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A civil liability law publication for Law Enforcement
ISSN 0271-5481 Cite this issue as: 2019 LR April
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CONTENTS
False Arrest/Imprisonment: Warrant
Firearms Related: Intentional Use (2 cases)
First Amendment
Forfeiture Proceedings
Governmental Liability: Policy/Custom
Immigrants and Immigration Issues
Malicious Prosecution
Off-Duty/Color of Law: Arrest Related
Sex Discrimination
AELE Seminars
Investigation, Management, and Use of Lethal and Less Lethal Force
May 6-9, 2019– Orleans Hotel, Las Vegas
Public Safety Discipline and Internal Investigations
Sep. 30-Oct. 3, 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.
False Arrest/Imprisonment: Warrant
A number of police officers arrested on charges of public corruption sued the arresting officers and other defendants, claiming that their constitutional rights were violated because the defendants intentionally omitted exonerating information from the probable cause affidavits that secured their arrest warrants. A federal appeals court ruled that even if the omitted information had been included in the affidavits, there would still have been probable cause to believe that each of the plaintiffs had engaged in a scheme to defraud in violation of Florida state law. Therefore, the court held that there was no constitutional error in the plaintiffs’ arrests pursuant to warrants based on those affidavits, and the defendants were entitled to qualified immunity. Paez v. Mulvey, #16-16863, 2019 U.S. App. Lexis 3917, 2019 WL 489048 (11th Cir.).
Firearms Related: Intentional Use
Police dispatchers received calls about a man on a rural street, shooting a pistol and yelling “everyone’s going to get theirs.” They relayed descriptions of a black male wearing a brown shirt. Officers arriving on the scene observed a suspect matching that description, who fired at them, and then disappeared into the trees. The suspect then re-appeared 100-500 yards away. The officers advanced but again lost sight of the suspect. They began ordering him to drop his weapon and come out. After a few minutes, the officers spotted a figure on a bicycle, wearing a blue jacket, not a brown shirt, over 100 yards away. All of the officers claim the rider was armed.
The rider, who was also African-American, was not the suspect. His father claimed that the rider was “unarmed” and did not move his hands in any way that might have suggested that he was reaching for something. An officer yelled “put that down!” Officers then fired 17 shots within seconds of spotting the rider. Hit, he fled. While his father was attempting to help the injured rider in their yard, officers advanced. The father claimed that the only gun they had was a toy, which he tossed toward the officers. When the officers attempted to cuff the two men, both resisted. Officers used Tasers on them. EMS pronounced the rider dead at the scene. In the family’s civil rights suit, the court granted the officers summary judgment on statute of limitations and qualified immunity defenses. A federal appeals court affirmed that claims against two officers were time-barred but reversed in part. With respect to qualified immunity, the trial court erred in excluding the father’s affidavit. Genuine issues of material fact remained with respect to whether the use of deadly force was objectively reasonable under the circumstances. Winzer v. Kaufman County, #16-11482, 2019 U.S. App. Lexis 4743, 2019 WL 654594 (5th Cir.).
Officers searched for a fugitive in a house in which a man rented a basement apartment. The house belonged to the fugitive’s brother. They did not find the fugitive. Following the search, the plaintiff renter returned home from work and entered his basement apartment through a backdoor without noticing the officers. He claims that his living area had been ransacked. He ran up the backstairs shouting.
According to the officers, the renter pointed a gun and shot at them. They returned fire and arrested him. The plaintiff renter admitted that he had a holstered pistol but denied that he touched it at all. While turning to flee and reaching for his holster, he fell down the steps and was shot in the stomach, shoulder, and leg. Forensic evidence later confirmed that he did not fire his gun, while witness accounts conflicted on whether he pointed the gun at an officer. After a jury acquitted him of state criminal charges, he filed a Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, #301, 403 U.S. 388 (1971) federal civil rights action against the officers, alleging excessive force, false arrest, malicious prosecution, fabrication of evidence, and civil conspiracy. A federal appeals court affirmed in part the denial of qualified immunity to the defendants, finding the plaintiff’s “garden-variety Bivens” claims viable in light of the Supreme Court’s holdings in Ziglar v. Abbasi, #15-1358, 137 S. Ct. 1843 2017 U.S. Lexis 3874, 2017 WL 2621317 (2017), and Hernandez v. Mesa, #15-118, 137 S. Ct. 2003, 2017 U.S. Lexis 4059, 2017 WL 4495 (2017) as “run-of-the-mill challenges” to “standard law enforcement operations.” Jacobs v. Alam, #18-1124, 2019 U.S. App. Lexis 3918, 2019 Fed. App. 17P (6th Cir.).
First Amendment
Anti-abortion “sidewalk counselors” sued, seeking an injunction against Chicago’s “bubble zone” ordinance, which barred them from approaching within eight feet of a person within 50 feet of an abortion clinic if their purpose was to engage in counseling, education, leafleting, handbilling, or protest, defining such actions as disorderly conduct. They claimed that the floating bubble zone was a facially unconstitutional content-based restriction on the freedom of speech. The trial judge dismissed the claim, relying on the Supreme Court’s 2000 decision (Hill), which upheld a nearly identical Colorado law against a similar First Amendment challenge.
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A federal appeals court affirmed. Abortion clinic buffer-zone laws “impose serious burdens” on core speech rights but under Hill v. Colorado, #98-1856, 530 U.S. 703 (2000), a floating bubble zone is not considered a content-based restriction on speech and is not subject to strict judicial scrutiny. The ordinance is classified as a content-neutral “time, place, or manner” restriction and is tested under the intermediate standard of scrutiny. Hill held that the governmental interests at stake—preserving clinic access and protecting patients from unwanted speech—are significant, and an 8-foot no-approach zone around clinic entrances is a narrowly tailored means to address those interests. The court noted that Hill’s content-neutrality holding is difficult to reconcile with subsequent Supreme Court decisions, but those decisions did not overrule Hill, so it remains binding. Price v. Chicago, #17-2196, 2019 U.S. App. Lexis 4338, 2019 WL 580263 (7th Cir.).
Forfeiture Proceedings ****Editor's Case Alert**** A man pled guilty in Indiana state court to dealing in a controlled substance and conspiracy to commit theft. Police seized a Land Rover he had purchased with money he received from an insurance policy when his father died. The state sought civil forfeiture of the vehicle, charging that it had been used to transport heroin. Observing that he had recently purchased the vehicle for more than four times the maximum $10,000 monetary fine assessable against him for his drug conviction, the trial court denied that request. The Indiana Supreme Court reversed, but the U.S. Supreme Court vacated that ruling. It held that the Eighth Amendment’s Excessive Fines Clause is an incorporated protection applicable to the states under the Fourteenth Amendment’s Due Process Clause, which incorporates and renders applicable to the states Bill of Rights protections “fundamental to our scheme of ordered liberty,” or “deeply rooted in this Nation’s history and tradition.”
The Excessive Fines Clause carries forward protections found in sources from the Magna Carta to the English Bill of Rights to state constitutions from the colonial era to the present day. Excessive fines undermine other liberties, the Court stated. They can be used to retaliate against or chill the speech of political enemies. In considering whether the Fourteenth Amendment incorporates a Bill of Rights protection, the question is whether the right guaranteed—not every particular application of that right—is fundamental or deeply rooted. The Excessive Fines Clause is incorporated regardless of whether application of the Clause to civil in rem forfeitures is itself fundamental or deeply rooted. Timbs v. Indiana, #17-1091, 203 L. Ed. 2d 11, 2019 U.S. Lexis 1350, 2019 WL 691578.
Governmental Liability: Policy/Custom
A woman whose fifteen-year-old son was shot and killed by a police officer sued the officer, the police chief, and the city, alleging claims under 42 U.S.C. 1983 and state law. The officer was hired despite having admitted that he attended a Ku Klux Klan meeting when a junior in high school, claiming that he was just curious. The trial court granted summary judgment for the police chief and the city. A jury found that the officer violated the boy's Fourth Amendment right to be free from excessive force and returned a verdict in favor of the plaintiff. A federal appeals court affirmed, holding that the plaintiff failed to establish a municipal custom based on failure to prevent police misconduct. She failed to show that the city acted with deliberate indifference to the rights of persons with whom its officers came into contact.
Further, the trial court did not err by requiring the plaintiff to establish a pattern of constitutional violations to prove her claim. Her evidence of officer-involved shootings did not establish deliberate indifference to a pattern of excessive force; and the trial court likewise did not err in granting summary judgment on plaintiff's failure to train or supervise claim. The court also held that the plaintiff's evidence was insufficient to hold the police chief individually liable, as there was no genuine issue of material fact that a plainly obvious consequence of the hiring decision would be the officer’s unjustified use of deadly force. The evidence also failed to show that the chief had notice that the officer’s training and supervision were inadequate and likely to result in the use of excessive force. Perkins v. Hastings, #17-2079, 2019 U.S. App. Lexis 3854, 2019 WL 469718 (8th Cir.). Immigrants and Immigration Issues
The city of Philadelphia has received funds under the federal Edward Byrne Memorial Justice Assistance Grant Program every year since the program’s 2006 inception. The Justice Department, as part of a crackdown on so-called “sanctuary cities,” notified the city that it was withholding its FY2017 award because the city was not in compliance with three newly implemented conditions that required greater coordination with federal officials on matters of immigration enforcement. The city filed suit and was awarded summary judgment. The federal appeals court affirmed the order to the extent that it enjoins enforcement of the challenged conditions against the city and vacated the order to the extent it imposed a requirement that the federal government obtain a judicial warrant before seeking custody of aliens in city custody. Where, as here, the Executive Branch claims authority not granted to it in the Constitution, it “literally has no power to act … unless and until Congress confers power upon it.” Congress did not grant the Attorney General this authority and the Challenged Conditions were unlawfully imposed. The Byrne statute itself provides no such authority and the conditions are not authorized by 34 U.S.C. 10102, the provision establishing the “Duties and Functions of Assistant Attorney General.” City of Philadelphia v. Attorney General of the United States, #18-2648, 2019 U.S. App. Lexis 4710, 2019 WL 638931 (3d Cir.).
Malicious Prosecution
After a female college student was found dead in her apartment, police questioned her current boyfriend and several former boyfriends. At a meeting including county prosecutors and several detectives, the prosecutors decided to charge one former boyfriend with the woman’s death. In discussing the dead woman’s relationship with another former boyfriend with the charged man’s defense attorney, the prosecution did not disclose the other man’s drug use and incidents of domestic violence against another girlfriend, nor his incomplete polygraph examination. At trial, the state argued that all other possible suspects were excluded by alibis. The accused ex-boyfriend was convicted of first-degree murder. He sought post-conviction relief, based on failure to disclose material information on the other man’s viability as a suspect. In 2008, the Illinois Supreme Court vacated the conviction. The state dismissed the charges. In April 2013, the state certified his innocence.
He then filed a federal civil rights lawsuit against the prosecutors and detectives with state law claims, including malicious prosecution, against the town. The trial court dismissed the claims. In 2014, he filed a state court suit against the detectives and town, pleading the state law claims that the federal court had dismissed without prejudice. The trial court granted the defendants summary judgment, reasoning that the plaintiff could not satisfy the elements to establish malicious prosecution, noting testimony that the prosecutor rejected suggestions to investigate other avenues. The intermediate appellate court affirmed. The Illinois Supreme Court reversed. The appellate court erroneously focused its inquiry on whether the “officer[s] pressured or exerted influence on the prosecutor’s decision or made knowing misstatements upon which the prosecutor relied” and failed to consider whether the defendants proximately caused the commencement or continuance or played a significant role in the plaintiff’s prosecution. Beaman v. Freesmeyer, 2019 IL 122654, 2019 Ill Lexis 262. Off-Duty/Color of Law – Assault and Battery
A male concertgoer filed suit after he was injured when an off-duty police officer lifted him over a five-foot barrier and dropped him on his neck. The federal appeals court held that no reasonable jury could find that the officer used excessive force when grabbing the plaintiff, lifting him over the barrier, and throwing him to the ground. In this case, the officer had probable cause to arrest the plaintiff for disorderly conduct and the officer’s actions were reasonable in light of the circumstances, and the throw to the ground was a result of the officer losing his balance. The court also held that the officer was entitled to immunity as to the state law claims under Missouri’s doctrine of official immunity. Finally, because there was no constitutional violation, the board of police commissioners was not liable for the officer’s actions. Kasiah v. Crowd Systems, Inc., #17-3588, 2019 U.S. App. Lexis 4445, 2019 WL 610611 (8th Cir.).
Sex Discrimination
A Colorado city passed a public-nudity ordinance that imposed no restrictions on male toplessness but prohibited women from baring their breasts below the areola. In response, Free the Nipple, an unincorporated association, and two female individuals sued the city in federal district court, claiming that the ordinance violated the Equal Protection Clause of the Fourteenth Amendment by discrimination on the basis of sex, and they asked for a preliminary injunction to halt the ordinance’s enforcement. The trial court agreed and enjoined the city, pending the resolution of the case’s merits, from implementing the ordinance to the extent that it prohibits women, but not men, from knowingly exposing their breasts in public. The city then brought an interlocutory appeal to challenge the injunction. The narrow issue presented for the appeals court’s review asked whether the trial court reversibly erred in issuing the preliminary injunction. The appeals court found that the trial court did not, affirmed the trial court’s judgment and remanded the case for further proceedings. Free the Nipple v. City of Fort Collins, #17-1103, 2019 U.S. App. Lexis 4596, 2019 WL 638719 (10th Cir.).
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