict scrutiny as the appropriate standard for Second Amendment challenges to firearms legislation. Four judges filed a dissenting opinion, arguing that strict scrutiny was the appropriate Second Amendment standard and that the Second Amendment protects semiautomatic rifles and large capacity ammunition magazines. Kolbe v. Hogan, Jr., #14-1945, 813 F.3d 160 (4th Cir. 2017).

First Amendment

Two nonprofit protest organizations challenged D.C.’s sign posting rules that required them to remove signs relating to an event 30 days after protest demonstrations, regardless of whether a 180-day period allowing signs on public lampposts had expired. A federal appeals court ruled that the rules were reasonable time, place, and manner restrictions, and were not imposing a content-based distinction in violation of the First Amendment.

The rules at issue regulate how long people may maintain event-related signs on public lampposts, not the content of the signs’ messages, and were narrowly tailored to further a well-established, admittedly significant governmental interest in avoiding visual clutter. Act Now to Stop War and End Racism Coalition v. District of Columbia, #12-7139, 846 F.3d 391 (D.C. Cir. 2017).

Public Protection: Crime Victims

A woman and her mother brought a federal civil rights lawsuit against ten Maine state police officers after her former boyfriend broke into her parents’ home, fatally shot her new boyfriend, shot and seriously injured the mother, abducted the woman, and engaged in a shootout with the officer during which another person was shot and killed. The lawsuit claimed that these losses were the result of a failure to protect the plaintiffs “from dangers which Defendants themselves created.” A federal appeals court vacated the dismissal of the lawsuit on the basis of failure to state a claim and the individual officers’ qualified immunity. The appeals court held that it could not be said that the plaintiffs failed to state a substantive due process claim or that the officers were entitled to qualified immunity.

Prior to the incident, the woman told the police that her ex-boyfriend had abducted, raped, and threatened to kill her, and an officer left the ex-boyfriend a voice message about the complaint, which was followed by the new violent episode. Dismissal of a Fourteenth Amendment state-created danger substantive due process claim was inappropriate because the record was devoid of any facts on whether the officers’ decision to leave a voice message was in line with police protocol and training, and the record offered no facts on exactly what the officers knew about the veracity of the allegations that the woman had made, about the ex-boyfriend’s propensity for violence, and about the risk that the ex-boyfriend would act on that propensity to harm her. Irish v. State of Maine. #16-2173, 2017 U.S. App. Lexis 3731 (1st Cir.).

Search and Seizure: Person

After receiving an anonymous tip that an African-American man dressed in a yellow shirt was selling heroin on a particular corner. While the tip was uncorroborated, two detectives drove to the intersection, where they saw a man fitting the description in the tip. The man was talking to his aunt in a driveway. He identified himself without objection, was frisked, and immediately complied with a request to remove his right hand from his pocket.

During the frisk, a detective felt keys and what he described as a soft bulge that felt like tissue. It was immediately apparent that neither item was a weapon. The detective emptied the man’s pocket, removed keys, tissues, a photo ID, and letters. He then examined the keychain’s attached flashlight, which he found had been hollowed out and contained four small baggies with a substance he believed was heroin. The man was charged with possession of heroin.

A Wisconsin state court suppressed the evidence and dismissed all charges, and the arrestee sued. The trial court granted the detectives summary judgment, stating that “no reasonable jury could find that plaintiff’s Fourth Amendment rights were violated.” A federal appeals court reversed, holding that the trial judge improperly assumed disputed facts in finding the detectives’ actions permissible under Terry v. Ohio. #67, 392 U.S. 1 (1968). There were genuine disputes of fact including whether the tip's source was anonymous, whether the plaintiff took any action that was sufficiently suspicious to justify the stop, and whether the defendants had any other information that provided at least reasonable suspicion to conduct a stop and frisk. Beal v. Beller, #14-2628, 847 F.3d 897 (7th Cir. 2017).

Two police officers initiated contact with a man who was in a city park after closing time and riding his bicycle there in the dark without a headlight. The man fled, and they pursued, detained, and searched him, finding cocaine. He was arrested for the drugs, resisting, and using a weapon in a fight. A jury could not reach a verdict on the drug charge and acquitted him of the other charges. The arrestee, an African-American, claimed that the officers violated state civil rights statutes by using excessive force during his arrest, pulling his underwear into a “wedgie” while searching him, and conducting a nonconsensual physical body cavity search of his rectum. The arrestee had a claim under one of these statutes, even if the officers had probable cause for an arrest, because alleged roadside body cavity searches necessarily amounted to intentional conduct separate and independent from a lawful arrest for being in a park after it closed, riding a bicycle in the dark without a headlight, or for resisting. There was a triable issue as to whether officers searched the plaintiff's rectum because body-worn camera footage showed the officers manipulating the plaintiff's underwear using their hands in the vicinity of his partially exposed buttocks. Simmons v. Super. Ct.. #D070734, 7 Cal. App. 5th 1113, 2016 Cal. App. Lexis 1170.

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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

Foreign Arrestees: Consular Notification and Access, by Carmen Hills, FBI Law Enforcement Bulletin (February 2017).

School Police: Cops Mentoring Kids: An Investment in Crime Reduction, by Tomas Sanchez, FBI Law Enforcement Bulletin (February 2017),

Supreme Court Cases: Supreme Court Cases: 2015-2016 Term, FBI Law Enforcement Bulletin (March 2017),

Reference: