AELE LAW LIBRARY OF CASE SUMMARIES:
Civil Liability
of Law Enforcement Agencies & Personnel


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Sex Discrimination

     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. 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.).

       An activist organization challenged a city’s indecent exposure ordinance as violative of the Equal Protection Clause of the Fourteenth Amendment since it prohibited only the exposure of the female breast, while allowing the exposure of the male breast. A federal appeals court upheld summary judgment for the defendant city. The court found that its prior precedent of Ways v. City of Lincoln, #02-3355, 331 F.3d 596 (8th Cir. 2003) controlled the case and was still valid. In Ways, the court upheld an ordinance prohibiting the showing of the female breast with less than a fully opaque covering on any part of the areola and nipple against a similar equal protection challenge. In this case, as in Ways, the court found, the city's ordinance was “substantially related” to its important governmental interests in promoting public decency and proscribing public nudity to protect morals, public order, health, and safety. Free the Nipple v. City of Springfield, Missouri, #17-3467, 2019 U.S. App. Lexis 13481 (8th Cir.).

     A Colorado city passed a public-nudity ordinance that imposed no restrictions on male toplessness but prohibited women from baring their breasts below the areola. In response, Free the Nipple, an unincorporated association, and two female individuals sued the city in federal district court, claiming that the ordinance violated the Equal Protection Clause of the Fourteenth Amendment by discrimination on the basis of sex, and they asked for a preliminary injunction to halt the ordinance’s enforcement. The trial court agreed and enjoined the city, pending the resolution of the case’s merits, from implementing the ordinance to the extent that it prohibits women, but not men, from knowingly exposing their breasts in public. The city then brought an interlocutory appeal to challenge the injunction. The narrow issue presented for the appeals court’s review asked whether the trial court reversibly erred in issuing the preliminary injunction. The appeals court found that the trial court did not, affirmed the trial court’s judgment and remanded the case for further proceedings. Free the Nipple v. City of Fort Collins, #17-1103, 2019 U.S. App. Lexis 4596, 2019 WL 638719 (10th Cir.). 

     California state programs that provided benefits for women and their children who were the victims of domestic violence, while denying such programs to men and their children who are the victims of domestic violence violated the equal protection guarantees of the state Constitution. Even if fewer men than women were affected by domestic violence, this did not mean that they were not similarly situated to women or provide a compelling governmental interest justifying a gender-based classification. Woods v. Shewry, #C056072, 2008 Cal. App. Lexis 1588 167 Cal. App. 4th 658; 84 Cal. Rptr. 3d 332 (3rd Dist. Cal. App.).
     A man was allegedly observed and videotaped on a store's security surveillance camera masturbating in front of his girlfriend in a car outside the store. The man subsequently claimed that his right to equal protection of law was violated because he was cited for public indecency while his girlfriend was not. The appeals court rejected this claim, noting that the girlfriend cooperated with the police, and rewarding her for doing so was not improper. Sides v. City of Champaign, No. 06-1039, 496 F.3d 820 (7th Cir. 2007), rehearing denied 2007 U.S. App. Lexis 22322 (7th Cir.).
     Claim that U.S. Marshals at D.C. Superior Court were subjecting all female arrestees to strip searches and/or visual body cavity searches without any individualized reasonable suspicion that they were concealing contraband or weapons, but that similarly situated male arrestees were not strip searched, if true, stated a claim for violation of the Fourth and Fifth Amendment. Further, it would have been clear to a reasonable officer that such a policy was unconstitutional. Johnson v. D.C., Civil Action No. 02-2364, 2006 U.S. Dist. Lexis 82930 (D.D.C.). [N/R]
     Father of children was not deprived of equal protection of law, nor were his due process rights as a parent violated when police officers and prosecutors failed to find probable cause to arrest his child's biological mother for kidnapping, but prosecuted him for alleged domestic violence. There was no evidence that the defendants were motivated by gender bias. Burrell v. Anderson, No. CIV.04-43, 353 F. Supp. 2d 55 (D. Me. 2005). [N/R]
     A female former police officer failed to establish a claim for violation of her equal protection rights when there was no evidence of this other than her "conclusory allegation" that her arrest for disorderly conduct following a fight with her husband, combined with the failure to arrest her husband showed differing treatment due to gender. Additionally, arguable probable cause existed to arrest her and her arrest was carried out under an arrest warrant. Zandhri v. Dortenzio, 228 F. Supp. 2d 167 (D. Conn. 2002). [N/R]
     268:59 Allegation that officer declined to break into apartment to rescue minor girl from intruder who was raping her, despite her mother's pleas to do so, because he did not want to be liable for property damage stated claim against officer for willful and wanton negligence, intentional infliction of emotional distress, and gender discrimination Doe v. Calumet City, 161 Ill 2d 374, 641 N.E.2d 498 (1994).

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