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A civil liability law publication for Law Enforcement
ISSN 0271-5481 Cite this issue as: 2018 LR September
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CONTENTS
Dogs
Expert Witnesses
Federal Tort Claims Act
Firearms Related: Intentional Use (2 cases)
Firearms Related: Second Amendment Issues
First Amendment (2 cases)
Public Protection: Accident Victims
Race Discrimination
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
May 6-9, 2019– 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.
- Most Federal District Court opinions can be accessed via PACER. Registration required. Opinions are usually free; other documents are 10¢ per page.
- Access to cases linked to www.findlaw.com may require registration, which is free.
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Dogs
An officer was entitled to qualified immunity on his use of a police dog to bite and subdue a suspect. There was no Fourth Amendment violation because the totality of the circumstances and the Graham factors established that the use of force was not objectively unreasonable. In this case, officers were chasing the plaintiff after he assaulted his wife. They were informed that they would have to kill the plaintiff to get him, he had a knife, and he was bitten by the dog until he was fully handcuffed. Therefore, the appeals court reversed the denial of qualified immunity to the officer. Escobar v. Montee, #17-10467, 895 F.3d 387 (5th Cir. 2018).
Expert Witnesses
While upholding a trial court judgment finding that two officers used excessive force in their apprehension and arrest of the plaintiff and an award of damages, a federal appeals court ruled that the trial court did not abuse its discretion in admitting the deposition testimony of an unavailable medical expert witness. The expert qualified as an expert and had been extensively cross-examined during his deposition, he was unavailable, and defendants had notice. The trial court also did not err in submitting the plaintiff's punitive damage claim to the jury and the award of such damages against one defendant was supported by substantial evidence. Fletcher v. Tomlinson, #16-4399, 2018 U.S. App. Lexis 19171 (8th Cir.).
Federal Tort Claims Act
The plaintiff filed a lawsuit for intentional torts under the Federal Tort Claims Act (FTCA) against Transportation Security Administration (TSA) screeners following a confrontational screening at Philadelphia International Airport, during which police were summoned. Under the FTCA, the U.S. government generally enjoys sovereign immunity for intentional torts committed by federal employees, subject to the “law enforcement proviso” exception, which waives immunity for a subset of intentional torts committed by employees who qualify as “investigative or law enforcement officers,” 28 U.S.C. 2680(h).
A federal appeals court upheld the dismissal of the lawsuit, ruling that TSA screeners are not “investigative or law enforcement officers” under the law enforcement proviso. They “typically are not law enforcement officers and do not act as such.” The court noted that the head of the TSA, the Under Secretary of Transportation for Security, has specific authority to designate employees to serve as “law enforcement officer[s]” 49 U.S.C. 114(p)(1) if he wishes to do so. An employee designated in this manner may carry a firearm, make arrests, and seek and execute warrants for arrest or seizure of evidence. Screening locations are staffed by both screening officers and law enforcement officers. Only those specifically designated as law enforcement officers fall within the “law enforcement proviso” of the FTCA. Pellegrino v. U.S. Transportation Security Administration, #15-3047, 2018 U.S. App. Lexis 18821 (3rd Cir.).
Firearms Related: Intentional Use ****Editor's Case Alert**** After a man took hostages at a Wisconsin motorcycle shop and threatened to start shooting, police unsuccessfully attempted to enter the premises. One hostage managed to escape out of the back door of the shop and was shot and killed in the alley by two officers who mistakenly believed that he was the hostage taker. The hostage’s wife sued the officers and city for unreasonable and excessive use of force.
A federal appeals court upheld summary judgment for the officers on the basis of qualified immunity. It ruled that the officers’ conduct was not objectively unreasonable under the Fourth Amendment and that even if their conduct was unreasonable, they were shielded from liability by qualified immunity. At least one officer believed that the situation was an ambush and that when the hostage appeared in the officers; line‐of‐sight holding a gun, the officers, in a matter of seconds, concluded that the hostage was one of the people inside the shop who had shot at them only minutes ago. Mason-Funk v. City of Neenah, #17-3380, 895 F.3d 504 (7th Cir. 2018).
A border patrol agent was not entitled to qualified immunity for his actions while standing on U.S. soil, in shooting and killing a teenage Mexican citizen who was innocently walking down a street in Mexico. These actions, the appeals court ruled, violated the Fourth Amendment, and qualified immunity was unavailable when it was “inconceivable” that any reasonable officer could have thought that he or she could kill the teenager for no reason. The court held that the teenager’s mother had a claim against the agent for money damages under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, #301, 403 U.S. 388, 389 (1971). The court stated its reluctance to extend Bivens to these circumstances, but did so because no other adequate remedy was available and there was no reason to believe that Congress deliberately chose to withhold a remedy. Rodriguez v. Swartz, #15-16410, 2018 U.S. App. Lexis 21930 (9th Cir.).
Firearms Related: Second Amendment Issues ****Editor's Case Alert**** A man in Hawaii filed a federal civil rights lawsuit claiming that the defendants violated his Second Amendment right to carry a loaded firearm in public for self-defense by denying his application for a firearms license. A federal appeals court ruled that, while the concealed carry of firearms fell outside Second Amendment protection, the Second Amendment includes a right to carry a firearm openly in public for self-defense. Therefore, a state statute restricted the plaintiff in exercising that right and thus burdened conduct protected by the Second Amendment.
The appeals court panel held that Hawaii's limitation on the open carry of firearms to those engaged in the protection of life and property violated the core of the Second Amendment and was void “under any level of scrutiny.” It stated that restricting open carry to those whose jobs entail protecting life or property necessarily restricts open carry to a small and insulated subset of law-abiding citizens, and the typical, law-abiding citizen in the state was entirely foreclosed from exercising the core individual Second Amendment right to bear arms for self-defense. Young v. Hawaii, #12-17808, 2018 U.S. App. Lexis 20525 (9th Cir.).
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