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Jail and Prisoner Legal Issues
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A civil liability law publication for Law Enforcement
ISSN 0271-5481 Cite this issue as: 2018 LR November
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CONTENTS
Assault and Battery: Physical (2 cases)
Electronic Control Weapons: Dart and Stun Modes
False Arrest/Imprisonment: No Warrant
Firearms Related
First Amendment (2 cases)
Homeless Persons
Search and Seizure: Home/Business (2 cases)
AELE Seminars
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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Assault and Battery: Physical A motorist was involved in a single-car accident while intoxicated. During his arrest, he was allegedly kicked in the face, breaking his eye socket. Two police officers and two state troopers involved in the arrest, as well as their employers, acknowledged that one officer kicked him. Each of the four law enforcement personnel involved in the incident asserted that he neither inflicted the injury nor saw who did so. The plaintiff, since his face was pinned to the pavement when the kick occurred, could not identify his alleged assailant. Because a defendant must have “personal involvement” in the alleged wrongs, the trial court ruled that the plaintiff’s inability to identify his attacker defeated his claims, and therefore granted the defendants summary judgment. A federal appeals court upheld the ruling as to an excessive force claim, but reversed as to a conspiracy claim. Despite the unfortunate situation created for plaintiffs who are unable to identify their attackers through no fault of their own, a plaintiff alleging that one or more officers engaged in unconstitutional conduct must nevertheless establish the “personal involvement” of each named defendant to survive summary judgment. Despite this, however, where a plaintiff presents sufficient evidence of an after-the-fact conspiracy to cover up misconduct, even of an unidentified officer, he may be able to state a claim for the violation of the due process right of access to the courts. Jutrowski v. Township of Riverdale, #17-2594, 2018 U.S. App. Lexis 25806 (3rd Cir.). A police officer remained on top of an arrestee after he was handcuffed following a chase and takedown. The arrestee repeatedly stated that he could not breathe, even after the officer shifted his weight. A radio transmission from the officer at the time was recorded and the arrestee can be heard complaining about inability to breathe. The arrestee, a 22-year-old African American man in good physical shape, went limp when the officers lifted him up. He then began sweating and breathing heavily and, when he regained consciousness, would complain of being unable to breathe. Officers did not call for help until several minutes after he was discovered to have no pulse and to have stopped breathing. He apparently died in the squad car, and left three children. The cause of death was disputed.
Electronic Control Weapons: Dart and Stun Modes A male motorist was experiencing an episode of diabetic shock when he lost control of his car, came to a stop at an interstate median, and was subjected to a Taser three times in dart mode and once in stun mode in rapid succession by an officer as he attempted to comply with the officer’s orders to get out of his vehicle. He sued the officer and the city for excessive force. A federal appeals court upheld the trial court's denial of the defendants’ motions to dismiss, holding that the officer was not entitled to qualified immunity at this stage of the case, as at the time of the incident it was clearly established that the repeated use of the Taser on someone who has ceased resisting (at least after the first application of the Taser) and is attempting to comply is unlawful. The court also held that the plaintiff, for purposes of summary judgment, established a constitutional violation. Therefore, the trial court properly denied the city’s motion for summary judgment. Glasscox v. City of Argo, #16-16804, 2018 U.S. App. Lexis 25839 (11th Cir.).False Arrest/Imprisonment: No Warrant A federal appeals court found that the summary arrest, handcuffing, and police transport to the police station of a number of middle school girls was a disproportionate response to the school’s need, which was dissipation of what the school officials characterized as an “ongoing feud” and “continuous argument” between the students. The appeals court upheld the trial court’s denial of summary judgment to the defendants based on qualified immunity and grant of summary judgment for the students in an action alleging that a sheriff’s deputy arrested the students on campus without probable cause in violation of their Fourth Amendment rights and state law. In this case, the deputy was invited to speak to a group of girls in school about bullying and fighting. When the girls were unresponsive and disrespectful, the deputy arrested the girls. The appeals court applied the two-part reasonableness test set forth in New Jersey v. T.L.O., #83-712, 469 U.S. 325 (1985), holding that the arrests were unreasonable because they were not justified at their inception nor reasonably related in scope to the circumstances. Officers were not entitled to qualified immunity because no reasonable officer could have reasonably believed that the law authorized the arrest of a group of middle schoolers in order to teach them a lesson or to prove a point, and the evidence was insufficient to create probable cause to arrest the students for violating state statutes, and therefore the plaintiffs were also entitled to summary judgment on their state false arrest claim. Scott v. County of San Bernardino, #16-55518, 2018 U.S. App. Lexis 25568 (9th Cir.). Firearms Related The family of a man shot and killed by a police officer sued for excessive use of force because he was unarmed at the time. A federal appeals court reversed the trial court’s denial of qualified immunity to the officer. Given the officer’s knowledge that the suspect had a reputation for being aggressive and violent towards law enforcement personnel in the small town, it was reasonable to believe that he posed an immediate threat of serious physical harm to him, despite the fact that the officer could see that the suspect’s hands were empty and the later-discovered fact that he was unarmed. Under the circumstances, a reasonable officer on the scene would have viewed the suspect’s “indisputably aggressive approach” as a prelude to a physical altercation, and the officer was required to make a split-second decision in an unpredictable and dangerous circumstance. Wenzel v. Storm, #17-2028, 2018 U.S. App. Lexis 28464 (8th Cir.). First Amendment A federal appeals court held that the outdoor food sharing of vegetarian and vegan food hosted by a non-profit organization, including to homeless persons, was expressive conduct protected by the First Amendment, and therefore, the trial court erred in granting summary judgment in favor of the City of Fort Lauderdale on a lawsuit challenging an ordinance enacted by the city that restricted this food sharing. In 2014, the city enacted an ordinance that restricted the plaintiff’s weekly food sharing at a city public park. In its complaint, the plaintiff argued that the ordinance, enacted in 2014, and a related park rule violated their First Amendment free speech and free association rights and were unconstitutionally vague. The trial court disagreed, concluding that the outdoor food sharing was not constitutionally-protected expressive conduct and that the ordinance and park rule were not vague. The court reversed after examining the nature of the food sharing activity, combined with the factual context and environment in which the activity was undertaken, holding that the plaintiff engaged in a form of protected expression, expressing its message against war and for the relief of hunger. Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale, #16-16808, 2018 U.S. App. Lexis 23562 (11th Cir.). Homeless Persons ****Editor's Case Alert**** Current and recently homeless persons sued a city seeking relief for their prior citations under a Camping Ordinance and Disorderly Conduct Ordinance. A federal appeals court held that an ordinance violates the Eighth Amendment insofar as it imposes criminal sanctions against homeless individuals for sleeping outdoors, on public property, when no alternative shelter is available to them. The court also held that two of the plaintiffs may be entitled to retrospective and prospective relief for violation of that Eighth Amendment right. These two plaintiffs demonstrated a genuine issue of material fact regarding whether they face a credible risk of prosecution under the ordinances in the future on a night when they have been denied access to the city’s homeless shelters. Martin v. City of Boise, #15-35845, 2018 U.S. App. Lexis 25032 (9th Cir.). Editor’s Note: For a discussion of other recent developments in this area, see Police Interaction with Homeless Persons: An Update on Recent Developments, 2018 (9) AELE Mo. L. J. 101. Search and Seizure: Home/Business ****Editor's Case Alert****
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