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Jail and Prisoner Legal Issues
Jan. 13-16, 2020 -
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Investigation, Management, and Use of
Lethal and Less Lethal Force
May 4-7, 2020 - 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 November
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CONTENTS
Assault and Battery: Flash-Bang Devices
False Arrest/Imprisonment: No Warrant
Firearms Related: Intentional Use
First Amendment
Parking Tickets and Traffic Offenses
Police Plaintiffs: Assault and Battery
Privacy
Search and Seizure: Person
Search and Seizure: School Premises
Search and Seizure: Vehicles
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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 further information about
all AELE Seminars.
- Some of the case digests do not have a link to the full opinion.
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Assault and Battery:
Flash-Bang Devices ****Editor's Case
Alert**** A lawsuit was filed on behalf of a
two-year-old girl who allegedly suffers from Post-Traumatic Stress Disorder
(PTSD) as a result of the blast of a flash-bang grenade in her residence. The
plaintiffs claimed that the officers in a SWAT team, even though they knew
that the homicide suspect they sought was already in custody, broke open the
screen door of the suspect’s residence and threw a flash-bang grenade into
the living room before a young woman could open the door with keys she was
holding. The only people inside the home were three women and a two-year-old
girl. The girl suffered PTSD from the officers' use of the flash-bang
grenade.
False Arrest/Imprisonment: No
Warrant A woman, along with her minor son and her
father-in-law, sued a state trooper for various alleged Fourth Amendment
claims arising out of an incident in which he arrested her for obstruction
when she attempted to stop him from shooting her family’s dog. After her
husband video-recorded the incident, the state trooper entered the family’s
home, without consent and without a warrant, and seized several of the
family’s electronic devices Overturning summary judgment for the defendant trooper, a federal appeals court found that there were genuine disputes of material fact concerning the false arrest, excessive force, and malicious prosecution claims. The factual dispute concerning the arrest revolved around whether the woman refused to comply with the trooper’s orders to back away or was even given the opportunity to comply with them before she was arrested mere seconds later. The appeals court further ruled that the trial court correctly denied the plaintiff’s motion for summary judgment on the unlawful entry and seizure-of-devices claims because a jury could find that the trooper reasonably believed that the video was at risk of being deleted or concealed. Hupp v. Cook, #18-1845, 2019 U.S. App. Lexis 22208, 2019 WL 3330443 (4th Cir.). Firearms Related: Intentional
Use ****Editor's Case
Alert**** When a county deputy responded to a
hit-and-run-call, people on the scene asked him to follow a man who was
walking away and had slit his wrists. He rode after the man on his
motorcycle. The man ignored a request to stop, but turned toward the deputy,
displaying a knife and his bloody wrists. He called for backup, and continued
to follow. Three other deputies parked vehicles in front of the man, seeking
to block the way forward. When they exited their vehicles and displayed guns,
the man stopped. They told him they would shoot if he did not drop the knife.
Instead he raised the knife to his throat and began “swaying.” Two deputies
fired, and the man fell. One deputy then kicked the knife out of his hand. He
died in the hospital. In his wife’s excessive force lawsuit,
a federal appeals court upheld the denial of qualified immunity to the two
officers. To justify deadly force, the court stated, an officer must have
probable cause to believe that the suspect presents an immediate threat of
serious physical harm either to the officer or others. Officers may not shoot
an uncooperative person when he presents an immediate risk only to himself
but not to others. Studdard v. Shelby County, #19-5084, 2019 U.S. App. Lexis 23894, 2019 Fed. App. 0191P, 2019 WL 3771888 (6th Cir.). First Amendment
A man created a supposedly satirical Facebook page that looked like a
city police department’s actual official page. The page was displayed online
for approximately 12 hours and was followed by about 100 people. The page
included a recruitment advertisement that “strongly encourag[ed]” minorities
to “not apply.” and an advertisement for a “Pedophile Reform” event at which
pedophiles would receive honorary police commissions. Some of the page’s
followers thought it was all funny mockery, while others were angry or
confused, believing it was actually the department’s page, and some of them
called the police station.
After the department posted a warning on its official Facebook page.
The “prankster” reposted that warning on his bogus page, to “deepen his
satire.” He deleted comments on his page that explained that the page was
fake. The police department asked Facebook to shut down the fake page and
informed local news reporters of the hoax.
The man then deleted the page. Facebook disclosed his identity to
police in response to a search warrant and a subpoena. Officers got warrants
to search the man’s apartment and to arrest him for unlawfully impairing the
department’s functions. He argued in court that, other than 12 minutes of
phone calls, the police department suffered no disruption. He was acquitted,
and then sued, claiming violations of his constitutional and statutory
rights, including First Amendment claims. A federal appeals court reversed the trial
court’s decision to deny the motion to dismiss on claims related to a right
to anonymous speech, censorship in a public forum, and the right to receive
speech, finding the officers entitled
to qualified immunity on them, as the rights allegedly involved were not
clearly established in this context. The plaintiff could proceed, however, on
claims that the officers lied to Facebook to take down his page, lied to
secure warrants to arrest him, and lied on the witness stand about their
actions. At the early motion to dismiss stage, the appeals court ruled, that
was enough to plausibly allege that the officers acted with a “dishonest
purpose” constituting bad faith. The court further held that it lacked jurisdiction
over the city’s interlocutory appeal of the denial of its motion to dismiss
municipal liability claims. Novak
v. City of Parma, #18-3373, 2019 U.S. App. Lexis 22398, 2019 Fed. App. 0170P, 2019 WL 3403893 (6th Cir.). Parking Tickets and Traffic
Offenses A federal appeals court
upheld the dismissal of a class action lawsuit challenging a
village’s red light camera program. The plaintiff motorists claimed that the
tickets they received were invalid because the notices lack a proper
municipal code number citation. They also argued that the village denied them
due process by limiting the defenses that could be asserted before a hearing
officer to contest a violation. A federal appeals court ruled that the
process that the plaintiffs received was constitutionally sufficient and
therefore they had failed to state a federal due process claim. The plaintiffs received notice of each
automated red light violation that included a detailed description of the
violation, and they had right to a hearing with a hearing officer. The
private interest at stake, a $100 fine, was relatively small, and expressly
limiting defenses to preclude the members’ challenge that the violation
notice was void for failing to include a proper citation to the code section
did not present a risk of erroneous deprivation, as it had no bearing on
culpability and furthered “administrative efficiency.” Knutson
v. Village of Lakemoor, #18-3729, 2019 U.S. App. Lexis 22952, 2019 WL 3490663 (7th
Cir.). Police Plaintiff: Assault and
Battery While on duty at a “Black Lives Matter”
protest demonstration, an officer was hit with a heavy object by an
unidentified person, suffering serious injuries. He sued Black Lives Matter,
the group that organized the protest, and one of the leaders of the group.
The trial court dismissed the officer’s claims on the pleadings and denied
his motion to amend the complaint. A federal
appeals court remanded for further proceedings on the claims against the
group leader. While the officer had not adequately alleged that the leader
was vicariously liable for the actions of the unknown assailant or that he
entered into a civil conspiracy with the purpose of injuring the officer, the
court did rule that the officer adequately alleged that the defendant was
liable in negligence for organizing and leading the demonstration to
illegally occupy a highway. The appeals court found that the trial court
erred in dismissing the action on First Amendment grounds. The officer failed
to plead facts that could allow the court to conclude that Black Lives Matter
was an entity capable of being sued. Doe v.
McKesson, #17-30864, 2019 U.S. App. Lexis 23866, 2019 WL 3729587 (5th Cir.). Privacy A
female motorist sued a police chief, the city, and other public officials for
alleged violations of the
Driver’s Privacy Protection Act
(DPPA). After the police chief admitted liability for six violations of the
law, searching for her personal information for an “impermissible” private
purpose, the jury awarded the plaintiff punitive damages of $85,000, but no actual damages, and
the trial judge also awarded $15,000 in liquidated damages. $141,197.30 in attorneys’ fees were
also awarded. The trial court ruled that the plaintiff failed to
present sufficient evidence that the city was directly liable for the
violations, but authorized the jury’s finding that the city was vicariously
liable for the police chief's actions. A federal appeals court upheld that
result. It also ruled that the trial court had not abused its discretion by
finding that plaintiff’s proposed class failed to satisfy the “numerosity”
requirement of Federal Rule of Civil Procedure 23(a). The trial court
correctly refused to consider direct liability against the city because the
police chief acted for personal reasons, rather than under the auspices of
official policymaking authority. His actions, therefore, did not represent a
city policy. Despite that, however, the trial court did not err in allowing vicarious liability against
the city because the police chief was aided in accomplishing his goal by his
position since he used a government-issued computer and official credentials
to obtain the plaintiff’s
private information, and he could not have done so but for his official
position. Orduno
v. Pietrzak, #17-3437, 2019 U.S. App. Lexis 23019,
2019 WL 3489089 (8th Cir.). Search and Seizure: Person Three police officers stopped a grey
sedan with three black men in it while investigating a nearby shooting that
occurred a few hours before. The passengers sued approximately a year later,
at which time none of the officers remembered the Terry stop. They relied on other evidence to attempt to
establish that reasonable suspicion for the stop had existed. Cell phone
footage taken by one of the plaintiffs during the incident showed the officer
who initiated the stop citing the plaintiffs’ suspicious behavior of driving
by a location in the area of the shooting several times as the reason for
pulling them over. A police report
showed that dispatches to the officers identified the suspects as three black
men in a grey car. The descriptions of the car’s model varied.
Search and Seizure: School
Premises ****Editor's Case
Alert**** A 7-year=old grade school
student sued a public school police officer and the school principal for
violating his Fourth and Fourteenth Amendment rights. He was handcuffed at
the school following an outburst from him against a classmate who had been
persistently teasing him. A federal
appeals court concluded that neither the officer nor the principal had
violated the student’s rights, and they were both entitled to qualified
immunity on excessive force and unreasonable seizure claims. Under the
circumstances, a reasonable officer could believe, based on the boy’s recent resistance, that keeping him in handcuffs for 15 minutes
until a parent arrived was the reasonable thing to do. The officer could have
also believed that his actions were needed to prevent the student from
attempting to leave or pose a risk of harm to himself. Additionally, the principal’s failure to
intervene and have the officer remove the handcuffs was reasonable because of
her previous experience with the student. She had previously found it
necessary to restrain him several months before. Even if the reasonableness
of the officer and the principal’s actions were questionable, the student
could not show that a reasonable official would have been on notice that
their conduct violated a clearly established right. Because there was no
violation of the student’s constitutional rights, the municipal liability
claims also failed. K.W.P.
v. Kansas City Public Schools, #17-3602, 2019 U.S. App. Lexis
23023, 2019
WL 3489104 (8th Cir.).
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