October 2017 Law Enforcement Liability Reporter

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

Assault and Battery: Physical (2 cases)

Domestic Violence and Child Abuse

Failure to Disclose Evidence, Fabrication of Evidence

False Arrest/Imprisonment: No Warrant

Firearms Related: Intentional Use (2 cases)

First Amendment

Property

Search and Seizure: Home/Business

Resources

Cross References

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

MONTHLY CASE DIGEST

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Assault and Battery: Physical

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

A man leaving a train station was confronted by a plainclothes police officer who, with the assistance of other plainclothes officers, forced him to the ground. He was charged with resisting arrest and was acquitted, then sued the officers and the city for excessive use of force and malicious prosecution. He claimed the first officer had not identified himself as police, which the officer disputed, claiming that when he identified himself the plaintiff had fled to avoid being frisked. A federal appeals court overturned a verdict for the defendants.

The trial court properly admitted evidence of the marijuana found in the plaintiff’s pocket. While the marijuana was unknown to the officers at the time, it arguably tended to corroborate their account of his behavior. The jury instructions on Terry investigatory stops, however, were inadequate. Over objection, the court instructed the jury only on investigatory stops but not frisks. The officer’s testimony indicated that he was starting a frisk when he first approached the plaintiff and that he did not have reasonable suspicion that he was armed and dangerous. The plaintiff was entitled to have the jury know that the attempted frisk, which produced the use of force, was unjustified. Further, the jury asked whether plainclothes officers must identify themselves when conducting a stop. The trial judge said no, while in all but the most unusual circumstances, where identification would itself make the situation more dangerous, plainclothes officers must identify themselves when initiating a stop. These errors were not harmless, requiring further proceedings. Doornbos v. City of Chicago, #16-1770, 2017 U.S. App. Lexis 15696 (7th Cir.).

Officers responding to a 911 call arrested a man at the scene of an alleged domestic assault. He sued for excessive force and unlawful arrest, claiming that the officers lacked arguable probable cause to arrest him for either domestic assault or obstruction of legal process and were not entitled to qualified immunity on the excessive force claim because he did not pose a threat to the safety of officers or others, did not commit a crime in their presence, was not resisting arrest, and that he began complying with the officers before they used force.

A federal appeals court upheld summary judgment for the officers on the basis of qualified immunity. It concluded that the officers had arguable probable cause to arrest for domestic assault as they heard a heated argument while outside the residence, upon entry they saw the victim crying on the couch while the arrestee was yelling and standing over her, and the arrestee did not immediately comply with orders to get on the ground. Additionally, the force used was not excessive since a reasonable officer could have concluded that the arrestee was committing domestic assault, which threatened the safety of another person, and the fact that the arrestee was slow in lowering himself to the ground, as directed by the officers, indicated that he was passively resistant. Hosea v. City of St. Paul, #16-3613, 2017 U.S. App. Lexis 15022 (8th Cir.).

Domestic Violence and Child Abuse

While in most cases a person cannot recover civil rights damages against a state for failure to protect them against private violence, an exception is when there is a “special relationship” creating a duty to provide protection. This can sometimes occur when a state fails to protect a foster child from a known substantial risk of harm. In this case, a foster child sued two Colorado social workers responsible for investigating reports that he was being abused, along with others involved with his adoption. He had been in Oklahoma’s custody until, with Oklahoma’s approval, a Colorado-based private adoption agency placed him for adoption with a foster father in Colorado. The foster father physically abused him before and after adopting him. The private adoption agency was responsible for monitoring his placement. Together with Colorado, it recommended approval of his adoption by the abusive foster father.

The child eventually escaped his abusive foster father by running away. He then sued the private adoption agency, its employees, and the Colorado caseworkers who were assigned to investigate reports of abuse from officials at his public school. The trial court dismissed all of his claims except a section 1983 claim against the two Colorado caseworkers and two state-law claims against the agency and its employees, concluding the special-relationship doctrine allowed him to move forward with the 1983 claim. While the federal appeals court condemned the social workers’ inadequate efforts to protect the vulnerable child, it concluded, under the controlling precedents, that the caseworkers were entitled to qualified immunity. Dahn v. Amedei, #16-1059, 2017 U.S. App. Lexis 15031 (10th Cir.).

Failure to Disclose Evidence, Fabrication of Evidence

A man arrested and charged with hindering, obstructing, resisting, or otherwise interfering with Kansas City police officers in violation of a city ordinance sued for malicious prosecution and fabrication of evidence. A federal appeals court upheld summary judgment for the defendants, finding that the officers had arguable probable cause to arrest the plaintiff and that as to the fabrication of evidence claim, any misleading impression the incident report filed might have given as to the order of events demonstrated at most negligence, which was inadequate for a civil rights claim. Riddle v. Riepe, #16-3131, 866 F.3d 943 (8th Cir. 2017).

False Arrest/Imprisonment: No Warrant

A woman claimed that restaurant employees and the D.C. police officers they summoned reacted “overly harshly” when she merely raised a question about her bill and temporarily left the restaurant to join some friends at another establishment nearby. They purportedly treated her temporary absence as an attempt to avoid paying the bill when the restaurant then held both her credit card and driver’s license. A federal appeals court affirmed the dismissal of the intentional and negligent infliction of emotional distress claims and the negligence claims against a police officer and the District of Columbia, but held that allegations of the complaint sufficiently made out civil rights claims for false arrest and excessive force, as well as common law assault, false arrest, and false imprisonment against the same officer. Hall v. District of Columbia, #16-7056, 2017 U.S. App. Lexis 14888 (D.C. Cir.).

Firearms Related: Intentional Use

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

A federal appeals court overturned a jury’s verdict that a police officer did not use excessive force in a fatal shooting. The court held that the jury instruction regarding the legal justification for the use of deadly force by a police officer did not comply with the court's prior decision in Rasanen v. Doe, #12-680, 723 F.3d 325 (2d Cir. 2013), making it clear that an officer's use of deadly force in a police shooting case was not reasonable unless that officer had probable cause to believe that the individual posed a significant threat of death or serious physical injury to the officer or others. Because the error allowed the jury to decide the case on different grounds than case law allowed, it was not harmless error. Callahan v. City of Suffolk, #16-336, 863 F.3d 144 (2nd Cir. 2017).

A man claimed that he was wrongly shot and wounded by a police officer as he was driving away to escape a mob that attacked him when he left a party. A federal appeals court overturned summary judgment for the defendant town, finding genuine issues of material fact as to whether or not the plaintiff, in the way he was driving his car, posed an imminent threat to the officers or bystanders, and whether deadly force was necessary to mitigate that threat. Lee v. Town of Seaboard, #16-1447, 863 F.3d 323 (4th Cir. 2017).

First Amendment

A federal appeals court ruled that Nebraska's Funeral Picketing Law (NFPL), which prohibits picketing within 500 feet of a cemetery, mortuary, or church from one hour prior through two hours following the commencement of a funeral, was not unconstitutional on its face because it is content neutral; narrowly tailored to serve a significant governmental interest of protecting the privacy of grieving families, and to preserve the peaceful character of cemeteries, mortuaries, churches, and other places of worship during a funeral. Further, ample alternate channels existed for communication of the controversial plaintiff Westboro Baptist Church's (WBC) message which expresses purportedly religiously inspired messages against the funerals of gay people and sometimes U.S. soldiers (“Thank God for Dead Soldiers.”).

The appeals court considered the amended NFPL with the 500-foot buffer zone in its as-applied review, and held that the trial court did not clearly err in finding that there was no evidence to suggest that the NFPL was applied to plaintiff and not others similarly situated. It also concluded that the evidence was insufficient to show that law enforcement unconstitutionally restricted the plaintiff's picketing to areas well beyond the 500 foot buffer zone. The court also determined that the police department did not unconstitutionally disfavor the plaintiff's viewpoint or allow others to unlawfully block the WBC's picket by preferentially allowing them to break Nebraska laws. Phelps-Roper v. Ricketts, #16-1902, 2017 U.S. App. Lexis 14877 (8th Cir.).

Editor’s Note: For more on this issue, see Funeral Protests and the First Amendment, 2011 (6) AELE Mo. L. J. 101.

Property

A 30-day impound of a motorist’s vehicle under a state statute after she lent it to a driver with a suspended driver’s license amounted to a seizure that required compliance with the Fourth Amendment. A federal appeals court ruled that the exigent circumstances the justified the seizure of the vehicle disappeared once the car arrived in the impound lot and the plaintiff showed up there with both proof of ownership of the vehicle and a valid driver’s license. The defendants provided no justification for the continued seizure. Brewster v. Beck, #15-55479, 859 F.3d 1194 (9th Cir. 2017).

Search and Seizure: Home/Business

A man visited a garden store with his two children in tow, and bought a small bag of supplies to grow tomatoes and other vegetables in the basement of the family home as an educational project with his 13-year-old son. A sergeant in the Missouri State Highway Patrol was parked nearby in an unmarked car, watching the store as part of a personal “pet project” where he would spend three or four hours per day watching the garden store, keeping detailed notes on all of the customers: their sex, age, vehicle description, license plate number, and what they bought. Five months later, the sergeant was involved in a joint operation with the county sheriff’s office in which raids were conducted on various homes targeted as a result of information developed from the surveillance of the garden store.

A raid on the father’s home ended with searching the trash and finding loose tea leaves, and a suspicion of a marijuana growing operation in the Harte house. A SWAT team descended on the family home (complete with battering ram, bulletproof vests, and assault rifles), keeping the entire family under armed guard for two and a half hours. A federal appeals court upheld summary judgment on all claims against the defendant sergeant, as well as excessive force and Monell municipal liability claims. But it reversed the trial court’s grant of summary judgment on the unlawful search and seizure claims asserted against the remaining defendants. On remand, the plaintiffs’ claim under Franks v. Delaware, #77-5176, 438 U.S. 154 (1978), was limited to their theory that one or more of the remaining defendants lied about the results of the field tests conducted on the tea leaves collected from the plaintiffs’ trash. Harte v. Board of Commissioners County of Johnson, #16-3014, 864 F.3d 1154 (10th Cir. 2017).