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Assault and
Battery: Physical
A deputy sheriff was entitled to summary judgment in a lawsuit claiming that
he used excessive force during an arrest. The
federal appeals court ruled that he did not violate a clearly established Fourth
Amendment right and was therefore entitled to qualified immunity. It was not
clearly established at the time of the arrest that a deputy was forbidden to
use a takedown maneuver to arrest a suspect who ignored the deputy’s
instruction to “get back here” and instead continued to walk away. Kelsay v. Ernst, #17-2181, 2019 U.S. App. Lexis 24059, 2019 WL 3783101 (8th Cir.).
Disability
Discrimination
****Editor's Case
Alert****
A couple asserted
claims arising from a School Resource Officer’s (SRO) treatment of their
eight-year-old autistic son. Their claims were for disability discrimination
under Section 504 of the Rehabilitation Act of 1973 or the Americans with
Disabilities Act (ADA). Their son, a second grader, was
diagnosed with autism, oppositional defiant disorder, and separation anxiety
disorder. He weighed approximately 87 pounds, and was about 58 inches tall.
He received Special Education services.
The
child was serving an in-school suspension in the principal’s office and
became visibly upset, using obscenities, crumpling papers, and throwing items
on the floor. He referred to a weapon in his backpack and produced what he
referred to as “home-built nunchucks,” which
actually consisted of a jump rope provided by the school as part of a “Jump
Rope for Heart” program. He twirled the jump rope and attempted to hit the
principal, and threw a cup of coffee against the wall, before running into
the hallway with his jump rope. An SRO arrived, handcuffed the boy, and took
him back to the principal’s office. The officer allegedly sat face-to-face
with the boy, screamed at him, called him names, including “punk” and “brat,”
mocked him, and laughed at him.
He allegedly
continued antagonizing the boy and aggravating the situation until the
parents arrived. When his mother asked the officer if he realized handcuffing
a child with autism would traumatize him, he replied: “You know what? You're
right, I don't know that. I'm not a psychologist.” He also said, You know
what, he has no sign on his head that says, ‘I have autism, I hit people.’
You can't do that in a free society.” He then continued to laugh and make
comments such as “Great parenting!” The parents and child were told by the
officer to leave the school, and he filed various criminal charges against
the boy. An internal affairs investigation found that the officer’s actions
were “unprofessional and unreasonable,” as well as “demeaning, berating and
antagonizing.” He was terminated by the city as a result.
A
federal appeals court overturned the grant of the defendants’ motion to
dismiss or alternatively for summary judgment, finding that there were
material disputes of fact and that this case was distinguishable from Hainze v. Richards, #99-50222, 207 F.3d 795
(5th Cir. 2000), a case involving an officer shooting a mentally disturbed
suicidal man armed with a knife, because there were no exigent circumstances
in the present case. The court ruled that a jump rope in the hands of an
eight-year-old child was not a weapon, and was not capable of inflicting the
same injuries or damage as a real weapon, even if he called the jump rope his
“nunchucks.” At a minimum, the court stated,
whether an eight year old twirling a child’s jump rope created a danger of
physical harm or a potentially life-threatening situation was a dispute of
material fact requiring further proceedings. Wilson
v. City of Southlake, #18-10342,
2019 U.S. App. Lexis 26069 (5th Cir.).
Editor’s Note: For more on this issue, see Police
Interactions With Autistic Persons, 2009 (7) AELE Mo. L. J. 101.
A man suffering from severe mental illness committed suicide during an
interaction with police. His long-time girlfriend sued, claiming that
the police department failed to accommodate mentally disabled individuals in
violation of the Americans with Disabilities Act, 42 U.S.C. 12101-12213. He
was depressed, and had broken into a friend’s home and obtained a handgun.
Officers arriving at the apartment where he was suggested setting up a
perimeter and asking the state police to send crisis negotiators. Others
suggested asking the girlfriend to help communicate with the man.
An
officer who had obtained a warrant for the man’s arrest rebuffed those
suggestions, calling the other officers “a bunch of f[—]ing p[—]sies,” declaring his
intention to immediately go to the apartment, because “[t]his is how we do
things in Nazareth.” He did as he said, knocked on the door of the apartment,
and identified himself as a police officer. The man then promptly went into
one of the bedrooms of the apartment and turned the stolen gun on himself.
A
federal appeals court overturned dismissal of the lawsuit. The plaintiff
asserted a plausible claim that the police department was “deliberately
indifferent” in failing to enact policies accommodating mental disabilities.
The complaint asserted that the department’s officers and its chief routinely
encountered “mentally challenged individuals,” including two named persons
and that officers often responded with verbal abuse
and harassment, performing arrests without accommodating the persons’
disabilities. Because of a number of such events, a named officer, relying on
his personal mental health training, police department procedures, and
consultation with mental health professionals, drafted a proposed policy to
guide interactions with disabled individuals. In drafting that policy, the
officer allegedly identified the grave risks to mentally challenged persons
as a result of the department continuing to operate without proper policies
and procedures for the accommodation of mentally disabled persons, but the
department failed to adopt that or any other accommodation policy. Haberle v. Borough of Nazareth, #18-3429, 2019 U.S. App. Lexis 26247 (3rd Cir.).
False
Arrest/Imprisonment: No Warrant
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A deputy sheriff had sufficient probable cause to arrest a woman for
battery after a fight with her sister over the specifics of the last wishes
of their cancer-stricken mother. The
information he received indicated
that she had battered her sister. Further, the information was credible and
his investigation was sufficient. The federal appeals court also ruled that
the deputy did not use excessive force in making the arrest by pulling the
arrestee’s arms, cinching the handcuffs too tight,
or tugging on her fingers and arms to remove her ring. The court found that the force used here “wasn’t
remotely unusual or disproportionate. Officers routinely pull
arrestees’ arms behind their backs, and we have repeatedly held that
painful handcuffing alone doesn’t constitute excessive force.” Huebner v.
Bradshaw, #18-12093, 2019 U.S. App. Lexis 25020, 2019 WL 3948983
(11th Cir.).
Firearms
Related: Intentional Use
****Editor's Case
Alert****
An 18-year-old high
school student just about to graduate experimented with LSD. The
after-effects went on for several days, causing him being removed from class
because of behavioral issues. A friend who checked in on him after school
told police that his friend needed help, was armed with a pocket knife, and
was upset with and threatening towards his mother. Four police officers
went to the family home, not knowing that the mother was not actually home
with her son. They entered without waiting for a warrant. The son appeared
at the foot of the basement stairs, shouting obscenities and holding a
lawnmower blade. The officers tried to subdue him by shocking him with a
Taser in the dart mode. As an officer started down the stairs, the son
stood up and started swinging. The lawnmower blade hit an officer, who fell
back, and then shot and killed the son.
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A federal appeals court upheld summary judgment in favor of the
defendants in an excessive force lawsuit. While the court characterized
the case as “heart-rending,” it stated that, given the circumstances and
governing law, the entry into the home was justified under the
exigent-circumstances exception to the warrant requirement and the force
used did not violate the Fourth Amendment. The officer who shot and
killed the 18-year-old had probable cause to believe that he posed a
significant threat of death or serious physical injury. Baker v.
City of Trenton, #18-2181, 2019 U.S. App. Lexis 26207, 2019 Fed. Appx. 0221P (6th Cir.).
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An officer who shot and killed a man he
saw running into a parking lot was entitled to detailed examination by the
trial court of his possible entitlement to qualified immunity. The
officer was investigating a theft in the area and believed that the man
he saw running was carrying a gun. The man allegedly turned and started
moving towards another officer who was pursuing him, before the observing
officer shot three times, killing him.
The trial court failed to meet its
“threshold duty” to make a thorough determination of the officer’s claim
of qualified immunity, and therefore the case had to return to the trial
court for a second look at that issue as well as reconsideration of the
officer’s claim of official immunity on state law claims. N.S. v. Thompson,
#18-1537, 2019 U.S. App. Lexis 23944,
2019 WL 3773472 (8th Cir.).
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The state of
California has enacted a state law that sets a more stringent standard
for the use of deadly force by police officers. Under Assembly Bill 392, which goes into
effect in January of 2020, prosecutors and courts will be able to
consider the actions of both officers and of the person shot leading up
to an encounter, and makes the use of deadly force only justifiable
when:
“[T]he officer reasonably
believes, based on the totality of the circumstances, that deadly force
is necessary to defend against an imminent threat of death or serious
bodily injury to the officer or to another person, or to apprehend a
fleeing person for a felony that threatened or resulted in death or
serious bodily injury, if the officer reasonably believes that the
person will cause death or serious bodily injury to another unless the
person is immediately apprehended.”
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Prosecutors and courts
will be able to look to the actions of suspects and officers, as well
as department policy and training, to determine whether the shooting is
“necessary,” rather than “reasonable.” Additionally, the new law also
prohibits police from shooting at fleeing suspects who don't pose an
immediate danger to the officers or others. It remains to be seen what
“necessary” means under the statute, as it is not clearly defined.
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First
Amendment
A city modified its municipal ordinances to deal with “aggressive”
antiabortion protests regularly taking place outside of a health clinic
whose services included abortions. Some of the protestors allegedly supported
violent reprisal against abortion providers. The modified ordinance
restricted the use of public ways and sidewalks near healthcare facilities
during business hours to those entering or leaving, the employees and
agents of the clinic, law enforcement, ambulance, firefighting,
construction, utilities, public works and other municipal agents within the
scope of their employment, and persons using the public way only to reach
another destination. It created overlapping “buffer” zones at qualifying facilities.
A protesting “sidewalk counselor” who said she behaved in a
“non-aggressive” manner sued for alleged violations of her First Amendment
rights to freedom of speech, assembly, and association. A federal appeals
court overturned a ruling that the ordinance was overbroad and not narrowly
tailored to serve the government’s interest. The appeals court found that
genuine factual issues precluded summary judgment for either side. The
buffer zones’ exact impact on the plaintiff’s speech and her efforts to
communicate were unclear. She admitted that she continued to speak with
patients entering the clinic, and the city considered and attempted to
provide alternatives, such as increasing police presence outside the
clinic, before creating the “buffer” zone. A jury could find, however, that financial restraints
and manpower demands rendered such other alternatives ineffective. Turco v. City of Englewood, #17-3716, 2019
U.S. App. Lexis 24623, 2019 WL 3884456 (3rd Cir.).
Public
Protection: Rescue Situations
A 19-year-old college freshman attended a party one December evening, and left
around 11:15 p.m. He was discovered the next morning, lying face down in
the snow in a remote area of the city near a river. The passerby who found
him called 911. Employees of the fire department, some of whom were
certified emergency medical technicians, performed a 30-second check on his
pulse by holding his wrist, which was frostbitten and cold to the touch.
Failing to find a heartbeat, they pronounced him dead, and cancelled the
ambulance, calling police to the scene. Paramedics who had arrived did not
separately evaluate the student, but left after two minutes when fire
personnel informed them he was dead. Police who arrived treated the area as
a possible crime scene and notified the medical examiner’s office. Two
investigators from that office examined the body and based on their report,
an assistant medical examiner did not visit the scene. An autopsy
determined that the student had died of hypothermia. His father asserted
that his son actually died several hours after the emergency responder first
declared him dead.
He sued the city, the county, and several city and county employees. He
claimed that the defendants, by “prematurely” declaring his son dead had
cut off possible aid, and caused his death in violation of the due process
clause of the Fourteenth Amendment. A federal appeals court upheld the
dismissal with prejudice of the lawsuit. It found that the plaintiff failed
to identify a clearly established right that had been violated, and that
defendants were entitled to qualified immunity, as they did not
intentionally deny emergency aid to someone they believed to be alive. “As
a general rule, state actors are not liable for failing to save individuals
in life-threatening situations.” While medical guidelines that were not
followed in this case, directing first responders to begin CPR and rewarming, even where a hypothermia victim appears
dead, might be the basis for a state law negligence claim, it was not
sufficient for a federal constitutional claim. Anderson
v. City of Minneapolis,
#18-1941, 2019 U.S. App. Lexis 24752, 2019
WL 3925953 (8th Cir.).
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Settlement
Agreements
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The
plaintiff filed a federal civil rights lawsuit against a city and a
number of its police officers for alleged violations of his
constitutional rights. The defendants presented
plaintiff with an offer of judgment under Federal Rule of Civil
Procedure 68 for $10,001
and reasonable attorney's fees, expenses, and costs incurred “to the
date of [the] offer,” which the plaintiff accepted. But the
parties disputed the amount of the attorneys’ fees, expenses, and costs
to be paid. The claims involved alleged excessive use of force during
an arrest and the alleged improper issuance of three summonses for
threatening behavior towards an officer, possession of an open liquor
container, and littering, all of which were subsequently dismissed.
A federal
appeals court upheld the trial judge’s reduction of the attorneys’
reasonable hourly rate because of the simple nature of the case, and
upheld the decision to lower the hours claimed through an
across-the-board reduction reflecting the clerical work performed. The
appeals court also overturned the decision to award the plaintiff
$7,920 in attorneys’ fees for the work done preparing the fee
application, since the express terms of the accepted Rule 68 offer of
judgment limited the fees recoverable to those incurred to the date of
the offer. That left a total award of
attorneys’ fees, expenses, and costs of $20,838.99. Lilly
v. City of New York, #17-2823, 2019 U.S.
App. Lexis 24153, 2019 WL 3806446 (2nd 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 further
information about all AELE Seminars.
Resources
Body-Worn Cameras: Body Worn Cameras: What the Evidence Tells Us, by Brett Chapman, 280 NIJ Journal (January 2019).
Body-Worn
Cameras: Research on body‐worn cameras: What we
know, what we need to know, by Cynthia Lum, Megan Stoltz, Christopher F. Koper, and Amber Scherer, Criminology and
Public Policy (March 24, 2019).
Firearms Related: Why
do gun murders have a higher clearance rate than gunshot assaults?
by Philip J. Cook,
Anthony A. Braga, Brandon S. Turchan,
and Lisa M. Barao,
Criminology & Public Policy (July 30, 2019).
Immigrants and Immigration Issues: Immigration,
Citizenship, and the Federal Justice System, 1998-2018, by Mark
Motivans, Bureau of Justice Statistics
(August 22, 2019 NCJ 253116).
Reference:
Cross
References
Assault and
Battery: Handcuffs – See also, Disability Discrimination
(1st case)
Assault and
Battery: Handcuffs – False Arrest/Imprisonment: No Warrant
Assault and
Battery: Physical – See also, Disability Discrimination (1st
case)
Assault and
Battery: Physical – See also, Settlement Agreements
Attorneys’ Fees:
For Plaintiff – See also, Settlement Agreements
Electronic
Control Weapons: Dart Mode -- See also,
Firearms
Related: Intentional Use (1st case)
False
Arrest/Imprisonment: No Warrants – See also, Settlement Agreements
Public
Protection: Suicidal Persons – See also, Disability Discrimination
(2nd case)
Search and
Seizure: Home/Business – See also,
Firearms
Related: Intentional Use (1st case)
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