AELE Seminars
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: 2019 LR February
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CONTENTS
Defenses: Qualified Immunity
Defenses: Statute of Limitations
Electronic Control Weapons: Dart and Stun Mode
Federal Tort Claims Act
Firearms Related: Intentional Use
Firearms Related: Second Amendment Issues
Immigrants and Immigration Issues
Malicious Prosecution
Property
Search and Seizure: Person
AELE Seminars
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.
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Defenses: Qualified Immunity ****Editor's Case Alert**** Police responded to a 911 call from a woman about domestic violence at the apartment where she lived with her husband, her children, and a roommate. Officers arrested her husband, but he was later released. A month later, police received a 911 call from the roommate’; mother, who reported hearing the roommate and wife both screaming for help in a phone call that was quickly disconnected. Two officers dispatched to the residence spoke to the wife through an open window. A man inside the apartment told her to back away from the window. A man then opened the front door, came outside, closed the door despite orders not to do so, and tried to brush past an officer, who quickly took him to the ground and handcuffed him without hitting him or displaying any weapons. The man was the wife’s father, and he sued two officers for excessive use of force. A federal appeals court agreed that the officers had probable cause to arrest the plaintiff, but remanded as to excessive force claims, denying the officers qualified immunity.
Defenses: Statute of Limitations A lawsuit was filed over the death of a man shot and killed during a law enforcement investigation. The case was dismissed because it was filed after the Virginia state statute of limitations had expired. Upholding the result, a federal appeals court found that undisputed facts placed the plaintiff on objective notice of the need to investigate the shooting. In this case, a witness had informed the plaintiff outlining inconsistencies she believed existed in the file and the plaintiff did not file suit until after the limitations period had expired. Spradling v. Hastings, #17-3573, 2019 U.S. App. Lexis 501 (8th Cir.). Electronic Control Weapons: Dart and Stun Mode A man was arrested during a domestic dispute at his girlfriend’s apartment. Taken to a police station for booking on charges of trespass and criminal damage to property, he grew confrontational while being fingerprinted. The officers stated that he would be handcuffed to a bench for the rest of the booking process. He then pulled away, fell over, and kicked wildly at the officers. Before the officers handcuffed him, one of them used her Taser multiple times, first in the dart mode. She tried to activate it three more times, but this was ineffectual as one of the darts was not connected or became disconnected. She then applied it in the stun mode. The Taser’s camera recorded the incident. The arrestee sought damages under 42 U.S.C. 1983, alleging excessive force. A federal appeals court overturned the denial of qualified immunity to the officers. An excessive-force claim requires assessment of whether the officer’s use of force was objectively reasonable under the circumstances. Based on the irrefutable facts preserved on the video of the incident, the officers were entitled to qualified immunity. The video showed that the officer deployed the Taser when the arrestee was flailing and kicking and actively resisting being handcuffed. She used it three more times to subdue and gain control over him as he kicked, attempted to stand up, and resisted commands to submit to authority. No prior case law clearly established that an officer may not use a Taser under these circumstances. Dockery v. Blackburn, #17-1881, 2018 U.S. App. Lexis 35611, 2018 WL 6629426 (7th Cir.). Federal Tort Claims Act The U.S. government was properly granted judgment against the plaintiff on his lawsuit under the Federal Tort Claims Act, 28 U.S.C. 1346(b), 2671-2680, because the Homeland Security agent who shot him during the execution of a search warrant at his residence for evidence of drug and gang offenses did not violate his clearly established rights. The court ruled that the U.S. government could not be held liable for the agent’s conduct unless the unlawfulness of the officers’ conduct was clearly established at the time they acted and that at the time the officers acted, no precedent clearly established that the officers’ conduct was unlawful. When agents and officers entered the residence, there were no lights on in the apartment, other than the powerful flashlights held by the agents. The Homeland Security agent saw the suspect’s silhouette emerging from a bedroom. In Spanish, he yelled “police,” and ordered the suspect to show his hands and stay still. Ignoring these commands, the suspect lifted his shirt, reached for his waistband, and moved for cover behind a bedroom wall. His waistband contained no discernible "bulge." Before he drew his hand from his waistband area, two agents shot at his center mass. These actions, under the circumstances, did not violate clearly established law. Escalera Salgado v. U.S., #17-1838, 2018 U.S. App. Lexis 35564 (1st Cir.).
Immigrants and Immigration Issues A woman entered the U.S. illegally. She was then detained in the custody of the U.S. Customs and Border Protection. She subsequently signed a form indicating her decision to repatriate voluntarily. She was killed by her ex-boyfriend shortly after returning to Mexico, and had allegedly expressed her fear of him to the border agent. The plaintiffs alleged that she was coerced into signing the voluntary removal form and was denied her due process rights, causing her death, suing a customs agent and his supervisor under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, #301, 403 U.S. 388, 91 S. Ct. 1999 (1971), providing a direct remedy against federal employees for violations of constitutional rights. A federal appeals court upheld summary judgment for the defendants, ruling that special factors precluded the extension of a Bivens remedy to this new context. The court also held that the defendants were entitled to qualified immunity where the agent’s conduct was not objectively unreasonable. Maria S. v. Doe, #17-40873, 2019 U.S. App. Lexis 306 (5th Cir.). A woman enrolled in a community college’s online criminal justice course and was advised by the instructor, who was a police officer, that she was failing the course. Shortly thereafter, the police department started receiving anonymous threats and a harassing email targeting the officer. A different officer swore out a complaint accusing the student of engaging in the harassment. She was arrested, posted bond, and two years later was acquitted. She sued the city and a number of officers, seeking damages for wrongful prosecution. A federal appeals court ruled that a Fourth Amendment claim for unlawful pretrial detention accrues when the detention ends. The appeals court, however, did not determine the timeliness of the plaintiff’s claim because the parties did not adequately address whether and under what circumstances a person who is arrested but released on bond remains “seized” for Fourth Amendment purposes or what conditions of release, if any, were imposed on the plaintiff when she bonded out, requiring further proceedings. Mitchell v. City of Elgin, #16-1907, 2019 U.S. App. Lexis 26 (7th Cir.). Property Motorists asserted federal and California state civil rights claims, arguing that the impoundment of their vehicles by local authorities on the basis that they lacked driver’s licenses violated the Fourth Amendment. California Vehicle Code 4602.6(a)(1) provides that an officer may impound a vehicle for 30 days if the vehicle’s driver has never been issued a driver’s license. The appeals court held that 30-day impounds under section 14602.6 are seizures for Fourth Amendment purposes. Therefore, the only issue in this case was whether the impounds were reasonable under the Fourth Amendment. The court held that, although the state’s interest in keeping unlicensed drivers off the road is governed by the community caretaking exception of the Fourth Amendment, the exception does not categorically permit government officials to impound private property simply because state law does.Furthermore, even if the court were to balance the state’s interest against the driver's interests, the county would still be wrong to rely on a deterrence or administrative penalty rationale to support the state’s interests. Therefore, the appeals court upheld the trial court's grant of summary judgment for the plaintiffs on the Fourth Amendment claims. The court also affirmed a grant of summary judgment on the plaintiffs claim that the county and the city were liable for money damages as final policymakers who caused the constitutional violations, while also upholding the denial of class certification for lack of commonality and typicality, and affirmed summary judgment for defendants on the California state civil rights claim. Sandoval v. County of Sonoma, #16-16122, 2018 U.S. App. Lexis 36147 (9th Cir.).Search and Seizure: Person A child and her mother claimed that a county caseworker wrongfully searched the child at a Head Start preschool in violation of the Fourth Amendment after receiving anonymous reports of signs of abuse. Without either consent or a warrant, she partially undressed the girl, visually examined her for signs of abuse, and then photographed her private areas and partially unclothed body. A federal appeals court found no error in the trial court’s dismissal of the lawsuit on the basis that the defendants were entitled to qualified immunity on the Fourth Amendment claims. Doe v. Woodard, #18-1066, 2019 U.S. App. Lexis 112 (10th Cir.).
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