AELE Seminars

   

Public Safety Discipline and Internal Investigations 

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

 

Jail and Prisoner Legal Issues
Jan. 14-17, 2019 - Orleans Hotel, Las Vegas

Click here for more information about all AELE Seminars


 


A civil liability law publication for Law Enforcement
ISSN 0271-5481 Cite this issue as: 2018 LR May
Click here to view information on the editor of this publication.

Access the multi-year Civil Liability Case Digest

Return to the monthly publications menu
Report non-working links here
Some links are to PDF files - Adobe Reader™ must be used to view content

CONTENTS

Digest Topics

Assault and Battery: Physical

Disability Discrimination

Electronic Control Weapons: Stun Mode

False Arrest/Imprisonment: Unlawful Detention

Failure to Disclose Evidence

Firearms Related: Intentional Use (3 cases)

Firearms Related: Pointing Weapons

Medical Care

Resources

 

Cross References


AELE Seminars

   

Public Safety Discipline and Internal Investigations 

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

 

Jail and Prisoner Legal Issues
Jan. 14-17, 2019 - Orleans Hotel, Las Vegas

Click here for more information about all AELE Seminars


MONTHLY CASE DIGEST

 

Assault and Battery: Physical

     Defendant police officers were not entitled to qualified immunity where the plaintiff alleged that they violated his Fourth Amendment right to be free from excessive force. In this case, he claimed that the officers delivered repeated strikes, punches, and blows to the plaintiff while he pled with them to stop hitting him because he was not resisting arrest or doing anything wrong. Therefore, viewing the evidence in the light most favorable to the plaintiff, a reasonable officer standing in the defendants’ shoes would have understood that the amount of force used to subdue plaintiff was excessive, as was their action in purposefully dropping plaintiff face-first onto the sidewalk after he had been subdued and handcuffed. Burnikel v. Fong, #16-3930, 2018 U.S. App. Lexis 8215 (8th Cir.).

 Disability Discrimination

     A man who sometimes lived with his long-time girlfriend and their children suffered a serious mental health episode, told her that he was suicidal, took a handgun while breaking into a friend’s home, and went to his cousin’s apartment. The girlfriend contacted police, and an officer obtained a warrant for the man’s arrest, going to the cousin’s apartment with other officers. The other officers suggested getting state police crisis negotiators or asking the girlfriend to communicate with the suspect.

     The first officer allegedly told the other officers that they were “a bunch of f[---]ing pussies.” He knocked and identified himself as an officer. The suspect immediately shot himself and died. The girlfriend sued, claiming that the officer unconstitutionally seized the decedent and that his suicide was the foreseeable result of a danger that the officer created, and a violation of the Americans with Disabilities Act, 42 U.S.C. 12101-213 by failing to modify the municipality’s policies and procedures to ensure that disabled individuals would have their needs met during police interactions. A federal appeals court upheld the dismissal of Fourth Amendment claims. All the officer did was merely knock on the door and announce his presence, which was not enough to violate the Fourth Amendment. Even if there had been a seizure, it would have been pursuant to a valid warrant and not unlawful. The officer’s actions did not “shock the conscience” or constitute a state created danger. The appeals court remanded to allow the plaintiff to amend her ADA claim to allege facts showing that the municipality was deliberately indifferent to the rights of disabled persons who were arrested,  Haberle v. Troxell, #16-2074, 2018 U.S. App. Lexis 6926 (3d Cir.).

Electronic Control Weapons: Stun Mode

     Deputies were entitled to qualified immunity for their use of force against a paranoid schizophrenic who had not taken his antipsychotic medication. They knew that he could potentially be dangerous, he refused repeated requests to go to the hospital or lie on his stomach, pretended to shoot himself in the head, took a defensive position lying on the ground with his hands and feet up, and yelled “just shoot me.” Under these circumstances, the federal appeals court ruled, the deputies knew that there was a reasonable expectation of aggression and a resistant subject. One deputy acted reasonably in cuffing and shackling the plaintiff, and a second acted reasonably in applying an arm lock that broke the plaintiff's arm and by using nunchucks to obtain compliance. A third deputy acted reasonably by activating his Taser five times in stun mode on the plaintiff after giving warnings and attempting less intrusive methods. Further, even if the third deputy did not act reasonably, he was entitled to qualified immunity because the plaintiff could not show that a reasonable officer would have been on notice that his conduct violated a clearly established right. Cravener v. Shuster, #17-1971, 2018 U.S. App. Lexis 7671 (8th Cir.).

 

False Arrest/Imprisonment: Unlawful Detention

     Officers who responded to a shooting incident involving the plaintiff’s father were entitled to qualified immunity for detaining her for four hours without probable cause. While this did violate her Fourth Amendment rights, her right not to be detained in this manner under these circumstances was not so clearly established that the officers could be liable. The Fifth Circuit, as well as other circuits, had determined that officers acting under similar circumstances—detaining a sole witness to an incident for questioning and investigative preservation—did not violate any clearly established right. The court reasoned that it followed that these officers similarly were not bound by any such clearly established law. Lincoln v. Colleyville, Texas, #17-10201, 2018 U.S. App. Lexis 8629  (5th Cir.).

Failure to Disclose Evidence

     A man was convicted of the murder of a woman found beside a road with her throat slashed. Prosecutors never informed him that a knife found near the woman’s body might have implicated someone else in the crime. A state appeals court later vacated the conviction based on Brady violations in failing to reveal exculpatory evidence. The man was then retried and acquitted. He sued a county prosecutor, a detective, and the county for damages for the Brady violation less than a year after his acquittal. The trial court dismissed the lawsuit on a statute of limitations basis, finding that the claim accrued more than a year ago when the conviction was overturned. A federal appeals court reinstated the claim, holding that the claim accrued when he was acquitted on retrial, but not when the initial conviction was overturned. Jordan v. Blount County, #17-5988, 2018 U.S. App. Lexis 6405, 2018 Fed. App. 51P (6th Cir.).

Firearms Related: Intentional Use

     A police officer shot a woman less than a minute after arriving with other officers at the scene where it had been reported that a woman was acting erratically and hacking a tree with a knife. When he fired, the woman was holding a large kitchen knife, had taken steps towards her female roommate, and had refused to drop the knife despite two orders to do so. Her injuries were not life threatening and she matched the description of the suspect given by the 911 caller. All of the officers later said that they subjectively believed the woman was a threat to her roommate. She had a history of mental illness. Her roommate said that she did not feel endangered.

     The U.S. Supreme Court ruled in favor of the officer, stating that even assuming a Fourth Amendment violation occurred, which “is not at all evident,” the officer was entitled to qualified immunity. Although the officers were in no apparent danger, the shooting officer believed that the plaintiff was a threat to her roommate. He had mere seconds to assess the potential danger and was separated from the women by a chain-link fence. This was “far from an obvious case” in which any competent officer would have known that shooting her would violate the Fourth Amendment. None of the decisions relied on by the court of appeals supported denying the officer qualified immunity. Kisela v. Hughes, #17-467, 2018 U.S. Lexis 2066.

     Following remand from the United States Supreme Court [Hernandez v. Mesa, #15-118, 137 S. Ct. 2003 (2017)], a federal appeals court held that this shooting case was not a garden variety excessive force case against a federal law enforcement officer. The plaintiffs alleged that a law enforcement agent used deadly force without justification against a fifteen-year-old boy, violating the Fourth and Fifth Amendments, when they fatally shot him across the United States-Mexico border. At issue was whether federal courts have the authority to craft an implied damages action for alleged constitutional violations in this case under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, #301, 403 U.S. 388 (1971). The court noted that no federal statute authorizes a damages action by a foreign citizen injured on foreign soil by a federal law enforcement officer under these circumstances. The court held that the transnational aspect of the facts presented a “new context” under Bivens, and numerous "special factors" weighed against the federal courts’ interference with the executive and legislative branches of the federal government. Therefore, the court affirmed the trial court's dismissal of the case. Hernandez v. Mesa, #12-50217, 2018 U.S. App. Lexis 7161 (5th Cir.).

       A police officer went to a woman’s home for a welfare check after learning that she was home alone, suicidal, and had a gun. The officer shot and killed her when she failed to respond to orders to drop the gun and raised it to another officer’s shin level. Ruling that the officer was entitled to qualified immunity on an excessive force claim, a federal appeals court found that the use of deadly force in these circumstances was objectively reasonable. It further held that the police chief and the city could not be liable because the officer acted reasonably. Rogers v. King, #16-4209, 2018 U.S. App. Lexis 7314 (8th Cir.).

Firearms Related: Pointing Weapons

     An arrestee claimed that an officer used excessive force against him by pointing a gun at his head during a felony arrest during a traffic stop after he had already been searched, was calm and compliant, and was being watched over by a second armed officer. A federal appeals court ruled that pointing a loaded gun at the suspect’s head in these circumstances constituted excessive force under the Fourth Amendment, but that the officers here were entitled to qualified immunity because the law was not clearly established at the time of the traffic stop. Thompson v. Copeland, #16-35301, 2018 U.S. App. Lexis 6191 (9th Cir.).

Medical Care

     A female motorist arrested on suspicion of DWI claimed that the arresting officer ignored her obvious need for medical attention. She allegedly alerted the officer that she was “very sick and bleeding” heavily and asked to be taken to a hospital. The officer refused and proceeded to administer a field sobriety test. The motorist felt that she was “about to pass out” and, again, asked to be taken to a hospital. The officer allegedly again refused, arrested her, handcuffed her, and drove her to the police station, where she claims she was subjected to additional testing, then taken to jail, where she was held for 12 hours. Her blood sample was negative for alcohol and controlled substances. The plaintiff  then "inexplicably" sent the court more than 100 pages of attachments, mostly police reports and medical records, attempting to add the municipalities as defendants

     The officer’s report contradicted the motorist’s claims and recounted driving her to a hospital. Reports from another hospital establish that, two days later, she was diagnosed with “[a]cute blood loss anemia secondary to dysfunctional uterine bleeding.” The trial court dismissed her lawsuit, finding her allegations “no longer plausible.” A federal appeals court vacated, ruling that the trial court erroneously concluded that she had pleaded herself out of court by attaching the police report, which contained facts different from those in the complaint. The plaintiff’s submissions fairly allege that the officer knew about her need for medical attention and responded in an objectively unreasonable manner. Otis v. Demarasse, #16-1875, 2018 U.S. App. Lexis 8243 (7th Cir.). 

Return to the Contents menu.

Report non-working links here


AELE Seminars

   

Public Safety Discipline and Internal Investigations 

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

 

Jail and Prisoner Legal Issues
Jan. 14-17, 2019 - Orleans Hotel, Las Vegas

Click here for more information about all AELE Seminars


Resources

     Statistics: Indicators of School Crime and Safety: 2017, by Lauren Musu-Gillette, Anlan Zhang, Ke Wang, Jizhi Zhang, Jana Kemp, Melissa Diliberti, and Barbara A. Oudekerk, Bureau of Justice Statistics (March 29, 2018 NCJ 251413).

Reference:

 

Cross References

Assault and Battery: Physical --  See also, Electronic Control Weapons: Stun Mode

Defenses: Qualified Immunity -- See also, Firearms Related: Intentional Use (1st case)

Public Protection: Disturbed/Suicidal People – See also, Disability Discrimination

Public Protection: Injured/Ill Persons – See also, Medical Care

U.S. Supreme Court Actions – See also, Firearms Related: Intentional Use (1st case)

 

Report non-working links here

Return to the Contents  menu.

Return to the  monthly publications menu

Access the multiyear Civil Liability Law  Case Digest

List of  links to court websites

Report non-working links  here.

 

© Copyright 2018 by AELE, Inc.
Contents may be downloaded, stored, printed or copied,
but may not be republished for commercial purposes.

Library of Civil Liability Case Summaries