October 2018 Law Enforcement Liability Reporter

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

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

May 6-9, 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 October
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Digest Topics

Assault and Battery: Baton

Assault and Battery: Physical (2 cases)

Domestic Violence and Child Abuse

False Arrest/Imprisonment: No Warrant

Firearms Related: Intentional Use (2 cases)

Firearms Related: Second Amendment Issues (2 cases)

First Amendment

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

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

May 6-9, 2019– 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.
Access to cases linked to www.findlaw.com may require registration, which is free.

Assault and Battery: Baton

A federal appeals court overturned summary judgment to officers regarding their alleged excessive force in making an arrest. The plaintiff’s version of events asserted that the officers suspected him only of making a false statement and that he was not actively resisting arrest or fleeing, nor did pose a threat to officers or the public. Despite this, the officers carried out the arrest by grabbing him by the throat and using a baton with enough force to break his arm. Accepting this version as true for purposes of appeal, the force used could be found to be unreasonable. On a false arrest claim, it was objectively unreasonable to believe that there was probable cause to arrest the plaintiff where his statement that his sister intentionally drove her car over his foot was not a false report justifying his arrest. Michael v. Trevena, #17-1946, 899 F.3d 528 (8th Cir. 2018).

Assault and Battery: Physical

A police officer was not entitled to qualified immunity on an arrestee’s claim that he used excessive force by bringing the arrestee to the ground using an arm-bar takedown. In the plaintiff’s version of the arrest, he neither posed a threat to anyone's safety nor resisted arrest. If true, his right to be free from unreasonable and excessive force was violated, and the right was clearly established at the time. Neal v. Ficcadenti, #17-2633, 895 F.3d 576 (8th Cir. 2018).

In a wrongful death lawsuit, a California state jury found one deputy liable for intentional battery/excessive force and the second deputy liable for negligence resulting in the decedent’s death. The jury awarded the plaintiffs $8 million in noneconomic damages and the trial court entered judgment against the first deputy for the full amount of the award based on the jury's finding that he intentionally harmed the decedent.

An intermediate California appeals court agreed with the defendants that a state statute mandated allocation of the noneconomic damages award in proportion to each defendant's comparative fault, despite the jury’s finding of intentional misconduct. Therefore, it directed the trial court to vacate the judgment and enter separate judgments for each of the deputies, holding them liable for the noneconomic damages award in an amount proportionate to the jury’s comparative fault determinations. B.B. v. County of Los Angeles, #B24946, 25 Cal. App. 5th 115, 235 Cal. Rptr. 3d 457, 2018 Cal. App. Lexis 618.

Domestic Violence and Child Abuse

Child abuse investigators removed seven minor children from a couple’s home. The parents sued the agency and its employees. A civilian investigator for the Crimes Against Children Division appealed the denial of her motion for qualified immunity. A federal appeals court affirmed this result and ruled that the facts asserted plausibly alleged that the defendant could be liable if the children were removed from their parents’ home without reasonable suspicion of child abuse. Additionally, it was clearly established at the time the investigator acted that reasonable suspicion was required to remove the children from their home and their parents’ custody. Stanley v. Finnegan, #17-2702, 899 F.3d 623 (8th Cir. 2018).

False Arrest/Imprisonment: No Warrant

Officers were justified in their efforts to investigate plaintiff's Facebook post asking in response to a post advocating against gun control measures: "Which one do I need to shoot up a kindergarten?" However, no exigent circumstances prevented the officers from gathering additional information before making the arrest. Here, a minimal further investigation would have revealed that the plaintiff’s post was not a true threat. Therefore, it was “beyond debate” that had the officers engaged in further investigation, the only reasonable conclusion was that the plaintiff had not violated the law by disturbing the peace. A federal appeals court therefore reversed the trial court’s grant of summary judgment to three officers based on qualified immunity on the arrestee’s 42 U.S.C. 1983 claim, alleging the violation of his constitutional rights under the First and Fourth Amendments. Ross v. City of Jackson, #17-1390, 897 F.3d 916 (8th Cir. 2018).

Firearms Related: Intentional Use

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

A man called police to assist him in subduing his brother, who was having a psychotic episode. When the brother charged at one of the officers with a knife, he was shot. While he survived, he did not fully recover. A federal appeals court ruled that, given the undisputed facts, a reasonable jury could not find the officers violated the brother’s Fourth Amendment right to be free from excessive force. Clark v. Colbert, #17-7046, 895 F.3d 1258 (10th Cir. 2018).

A federal appeals court ruled that the defendant officer was entitled to qualified immunity for using deadly force against the plaintiff arrestee, because the force used was justified, upholding the trial court’s holding. The trial court relied on the plaintiff’s criminal conviction for assaulting defendant officer and on the defendant’s testimony. It rejected the plaintiff’s argument that the court should create an evidentiary presumption at the summary judgment stage against an officer who fails to use audio or video recording equipment that he has been issued. Even construing the record in the plaintiff’s favor, the officer’s use of force was objectively reasonable where the plaintiff posed an immediate threat to his safety and was actively resisting arrest. Church v. Anderson, #17-2077, 898 F.3d 830 (8th Cir. 2018).

Firearms Related: Second Amendment Issues

A federal appeals court upheld summary judgment for the state of California in a lawsuit challenging three provisions of the state Unsafe Handgun Act (UHA). That law requires that new models of handguns meet certain criteria, and be listed on a handgun roster, before they may be offered for sale. Assuming that the UHA implicated purchasers’ rights to bear arms under the Second Amendment, the court ruled that the UHA passed constitutional muster applying intermediate scrutiny. It held that the law only regulates commercial sales, not possession, and did so in a way that did not impose a substantial burden on purchasers.

The court also held that the requirements for a chamber load indicator and a magazine detachment mechanism reasonably fit with the state’s interest in public safety. The state also met its burden of showing that the microstamping requirement (mandating that new handguns stamp microscopically the handgun’s make, model, and serial number onto each fired shell casing) was reasonably tailored to address the substantial problem of untraceable bullets at crime scenes and the value of a reasonable means of identification. Pena v. Lindley, #15-15449, 898 F.3d 969 (9th Cir. 2018).

A federal appeals court upheld the dismissal of an equal protection challenge to California’s 2015 amendment, Senate Bill 707, to its Gun-Free School Zone Act. The Amendment preserved the retired officer exception for firearm possession on school grounds, as well as within school zones, but prohibited concealed carry weapon (CCW) holders from possessing guns on school grounds. The court held that, even assuming that retired peace officers and CCW permit holders were similarly situated, SB 707 did not violate the Equal Protection Clause, given the applicable level of scrutiny. Applying “rational basis” review, the panel held that SB 707 implicates neither a suspect classification nor a fundamental right. The court also rejected the plaintiffs’ argument that SB 707 violated the Equal Protection Clause because it was enacted to favor a politically powerful group and to disfavor a politically-unpopular one. The plaintiffs failed to make any factual allegations to support their theory of impermissible animus. Gallinger v. Becerra, #16-56125, 898 F.3d 1012 (9th Cir. 2018).

First Amendment

New York City police officers were entitled to qualified immunity on claims that they violated protestors’ constitutional rights under the First and Fourteenth Amendments by fully detaining them for two hours during a protest outside a hotel where then-President Obama was attending a fundraising dinner. The trial court erred in concluding that the Officers’ subjective intent in temporarily detaining the protesters was relevant to whether they were entitled to qualified immunity. Reasonable officers could have believed that the approximately two‐hour detention of the protesters in response to concerns for the President’s security was justified in light of then established law. Further, because they could have reasonably believed that the temporary detention was lawful, they were also entitled to qualified immunity on the protesters' First Amendment and Fourteenth Amendment claims. Berg v. N.Y.C. Police Commissioner, #16-3146, 897 F.3d 99 (2nd Cir. 2018).