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Assault and Battery: Physical
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Officers were entitled to qualified immunity on unlawful detention, excessive
force, and false reporting claims because video and audio evidence
supported the assertion that they relied on the representations of credible
persons to believe that the plaintiff’s son met the statutory criteria for
apprehension. Even assuming that the officers violated his constitutional
rights, she failed to show that clearly established law put the officers on
notice that their conduct was illegal. As to the excessive force claim, the
plaintiff had not shown that the officers violated clearly established law
by moving her son, a person who was increasingly aggravated, repeatedly
spitting at the officers, and failing to comply with instructions to stop,
to the floor, even though he collided with a cabinet on the way down, and,
as to the filing of false police reports claim, neither the trial court nor
the plaintiff identified which constitutional rights were violated. Rich
v. Palko, #18-40415, 2019 U.S. App. Lexis 9856, 2019 WL 1468176 (5th Cir.).
False Arrest/Imprisonment: Warrant
A federal appeals court upheld the denial of summary judgment on the basis
of qualified immunity to a school attendance officer on an aunt's claim
that he violated her Fourth Amendment rights by swearing an arrest warrant
affidavit against her for failing to ensure that a child attended
school. There was no qualified immunity where the affidavit for the
warrant lacked any facts to establish probable cause in violation of Malley
v. Briggs, #84-1586, 475 U.S. 335 (1986), and simply identified
the aunt, recited the charged offense, and cited the corresponding
Mississippi statutes. Summary judgment was proper, however, on the
aunt’s claim under Franks
v. Delaware #77-5176. 438 U.S. 154 (1978)
(holding that where a warrant affidavit contains a statement, necessary to
the finding of probable cause, that is demonstrated to be both false and
included by an affiant knowingly and intentionally, or with reckless
disregard for the truth, the warrant is not valid) because a plaintiff
could not hold an officer liable under Franks for
intentionally omitting important exculpatory information from an arrest
warrant affidavit when the officer had also committed a Malley
violation by presenting a facially deficient warrant affidavit lacking
probable cause to the issuing judge. Blake
v. Lambert, #18-60176, 2019
U.S. App. Lexis 10149, 2019 WL 1498194 (5th Cir.)
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The plaintiff, a teacher,
filed suit against a criminal investigator, for false arrest under 42
U.S.C. 1983, alleging that he knowingly or recklessly misstated material facts
in the affidavit in support of a warrant for his arrest for allegedly
communicating a false report. Excising
the statements that the teacher initiated and communicated a report that
she knew was false and baseless, and that the report caused the police
investigators to seize several public school computers and documents for
forensic reviews, it was difficult to see how the remaining allegations
established probable cause for the specific offense of false alarm or
report. The evidence was sufficient, however, to generate probable cause
that the teacher violated Tex. Penal Code Ann. § 37.08's “false report”
offense when she met with the investigator. A
federal appeals court reversed the denial of the defendant’s motion for
summary judgment, ruling that, although the validity of the arrest could
not be saved by facts stated in the warrant sufficient to establish
probable cause for a different charge from that sought in the warrant,
the defendant was entitled to qualified immunity because this was not clearly
established at the time of his conduct. Arizmendi v. Gabbert, #17-40597, 2019 U.S. App. Lexis 9009, 2019
WL 134817 (5th Cir.).
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Firearms Related: Intentional Use
****Editor's Case
Alert****
After a man was shot and killed by a police
officer, a lawsuit was filed against both the officer and the city,
claiming excessive force. The officer was responding to a 911 call
requesting assistance to the fire department at the man’s home. At the time
of the shooting, the man was holding a knife in his hand while moving
forward towards the office. He disregarded the officer’s order to get back.
A federal appeals court upheld summary judgment for the defendants, finding
that the use of deadly force was reasonable under the circumstances of the
case. Shepherd
v. City of Shreveport, #18-30528, 2019 U.S. App. Lexis 9858
(5th Cir.).
A man’s wife called the police to
report that he was in the driveway of their home holding a baseball bat
while drunk and probably on drugs, and “acting crazy.” She wanted officers
to remove him so that she would be able to return to the house and put
their 17-month-old child, who was with her outside, to bed. Several
officers responded to the call, and within one minute, one of them shot the
husband dead in the street in front of the house. A lawsuit claimed that
this constituted excessive force by the officer and that the city had failed to adequately train the officer on how
to handle situations involving persons who are emotionally distraught or
who have a diminished ability to reason. A state law wrongful death
claim was also asserted against the officer.
A federal appeals court upheld the denial of summary judgment on the basis
of qualified immunity to the officer on the federal excessive force claim, because clearly established case law in the
circuit provided an objective officer in the officer’s position notice that
his conduct in shooting and killing an emotionally distraught man within a
minute of arriving at the scene violated the Fourth Amendment. The court also
dismissed for lack of jurisdiction the city’s appeal of the denial
of summary judgment on the failure to train claim as well as the officer’s
appeal of the denial of summary judgment on the wrongful death claim, as
the city and officer had no right to an interlocutory appeal on those
claims, unlike the officer’s right to an interlocutory appeal on the denial
of his qualified immunity defense. Estate
of Ceballos v. Husk, #17-1216,
2019 U.S. App. Lexis, 8967, 2019 WL 1341818
(10th Cir.).
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Firearms Related: Second Amendment Issues
A lawsuit challenged the ATF’s recently adopted rule reclassifying “bump-stock”
devices under the National Firearms Act as prohibited machine guns. The
rule was proposed and then adopted following a multi-casualty shooting in
Las Vegas in October 2017 in which the shooter used a bump-stock-enhanced
semiautomatic weapons to kill 58 people and wound hundreds. A “bump
stock” is a device that replaces the standard stationary stock of a
semiautomatic rifle—the part of the rifle that typically rests against the
shooter’s shoulder—with a non-stationary, sliding stock that allows the
shooter to rapidly increase the rate of fire, approximating that of an
automatic weapon.
A federal appeals court upheld the denial of a requested preliminary
injunction to halt the rule’s effective date. The bump-stock rule was a
legislative rule that sets forth a “permissible interpretation” of the
statute's ambiguous definition of "machine gun" and therefore
merited the court's deference. It was not arbitrary in applying the
definition of "machine gun" to bump stocks and the ATF
articulated a satisfactory explanation for the rule. The U.S. Supreme Court
subsequently denied a stay in the case, allowing the rule to go into effect. Guedes
v. ATF, #19-5042, 2019 U.S.
App. Lexis 9455, 2019 WL 1430505 (D.C. Cir.), stay denied, 2019 U.S. Lexis 2483 2019 WL 1497186
An Illinois man was charged with the misdemeanor unlawful use of weapons after
he was found carrying a stun gun in his jacket pocket while in his car on a
public street. A second man was charged with the same offense for carrying
a stun gun in his backpack in a forest preserve, a public place. The state
of Illinois does not make a concealed carry permit available for stun guns.
Both men moved to dismiss the charges, arguing that the law operated as a
complete ban on the carrying of stun guns and Tasers in public and was,
therefore, facially unconstitutional under the Second Amendment. The
Illinois Supreme Court agreed. Stun guns and Tasers are “bearable arms”
under the Second Amendment and may not be subjected to a categorical ban,
the court held. People
v. Webb, 2019 IL 122951, 2019 Ill. Lexis 439.
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Public
Protection: Crime Victims
****Editor's Case
Alert****
In 2015, the San Francisco sheriff issued a memo establishing protocols and
parameters for communications between the sheriff’s department employees
and ICE. It stated that employees “shall not provide” “non-public”
information to ICE, including “release dates or times,” Days later, ICE
sent a detainer request asking the sheriff’s department to notify ICE
before releasing undocumented alien, Juan Francisco Lopez-Sanchez, and to
hold him until ICE could take custody of him. He was released without any
notice of his release date being sent to ICE. He subsequently shot and
killed the plaintiffs’ daughter, a 32-year-old woman, after he was released.
Following the shooting, ICE issued a statement that said, in part, “If the
local authorities had merely notified [U.S. Immigration and Customs
Enforcement] that they were about to release this individual into the
community, ICE could have taken custody of him and had him removed from the
country—thus preventing this terrible tragedy.”
A federal appeals court upheld the dismissal of a general negligence claim
against city defendants. While the court expressed sympathy with the
plaintiffs, the issue of discretionary immunity was controlled by
California law. The court found that the issuance of the memo was a
discretionary act that was entitled to immunity under section 820.2 of the
California Government Code. California law, therefore, barred the
plaintiffs’ negligence claim. The court rejected the plaintiffs’ argument
that the Memo was a legislative act stripping the sheriff of discretionary
act immunity. The failure to provide ICE with the alien’s release date in
fact violated the California Public Records Act; and the memo violated
California Health and Safety Code section 11369. Steinle
v. City and County of San Francisco, #17-16283, 2019
U.S. App. Lexis 8784, 2019 WL 1323172 (9th Cir.).
Search
and Seizure: Home/Business
A
federal appeals court vacated in part a grant of a motion to dismiss a
complaint of unlawful search of a home. It ruled that the warrantless
search in this case violated the Fourth Amendment because the
circumstances, including deception by law enforcement officers, vitiated
the consent given by the plaintiff. The plaintiff asserted that he
consented to the FBI agents’ entry into his home and search of his
computers only because the officers lied about the true reason of why there
were there and what they were looking for. Their lie that they were looking
for the source of a signal and/or viruses that had been detected in
Washington, D.C., vitiated the consent given, when they were actually
looking for child pornography
The appeals court ruled that the totality of the
circumstances pointed to a situation involving beguilement, that the
government did not meet its burden to prove voluntariness, and therefore,
the warrantless entry into the home and the search and seizure of his
computer violated the Fourth Amendment. Further, the defendants were not
entitled to qualified immunity on the plaintiff's search-based Fourth
Amendment claim because any reasonable officer would have recognized that
the circumstances were impermissibly coercive. Pagan-Gonzalez
v. Moreno, #16-2214, 2019 U.S. App. Lexis 8716, 2019 WL 1306382
(1st Cir.).
Search and
Seizure: Search Warrants
Officers aggressively searched the plaintiffs’ homes, armed with search warrants
authorizing a search for drugs. The officers knocked in doors with rams,
used flashbangs, and allegedly left the homes in complete disarray. During
or immediately following a search, an officer called a housing code
compliance officer to the scene. At each of the four homes, the inspector
found code violations such as water heaters without inspection tags, bare
electrical wiring, and non-working smoke detectors and then declared the
home unsafe for occupancy. Some of the plaintiffs were arrested, but in
each case, the charges were dismissed.
A federal appeals court upheld in part summary judgment for the defendants
and the validity of the search warrants. Probable cause supported two of
the warrants, a third warrant was not so lacking in indicia of probable
cause that official belief in the existence of probable cause was
unreasonable, and the plaintiffs abandoned any challenge to the fourth
warrant. Claims concerning the execution of the search warrants were
properly rejected. The plaintiffs failed to show that the named officers
actively participated in the use of excessive force causing destruction,
supervised those who used excessive force, or owed the victims a duty of
protection against the use of excessive force. The officers were properly
granted summary judgment on plaintiffs' invasion of privacy claims because
plaintiffs failed to present sufficient evidence that the named police
officers admitted the inspectors. Although
the officers had no authority to admit third parties, even state actors,
who had no warrant and could provide no assistance to the warranted
searches, invasion-of-privacy claims failed because there was little
evidence that the named officers admitted the inspectors into the
homes. Gardner
v. Evans, #17=1933, 2019 U.S.
App. Lexis 9943 2019
WL 1487308 (6th Cir.).
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AELE Seminars
Public
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Sep. 30-Oct. 3, 2019– Orleans Hotel, Las Vegas
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Resources
Statistics:
Girls
in the Juvenile Justice System, by Samantha Ehrmann, Nina Hyland,
and Charles Puzzanchera U.S. Department of Justice, Office of Justice
Programs (April 2019).
Reference:
Cross
References
Immigrants and Immigration Issues
– See also, Public Protection: Crime Victims
Search and Seizure: Home/Business
– See also, Search and Seizure: Search Warrants
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