CONTENTS

U.S. Supreme Court unanimously upholds city ordinance requiring permits to hold more than 50-person events in a city park. Ordinance was utilized to deny a permit for a large gathering to advocate the legalization of marijuana, but was "content neutral," and therefore did not have to have First Amendment related procedural safeguards.

     A city park district adopted an ordinance requiring persons who wanted to hold public assemblies, parades, picnics, or other events with more than fifty individuals in attendance (or which use amplified sound) to obtain a permit. Under the ordinance, permit applications can be denied on any of 13 specified grounds, including conflicts with other events, "unreasonable danger to the health or safety" of the public, failure to present an insurance certificate or security deposit, etc. Political activists who advocate the legalization of marijuana sought several permits for large events in city parks, some of which were issued by the park district and some of which were denied.

     They then filed a federal civil rights lawsuit under 42 U.S.C. Sec. 1983 challenging the ordinance as unconstitutional on its face because it failed to incorporate procedural safeguards described in Freedman v. Maryland, 380 U.S. 51 (1965) for laws which impose a prior restraint on First Amendment protected speech. Under Freedman, a law allowing the denial of exhibition permits for "obscene" films or those which "corrupt morals or incite to crimes" was found to be defective because such prior restraint requires that: 1) any restraint prior to judicial review can be imposed only for a specified brief period during which the status quo must be maintained, 2) "expeditious judicial review of that decision must be available," and 3) "the censor must bear the burden of going to court to suppress the speech and must bear the burden of proof once in court."

     A federal appeals court upheld summary judgment for the defendant park district. The U.S. Supreme Court has now unanimously upheld this result.

     The Court held that the ordinance in question was "content-neutral" and did not allow for the denial of a permit on the basis of the content of the speech. Because of this, even though it regulated uses (including speech uses) of a public forum, it did not need to contain the procedural safeguards set forth in Freedman. The focus of the ordinance was regulating the time, place, and manner of the use of the parks, and was aimed at all activity in the park, not just communicative activity. The park district had legitimate reasons to want to coordinate multiple uses of limited space, to assure preservation of park facilities, to prevent "dangerous, unlawful, or impermissible uses," and to assure financial accountability for damage caused by an event.

     The Court acknowledged that such a "content-neutral" time, place and manner regulation could be applied in a manner which stifled protected free speech and expression, particularly if it did not contain adequate standards to guide an official's decision and render the decision subject to effective judicial review. The ordinance in this case, however, met that standard, since it describes the grounds on which a permit "may" be denied. A problem might arise if the park district engaged in waiving the ordinance's requirements for "some favored speakers," which would be unconstitutional. But an abuse of that nature "must be dealt with if and when a pattern of unlawful favoritism appears," rather than by "insisting upon a rigid, no-waiver application of the ordinance requirement."

     The fact that the park district could waive some of the technical requirements of the ordinance as to applications for use of the park by organizations which "for one reason or another pose no risk of the evils that those requirements are designed to avoid," rather than being a flaw of the ordinance avoids "senseless prohibition of speech (and of other activity in the park)."

     On balance, the Court concluded, "we think the permissive nature of the ordinance furthers, rather than constricts, free speech."

     Thomas v. Chicago Park District, No. 00-1249, 122 S. Ct. 775 (2002).

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Municipality could not be held liable for failure to train officers in the use of shotgun butts as a means of force in arrest situations. Policy that officers were to use only "reasonable and necessary force" was proper and the municipality was not required to "catalogue" every potential situation that might arise in a use of force context.

     Officers in Tennessee responded to a call reporting a burglary in progress at a U.S. Post Office and ordered a suspect inside to exit the building. A videotape of what followed starts with the arrestee lying face down on the ground in front of the building, with one officer seated on top of him and two other officers kicking him. One of the officers then administered several blows with the butt of his shotgun to the Plaintiff's back before another officer dragged the arrestee by his feet towards a patrol car. The same officer who used the shotgun butt then grabbed the arrestee in the groin area before placing him in the vehicle.

     The arrestee subsequently sued the municipality and individual officers for excessive use of force, as well as other claims. The claim against the municipality was based on the allegedly failure to provide training in the use of shotgun butts as a means of force in arrest situations.

     The plaintiff pointed to the fact that there was nothing in the department's non-deadly force policy addressing the use of shotgun butts as a means of force. Further, the plaintiff argued that to the extent that the use of shotgun butts was "commonly recognized as appropriate by the individual officers but is not taught at the police academy and is not approved of by the chief policymaker," the police chief, the department "exercises deliberate indifference by failing to instruct its officers as to that technique."

     Rejecting this claim, the trial court ruled that "unfortunately for the plaintiff, this is not a situation where the need to train its officers how to use their shotgun butts is 'so obvious' as to constitute deliberate indifference." While there were contrary understandings as to whether and when the use of shotgun butts as a means of force is appropriate, it was clear that the department's policy is that officers use "only that force which is reasonable and necessary."

     That policy itself, the court found, and the "training of the officers accordingly does not rise to the level of indifference that results where there is a lack of instruction in an area of obvious danger, such as the use of deadly force."

     "To require the city to catalogue every potential situation that might arise in the force context and then document it, draft a written policy on it, and train its officers on it would be both unrealistic and unproductive in achieving the goal of creating an easy to follow directive that educates officers as well as protects a suspect's constitutional rights."

     Fromuth v. Metropolitan Government of Nashville, No. 3:99-0852, 158 F. Supp. 2d 787 (M.D. Tenn. 2001).

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Sheriff was not liable for failure to "implement a policy for the handling of physical humor" based on alleged assault by deputies, including beating and pepper spraying of handcuffed arrested motorist who claimed that his licking of a state trooper's face was meant as a joke; deputies involved in alleged beating, however, were not entitled to qualified immunity, as their alleged actions were not objectively reasonable.

     Two Louisiana state troopers arrested a motorist for driving while intoxicated after his truck ended up in a ditch when he moved it so that it would not block a driveway. At the time, the motorist was visiting his relatives and had had "a few beers" at their home. The troopers took the arrestee to the sheriff's office where he proceeded, in what he later characterized as an "act of humor" to lick the face of one of the troopers.

     Deputy sheriffs on the scene were evidently not amused, and three of them allegedly sprayed him with pepper spray and beat him, despite the fact that he was handcuffed at the time. The arrestee filed a federal civil rights lawsuit against the deputies and the sheriff.

     The complaint alleged that the sheriff should be held liable because he had failed to "implement a policy for the handling of physical humor." The trial court rejected this contention, granting the sheriff qualified immunity.

     The court also failed to find fault with the use of pepper spray in this instance, noted that the plaintiff's allegations did not show that the deputies knew that he "was just joking or having fun with the state trooper when he licked his face." In "this era of concern over the transmission of disease," the court said it had to view the use of pepper spray as a response to a "bizarre assault" by an intoxicated arrestee. The court did not grant the deputies qualified immunity, however, on the contention that they beat the arrestee while handcuffed, which, if true, was not objectively reasonable under these circumstances.

     Small v. St. Tammany Parish, No. 00-3441, 2001 U.S. Dist. Lexis 21809 (E.D. La.).

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Deputy sheriff did not use excessive force when he inadvertently broke an intoxicated and combative arrestee's nose while trying to subdue him. Intoxicated arrestee had called 911 and asked to be taken to jail.

    A man admittedly "began drinking" straight whiskey at 8 a.m.  "in preparation" for his day of work as a carpenter. By 8:30 a.m., when he was picked up by a friend, he had consumed 6 ounces of whiskey, and during the drive to work, he had as much as another six ounces. By the time he arrived at work at 10 a.m., he had consumed about half of a fifth of whiskey, but then decided to go hunting instead of to work.

     First, naturally, he and his friend stopped at a liquor store and purchased another fifth of whiskey, starting to drink that bottle around noon after finishing the first bottle. He then realized that he had a court appearance the following day and that he was drunk, and decided that he wanted to "just go to jail and sleep it off." He called 911 and asked to be taken to jail "so I can get sober." Deputies subsequently arrived and transported him.

     He claims that he was "jerked" out of the car when he got to the jail. When he entered the booking room at the jail, he cursed at deputies and claims that "the next thing I knowed, they knocked me down on the floor and jumped on me." At a hospital emergency room, the arrestee's nose was found to be broken.

    He sued the sheriff and a deputy for alleged excessive use of force. The defendant deputy, assigned to the jail, admitted breaking the plaintiff's nose, but stated that it was accidental. The deputy argued that the arrestee was combative and cursing and that the injury happened while he was trying to subdue him. The plaintiff allegedly continued to violently resist even after it took four deputies to get him handcuffed and shackled and also tried to bite one of the emergency medical personnel who arrived to assist him.

     The trial court found that the deputy did not use excessive force, but rather acted reasonably in restraining the drunken arrestee who disobeyed orders to sit down and remain quiet, and was actively resisting his detention in the jail's booking area with innocent members of the public present, including college students being fingerprinted so they could engage in day care work.

     Jones v. Buchanan, No. 1:00CV-27-C, 164 F. Supp. 2d 734 (W.D.N.C. 2001).

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Officers were not entitled to qualified immunity on claims that they made a suspected trespasser get into their patrol car, drove him several miles outside of the city limits and then left him there after throwing his shoes into the woods, warning him that he had a "long walk" home and should consider "moving" to another city.

     Officers stopped an individual who they had previous knowledge of as being involved in drug related offenses. As he sat on the porch of a house, he responded to officers' questions by stating that he did not know who lived there. The owner of the house later arrived and stated that she did not know the man and he did not have permission to be on her porch. She allegedly told the officers that, while she did not want the man arrested, she wanted him "removed from the area."

     The man was eventually placed in the back of the officers' patrol car and driven outside of the city limits. He later claimed that he protested to the officers and feared for his life during the drive, and that one of the officers struck him in the head. In a federal civil rights lawsuit, he claims that one of the officers removed his shoes and threw them into a densely wooded area before throwing him to the ground and striking him in the head, leaving him on the side of the road and stating "you'll have a long walk back, maybe should think about moving" to another city.

     A federal trial court ruled that what the officers did constituted a seizure and exceeded what was justified under the circumstances, even if they reasonably suspected that the plaintiff had been trespassing on the property where they initially detained him for an investigatory stop. Driving him several miles outside the city limits, "long after dark," and leaving him there with admonitions to think about moving to a different city "grossly exceeded" what was reasonable under the Fourth Amendment.

     The court also rejected the officers' plea for qualified immunity based on their contention that the department had an "informal policy" of transporting "undesirables" outside the city limit. Reliance on any such policy, if it existed, was not objectively reasonable, as there was clearly established law that such a policy was not permissible.

     Sampson v. City of Schenectady, 160 F. Supp. 2d 336 (N.D.N.Y. 2001).

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Shooting and killing of suicidal individual armed with a shotgun who had only pointed his weapon at himself would have been unreasonable if he stopped advancing on officers at the time he was shot, but trial court must still determine whether the law on that subject was clearly established at the time of the incident in order to rule on officer's defense of qualified immunity.

     Officers came to the scene of a domestic dispute and events escalated until they ended in an "armed standoff" between a man and a number of officers in a field near an apartment complex. The man, armed with a single shot shotgun, was pointing the barrel of the weapon at his head, with the stock facing down. He allegedly did not point the gun at anyone, including the officers, stating that he wanted to kill himself.

     As the officers took up positions surrounding him in the open area between the apartment buildings, he became agitated and began moving toward a group of them, but stopped for perhaps four seconds before he was shot and killed. A federal civil rights lawsuit was filed against the officer, who was denied qualified immunity by the trial court.

     While an appeal in the case by the officer was pending, the U.S. Supreme Court issued its decision in Saucier v. Katz, 533 U.S. 194 (2001), clarifying that claims of qualified immunity are to be evaluated using a two-step process. The first step involves determining whether the facts, taken in the light most favorable to the plaintiff show a constitutional violation. If the plaintiff fails to make out a constitutional violation, the qualified immunity inquiry is at an end and the officer is entitled to immunity.

     In this case, the appeals court found, the plaintiff's allegations, if true, do make out a constitutional violation. If, as the plaintiff contended, the decedent stopped advancing and did not pose a threat to anyone but himself at the time when he was shot and killed, "the force used against him, i.e., deadly force, was objectively excessive."

     Having satisfied the first step of the Saucier test, the appeals court stated, it must be determined whether the constitutional right allegedly violated was "clearly established." That is, "in the factual scenario established by the plaintiff, would a reasonable officer have understood that his actions were prohibited." The focus in this step, the court noted, is solely upon the law.

     "If it would not have been clear to a reasonable officer what the law required under the facts alleged, he is entitled to qualified immunity. If the requirements of the law would have been clear, the officer must stand trial." Noting that the Saucier case was decided after the trial court's decision, the appeals court vacated the trial court's order for further consideration of whether the law in question was clearly established at the time of the incident.

     Bennett v. Murphy, #00-2667, 274 F.3d 133 (3rd Cir. 2001).

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Genuine issue of fact as to whether intoxicated suicidal person armed with a knife was "lunging" at officers when they shot and killed him or merely "leaning forward" barred summary judgment for officers in wrongful death lawsuit.

     A 24-year-old man released from a hospital after forty-two days of inpatient treatment for substance abuse began drinking again, and, while heavily intoxicated, called 911 threatening suicide. Emergency medical technicians and sheriff's deputies arrived on the scene and found the man standing at a door leading from the garage to the kitchen holding a knife in his right hand.

     The man responded to orders to drop the knife with threats and obscenities, and fended off attempts to disarm him. He also threatened to go get a gun, and pointed a knife at several officers yelling "speak English or die." He started getting agitated and switching the knife from hand to hand. The officers warned him not to come out of the door, and when he began to move forward, three officers discharged their weapons, killing him.

     The decedent's estate filed a wrongful death lawsuit in state court against the officers, which included a federal civil rights claim and was later removed to federal court. The trial court declined to rule on the state law claims and granted the officers summary judgment on the basis of qualified immunity on the federal claims.

     A state appeals court has overturned the trial court's grant of summary judgment to the officers on the state law wrongful death/negligence claim.

     The court found that there was a material issue of fact as to whether the decedent was "lunging" towards the officer at the time that they fired, or merely "leaning forward," an action not inconsistent with his prior back and forth motion that he had carried out without consequences. This raised a factual issue as to whether the officers acted reasonably in shooting when they did.

     Prior v. Pruett, No. COA00-415, 550 S.E.2d 166 (N.C. App. 2001).

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Jury awards $35.5 million against town for failure to destroy assault rifle turned into department; weapon was instead issued to officer who took it home and kept it in gun cabinet which his son had access to; son used weapon to kill two Border patrol agents and injury a deputy sheriff.

     A Texas city located near the border with Mexico is facing a $35.5 million liability assessed by a federal court jury for allegedly enhancing the danger to two law enforcement agents murdered by a police officer's son with an assault rifle issued to the officer. The weapon, an AR-15 assault rifle, had been turned into the police department for destruction by a woman who was fearful that the gun could be stolen and used by criminals. She had previously experienced two burglaries of her home.

     The police department accepted the turn-in of the weapon, but instead of destroying it issued it to a police officer who took it home and kept it in a gun safe that his son had access to. The son was 25 years-old, and allegedly had prior emotional problems and a bedroom with displays of Hitler photographs and Nazi posters.

     On July 7, 1998, the son used a different assault rifle to murder the mother and sister of his ex-girlfriend's new boyfriend at their home, as well as shooting and injuring the new boyfriend. He then fled to his own home, where he lived with his officer father, obtaining the turned-in weapon from the gun safe and taking it with him to a nearby cornfield where he hid.

     A number of law enforcement agents, including Texas state rangers, federal Border Patrol agents, and county deputy sheriffs went to the officer's house in pursuit of his son. Two of the Border Patrol agents were shot and killed by the son with the rifle as they were leaving the house. During a shootout which following, the son injured a deputy and was himself killed.

     The surviving families of the two federal agents, as well as the injured deputy sued the municipality for violation of federal civil rights under 42 U.S.C. Sec. 1983, arguing that the manner in which the turned-in rifle had been handled and the city's failure to have adopted written procedures on what to do with such weapons resulted in a "police-created danger" to those shot by the officer's son, who they said should never have had access to the rifle.

     The plaintiffs further contended that the police department attempted to "cover-up" how the weapon came to be in the officer's home, with the police chief claiming that the officer was a member of a SWAT team which the plaintiffs asserted had actually been abolished five years before. The police chief then allegedly stated that the officer to whom the rifle had been issued was the police department's "designated sharpshooter," but a number of officers later made public statements which disputed that contention also.

     At trial, expert witness testimony was offered that department rules should require that such weapons be kept locked and unavailable to non-department personnel. The plaintiffs heavily relied on a recent decision by the U.S. Court of Appeals for the Fifth Circuit, accepting the theory that civil rights liability can be based on the existence of a "police-created danger." McClendon v. City of Columbia, 258 F.3d 432 (5th Cir. 2001).

     The defendant city argued that the access which the officer's son had to the rifle issued by the department did not cause the shooting of the plaintiffs, pointing to the fact that the son had access to other weapons, and even used another weapon in the first shooting, which gave rise to the law enforcement presence at his house. An appeal in the case is anticipated.

Salinas v. City of Harlingen, No. 98-CV-162, U.S. District Court, (S.D. Texas), reported in The National Law Journal, p. A6 (March 4, 2002).

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"Coercive" questioning of suspect with "limited intellectual capacity" which allegedly elicited false confession to murder could violate suspect's Fifth Amendment rights despite reading of Miranda rights; officers were not entitled to qualified immunity on claim that they then knowingly used "false or unreliable" evidence to secure suspect's conviction for murder.

     After a woman was found murdered in her home, apparently by an intruder, officers investigating the crime ultimately focused on a mentally retarded youth who was accused by a high school student of being the killer. This student, described by some as a "very skilled liar," told the officers that the mentally retarded youth had confessed to him. The officers brought the suspect in for questioning under the pretense of having him identify a lost wallet.

     They then questioned him for an hour in a "windowless interrogation room." They told him that he was not under arrest, but read him his Miranda rights, and then played him portions of the other boy's statement to convince him that he had been implicated in the murder. He at first denied any involvement and consistently repeated that he had been at the store with his mother at the time of the crime.

     Three more hours of interrogation then followed, during which one of the officers falsely told the suspect that he knew what he was thinking because he had a psychiatrist analyze him, and that they had an "eyewitness" who could put him at the scene of the crime. They allegedly strongly rebuked and threatened him when he gave answers to questions which were inconsistent with the facts of the crime or when he was unable to give an answer, and affirmed his answers whenever they matched the details of the murder. "Ultimately," an appeals court later summarized, "a collection of discombobulated facts about the murder evolved into a confession," which the suspect later stated that he gave only because he was "extremely scared, nervous, anxious" and pressured.

     To avoid the death penalty, the suspect later pled guilty and was convicted, spending nine years in prison until the state's governor pardoned him after an independent investigation showed that "it is clear he did not commit the crime." He then sued the officers and county for allegedly coercing his false confession.

     A federal appeals court has rejected the defendant officers' claim that they were entitled to qualified immunity. The court ruled that the alleged actions, if true, "would suffice" to show a violation of the Fifth Amendment and the plaintiff's due process rights. The complaint alleged that the officers knew that the plaintiff had a limited intellectual capacity, and offered details of the crime to him through leading questions.

     The court also noted that advising a suspect of his rights, such as by reading Miranda rights does not automatically mean that any subsequent confession is voluntary or that the officers may then use "any methods" to secure a confession, especially when they know that the suspect is "unlikely" to fully understand those rights.

     Additionally, the appeals court found that intentional decisions--as opposed to negligent failure--to investigate other leads in a criminal investigation, instead attempting to coerce a confession, may violate the due process rights of an arrested suspect. In this case, the plaintiff argued that the "recklessness" of the officers in failing to follow up on other leads in their murder investigation, including a "solid" lead concerning an escaped felon, constituted conduct that "shocks the conscience" and therefore violated his due process rights.

Wilson v. Lawrence County, Mo., #00-2828, 260 F.3d 946 (8th Cir. 2001).

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An officer did not violate a motorist's rights or impermissibly "detain" her following a stop for speeding when he asked her "what she believed law enforcement was doing about the war on drugs." Motorist was free to go and it did not violate her rights to attempt to start a conversation with her. Officer also did not violate her rights by later walking drug sniffing dog around the car when his suspicions were aroused by her responses.

     An officer in Nebraska stopped a van for speeding and gave the driver a violation card on the rented vehicle. He also ran computer checks on the three individuals who were in the van, and determined that there were no warrants on any of them. The officer had observed that driver seemed nervous and did not stand still or make eye contact with him, and also smelled cigar smoke and some kind of deodorizer or perfume coming from the vehicle and a large duffel bag four feet long next to a male passenger in the back.

     When the driver switched places with a passenger who was now going to drive, the officer asked the new driver, as she walked around the van towards the driver's side "what she believed law enforcement was doing about the war on drugs." A conversation ensued during which she "seemed very nervous" and did not look the officer in the eye. He asked her whether there was cocaine in the van, and she looked at him for the first time and said, "no."

     She gave the same response to a question about methamphetamine and maintained eye contact, but broke eye contact, looking at the ground when she answered "no" to a similar question about marijuana. The officer asked if he could search the van for drugs. The driver asked what would happen if she refused, and he answered that he would walk his dog, a drug-sniffing dog which was in his vehicle, around the van. She told him to "go ahead," and the dog alerted to the back of the van. The officer then searched the van and found three large duffle bags containing 281 pounds of marijuana, and arrested all three occupants of the van.

     Ten more pounds of marijuana were later found in a suitcase in the van. The trial court in the criminal trial later granted defense motions to suppress the evidence of the drugs, ruling that officer had impermissibly expanded the scope of the traffic stop and detained the defendants without their consent of reasonable suspicion by failing to expressly tell them that they could be on their way.

     A federal appeals court reversed. "Law enforcement officers do not violate the Fourth Amendment by attempting to start a conversation with someone and asking questions; answers voluntarily given may be introduced as evidence. The change in drivers gave the officer an opportunity to "strike up a conversation," and he did not seize the driver by asking her a question. Based on the responses, and what the officer experienced, he had good reason to expand the scope of the stop by using the dog.

     U.S. v. Morgan, #00-1965, 270 F.3d 625 (8th Cir. 2001).

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     EDITOR'S NOTE: While the above case involves suppression of evidence in a criminal case rather than civil liability, the principles it points to are important ones applicable in civil liability circumstances also. Voluntary conversation is not custodial interrogation, and officers do not detain individuals when they merely attempt to engage them in conversation which may, in some circumstances, then provide facts or responses which do raise suspicions justifying further investigatory steps.

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Jury properly awarded $10,000 for living expenses and $15,000 for pain and suffering to woman wrongfully evicted from the residence that she owned based on deputy's interpretation of a temporary restraining order her estranged husband had obtained.

     A married couple lived on property that belonged separately to the wife. After experiencing "marital discord," the husband moved out, filed for divorce, and sought a temporary restraining order (TRO) to prevent his wife from coming to his residence and place of business. The property which the wife owned included an apartment dwelling and a barn that stored tools and equipment, some of which were used by the husband, an electrician, who traveled to customers' homes to repair appliances and electrical systems.

     When a representative of the sheriff's department arrived on the property to serve the TRO, the wife was away at work, but the husband was present and informed them that he worked on the property. Without attempting to contact the judge who signed the TRO to determine its intended scope and application, the Captain who delivered the order decided that it required the wife to be evicted from the property. A deputy was later dispatched to the residence to wait for the wife to return from work so she could be evicted.

     The wife protested, telling him that the matrimonial premises were her separate property, but she was still evicted. She ultimately succeeded, following a judicial hearing several months later, in being awarded custody of the residence and having her husband thrown out of it. Additionally, at that hearing, the judge who signed the TRO was "amazed" that it had been interpreted to require the wife's eviction and stated that she should sue the Sheriff.

     She did so, and the jury found that the sheriff and the deputy that had carried out the eviction had violated the plaintiff's constitutional rights by depriving her of her property without due process of law, awarding her $15,000 for pain and suffering, $10,000 for economic damages (living expenses), and $35,000 in punitive damages. The punitive damages award was only against the sheriff.

     A federal appeals court upheld the award against the deputy, but found that the sheriff was not personally involved in the acts that deprived the plaintiff of her property, and that there was no evidence of inadequate training or supervision. The eviction the deputy had wrongfully carried out was a "single incident" and was "unprecedented" in the history of the sheriff's department.

     The deputy's interpretation of the order, however, was unreasonable since it did not, in its language state or require an eviction, and it took the plaintiff nearly "half a year" to regain possession of her home, so that the damages awarded were not unreasonable. Additionally, the deputy admitted that he never read the TRO and was "only following orders" of the Captain, his supervisor, telling the wife that "my supervisor says it doesn't matter what the papers say, you still have to go," referring to papers attached to the TRO that indicated that she owned the residence.

     The captain's "clearly stated abject disregard for" and the deputy's "patently unaroused curiosity" about "what the papers say," undercut the defendant deputy's claim that he "acted reasonably" by evicting the plaintiff. "Had he read the TRO," the court stated, the deputy "would have found that the term eviction is unmistakably absent from the order," and also that the husband no longer occupied the home on the premises, but lived elsewhere.

Cozzo v. Tangipahoa Parish Council-President Government, #00-30104, 279 F.3d 273 (5th Cir. 2002).

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Officers did not violate a detainee's Fourth Amendment rights when they extended their investigation because of concerns that he was intoxicated and might be a threat to himself or others. Failure to do so, indeed, might have made the officers derelict in their "community caretaking function."

     Iowa police officers responded to a complaint reporting that a possibly intoxicated individual was observed exiting and reentering a vehicle parked on a dead end street. The officers approached, and the man in the vehicle told them that he was waiting for a push to start his car and wished to be left alone. The officers asked that the man exit the vehicle and produce identification.

     The man allegedly appeared to be in a "highly agitated state," moving "wildly" about the car, and refusing to identify himself or make eye contact. He became increasingly agitated at the officers and yelled at them to leave him alone. They began to suspect that he may be intoxicated from either liquor or drugs, and wanted to determine his physical condition so that he "would not be able to drive and hurt someone."

     They decided that they should attempt to enter the vehicle to determine "just how far under the influence" the man might be. He resisted their attempts to unlock and open one of the doors with the assistance of a "Slim Jim," and stretched across the vehicle to hold both locks down at the same time.

     Based on reports by the officers about the individual's behavior and appearance, a Lieutenant supervisor serving as shift commander arrived on the scene and made a decision that the man should be taken to the hospital. While he later said he had not witnessed any "illegal activity" by the man, he stated that he felt that he had a responsibility to protect both the man and the "public at large to make sure this person can't hurt anyone else." He broke the passenger side widow of the car with his nightstick in order to remove the man from the vehicle, and called an ambulance.

     The man's response was allegedly "extremely violent," kicking and punching at the officers. He then attempted to flee and was forcibly taken to the ground and handcuffed. At the hospital, he was diagnosed as suffering from methamphetamine intoxication, and was characterized by the hospital as becoming "extremely physically violent" to staff members who approached him, so that he had to be restrained in leather straps.

     The detainee later sued the officers for unreasonable seizure and use of excessive force. Rejecting these claims, a federal appeals court ruled that the officers did not violate the detainee's Fourth Amendment rights when they extended their investigatory encounter based on their concerns that he was intoxicated and presented a threat to himself or others.

     The court noted that police officers are not only permitted, but expected, to exercise "community caretaking functions," and may have the occasion to seize a person "in order to ensure the safety of the public and/or the individual, regardless of any suspected criminal activity." In this case, the court found, if the police officers simply walked away from the vehicle, "perhaps permitting a possibly intoxicated individual to drive the vehicle, potentially harming himself and other citizens," the officers might have been "derelict in their duties" under this community caretaking function.

     The court also rejected the claim that the officers used excessive force under the circumstances, and concluded that they were entitled to qualified immunity in the case.

     Winters v. Adams, #00-3061, 254 F.3d 758 (8th Cir. 2001).

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Jury properly awarded woman $7,500 in damages for forced warrantless entry into her home by two deputies who were accompanying social workers on a "child welfare check" concerning why the woman's son had not been in school. Homeowner informed officers that the child was not present and there was nothing they observed which would justify an "emergency" exception to the warrant requirement for entry.

     Deputy sheriffs in New Mexico were called to assist two social workers from a state agency on a "child welfare check" at a woman's home. The agency was concerned because the woman's son had not been attending elementary school. She had attempted to transfer him to another school, but had not completed the paperwork for the transfer, so that one reason for the home visit was to investigate suspected truancy or educational neglect, as well as a concern about his suspected poor nutrition.

     When the deputies and social workers arrived at the home, the woman answered a knock at the door, and told them that the child was not home. One of the social workers had previously been told by the woman that her son had been sent to Colorado to be home-schooled there, and had mentioned this to one of the deputies before the visit. While initially the woman had no problem with one of the social workers and even one of the deputies entering the house, she became angry when a second social worker also insisted on coming in, and changed her mind, beginning to close the door, stating that they needed a search warrant.

     Stating that he did not need a search warrant, one of the deputies pushed the door open and forced his way into the house, followed by the second deputy. After a struggle ensued, they arrested the woman. During an ensuing search, the social workers found the home to be clean and in order with no evidence of any criminal activity. The son was not present, and it was later verified that he was living with a relative in Colorado. The woman filed a federal civil rights lawsuit against the deputies for unreasonable searches and seizures, and a jury awarded $5,000 in damages against the first deputy and $2,500 against the second.

     An intermediate New Mexico appeals court upheld these awards. The deputies were not entitled to qualified immunity for their warrantless entry and search of the home. Any belief that they had that an "emergency situation" existed which justified a forced warrantless entry was unreasonable under the circumstances, the court found, since the mother told them that her son was not present and they had observed nothing which indicated anything to the contrary.

     Additionally, there was no allegation of physical abuse of the child.

     Chavez v. Board of County Commissioners of Curry County, No. 21,066, 31 P.3d 1027 (N.M. App. 2001).

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Female motorist arrested after vehicle accident stated a claim for sexual harassment against officer who allegedly sat in the back seat of the patrol car with her during the ride to the police station, engaging in "inappropriate" touching and sexual propositions; no reasonable officer could believe that the alleged conduct did not violate the arrestee's rights under the Fourth Amendment.

     A female motorist was arrested after she was involved in a vehicle accident, based on a belief that she had been intoxicated and her failure to pass field sobriety tests. One California highway patrol officer drove the patrol car to the station, while a second male officer sat in the back seat of the vehicle with the arrestee. In a federal civil rights lawsuit she later filed against the second male officer, she contended that all the way to the station, he "wrongfully and inappropriately touched and sexually harassed" her.

     The complained of conduct included telling the arrestee that she had "nice legs," telling her that he could be her "older man," putting his arm around her, and massaging her shoulders even after she told him to stop. At the station, this officer allegedly continued making sexual comments to her, including offering to "help her" in the restroom. He also allegedly tried to find out if she had a boyfriend and where she lived. On the way to the station, the arrestee feared that the officers were not planning to bring her to the station, and felt that they could have been driving around in circles until she accepted the officer's advances.

     Reinstating the plaintiff's claim after a federal trial court dismissed it, a federal appeals court held that the alleged conduct, if true, would constitute an "unreasonable seizure and an unlawful intrusion on her bodily integrity" in violation of the Fourth Amendment" and would support a federal civil rights claims.

     Further, the court held, the officer could not be entitled to qualified immunity because no reasonable officer could believe that such conduct did not violate the plaintiff's rights under these circumstances.

     Fontana v. Haskin, #99-56629, 262 F.3d 871 (9th Cir. 2001).

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Update: Judge declines to impose $129,750 damage award suggested by advisory jury in lawsuit brought over "humiliating" strip search of beautician conducted at airport by U.S. Customs agents after drug dog alerted to her.

     As reported in the January 2002 Liability Reporter, a beautician on her way home from a vacation camping trip was awarded $129,750 in damages by a jury for an allegedly "humiliating" strip search conducted at an airport by U.S. Customs agents after a drug dog alerted to her. The plaintiff was required to strip, bend over and spread open her vagina and buttocks as the agents looked for drugs which were not found, and then agreed to be x-rayed at a local hospital. Kaniff v. U.S. No. 99C-3882 (U.S. Dist. Ct. N.D. Ill.), reported in The National Law Journal, p. B3 (Sept. 17, 2001).

     The jury's award was only advisory, however, since the lawsuit was brought under the Federal Tort Claims Act, 28 U.S.C. Sec. 2671 et seq., and the jury's award was not binding on the trial court judge. Claims in the lawsuit included false imprisonment and intentional infliction of emotional distress.

     The trial judge declined to follow the jury's recommended award, issuing her own findings of fact, and concluding that the customs inspectors had not acted in reckless disregard of the plaintiff's rights or in a willful and wanton manner. The judge reasoned that she should not "second-guess" the customs agents, one of whom argued that she felt a bulge in the traveler's clothes, which she contended justified the strip-search.

     The judge stated that she was "sensitive to the concerns that moved the jurors," but "the fact that customs inspectors were incorrect does not mean that their suspicion was unreasonable, however; or that their behavior was willful and wanton." Other factors supporting the decision to inquire further besides the dog "alerting" were the fact that the traveler had purchased a ticket with cash shortly before the trip and was traveling alone on a short trip from a country, Jamaica, known to be a "common source" for drugs, including marijuana and hashish.

     Kaniff v. U.S., No. 99C-3882 (U.S. Dist. Ct. N.D. Ill. March 8, 2002).

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Administrative Liability: Supervision

     Evidence of supervisor's "direct participation" in arrest or gross negligence in supervising arresting officer was insufficient for submission to the jury; supervisor's mere presence in police headquarters and instructions to officer to "go handle" a developing problem between the plaintiff and the desk clerk was insufficient for liability. Court upholds jury's award, however, of $1 in nominal damages and $10,000 in punitive damages against arresting officer, based on evidence supporting argument that officer was not justified in believing that arrestee made "unreasonable noise" within the meaning of disorder conduct statute. Provost v. City of Newburgh, #00-7790, 262 F.3d 146 (2nd Cir. 2001).

Defenses: Governmental Immunity

     Officer working for water supply district would not be entitled to governmental immunity under Mississippi Tort Claims Act, Secs 11-46-5(2), 11-46-7(2) if he acted with malice in using excessive force in effecting arrest of plaintiff for drunkenness and resisting arrest on district property. Bridges v. Pearl River Valley Water Supply District, No. 2000-CA-00128-SCT, 793 So. 2d 584 (Miss. 2001).

False Arrest/Imprisonment: No Warrant

     Railroad police officer did not violate arrestee's Sixth Amendment rights by failing to inform her of the nature and basis of the accusation against her when he handcuffed her and detained her on platform of train station. Sixth Amendment rights are not triggered until the government has "committed itself to prosecution," and here the arrestee was ultimately not even removed from the place of her arrest to the police station, but instead released when another passenger was identified as the real offender. Spencer v. National R.R. Passenger Corp., No. 99-C-8506, 141 F. Supp. 2d 1147 (N.D. Ill. 2001).

     The arrestee's convictions at trial for disorderly conduct, battery on an officer, and fleeing arrest conclusively established that the officer had probable cause for the arrest, even though the disorderly conduct and fleeing arrest convictions were overturned on appeal. McGregor v. City of Olathe, Kansas, 158 F. Supp. 2d 1225 (D. Kan. 2001).

     Police officer acted unlawfully in seizing arrestee, even if he appeared "lost and confused," when an encounter did not result in any reasonable basis for seizure or detention and arrestee had exercised his right to end the voluntary encounter by walking away. "A lost or confused individual is just as entitled to walk away from a police officer as is an individual who" knows "where he is, why he is there, and what he wants to do." A perceived threat to the officer after he had already unlawfully seized the plaintiff who was trying to walk away could not be used to justify the initial seizure. Jacobs v. Village of Ottawa Hills, 159 F. Supp. 2d 693 (N.D. Ohio 2001).

     Police officer who arrived on the scene after the arrestee had already been detained and subdued was justified, for purposes of probable cause, in relying on information provided by other officers in preparing a written arrest report and signing two felony complaints against the arrestee. He was therefore not liable for an alleged violation of the arrestee's rights. Scott v. Sinagra, 167 F. Supp. 2d 509 (N.D.N.Y. 2001).

False Arrest/Imprisonment: Warrant

     Officers had probable cause to arrest, with warrant, man for criminal sexual assault of a child based on purported victim's statements, bloodstains in victim's underwear, medical evidence consistent with sexual abuse, and evidence indicating that the arrestee was the only adult interacting with children at the scene. Later dismissal of charges, based on rulings suppressing minor's identification of him as "suggestive and unreliable," and preventing the state from using certain hearsay statements attributed to minor in the course of the investigation did not alter the result. Predmore v. Schwartz, No. 99-3198, 141 F. Supp. 2d 1150 (C.D. Ill. 2001).

     Officers who arrested plaintiff with a facially valid warrant had no obligation to investigate or accept arrestee's claim that the warrant described another person with the same name. Sheriff's office did not know arrestee's date of birth, social security number or other identifying information on the date of the arrest. Deputy later took steps to secure arrestee's release when it became apparent that he was not the person sought in the warrant. Garcia v. County of Bucks, Pa., No. CIV. A. 00-2446, 155 F. Supp. 2d 259 (E.D. Pa. 2001).

Governmental Liability: Policy/Custom

     Single incident of alleged excessive use of force by officers while making arrest did not show that the county had a policy or widespread custom of excessive use of force. Plaintiff's own statement concerning a single prior incident involving him, and his assertion that the county officers "have a reputation" for excessive use of force was insufficient to assert a claim. Williams v. Prince George's County, Md., No. Civ. A DKC 2000-184, 157 F. Supp. 2d 596 (D. Md. 2001).

     Arresting officer's testimony that he was subsequently fired from his job for not writing enough tickets, even if true, was not "closely related" to plaintiff arrestee's claim that the city had an official policy or custom of using excessive force against arrestees or of ignoring citizen complaints about policy. Plaintiff's own statement that the mayor "was aware" of police officer's alleged "reign of terror" because he was the mayor, was insufficient to allow claims against the city to proceed. Outlaw v. Nasworthy, No. A01A0199, 551 N.E.2d 785 (Ga. App. 2001).

Negligence: Vehicle Related

     Jury awards $5 million to waitress/motorist hit by police car when returning from work. Police vehicle is alleged to have been traveling at twice the posted speed limit without activated siren or emergency lights. Jury rejects defense argument that plaintiff was intoxicated based on blood alcohol test, when witnesses testified she looked sober and plaintiff argued test results were caused by breathing distress and trauma of the accident. Krall v. City of Des Plaines, No. 00L4096 (Cook County, Illinois Cir. Court), reported in The National Law Journal, p. B4 (Feb. 18, 2002).

Off-Duty/Color of Law

     Officer did not act "under color of state law" in allegedly going "beyond the bounds of civility" in a private contract dispute with a contractor who had done work on his home. Even if contractor's allegations were true that officer had terrorized, assaulted, discriminated against, and tried to "ruin" him, this could not be the basis for a federal civil rights lawsuit since the officer acted off-duty, for purely private motives, and did not use police equipment or authority in carrying out his actions. Garner v. Wallace, No. 9:00-CV-181, 139 F. Supp. 2d 801 (E.D. Tex. 2001).

Police Plaintiff: Defamation

     Police officer could not sue church, pastor, and their attorney for defamation based on attorney's letter threatening legal action against the officer for defamation because of statements officer had made during an investigation. Absolute privilege protects such letters sent in "contemplation" of judicial proceedings, even when the claim asserted was later abandoned. Bell v. Lee, No. 04-00-00011-CV, 49 S.W.2d 8 (Tex. App. 2001).

Property

     Sheriff and his deputies did not act unreasonably in enforcing a judicial order allowing an estranged husband to remove his property from the marital residence occupied by his wife during pending divorce proceedings when order was facially valid. Alleged fraud on the court and sheriff by the husband's attorney did not alter the result. Nicholson v. Moates, 159 F. Supp. 2d 1336 (M.D. Ala. 2001).

Racial/National Origin Discrimination

     Arrested taxi passenger's claim that arresting officers "were apparently prejudiced against" his Iranian nationality and therefore "treated him inferiorly" was a "mere bald assertion and conclusory statement" which failed to state a claim for national origin discrimination. State troopers had probable cause for warrantless misdemeanor arrest of passenger for allegedly cutting taxi seat with a sharp object he was in possession of, but were not entitled to qualified immunity on excessive force claim that they dragged him in handcuffs across the floor when he had not resisted arrest. Tavakoli-Nouri v. State of Maryland, No. 0048, 779 A.2d 992 (Md. App. 2001). (.pdf format).

Search and Seizure: Home/Business

     Search of man's residence under warrant was not rendered unreasonable because it was conducted while his children waited for the school bus outside the home, in the absence of any claim that the officers harmed or threatened the children in any way. Handcuffing of man for two hours while they searched his home under the warrant did not violate his Fourth Amendment rights, particularly when they also arrived armed with an arrest warrant. Martin v. Rodriguez, 154 F. Supp. 2d 306 (D. Conn. 2001).

Search and Seizure: Vehicle

     Motorist and his wife were entitled to nominal damages for unreasonable detention and search of their vehicle during a traffic stop, but could not be awarded damages for injuries that resulted from the discovery of incriminating evidence during the search and from the motorist's time in custody on charges of unlawful possession of  the weapons and narcotics found during the search. Padilla v. Miller, 143 F. Supp. 2d 479 (M.D.Pa. 2001).