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Jail and Prisoner Legal Issues
Jan. 14-17, 2019 -
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Investigation, Management, and Use of Lethal and Less Lethal Force
May 6-9, 2019– Orleans Hotel, Las Vegas
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A civil liability law publication for Law Enforcement
ISSN 0271-5481 Cite this issue as: 2018 LR December
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CONTENTS
Assault and Battery: Physical (2 cases)
False Arrest/Imprisonment: No Warrant
Firearms Related: Intentional Use
Firearms Related: Second Amendment Issues
Privacy
Public Protection: Motoring Public and Pedestrians
Search and Seizure: Home/Business (2 cases)
Sexual Assault
AELE Seminars
Jail and Prisoner Legal Issues
Jan. 14-17, 2019 -
Orleans Hotel, Las Vegas
Investigation, Management, and Use of Lethal and Less Lethal Force
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.
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Assault and Battery: Physical A police officer was not entitled to qualified immunity on a drunk woman’s claim that he used excessive force on her during an arrest when a jury could find that a reasonable officer in his position would not have interpreted her actions as noncompliance and would have known that she posed neither a flight risk not an immediate threat to anyone’s safety. Indeed, being drunk and argumentative with another resident in a home one lives in is not a crime. It was clearly established than an officer could not forcefully take down a person who was a nonviolent, nonthreatening misdemeanant who was not actively resisting arrest or attempting to flee in the violent and uncontrolled manner of slamming her to the ground that this officer allegedly did. Karels v. Storz, #17-2527, 2018 U.S. App. Lexis 28917 (8th Cir.). A man who had a fight with officers in the setting of acute methamphetamine intoxication died from a cardiac arrhythmia. The incident occurred as the officers responded to a domestic disturbance call and found the man attacking his girlfriend in a brutal manner. A federal appeals court upheld summary judgment for the defendants in an excessive force lawsuit brought by the decedent’s parents. The appeals court held that unsworn statements about the incident that paramedics had made to officers were properly excluded from evidence. Iowa’s state false statement law did not “implicitly swear” a declarant making a statement to officers. There also was no genuine dispute of material fact that the decedent posed a threat to the safety of both the officers and girlfriend and no admissible evidence rebutting the officers’ version of the incident. Tasers in the dart mode were used during the incident and a Taser video indicated that one Taser malfunctioned. Zubrod v. Hoch, #17-1202, 2018 U.S. App. Lexis 29625 (8th Cir.). False Arrest/Imprisonment: No Warrant Four officers responded to a call about a man “with a gun.” When they arrived at a building at 3:35 a.m., a man on the porch told them to go to the first floor apartment because “he’s in there.” 10 people were milling around in the apartment, and one told them “The man with the gun is in back. He pointed it at my face.” An officer saw a man who fled into a bedroom, slamming the door. After announcing their presence and knocking on the door, the officers entered the bedroom, and saw a man sitting on a mattress next to a woman. They found a gun on the bedroom floor, about two feet in front of the man. He filed a federal civil rights lawsuit for false arrest, excessive force, false imprisonment, and malicious prosecution. A federal appeals court upheld a verdict rejecting all these claims. The trial court acted within its discretion by denying jurors’ request for a copy of a potentially impeaching interrogatory answer by an officer as well as in refusing to modify its jury instruction on “possession” of a weapon to stress that “mere proximity” to a gun is insufficient. Lindsey v. Macias, #17-2963, 2018 U.S. App. Lexis 29843 (7th Cir.).Firearms Related: Intentional Use In a prior decision, a federal appeals court ruled that allegations that two officers shot and severely injured a 17-year-old when he was holding a gun to his own head, and not pointing it at the officers as they claimed, if true, would constitute excessive force. Based on this dispute of material fact, a federal appeals court dismissed the appeal of the denial of qualified immunity on the excessive force claim for lack of jurisdiction. The appeals court also upheld the trial court's refusal to dismiss a Fourteenth Amendment due process claim that after the incident an officer intentionally fabricated evidence to cover up his colleagues' actions and get the teenager falsely charged with aggravated assault on the officers. Cole v. Hunter, #14-10228, 802 F.3d 752 (5th Cir. 2015).On remand from the U.S. Supreme Court, Hunter v. Cole, #16-351,137 S. Ct. 497 (2016), the Fifth Circuit U.S. Court of Appeals considered the case in light of the Supreme Court's decision in Mullenix v. Luna. #14-1143, 136 S.Ct. 305 (2015) [In which the U.S. Supreme Court reversed a denial of qualified immunity to the trooper on an excessive force claim ruling that the trooper was entitled to qualified immunity because prior precedents did not indicate that it was "beyond debate" that he acted unreasonably,]. The appeals court upheld the trial court’s denial of two officers’ motion for summary judgment based on qualified immunity, and otherwise reinstated the court's previous opinion in this case, and remanded for further proceedings. The court held that the trial court did not weigh the evidence and resolve the factual dispute over the shooting and that a jury should resolve what happened on that night. Cole v. Hunter, #14-10228, 905 F.3d 334 (5th Cir. 2018).Firearms Related: Second Amendment Issues A federal appeals court upheld a ruling that rejected claims that the Massachusetts firearms licensing statute, as implemented in the communities of Boston and Brookline, violates the Second Amendment, ruling that the statute bears a substantial relationship to important governmental interests, such as promoting public safety and crime prevention and did not offend the plaintiffs’ Second Amendment rights. The plaintiffs had sought and received licenses to carry firearms in public, but the licenses allowed them to carry firearms only in relation to certain specified activities, denying them the right to carry firearms more generally, including simply for general self-defense. “In the last analysis, the plaintiffs simply do not have the right ‘to carry arms for any sort of confrontation’ or ‘for whatever purpose’ they may choose,” the court stated. The core right protected by the Second Amendment was the right of “law-abiding, responsible citizens to use arms in defense of hearth and home,” but public carriage of firearms for self-defense “fell outside the perimeter of this core right.” Applying intermediate scrutiny, the court held, the restriction of the right to carry a firearm in public for self-defense withstood a Second Amendment challenge. Under the statute, a license to carry may be granted to those with “good reason to fear injury,” or for other reasons, such as sport or target practice. “The applicant must identify a specific need, that is, a need above and beyond a generalized desire to be safe.” Gould v. Morgan, #17-2202, 2018 U.S. App. Lexis 31129 (1st Cir.). Privacy ****Editor's Case Alert**** An IRS agent was not entitled to qualified immunity for allegedly violating a woman’s Fourth Amendment right to bodily privacy when, during the lawful execution of a search warrant for criminal tax fraud at the plaintiff's home, he escorted her to the bathroom and monitored her while she relieved herself. Based on the scope, manner, justification, and place of the search, the court ruled held that a reasonable jury could conclude that the agent’s actions were unreasonable and violated the woman’s Fourth Amendment rights. The defendant’s general interests in preventing destruction of evidence and promoting officer safety did not justify the scope or manner of the intrusion into the woman’s most basic subject of privacy, her naked body. This right was clearly established and a reasonable officer in the agent’s position would have known that such a significant intrusion into bodily privacy, in the absence of legitimate government justification, was unlawful. Ioane v. Hodges, #16-16089, 903 F.3d 929 (9th Cir. 2018). Public Protection: Motoring Public and Pedestrians A married couple were driving south on a highway. An officer on patrol was traveling in the same direction. The officer observed a traffic offense committed by a driver in the northbound lane, and he turned around to pursue that car, allegedly at speeds of over 100 miles-per-hour. Several people observed him driving recklessly. He lost control while negotiating a curve. His vehicle then spun around, crossed the centerline into southbound traffic, and crashed into the couple’s car, seriously injuring the husband and killing the wife. The officer later pled guilty to vehicular homicide, which requires proof beyond a reasonable doubt of reckless or grossly negligent driving, and reckless endangerment. The husband, individually and as administrator of his wife’s estate, filed a federal civil rights lawsuit alleging a “state-created danger” theory of liability. A federal appeals court overturned the denial of the defendant’s motion for dismissal based on qualified immunity. It was not clearly established at the time of the incident that the officer’s conduct, as alleged in the complaint, could give rise to constitutional liability under the Fourteenth Amendment. The court stated, however, that it hoped to establish clear law with its opinion. Sauers v. Borough of Nesquehoning, #17-1591, 2018 U.S. App. Lexis 27890 (3rd Cir.). Search and Seizure: Home/Business An officer’s confidential informant reported that he had bought heroin from a man named “Fred.” The warrant affidavit stated that the informant had bought heroin from Fred for a couple of months, Fred sold heroin from a particular home's basement, and the informant had bought heroin from Fred that day and saw Fred with over 100 baggies of heroin. The officer showed Doe a photo of the Edwards home, which he confirmed was the location. The officer drove the informant to the location, where he confirmed that identification. The officer used a database to obtain a photograph of Freddy Sutton, who Doe identified as “Fred.” The officer’s supervisor and an assistant state’s attorney approved the warrant application. Aware of the informant’s criminal history, the judge questioned him under oath and issued the search warrant.
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