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Assault and Battery: Physical
Officers
responded to a 911 call reporting two men trying to break into a parked car.
They followed a trail of footprints in the fresh snow to a home. A man told
officers outside the house that his son and a friend were inside. He claimed
that he did not give them permission to go inside, while they claimed that he
did. They entered and found the son asleep on a loveseat. The officers
allegedly tried to wake him by poking him in the chest. An officer then
allegedly him punched him in the face and yelled, “stop resisting.” The
officers then flipped him onto his stomach and handcuffed him. He claimed
that he did not resist but that the officers used his face to open the storm
door as they dragged him out of the house, leaving him with injuries. The
officers claim that he fought, kicked two officers, and pulled his arms away.
He was acquitted of assaulting an officer.
In an excessive force lawsuit, a federal appeals court upheld the
denial of qualified immunity, ruling that that there were material disputes
of fact over whether the officers unlawfully entered the home, whether they
used excessive force when arresting the plaintiff, and whether the officers
influenced or participated in the decision to prosecute for assaulting one of
them. Coffey
v. Carroll, #18-1314, 2019 U.S. App. Lexis 23306, 2019 Fed. App. 0181P, 2019
WL 3540799 (6th Cir.).
Failure to Disclose Evidence, & Loss of Evidence/Preservation
of Evidence
Three women who had been
sexually assaulted claimed that the city of Memphis, Tennessee had wrongfully
failed to submit their sexual assault kits (SAKs) of physical evidence of
their assaults for testing. They alleged that the city possessed more than
15,000 SAKs that had not been submitted for testing, resulting in spoliation
of evidence. They asked the trial court to certify a class action lawsuit on
behalf of all women whose kits the city failed to test. The trial court dismissed
all claims except an equal protection claim of sex discrimination.
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After two years of discovery, costing the city over $1 million in
expenses, it was revealed that two of the three plaintiffs’ SAKs were
actually tested shortly after their assaults. The
third plaintiff’s SAK was tested 10 years after her assault. The trial
court granted summary judgment to the city as to two plaintiffs and struck
the class allegations, ruling that no amount of additional discovery would
allow the plaintiffs to sufficiently demonstrate commonality. A federal
appeals court reversed, ruling that the city unreasonably delayed producing
discovery material and additional discovery might have changed the outcome.
Expenditures of time and money alone did not justify terminating discovery
when a plaintiff has been diligent and might still discover information
that could establish a genuine issue of material fact. Doe
v. City of Memphis, #18-5565, 2019 U.S. App. Lexis 22920 (6th Cir.).
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Firearms Related: Intentional
Use
****Editor's Case
Alert****
An officer
responded to a report of a man outside his own residence carrying a knife and
slashing car tires in the area. The man fled when he saw the officer’s patrol
car approaching. The officer called backup and pursued the man, who entered
his parents’ house. The officer and his two backup officers banged on the
door and the suspect’s parents let them in. The suspect, waving his knife,
ignored commands from both the officers and his parents to drop the knife.
Two officers had pistols drawn, and the third was holding a Taser.
The suspect tried to hide in a closet. An
officer opened the door with his right hand holding his pistol in his left.
The suspect was standing behind the closet door with his knife. Stepping
back, the officer fired three shots that struck the suspect from about 2 to 3
feet away, killing him. The parents argued that the officer used excessive
force in firing, as their son was only suspected of “nonviolent” tire
slashing and was outnumbered. They also claimed that he was holding the knife
down at his side with the blade pointing toward his elbow and did not charge
the officers.
Even if that were all true,
a federal appeals court held, the decedent “still had been noncompliant and
could have caused serious injury or death in a matter of seconds by
repositioning himself and the knife. The situation is fairly described as
tense and rapidly evolving.” Under these circumstances, the officer was
entitled to qualified immunity for using deadly force. Swearingen
v. Judd, #18-1126, 930 F.3d 983 (8th Cir. 2019).
An officer and his canine arrived on the
scene where two other officers with weapons drawn were questioning a suspect
in a possible armed robbery in response to a 911 call. From 3 to 6 feet away,
he was alarmed by what he thought were the suspect’s sudden movements toward
a gun in his waistband, He released the dog and began to fire. As the dog
attacked him, the suspect was hit five times in his side and front, then
after a brief pause where he had fallen face down, an additional two times,
and he died.
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A jury determined that the defendant
officer had used unconstitutionally excessive force against the plaintiff, but
was entitled to qualified immunity from liability. A federal appeals court
upheld that result, and stated that, while the parties in the case “might
better” have relied in their briefs on U.S. Supreme Court precedents from
the three decades following Young
v. City of Killeen, #84-1757, 775 F.2d 1349 (5th Cir. 1985),
that the trial court's reliance on that case was “not misplaced.” Under Young’s discussion of
qualified immunity, it was for
the jury to determine, whether the suspect’s actions at any point could
have led a reasonable officer to believe that he was posing a serious
threat to others. Qualified immunity was justified unless no reasonable officer could have acted as the officer did
here, or every reasonable officer faced with the same facts
would not have shot at him.
It also determined that it was not
erroneous to have submitted two jury interrogatories, one on unconstitutional
excessive force and one on qualified immunity. The resulting verdict was
not “fatally inconsistent.” As the
trial had been properly conducted, the appeals court was required to
sustain the jury’s verdict on the factual issues. Mason
v. Faul, #18-30362, 929 F.3d
762 (5th Cir. 2019).
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First Amendment
A city council passed an ordinance
making it unlawful for anyone “to sit or stand, in or on any unpaved
median, or any median of less than 36 inches for any period of time.” A
lawsuit challenging the ordinance on First Amendment free speech grounds
was filed by a man who received four citations for violating it after he
stood on narrow or unpaved medians and attempted to panhandle. The trial
court denied the plaintiff a preliminary injunction against the ordinance,
and granted the city summary judgment, finding that the ordinance was a
valid time, place, or manner restriction on speech.
A federal appeals court upheld this
result, rejecting the plaintiff’s arguments that the trial court
incorrectly applied the time, place, or manner standard and that the city
did not satisfy its evidentiary burden of demonstrating the legitimacy of
the ordinance. The ordinance
did not violate the First Amendment because it did not discriminate
based on content. It was narrowly drawn to serve an important governmental
interest of protecting people standing on narrow medians from being struck
by vehicles, and it allowed persons standing on certain medians to express
their views, including the solicitation of financial support, on thousands
of linear feet within the city. Evans
v. Sandy City, #17-1179, 928 F.3d 1171 (10th Cir. 2019).
The owners and employees of a “bikini barista” stand sued, challenging
a city’s dress code ordinance requiring that the dress of personnel at
quick-service facilities cover
“minimum body areas,” as well as amendments to city lewd conduct
ordinances. Overturning a preliminary injunction against the challenged
laws, a federal appeals court found that the plaintiffs failed to show a
likelihood of success on the merits of their two Fourteenth Amendment
void-for-vagueness challenges, nor on their First Amendment free expression
claim.
The appeals court ruled that the
activity the lewd conduct amendments prohibited were “reasonably
ascertainable” to a person of ordinary intelligence, and the amendments did
not give law enforcement unchecked discretion. The meaning of the term “anal cleft” as a body area that
could not be exposed in a public place was clear. Further the dress
code ordinance was not open to the kind of arbitrary enforcement that
raised due process concerns. Bikini
baristas’ wearing of pasties and g-strings was not expressive conduct
because they failed to show a great likelihood that their intended message
of empowerment and confidence would be understood by those receiving it
given the commercial setting and close proximity to the customers.
The appeals court also held that the
trial court’s application of intermediate scrutiny under the “secondary
effects” line of cases was erroneous, since that doctrine only applies to
regulations that burden speech within the scope of the First Amendment’s
sphere of protection. In this case, the dress code ordinance did not burden
First Amendment protected expressive conduct, so the city only needed to
demonstrate that it promotes a substantial government interest that would
be achieved less effectively without the regulation. Edge
v. City of Everett, #17-36038,
2019 U.S. App. Lexis 19930 (9th
Circuit).
Parking Tickets and Traffic
Offenses
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Plaintiff motorists who received citations for running red lights
filed a lawsuit challenging a city’s red light ordinance, allowing the
installation and operation of cameras to enforce traffic-control-device
violations at specific intersections. A federal appeals court ruled that
the plaintiffs’ constitutional claims had to be dismissed because they
failed to sufficiently allege that they suffered a violation of their
constitutional rights. The dismissal of the federal claims was warranted
because the complaint failed to state a claim for which relief could be
granted. The plaintiffs asserted that the ordinance imposed a criminal
penalty without providing constitutionally sufficient procedural
safeguards. But what the ordinance actually imposed, however, was a civil
penalty, and therefore the procedures in the ordinance were
constitutionally sufficient. Having found no viable federal claims, the
court declined to consider the state law claims. Worthy
v. Phenix City, #17-14718, 2019 U.S. App.
Lexis 21250, 2019 WL 3226873 (11th Cir.).
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Privacy
A minor girl and her mother sued four officers
or employees of a police department who were alleged responsible for the
public release of information regarding the juvenile’s arrest in violation
of a New Mexico state law. Claims for violation of privacy were asserted
under both federal and state law.
The defendants appealed the federal
trial court’s refusal to dismiss the plaintiffs’ federal civil rights equal
protection claim based on qualified immunity. A federal appeals court found
that the defendants were on notice they would violate the girl’s right to
equal protection under the law if they intentionally and without a rational
basis differentiated between her and similarly situated juvenile arrestees
in applying state laws against the disclosure of juvenile arrest and
delinquency records. “Any reasonable official” in their shoes would have
understood that they were violating the plaintiffs’ equal protection rights
by these actions. A.N.
v. Alamogordo Police Department, #18-2112, 2019 U.S. App. Lexis 20156 (10th Cir.).
Public Protection: Crime
Victims
A man stabbed and killed his pregnant
wife and their unborn child, right outside a courthouse where she had just
gotten a protective order against him. The plaintiffs, including the
decedent’s estate and guardian of her surviving children, sued the
defendant police officer, claiming that he was responsible for the deaths
because he enabled the husband to postpone his self-surrender on a
misdemeanor arrest warrant, providing him with an opportunity to commit the
assault. A federal appeals court previously upheld the denial of qualified
immunity to the defendant in Robinson
v. Lioi,
#12-1922, 536 F. App’x 340, 2013 U.S. App. Lexis 15458, 2013 WL 3892803
(4th Cir. 2013), after which the plaintiffs added a second defendant
officer and the trial court granted both defendants summary judgment.
A federal appeals court
upheld this result. The plaintiffs
failed to present sufficient evidence for reasonable jurors to find by a
preponderance of the evidence that the defendants undertook any
“affirmative acts” that would support liability for a state-created danger
substantive due process claim. The court noted that the threat that the husband posed to the victim
existed prior to and independent of the officers’ interactions with the
husband. Graves
v. Lioi,
#17-1848, 2019 U.S. App. Lexis 21005, 2019 WL 314375 (4th Cir.).
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Search and Seizure:
Home/Business
A federal appeals
court found that the Texas Medical Board violated the Fourth
Amendment when it conducted an administrative search of a doctor‘s office and his patient records
because it demanded immediate compliance with its subpoena seeking
information about his pain medication prescribing practices. It ruled that
the medical industry as a whole was not a closely regulated industry, and the
statutory scheme was not a proper substitute for a search warrant as there
were insufficient limits on the discretion of the Board. Government
agents violate the Constitution when without warrants they search clinics
that are not pain management clinics without providing an opportunity for
precompliance review. The
Board members, however, were entitled to qualified immunity because the
unlawfulness of their conduct (whether or not this doctor’s office
constituted a pain management clinic) was not clearly established at the time
of the search, and the search was not pretextual. Zadeh v.
Robinson, #17-50518, 2019 U.S. App. Lexis 19797 (5th Cir.).
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AELE Seminars
Jail and Prisoner Legal
Issues
Jan.
13-16, 2020 - Orleans Hotel, Las Vegas
Investigation,
Management, and Use of Lethal and Less Lethal Force
May 4-7, 2020 - Orleans Hotel, Las Vegas
Click here
for more information about all AELE Seminars
Resources
Use of Force: Officer
characteristics and racial disparities in fatal officer-involved
shootings, by David J. Johnson,
Trevor Tress, Nicole Burkel, Carley Taylor, and Joseph Cesario,
Proceedings of the National Academy of Sciences. PNAS (August
6, 2019).
Reference:
Cross
References
Domestic Violence – See also, Public Protection: Crime
Victims
Juvenile Arrestees – See also, Privacy
Sex Discrimination – See also, Failure to Disclose Evidence,
& Loss of Evidence/Preservation of Evidence
Sexual Assault -- See also, Failure to Disclose Evidence,
& Loss of Evidence/Preservation of Evidence
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