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A civil liability law publication for Law Enforcement
ISSN 0271-5481 Cite this issue as: 2019 LR September
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CONTENTS
Failure to Disclose Evidence
Firearms Related: Intentional Use (3 cases)
First Amendment (2 cases)
Governmental Liability: Policy/Custom
Immigrants and Immigration Issues
Privacy
Search and Seizure: Home/Business
AELE Seminars
Public
Safety Discipline and Internal Investigations
Sep. 30-Oct. 3, 2019– Orleans Hotel, Las Vegas
Jail and Prisoner Legal Issues
Jan. 13-16, 2020 -
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
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Failure to Disclose Evidence ****Editor's Case
Alert**** An eight-year-old
boy was killed when shots were fired into his grandmother’s residence. Three
men were convicted of the killing and each sentenced to 50 years in prison.
After they spent over ten years incarcerated, a new trial was ordered based
on the delayed disclosure of exculpatory evidence. Recorded jail phone calls
of the prosecution’s main witness contained statements that contradicted his
testimony at trial. At the retrial, all three men were acquitted. Their lawsuit
against police officers and the city claimed that the defendants not only
withheld the recorded calls and other exculpatory evidence, but additionally
fabricated evidence used to prosecute them. The recordings were only turned
over to the prosecution on the eve of trial and their content was allegedly
falsely described. A federal appeals court overturned summary judgment for the
defendants. The plaintiffs had established sufficient evidence to go to trial
against particular defendants on
aspects of their alleged due process violations. The withheld evidence was
material, as there was absolutely no physical or forensic evidence linking
them to the murder. The appeals court did, however, reject some claims
concerning allegedly fabricated evidence. Anderson
v. City of Rockford, #18-2211, 2019 U.S. App. Lexis 22216, 2019 WL
3334655 (7th Cir.). Firearms Related: Intentional Use A deputy sheriff intentionally shot at a
dog and unintentionally hit a ten-year-old child. A federal appeals court
ruled that the deputy was entitled to qualified immunity in an excessive
force lawsuit as his action in accidentally shooting the child did not
violate any clearly established Fourth Amendment constitutional rights. The officer, while
attempting to effect an arrest, made children in a
yard lie down on the ground, and then shot at the family dog, accidentally
shooting a boy in the knee. The plaintiff mother failed to show any
materially similar case from the U.S. Supreme Court, the federal appeals court,
or the Supreme Court of Georgia. Prior precedents indicated that the
accidental effects of the officer’s intentional conduct did not rise to the
level of a misuse of power amounting to a Fourth
Amendment
violation. The appeals court also
rejected arguments that the conduct so obviously violated the Fourth Amendment
that it was unnecessary to show prior
similar case law to impose liability on the officer. Corbitt
v. Vickers,
#17-15566, 2019 U.S. App. Lexis 20447, 2019 WL3000798 (11th Cir.). After a police officer shot and killed a
man, a lawsuit claiming excessive force was filed against the officer, the
police chief, and the city. A federal appeals court upheld summary judgment
on Fourteenth Amendment claims, but reversed on the remaining claims. The
court found that triable issues remain regarding the reasonableness of the
officer's use of deadly force, specifically the officer’s credibility,
whether the decedent had posed a significant (or any) danger to anyone,
whether the severity of the suspect’s alleged crime justified the use of
deadly force, whether the officer gave or the suspect resisted any commands.
Other issues for trial included the significance of the officer’s alleged
failure to identify himself as a police officer or warn the suspect of the
impending use of force, and the possible availability of less intrusive means
of subduing the suspect. The appeals court ruled that these
factual issues barred a grant of summary judgment based on qualified
immunity, because it was well established at the time that the use of deadly
force under the alleged circumstances, viewed in the light most favorable to
the plaintiff, was objectively unreasonable. The officer had stated that he
had not seen any weapons in the plaintiff’s possession before he fired. The
court further found that the plaintiffs presented sufficient evidence of
police department customs, practices, and supervisory conduct to support a
finding of entity and supervisory liability. Additionally, the trial court
never gave the plaintiffs a chance to be heard before granting summary
judgment on the state law negligence and wrongful death claims, requiring
further proceedings on those claims. Nehad
v. Browder,
#18-55035, 2019 U.S. App. Lexis 20590,
2019 WL 3023147 (9th Cir.).
First Amendment When a city settled a police misconduct
lawsuit, it included a non-disparagement clause in the settlement agreement.
The plaintiff in that case spoke about it publicly and argued that the city
violated her First Amendment rights by enforcing the clause against her,
withholding half of her settlement money. Overturning summary judgment for
the city on the First Amendment claim concerning the enforcement of the
clause, a federal appeals court ruled that the non-disparagement clause in
the plaintiff’s settlement agreement amounted to a waiver of her First
Amendment rights and that strong public interests rooted in the First Amendment
made it unenforceable and void. In a separate claim, a local news
website, asserted that the city’s alleged practice of including
non-disparagement clauses in almost all settlement agreements with police
misconduct claimants violated the First Amendment by interfering with its
ability to report on such cases by receiving information from willing
persons. The appeals court ruled that
the local news website had sufficiently pleaded an “ongoing or imminent” injury
in fact that is both traceable to the city's challenged conduct and
redressable by the court. Summary judgment for the city on the website’s
claim was therefore overturned. Overbey
v. Mayor and City Council of Baltimore, #17-2444, 2019
U.S. App. Lexis 20598, 2019 WL 3022327 (4th Cir.).
Immigrants and Immigration Issues The city of Los
Angeles, California filed a lawsuit challenging the U.S. Department of
Justice’s (DOJ) use of
certain factors in determining scores for applicants to a competitive grant
program. The Community Oriented Policing Services (COPS) grant program
distributes a limited amount of federal funds to state and local law
enforcement applicants under the Public Safety Partnership and Community
Policing Act, enacted as part of the Violent Crime Control and Law
Enforcement Act. In this case, the DOJ gives additional points to applicants
that choose to focus on the illegal immigration area (instead of other focus
areas) and gives additional points to an applicant who agrees to the
Certification of Illegal Immigration Cooperation. This was part of an effort
intended to sanction so-called “sanctuary” cities that decline to cooperate
with federal authorities in immigration law enforcement.
A federal appeals court ruled that the use of these two factors in
evaluating applicants for the competitive grant program did not violate the
Spending Clause of the U.S. Constitution, did not exceed the DOJ's statutory
authority, and did not violate the federal Administrative Procedure Act. City
of Los Angeles v. Barr, #18-55599, 2019 U.S. App. Lexis 20706,
2019 WL 3049129 (9th Cir.).
Privacy A federal civil rights lawsuit alleged
violations of the plaintiffs’ constitutional right to privacy and of Arkansas
tort law in connection with a city, a county, and various city or county
officials’ decisions to release information identifying the plaintiffs as
victims of childhood sexual abuse. The plaintiffs are sisters and stars of a
popular reality TV show “19 Kids and Counting.” They were interviewed as part
of a police investigation into alleged sexual misconduct by their brother. A federal appeals court upheld the
denial of qualified immunity to the defendant officials. The information
released about the minors interviewed in the investigation was “highly
personal” and involved the “most intimate aspects” of their lives. It was
inherently private, the court stated, and entitled to constitutional
protection. The lawsuit therefore stated a plausible claim for the violation
of their constitutional right to confidentiality. The right of minor victims
of sexual abuse not to have their identities and the details of their abuse
publically revealed was clearly established at the time. The plaintiffs,
additionally, sufficiently pleaded intentional misconduct in the release of
the information, so the officials were not entitled to statutory or qualified
immunity on the plaintiffs’ state law claims. Dillard
v. Hoyt, #17-3284, 2019 U.S. App. Lexis 20723,
2019 WL 3049010 (8th Cir.).
Search and Seizure: Home/Business Police officers trying to
serve a man with a civil levy knocked on the door of what they believed to be
his residence until he came out. He told them that the house was owned by his
girlfriend, who was inside, and asserted that he did not live there. The
truth was that he and his girlfriend together rented the premises. He further
told the officers that he had no keys to the house and was unable to go back
inside. The officers proceeded to
ask the man if he had anything against which they could levy and then told him
that he was free to leave. He left and the officers walked around the
exterior of the home, searching for anything that could possibly be levied.
Smelling marijuana coming from a crawl space vent, they reported seeing
partially smoked marijuana joints inside. While the joints were never tested
for the presence of marijuana, the officers subsequently obtained a search
warrant for the home based on their statements, prior complaints about
alleged activities at the home, the man’s criminal record, and a tip from a
confidential informant. Upon executing the search warrant, they
found a large amount of marijuana inside the residence as well as evidence
showing both its sale and use. State courts suppressed the evidence and the
man sued, claiming illegal search. The trial court found that his Fourth
Amendment rights had been violated, but that the officers were entitled to
qualified immunity. A federal appeals court reversed, noting that under
clearly established law, the plaintiff did not disclaim his privacy interest
in the home, and the property was not abandoned. The court found that the
officers exceeded the scope of their implied license to enter and remain on
the curtilage of the property and searched it without a warrant, and were
therefore not entitled to qualified immunity. Watson
v. Pearson,
#18-6047, 2019 U.S. App. Lexis 19480 2019 Fed. App. 0138P (6th Cir.).
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