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Jail and Prisoner Legal Issues
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A civil liability law publication for Law Enforcement
ISSN 0271-5481 Cite this issue as: 2017 LR June
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CONTENTS
Assault and Battery: Handcuffs
Assault and Battery: Physical
Defenses: Statute of Limitations
Electronic Control Weapons: Stun Mode
False Arrest/Imprisonment: No Warrant
False Arrest/Imprisonment: Warrant
Firearms Related: Intentional Use
Firearms Related: Second Amendment Issues
Malicious Prosecution
Race Discrimination
AELE Seminars
Public Safety Discipline and Internal Investigations
Oct. 2-5, 2017– Orleans Hotel, Las Vegas
Jail and Prisoner Legal Issues
SAVE THE DATE:
Jan. 22-25, 2018 - 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.
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Assault and Battery: Handcuffs
A police officer came upon a car matching the description of a vehicle involved in a reported road rage incident which included the discharge of a gun. Conducting a “high-risk traffic stop,” he placed the car’s male occupant, a veteran and school teacher in his early 60’s, in handcuffs, detaining him until other officers could bring the alleged victim to that location. The victim identified the man and his vehicle as involved in the road rage incident, but the officers, finding no weapon, decided to release him. The stop lasted approximately 30 minutes, and the handcuffed man claimed that the officers’ treatment aggravated his preexisting shoulder condition, which required multiple surgeries. A federal appeals court reversed the trial court’s decision to deny the officer qualified immunity. The decision to place the plaintiff, then implicated in a serious crime involving the discharge of a weapon, in handcuffs and to keep him in handcuffs until satisfied that he was not a threat did not violate the Fourth Amendment. Howell v. Smith, #16-1988, 853 F.3d 892 (7th Cir. 2017)
While an arrestee’s nolo contendere (no contest) plea conceded probable cause for his arrest, defeating his false arrest claim, excessive force claims against the arresting deputy were reinstated. The injuries he sustained during his arrest for failing to have a driver’s license were not de minimis (minimal). Rather, the record showed that he suffered medically documented severe, permanent injuries from the deputy’s unprovoked and completely unnecessary frontal-body blows to his chest and throwing him against the car-door jamb in the course of arresting him. At the time, he was cooperating with officers and not resisting whatsoever, not even raising his voice. Applying the “obvious-clarity” method analysis, the appeals court concluded that no particularized preexisting case law was necessary for it to be clearly established that what the deputy did violated plaintiff's constitutional right to be free from the excessive use of force in his arrest. Stephens v. DeGiovanni, #15-10206, 852 F.3d 1298 (11th Cir. 2017).
Defenses: Statute of Limitations
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A man sued the U.S. government, contending that it violated his Fifth Amendment due process rights by accusing him of a crime during a criminal proceeding in which he was not a defendant. The trial court properly granted the U.S. government’s motion to dismiss the lawsuit. The claim accrued when the accusation was first made. His mistaken belief that his claim had not yet accrued until he was either notified that he would not be indicted (or such an indictment was time barred), the reason he did not file suit earlier, did not serve to toll (extend) the time period to sue, so his claims were barred by a six year statute of limitations. Doe v. United States, #16-20567, 853 F.3d 792 (5th Cir. 2017). |
Electronic Control Weapons: Stun Mode
****Editor's Case Alert****
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A man suffered a diabetic emergency. Paramedics encountering him found him to be extremely disoriented and combative. His blood-sugar level tested extremely low at 38. As blood sugar falls, a person may lose consciousness, become combative and confused, or suffer a seizure. A blood-sugar level of 38 is regarded as a medical emergency and, untreated, can lead to death.
A deputy sheriff arrived on the scene as the paramedics were attempting to intravenously administer dextrose to raise the man’s blood-sugar level to a more acceptable level. The man then ripped the catheter from his arm, causing blood to spray, and continued to kick, swing, and swear as they tried to restrain him. The deputy then used his Taser in stun mode on the man’s thigh, quieting him long enough for a paramedic to reestablish the IV catheter and administer dextrose, stabilizing his blood sugar level.
The man denied being in pain, but was taken to the hospital. No treatment was given for the Taser wound. He claimed that he suffered burns and that his diabetes worsened, and sued for excessive use of force. He later died from complications of diabetes. A federal appeals court overturned a denial of qualified immunity to the deputy for his use of the Taser. He acted in an objectively reasonable manner with the minimum force necessary to bring the man under control, enabling the paramedics to save his life.
The case is notable for setting forth a different test for judging the objective reasonableness of the force used by an officer in medical situations than the standard test under Graham v. Connor, #87-6571, 490 U.S. 386 (1989), used in a criminal context. The three factor inquiry in Graham looks at (1) “the severity of the crime at issue,” (2) “whether the suspect poses an immediate threat to the safety of the officers or others,” and (3) “whether he is actively resisting arrest or attempting to evade arrest by flight.” In the situation faced by the deputy in this case, however, there was no crime, no resisting of arrest, and no direct threat to the officer. Accordingly, a strict application of the Graham factors could result in a determination that the force was not objectively reasonable.
Instead, the court held: Where a situation does not fit within the Graham test because the person in question has not committed a crime, is not resisting arrest, and is not directly threatening the officer, the court should ask: (1) Was the person experiencing a medical emergency that rendered him incapable of making a rational decision under circumstances that posed an immediate threat of serious harm to himself or others? (2) Was some degree of force reasonably necessary to ameliorate the immediate threat? (3) Was the force used more than reasonably necessary under the circumstances (i.e., was it excessive)? If the answers to the first two questions are “yes,” and the answer to the third question is “no,” then the officer is entitled to qualified immunity. Applying its newly adopted approach, the appeals court found the force used objectively reasonable and the officer entitled to qualified immunity.
Estate of Corey Hill vs. Miracle, #16-1818, 2017 U.S. App. Lexis 5993 (6th Cir.). |
False Arrest/Imprisonment: No Warrant
A woman shot and killed her husband in the shower, and four days later reported him missing. After detectives interviewed the husband’s family, his new girlfriend, his friends, and the wife’s sister, they gained knowledge of the couple’s history of threats and violence. One witness noticed that the shower curtain, liner, and hooks in the couple’s bathroom had been replaced and store surveillance tapes showed the wife and her sister buying these new items the night her husband went “missing.” During the execution of a search warrant, various physical evidence of the crime was found. The wife’s sister refused to answer questions related to the crime and her possible involvement in covering it up. Both the wife and her sister were arrested.
The sister spent 12 days in custody before her release, and sued, claiming that the arrest was not based on probable cause, but rather done to try to build a case against her. While her appeal of the dismissal of that lawsuit was pending, the sister was indicted and convicted in state court of hiding a corpse, harboring or aiding a felony, and resisting or obstructing an officer. A federal appeals court upheld the dismissal. For purposes of qualified immunity, the court ruled, it would not have been plain to a reasonable officer that arresting and detaining the sister under the circumstances would have been unlawful under the Fourth Amendment. Ewell v. Toney, #16-1009, 853 F.3d 911 (7th Cir. 2017).
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False Arrest/Imprisonment: Warrant
A 15-year-old girl walking home encountered a man who demanded that she get in his car. He sped away when she refused and told him she was calling the police. Two officers responded to her call and took down her description of the car as a red, four-door sedan with a Pennsylvania license plate bearing the letters ACG, driven by a white male with dark hair, around 35 years old. The next day, she told her mother, who was driving her home, that a red car they encountered was the one that had stopped her the day before. Its license plate was JDG4817.
They followed the car to a parking lot and saw the driver. The girl’s mother drove her to the police station. Officers identified the car as belonging to a man, obtained his license photo, and created a photo array. The girl identified him, and an officer went to the parking lot and saw the car, a three-door coupe. The officer drafted an affidavit of probable cause, and a magistrate issued an arrest warrant. The man was charged with, but acquitted of, luring a child into a motor vehicle, stalking, corruption of a minor, and harassment. A federal appeals court reversed a grant of qualified immunity for the officer in a false arrest lawsuit, noting his omission of information about the license plate and vehicle description discrepancies from the affidavit. Andrews v. Scuilli, #15-3393, 853 F.3d 690 (3rd Cir. 2017). |
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Firearms Related: Intentional Use
When an animal cruelty officer went to a house to investigate a third complaint of animal cruelty allegedly taking place there, the male occupant did not come to the door. A female neighbor told the officer that the man had previously threatened her and that she was terrified of him. When more officers arrived, the man finally opened the door, gestured in a manner that suggested that he had a weapon, and then closed the door again.
A second visit was also unsuccessful. The neighbor then told the animal control officer that the man had said that he would kill the officer if she returned. Members of TACT (the city’s version of SWAT) were summoned to assist with executing a search warrant. Officers announced “police” at both the front and back doors and threw flash-bangs inside. One of the officers saw the man entering his bedroom. To prevent a barricade situation, an officer threw a flash-bang into the bedroom. An officer then entered and saw the man holding a semi-automatic pistol, pointed at her. On the 911 tape, after the flash-bang, the officer can be heard yelling, “Hands, Don! Hands, hands, hands!” Seconds later, she fired at the man, killing him. His gun, still in his hand was fully loaded with a round in the chamber; he had another pistol in a holster. Officers found a rifle next to the front door and axes next to each door. His children sued, claiming excessive use of force. A federal appeals court found no merit in these claims, finding that the officers did not violate the decedent’s constitutional rights under these circumstances and that the use of deadly force was justified in self-defense. Moore v. City of Memphis, #16-5552, 853 F.3d 866 (6th Cir. 2017 ).
Firearms Related: Second Amendment Issues
A current resident of Maryland brought an as-applied Second Amendment challenge to Maryland's firearms regulatory scheme, arguing that the scheme is unconstitutional as applied to him. He was convicted of a felony in Virginia, but had his civil rights restored by the Governor of Virginia and his firearms rights restored by the Virginia courts. He sought to obtain a permit for a handgun and possess a long gun, both of which he is unable to do in Maryland absent a full pardon from the Governor of Virginia. Upholding the dismissal of his claim, a federal appeals court ruled that a state law felon cannot pass the first step of the United States v. Chester, #09-4084, 628 F.3d 673 (4th Cir. 2010) inquiry when bringing an as-applied challenge to a law disarming felons, unless that person has either received a pardon or the law forming the basis of conviction has been declared unconstitutional or otherwise unlawful.
That two step inquiry is as follows:
“The first question is ‘whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment's guarantee.’ This historical inquiry seeks to determine whether the conduct at issue was understood to be within the scope of the right at the time of ratification. If it was not, then the challenged law is valid. If the challenged regulation burdens conduct that was within the scope of the Second Amendment as historically understood, then we move to the second step of applying an appropriate form of means-end scrutiny. Heller left open the issue of the standard of review, rejecting only rational-basis review. Accordingly, unless the conduct at issue is not protected by the Second Amendment at all, the Government bears the burden of justifying the constitutional validity of the law.” The court further held that evidence of rehabilitation, the likelihood of recidivism, and the passage of time may not be considered at the first step of the Chester inquiry. Therefore, the court concluded that plaintiff failed at step one of the Chester analysis in the absence of a full pardon. Hamilton v. Pallozzi, #16-1222, 848 F.3d 614 (4th Cir. 2017).Malicious Prosecution
A man was found dead in the Kentucky River. A woman was a suspect because of her sporadic relationship with him, because she had bullet holes inside her home, and because, after his disappearance, she had shared premonitions of him “being found in water.” Officers unsuccessfully tried to get a search warrant for her residence.
Eight years later, a police detective obtained a warrant, but his affidavit omitted the facts that the decedent’s bullet wounds were non-exiting and could not have caused bullet holes in her floor and that she had one leg and weighed 100 pounds, while the decedent weighed 187 pounds. There was no evidence that the woman had destroyed evidence and the gunshot evidence at her home did not match bullets recovered from the deceased. She entered an “Alford plea,” maintaining her innocence. Years later, a serial murderer confessed that he had killed the man, relating specific details of the crime which had not been released. The detective who obtained the warrant allegedly visited the serial killer in jail and intimidated him into recanting. But two years later, the charges against the woman were dismissed and she was exonerated.
Race Discrimination
A city’s police department stated a program of focused surveillance of repeat violent offenders. One of the ten repeat offenders originally targeted by the program sued, claiming that he was selected because of his race and that doing so deprived him of liberty without due process. He also contended that doing so stigmatized him and subjected him to increased surveillance, penalties, and reporting requirements. He argued that blacks such as himself were only 4.6 percent of the city’s population, but made up 37.6 percent of all arrests, as well as 86 percent of those targeted for enhanced surveillance.
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