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Public Safety Discipline and Internal Investigations
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Jail and Prisoner Legal Issues
Jan. 22-25, 2018 - Orleans Hotel, Las Vegas
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
Apr. 30-May 3, 2018– Orleans Hotel, Las Vegas
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A civil liability law publication for Law Enforcement
ISSN 0271-5481 Cite this issue as: 2017 LR August
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CONTENTS
Assault and Battery: Physical
Attorneys’ Fees: For Plaintiff
Defenses: Statute of Limitations
Failure to Disclose Evidence (2 cases)
False Arrest/Imprisonment: No Warrant
Firearms Related: Intentional Use (2 cases)
First Amendment
Video and Audio Taping by Citizens
AELE Seminars
Public Safety Discipline and Internal Investigations
Oct. 2-5, 2017– Orleans Hotel, Las Vegas
Jail and Prisoner Legal Issues
Jan. 22-25, 2018 - Orleans Hotel, Las Vegas
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
Apr. 30-May 3, 2018– Orleans Hotel, Las Vegas
Click here for more information about all AELE Seminars
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Assault and Battery: Physical
A police officer on crowd-control duty was not entitled to qualified immunity in a post-verdict motion on an excessive force claim arising from an incident in which he allegedly grabbed a man from behind by the collar and dragged him backward and downward to the pavement after observing him “taunting” K-9 dogs. The jury found the defendant officer engaged in excessive force, awarding in $140,000 in damages. A reasonable officer in his position would have understood that his actions violated the plaintiff's Fourth Amendment right to be free from excessive force. Ciolino v. Gikas, #16-2107, 2017 U.S. App. Lexis 11599 (1st Cir.).
Attorneys’ Fees: For Plaintiff
In a case involving alleged illegal seizure and retention of an SUV, partial summary judgment for the plaintiffs was entered, after which a $10,000 settlement was reached. The court then awarded $132,217.75 in attorneys’ fees to the plaintiffs as prevailing parties (less than they requested), along with $1,548.62 in costs. A federal appeals court ordered further proceedings to determine the reasonable amount of fees to be awarded, agreeing that the plaintiffs were the prevailing parties, and also holding that the plaintiffs were entitled to fees incurred in pursuing the appeal. Hines v. City of Albany, #16-1056, 2017 U.S. App. Lexis 12042 (2nd Cir.).
Defenses: Statute of Limitations
A man was shot and killed by police while running down an alley on June 15, 2013. His mother filed a false arrest and excessive force lawsuit against the city and unknown officers on March 23, 2015. Her attorney served a subpoena on the city one week after filing the complaint, requesting the production of reports pertaining to the incident. He advised the city that the documents were needed to identify the unknown officers. On May 26, 2015 the city’s counsel emailed the plaintiff’s attorney reports that identified the officers who shot the decedent. On June 24, 2015, the plaintiff sought leave to file an amended complaint. The city did not object.
An amended complaint, filed July 6, 2015, named the officers. The plaintiff failed to respond to the city’s motion to dismiss and the trial court granted it. A federal appeals court upheld dismissal of claims against the officers as time‐barred. The plaintiff’s claims began to accrue on June 16, 2013 and the limitations period expired on June 16, 2015, eight days before she sought leave to amend. She was not entitled to equitable tolling or equitable estoppel because she had the information essential to amending her complaint. Liberty v. City of Chicago, #15-3444, 2017 U.S. App. Lexis 11410 (7th Cir.).
A man pled guilty on charges that he assaulted an officer in the course of being arrested for public intoxication. He received a suspended sentence. Years later, his conviction was set aside on the basis of “actual innocence” after a videotape of the incident surfaced. He sued the city for a Brady violation for failure to provide him with the videotape earlier. A jury awarded him $2 million in damages and $300,000 in attorneys’ fees were also agreed to by the parties. On the city’s appeal, the federal appeals court overturned these awards, finding that the plaintiff could not properly pursue a Brady claim. Since he pled guilty prior to trial, he was not entitled to disclosure of the exculpatory videotape. Alvarez v. City of Brownsville, #16-40772, 2017 U.S. App. Lexis 11338 (5th Cir.).
Two men were convicted at separate trials of the murders of two young children. Later, both convictions were thrown out when a third man admitted to killing both children. The men filed a lawsuit against two forensic experts who testified for the prosecution in their trials, claiming that they provided investigators with, and then testified to, “baseless” bite mark evidence that they knew was baseless or at least acted with reckless disregard of that fact. A federal appeals court upheld summary judgment for the defendants, holding that they were entitled to qualified immunity because they were engaged in the criminal investigative functions of the state protected at common law, and the plaintiffs failed to raise a genuine issue of fact as to whether the defendants violated their right to due process by intentionally creating false or misleading scientific evidence, at most showing negligence, which was insufficient for a constitutional claim. Brewer v. Hayne, #16-60116, 2017 U.S. App. Lexis 11464 (5th Cir.).
False Arrest/Imprisonment: No Warrant
A woman who was arrested for possession of methamphetamine claimed that the arresting officers lacked probable cause to arrest her. A federal appeals court rejected one officer’s claim that he was entitled to qualified immunity because there were disputed issues of material fact on the circumstances surrounding the arrest, specifically whether he had, as the arrestee claimed, planted drugs on her. Manning v. Cotton, #16-3076, 2017 U.S. App. Lexis 12013 (8th Cir.).
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Firearms Related: Intentional Use
A U.S. Border Patrol agent standing on the U.S. side of the border with Mexico shot and killed an unarmed 15-year-old Mexican boy standing in Mexico. The decedent had been playing a game that included running up the embankment on the U.S. side of the border. The decedent’s parents filed a Bivens federal civil rights lawsuit for damages against the agent. A federal appeals court upheld dismissal of the lawsuit.
The U.S. Supreme Court has vacated that ruling, ordering further proceedings. It noted that a direct Bivens implied right of damages against federal officers who allegedly violated a citizen’s constitutional rights is not available “where there are special factors counseling hesitation in the absence of affirmative action by Congress.” On remand, the appeals court must consider “whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed.”
Qualified immunity shields officials from civil liability if their conduct does not violate clearly established constitutional rights of which a reasonable person would have known. In this case, the lower court concluded that the prohibition on excessive force did not apply to the decedent as a foreign national on foreign soil. But the U.S. Supreme Court noted that the boy’s nationality and the extent of his ties to the U.S. were unknown to the agent at the time of the shooting. Hernandez v. Mesa, #15-118, 2017 U.S. Lexis 4059.
Two officers pulled over an 18-year-old male motorist for having a missing front license plate. They claimed that he fired a weapon towards their squad car and then ran away. They shot him three times in the back and he subsequently died. Two eyewitnesses testified that they thought that the motorist had no weapon. The defendants offered testimony that gunshot residue was found on the decedent’s hand and that casings were found at the site from which he shot. The gun found near the decedent was swabbed for DNA, but the samples were never tested by the state police. A jury returned a verdict for the defendant officers in an excessive force lawsuit. A federal appeals court upheld this result. It rejected an argument that the trial judge erroneously excluded evidence and argument concerning the failure to test the DNA swabs. The sole relevant issue was whether or not the officers were justified in shooting the decedent. A lack of DNA evidence, by itself, did not tend to prove or disprove justification. Further, nothing linked the officers who shot the decedent to the missing DNA evidence, and it would be unfair to assume that testing the DNA swabs would have helped or harmed the plaintiff’s case. Mitchell v. City of Chicago, #14-2957, 2017 U.S. App. Lexis 11958 (7th Cir.).
First Amendment
Members of the “Occupy Chicago” protest group were arrested and charged with violating a city park district code that closes all public parks between 11 p.m. and 6 a.m., and makes it illegal to stay in the parks during those hours. A state trial court dismissed the charges, finding the ordinance unconstitutional on its face and as applied, reasoning that it violated free speech assembly rights. An intermediate state appeals court reversed, finding that the ordinance did not violate either the First Amendment or the free speech provisions of the Illinois state Constitution. The Illinois Supreme Court agreed, holding that the Illinois Constitution of 1970 is to be interpreted and applied in “lockstep” with the federal precedents interpreting and applying the assembly clause of the First Amendment. In arguing that the state constitution provided greater protection (“strict scrutiny”), the defendants forfeited any claim that the appeals court failed to properly conduct intermediate review under the First Amendment. People v. Alexander, 2017 IL 120350, 2017 Ill. Lexis 120350.
Video and Audio Taping by Citizens ****Editor's Case Alert**** A woman who was part of a “police watchdog” organization went to an “anti-fracking” demonstration at a convention center, carrying both a camera and identification as a “legal observer.” She attempted to record police officers arresting one of the protesters. While she did not interfere with the arrest, an officer pinned her against a pillar and thus prevented her from observing or recording the arrest. A male university student, in a separate incident, was on a public sidewalk observing officers across the street engaged in breaking up a party. When he took a photo, an officer ordered him to leave. When he refused, he was arrested and his phone was confiscated and searched. He was given a citation for “Obstructing Highway and Other Public Passages.” The charge was later dropped. The two sued the city, claiming unlawful First Amendment retaliation.
A federal appeals court found that the First Amendment protects the photographing or otherwise recording police carrying out their official duties in public. It noted that every federal appeals court circuit that had addressed the issue has reached the same conclusion, including the First, Fifth, Seventh, Ninth, and Eleventh Circuits. Fields v. City of Philadelphia, #16-1650, 2017 U.S. App. Lexis 12159 (3rd Cir.). |
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