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A civil liability law publication for Law Enforcement
ISSN 0271-5481 Cite this issue as: 2018 LR February
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Digest Topics

Dogs

False Arrest/Imprisonment: Warrant

Firearms Related: Intentional Use (3 cases)

Firearms Related: Second Amendment Issues

First Amendment (2 cases)

Gang Activity

Privacy

Resources

Cross References

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

Apr. 30-May 3, 2018– Orleans Hotel, Las Vegas

Public Safety Discipline and Internal Investigations

Oct. 29-Nov. 1, 2018– Orleans Hotel, Las Vegas

Click here for more information about all AELE Seminars

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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Dogs

A Detroit city ordinance allows animal control officer to capture and impound some of the approximately 50,000 stray dogs who roam the city streets, sometimes in packs. These dogs, when found to be in violation of licensing and vaccination provisions, may be euthanized. It makes it unlawful to refuse to surrender an animal that has attacked or bitten a person or other animal. It also allows officers to enter “real property ... for the purpose of capturing, collecting, or restraining any animal,” without a warrant. Violations are misdemeanors.

Detroit animal control officers seized dogs belonging to each of the12 plaintiffs because the dogs were running loose off of the owners’ property, attacked a person or other animal, or during evictions. In their civil rights lawsuit, the trial court granted the plaintiffs an injunction on their warrantless search-and-seizure claim but granted the defendants judgment as a matter of law as to other claims because the plaintiffs could not show any constitutional violations. A federal appeals court affirmed the rejection of the Fourteenth Amendment and several Fourth Amendment claims but reversed rejection of two Fourth Amendment claims. Factual disputes existed as to the claims brought by two owners, as there was evidence that officers entered the owners' property without a warrant or Fourth Amendment exception and seized their dogs. Most of the plaintiffs could not show that a Detroit policy or custom directly caused the alleged search-and-seizure violations, and all of them could not show a viable due-process violation. Some of the dogs were on public property, other seizures were justified by exigent circumstances, and some owners agreed to turn over their dogs. Hardrick v. City of Detroit, #17-2077, 876 F.3d 238 (6th Cir. 2017).

False Arrest/Imprisonment: Warrant

The plaintiff filed suit under 42 U.S.C. 1983 against the defendant officer after he was arrested under a warrant for an assault committed by another man with the same first and last names. The defendant filled out an incident report about the assault but did not assist in applying for the arrest warrant.

A federal appeals court overturned the trial court's denial of summary judgment in favor of defendant and held that defendant was entitled to summary judgment even when construing all the facts in the light most favorable to plaintiff. The court reasoned that the connection between defendant's conduct and plaintiff's arrest was too attenuated to hold the deputy liable under the rule that the court reaffirmed or under any law that was clearly established at the time the defendant filled out the incident report. An officer who has provided information for the purpose of its being included in a warrant application has assisted in preparing the warrant application, and may be liable, but an officer who has not provided information for the purpose of its being included in a warrant application may be liable only if he signed or presented the application. Melton v. Phillips, #15-10604, 875 F.3d 256 (5th Cir. 3017).

Firearms Related: Intentional Use

An officer pulled a woman over for speeding in her mini-van. After the officer explained that he was going to give the driver a citation, she drove away with her five children in her vehicle. After the officer pulled her over again, things got chaotic, and the driver got in a scuffle with the officer who tried to arrest her. When the officer tried to pull her out of the car, her 14-year old son tried to fight off the officer, who then pulled out his Taser. The officer then bashed out the windows on the van after her family ran back into the van and locked the doors. The van began to drive away again. As the incident unfolded, a second officer showed up and fired three shots at the van as it sped off.

A high speed pursuit then ensued, but the motorist eventually surrendered. In a lawsuit claiming excessive use of force, a federal appeals court noted that it was undisputed that no bullet hit the minivan or the occupants inside. The shooting officer’s affidavit stated that he was aiming at the left rear tire. The appeals court held the trial court should have granted the defendant officer summary judgment because the shots did not halt the van’s departure and, because they were fleeing, they were not seized at the time he fired his weapon, even if they had a subjective intent to submit to authority. Farrell v. Montoya, #16-2216, 2017 U.S. App. Lexis 26620 (10th Cir.).

During a traffic stop, an officer observed what he thought were bags of marijuana in the car’s glove compartment. The officer first pointed his gun at the ground and then pointed it point blank at the driver, who was trying to move the bags. A pursuit ensued, which three officers joined.

The plaintiff can be seen in a video steering away from the first officer’s car in a vacant parking lot but the officer broadcast that the motorist “tried to ram my vehicle,” The motorist fled, entering a highway. The chase continued through two red lights in an uninhabited area. A second officer twice collided with the pursued car, causing the driver to lose control. A third officer rammed the motorist’s car, which stopped, then slowly moved forward. The motorist’s and first officer’s cars collided at low speed. Gunshots were heard on the recording. And the motorist, struck by three bullets fired by a fourth officer, died.

The appeals court ruled that the deceased did not present an imminent or ongoing danger and therefore the shooting officer's use of deadly force was objectively unreasonable and in violation of the deceased’s constitutional rights because the officer fired after the deceased’s car had passed the point where it could harm him, the officer had time to realize he was no longer in immediate danger, and it was relevant that the officer repeatedly violated police procedures; Despite this, although the officer's conduct fell outside the bounds of the Fourth Amendment, controlling authority at the time of the events had not clearly established the rights now identified, so he was entitled to qualified immunity. The officer's violation of police department policies did not require a different outcome because the violation did not cause the officer to lose his qualified immunity. Latits v. Phillips, #15-2306, 2017 U.S. App. Lexis 26650, 2017 Fed. App. 0292P (6th Cir.).

Officers were not entitled to qualified immunity for shooting a man to death when the basis of their appeal was factual arguments about materiality and sufficiency of the evidence, which should be made to a jury and did not run to a legal issue on appeal. The trial court did not make any legal determinations based upon facts viewed in the light most favorable to the estate, it merely held that the factual dispute at this stage prevented such an analysis. Franklin v. Peterson, #16-4429, 2017 U.S. App. Lexis 26540 (8th Cir.).

Firearms Related: Second Amendment Issues

A man was unable to buy a firearm at a store because a mandatory national background check revealed that he had been convicted of misdemeanor domestic violence in 1997. He had not been convicted of another crime. Federal law prohibits domestic violence misdemeanants from possessing firearms, 18 U.S.C. 922(g)(9). He unsuccessfully appealed to the Federal Bureau of Investigation and challenged the law in the trial court. A federal appeals court upheld the dismissal of his complaint. The law survived intermediate scrutiny and does not unconstitutionally burden his Second Amendment rights.

The court noted “the growing consensus of our sister circuits that have unanimously upheld the constitutionality of the domestic violence misdemeanant restriction to firearms possession.” The record contained sufficient evidence to reasonably conclude that disarming domestic violence misdemeanants is substantially related to the government’s compelling interest of preventing gun violence and, particularly, domestic gun violence. Stimmel v. Sessions, #15-4196, 2018 U.S. App. Lexis 213 (6th Cir.).

First Amendment

Two persons participated with many others in two unpermitted demonstrations at the Denver International Airport against President Trump’s Executive Order which temporarily suspended entry into the United States of nationals from seven predominantly Muslim countries. The first protest was allowed to continue without a permit but protestors were eventually moved from the Great Hall to an outdoor plaza. The second protest took place near the international arrival area at the north end of the Great Hall and continued for several hours. Although protestors on both days were warned they could be arrested for continuing to demonstrate without a permit, no arrests were made.

The two plaintiffs sought a preliminary injunction, arguing that policies and regulations governing protests and demonstrations at the airport violated their First and Fourteenth Amendment rights. The trial court granted the injunction in part, concluding that the plaintiffs made the necessary showing with respect to their claim that the challenged regulations were unreasonable because they did not contain a formal process for expediting permit applications in exigent circumstances. It also enjoined airport officials from enforcing certain regulations governing the location of permitted protests and picketing restrictions, including the size of signage. A federal appeals court reversed, largely because the court below applied the wrong legal standard in resolving whether the elements for granting a preliminary injunction were met: “[t]he district court’s flawed analysis and clearly erroneous factual finding led it to conclude that Plaintiffs demonstrated a strong likelihood of succeeding in their challenge to the lack of an exigency provision in [the Denver Municipal Code]. The court abused its discretion in so concluding.” It erred by relying on its own belief that the defendants could shorten the permit period to 24 hours in exigent circumstances. McDonnell v. City and County of Denver, #17-1071, 2018 U.S. App. Lexis 206 (10th Cir.).

Insane Clown Posse, a Michigan music group, performs songs with “harsh language and themes.” Its fans, who call themselves “Juggalos,” wear distinctive tattoos, clothing, and insignia, including clown face paint and the “hatchetman” logo. The Attorney General’s National Gang Intelligence Center's (34 U.S.C. 41507) 2011 gang-activity report, described Juggalos as “a loosely-organized hybrid gang.”

Four states currently recognize Juggalos as a gang. Juggalos who claim that they do not knowingly affiliate with any criminal gang, but have suffered violations of their Fifth Amendment due-process rights and a chill in the exercise of their First Amendment expression and association rights due to the designation, sued the Justice Department and FBI under the Administrative Procedures Act, 5 U.S.C. 701(b). Some claimed that they had been detained. An Army Corporal with Juggalo tattoos alleged that he is “in imminent danger of suffering discipline or an involuntary discharge.” Local law enforcement caused a musical event to be canceled.

A federal appeals court upheld the dismissal of the lawsuit. The designation was not reviewable because it was not a final agency action and was committed to agency discretion by law. The group’s gang designation did not limit or compel action by other government actors and no government officials were required to consider or abide by the gang designation. Further, the gang designation did not result in legal consequences since the harms that the group suffered were caused by third parties who discretionarily relied on the gang designation, and the harms suffered by the group constituted a decision to act that rested on the shoulders of others and not the agency action. Parsons v. United States Department of Justice, #16-2440, 2017 U.S. App. Lexis 25446 (6th Cir. 2017).

Gang Activity

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

A man arrested and charged with misdemeanor criminal contempt for allegedly violating a permanent anti-gang injunction. He argued that he was not an active gang member covered by the injunction and that enforcement of the injunction against him violated his right to procedural due process. The trial court ruled that the injunction burdened the defendant’s constitutionally-protected liberty interests, and that he was entitled to some adequate predeprivation process to determine whether he was an active gang member covered by the injunction. Because no predeprivation process was available to him to challenge the determination that he was covered by the injunction, the trial court held that enforcement of the injunction against him violated his right to procedural due process. An intermediate California appeals court affirmed the dismissal of the misdemeanor criminal contempt charge based on the application of the injunction to the defendant. People v. Sanchez, #F071330, 2017 Cal. App. Lexis 1137.

Editor’s Note: For more on this issue under California law, see Use of Injunctions Against Gang Activity--Part 1: Basis of and Advantage of Injunctive Relief, 2009 (10) AELE Mo. L. J. 101. Use of Injunctions Against Gang Activity--Part Two: Constitutional Challenges, 2009 (11) AELE Mo. L. J. 101, and Use of Injunctions Against Gang Activity--Part Three: Practical and Procedural Issues, 2009 (12) AELE Mo. L. J. 101.

Privacy