CONTENTS

Federal appeals court rules that trial judge improperly granted judgment as a matter of law to officers in excessive force claim brought by paranoid schizophrenic who testified that he had no recollection of the precise acts engaged in by the officers who apprehended him. The issue of whether the officers used excessive force under the circumstances was still for the jury to determine, and there was other evidence which could be used to make the determination.

     A parolee with a long history of psychological problems, difficulties with substance abuse, and more than fifteen prior hospitalizations for his paranoid schizophrenic condition had been released from prison just thirty days earlier and had not been reporting to his parole officer as required. He also had not taken his medication and had consumed some whiskey with breakfast. Two police officers allegedly began to pursue him down the street after he got off a bus, and he fled until his way was blocked by a chain link fence.

     Knowing that "he was caught, he sank to his knees and interlocked his hands behind his head." The last thing that he remembers was seeing the officers running toward him and hearing a loud sound. The next thing he remembers was waking up in an ambulance. After the incident, he claims that he was paralyzed below his waist for perhaps two weeks and that he was forced to wear a back brace and walk with the assistance of a walker for approximately a year. He sued the officers and city for excessive use of force, although he admitted that he had no memory of the officers striking him.

     The officers' version of the incident was that they responded to a report about a man "screaming and falling down in the street," and a report that a man might have taken something from a garage. They considered the plaintiff a possible suspect in the garage burglary. When they encountered the plaintiff, he did not comply with the entirety of their orders, but went limp and slumped to the ground, with one of the officers grabbing him and guiding him down to the ground to prevent him from hitting his head on the sidewalk. The officers said that the plaintiff yelled that they were beating him, although they were not doing so.

     Medical evidence showed an acute back injury, but it was not clear whether it had occurred within the last week or within the past few hours. The trial court granted the defendants' motion for judgment as a matter of law after the plaintiff testified that he did not specifically remember what occurred.

     A federal appeals court found that the fact that the plaintiff had no recollection of the precise actions of the officers who apprehended him did not preclude his excessive force claims, so that the judgment as a matter of law was improperly granted. There was other evidence from which the jury might reasonably have concluded that the officers should be held liable for excessive force, including evidence that the detainee was walking unassisted just before he was apprehended but was diagnosed with a fractured back shortly afterwards.

     The court noted that the officers "admit to having applied force when restraining" the plaintiff. A jury might find the officers' testimony that they did so "gently, and accordingly might return a verdict in their favor," or might find that the officers' testimony on their use of force "not credible and draw the inference from the medical and other circumstantial evidence that the plaintiff's injuries were inflicted on him by the officers' use of excessive force." The court reinstated the case, ruling that the issue of whether the officers' use of force was excessive under the circumstances was for the jury to decide.

     A strong dissent by one judge of the three judge panel stated that no reasonable jury could return a verdict for the plaintiff based on his claims, and that the plaintiff could not say "where he actually sustained the injury and the medical testimony acknowledged that it could have happened hours or days before his arrest." The dissenting judge also noted that the plaintiff's blood alcohol content at the time "was an astronomical .227 two hours after first encountering police," and he had traces of amphetamines in his system, and was a paranoid schizophrenic who had skipped taking his medication for several days. The judge implied that the plaintiff was "delusional" at the time, noting that the fence that he claimed he encountered was not there in the officers' version of the incident.

     Santos v. Gates, #00-56114, 287 F.3d 846 (9th Cir. 2002).

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Arrestee's conviction for resisting arrest did not bar him from asserting a federal civil rights claim for excessive use of force. Since arrestee had pled no contest to the charge, he did not have an actual opportunity to litigate the issue of the officer's use of force, and it was possible that the officers used excessive force at some point during the encounter.

     A man and his friend went to a pavilion at which a concert was being presented, and found a way to enter without tickets. When concert security discovered this, they were asked to leave and were escorted outside. An argument ensued, in which the intruders questioned "what was the problem of their standing in the aisle" in the concert without seats, and the concert employee allegedly "bumped chests" with the man. A fight subsequently broke out between the two intruders and concert employees, with the intruders later claiming that concert employees "jumped" them.

     Police subsequently arrived on the scene and became involved in the fight, and placed one of the intruders under arrest. The arrestee subsequently sued police officers and concert employees for alleged excessive use of force. He was convicted on charges of resisting arrest after he pled no contest to the charge.

     Defendant police officers argued that the conviction for resisting arrest barred the plaintiff from pursuing his excessive force claim. The federal trial court did not agree.

     The doctrine of "collateral estoppel" would bar the plaintiff from relitigating the issue of the use of excessive force only if the precise issue raised in the immediate case was raised and actually litigated in the prior proceeding, with a "full and fair opportunity to litigate the issue." In this case, since the plaintiff pled "no contest" in his criminal case, there was a question of whether the issue was "even fully litigated." It was possible, the court stated, that a jury could find that the "officers acted unreasonably at some point in their altercation" with the arrestee, "without calling into question the integrity" of his conviction for resisting arrest, "which may have been rendered without consideration of all of the evidence."

     Jones v. Marcum, 197 F. Supp. 2d 991 (S.D. Ohio 2002).

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Officers had probable cause for arresting husband for criminal contempt and harassment based on wife's written complaint accusing him of violations of a protective order preventing him from being within 1000 feet of her. Officers had no reason to doubt the wife's claim that he had in person threatened to kill her and burn her house down, and one of the officers indicated that he conducted a personal investigation.

     A wife obtained an order of protection in state court in New York which prohibited her estranged husband from coming within 1000 feet of her or otherwise harassing her. She later filed a verified petition in court stating that he had come to the back door of her house that day, with a gun in his hand, and had threatened to kill her and burn her house down. She subsequently also filed a complaint with the police, under penalty of perjury, relating this and an additional incident.

     Officers subsequently arrested the man on charges of criminal contempt in the first degree and harassment in the second degree. He was subsequently indicted in a ten-count indictment. Further proceedings were subsequently held in family court on the incidents in question, and portions of the criminal indictment were later dismissed on the basis that the charges had been resolved in family court and that the criminal prosecution was therefore barred by principles of double jeopardy. After a jury trial, the arrestee was convicted of the undismissed charges.

     The arrestee then sued one of the arresting officers, claiming false arrest, malicious prosecution and excessive use of force. A federal appeals court upheld summary judgment for the defendant.

     The court found that the accusations by the wife, together with statements by one officer that a personal investigation had been conducted, provided probable cause for the arrest, in the absence of any reason for doubting the veracity of the statements of the complaining wife. Further, on the malicious prosecution claim, under New York law, the return of an indictment creates a presumption of the existence of probable cause, and the plaintiff had not rebutted this presumption by presenting evidence that the indictment was produced by perjury, fraud, the suppression of evidence by the police, or other bad faith police conduct.

     Fulton v. Robinson, #00-9547, 289 F.3d 188 (2nd Cir. 2002).

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City and officer were properly held liable for $250,000 for making an arrest of a man in a washroom for "lewd conduct" without probable cause. Arrestee's conduct fell short of giving a reasonable officer grounds for an arrest, and damages were not grossly excessive, based in part on arrestee's mistaken impression that he faced sex offender registration if convicted of the offense.

     A California police officer arrested a man for "lewd conduct" in a public restroom. The arrestee was eventually exonerated, following two criminal trials, and then sued the officer and city for violation of his civil rights through an improper arrest. A jury awarded the plaintiff $250,000 in damages and the trial court refused to set the award aside.

     Upholding this result and finding that the officer was not entitled to qualified immunity, a federal appeals court found that, viewing the evidence in the light most favorable to the plaintiff, a "reasonable police officer would not have believed he had probable cause" to arrest the plaintiff for lewdness.

     At best, the court stated, the plaintiff aroused the officer's suspicion by "(1) visiting a public restroom that was notorious for lewd behavior, (2) making eye contact" with the officer as he approached the restroom, "(3) washing his hands before urinating, (4) pulling his foreskin back twice, and (5) not immediately urinating as he stood at the toilet." These observations, the court concluded "fall short of giving a reasonable officer probable cause to arrest someone for lewdness."

     The appeals court also rejected the officer's argument that the trial court erred in allowing the plaintiff to testify that he believed he would have to register as a sex offender if convicted. This testimony was relevant, the court found, because it showed the emotional stress he endured while the criminal charges were pending, even though his belief was in error. The appeals court noted that the trial court did instruct the jury that the charged offense did not in fact carry a registration requirement.

     The appeals court rejected the argument that the damages awarded were excessive, since the plaintiff "endured two criminal trials and was not exonerated until nearly a year after his arrest," and was also under the mistaken impression that he faced possible sex offender registration.

     Fonseca v. City of Long Beach, #00-56714, 33 Fed. Appx. 846 (9th Cir. 2002).

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Police officer was not liable for false arrest for allegedly putting false information concerning arrestee's alleged confession to robbery in affidavit for arrest warrant. Affidavit contained other evidence which supported a finding of probable cause even without the alleged false statements.

     After a robbery was committed at a gas station in Arvada, Colorado, eyewitnesses produced a description of the participants and of the get-away vehicle, a gold-colored van with New Mexico plates. An Arvada police officer assigned to investigate the robbery, through research of the license plate and a subsequent witness identification was able to identify a man as the white male involved in the Colorado robbery, which involved three individuals.

     Additional investigation placed the officer in contact with police in Bakersfield, California, who informed him that the identified suspect had robbed another convenience store in Bakersfield, using the same vehicle, along with two other persons. The Bakersfield police told the officer that the identified suspect had admitted to participating in the Colorado robbery.

     Based on this information, the officer prepared an affidavit to arrest the suspect for the Colorado robbery. The suspect was extradited to Colorado and taken into custody when he could not make bail. After three months, the prosecution decided to drop the charges against the arrestee because, among other reasons, he had already served three years in California, his mother (another of the participants) had only received probation for her part in the Colorado robbery, and there were concerns regarding whether his statements to the Bakersfield police were voluntary.

     The arrestee filed a federal civil rights lawsuit against the officer who had prepared the affidavit, claiming that his Fourth Amendment rights were violated by the insertion of "material, false statements" in the affidavit, specifically, he pointed to a transcript of his interview with the Bakersfield police indicating that he had denied direct participation in the Colorado robbery, although he admitted to "being present and knowing about it ahead of time." The arrestee argued that he was arrested and held in custody as a result of the false statement in the affidavit that he had confessed to the robbery, only to have the charges against him dropped when the prosecutor discovered the true content of his statements to the Bakersfield police.

     Rejecting this claim, and upholding a grant of qualified immunity to the defendant officer, a federal appeals court noted that "in evaluating an officer's conduct in authoring a probable cause affidavit, the test of materiality is whether the false or omitted information was necessary to the determination of probable cause." In this case, the court found, even if the statements about the alleged confession were excluded, the affidavit contained enough evidence to support probable cause for the arrest.

     Further, there was no indication that the officer had intentionally or recklessly made false statements in the affidavit. He had relied on the characterization of the suspect's statements given to him by the Bakersfield police.

     Baca v. Bennett, #01-1104, 34 Fed. Appx. 626 (10th Cir. 2002).

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City and officer were liable for violation of federal civil rights after officer's mistaken use of wrong form for citation made motorist believe that he could contest ticket by mail, resulting in his subsequent arrest under warrant for failure to appear in court. Intermediate New York reviewing court upholds overturning of state law negligence award, however.

     A New York City police officer issued a motorist a citation for violating a city ordinance prohibiting "unreasonably" loud music emanating from a car. While the officer prepared and intended to issue a criminal court summons directing the motorist's court appearance on a specified date, he mistakenly served the motorist with a copy of a parking violation summons, which erroneously indicated that the summons could be contested by mail.

     As a result, the motorist failed to appear for the court appearance and a warrant for his arrest was issued. He was subsequently arrested on the warrant, strip searched, and incarcerated for several days until the underlying charge was dismissed in criminal court.

     The motorist sued the city and officer for violation of his federal civil rights and for state law negligence. The jury awarded $75,000 on the federal civil rights claim and $100,000 on the state law negligence claim. The trial court vacated the negligence award, reasoning that the officer's "mistake" in serving the plaintiff with the wrong form of summons was insufficient to impose negligence liability.

     An intermediate New York reviewing court upheld this result. "In the absence of a competent showing that plaintiff was owed a special duty, his negligence cause of action is not legally sustainable," the court reasoned. The officer's obligation to investigate criminal activity and to facilitate the filing of appropriate charges in connection with such criminal investigations "create nothing more than a generalized duty owed to the public at large and, absent any affirmative promise or undertaking not shown on this record, are not intended to benefit or, more accurately here, to avoid injury to any particular persons or class of persons."

     Marin v. City of New York, 739 N.Y.S.2d 523 (Sup. 2002)

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Off-duty police officer who pursued and then shot and killed unarmed man who alleged stole a lawn mower from his garage was not entitled to qualified immunity from federal civil rights claim.

     The estate and surviving family of a man shot and killed by an off-duty police officer after he allegedly stole a lawn mower from the officer's garage filed a lawsuit asserting federal civil rights claims for excessive force and state law claims for assault and battery and wrongful death.

     The trial court rejected the defendant's motion for qualified immunity. While there were disputed facts in the case, if the plaintiffs' version was believed, a reasonable police officer would have known that the defendant's alleged actions were unreasonable.

     Specifically, a reasonable officer would have known that it was unreasonable to "precipitate" a physical confrontation with an unarmed offender without calling for backup of identifying himself as a police officer, and with an alleged intent to physically harm the offender.

     The court also noted that since the officer allegedly learned the identity of the offender and where he lived, there was no compelling reason for him to immediately go to find him after he fled, without at least pausing to call for backup, as the officer said he would ordinarily do.

     Estate of Thurman v. City of Milwaukee, 197 F. Supp. 2d 1141 (E.D. Wis. 2002).

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Police officer's claim that state law enforcement agency imposed a "ticket quota" policy, even if true, did not violate the officer's equal protection or due process constitutional rights and did not violate the Constitution's "Privileges and Immunities" clause. Officer had no standing to assert the Fourth Amendment rights of those who might be "illegally searched or seized" solely because of the alleged policy's existence.

     An officer with the North Carolina Division of Motor Vehicles (DMV), along with the North Carolina Police Benevolent Association, claimed that certain policies of the division, which allegedly required police officers to average a minimum number of enforcement actions and citations each day, violated his federal constitutional rights.

     Upholding the dismissal of the lawsuit, a federal appeals court rejected the officer's equal protection claim. The mere fact that the DMV district in which the officer worked alleged imposed the "ticket quota" policy on its officers, while other districts in the state did not, was insufficient to state a violation of the right to equal protection. "The Constitution does not require state agencies to impose identical employment policies over each of its geographic subdivisions." Further, the priorities of local law enforcement units "vary over different geographical regions," so that officers in different districts were not "similarly situated" for purposes of equal protection analysis.

     The appeals court also rejected the officer's due process claim. Substantive due process, the court reasoned, protects against "only the most egregious official conduct." The alleged facts regarding the defendants' ticket quota policy "are not even close" to an allegation of "egregious" or "outrageous" executive action necessary to state a substantive due process claim under the analysis in County of Sacramento v. Lewis, 523 U.S. 833, 118 S. Ct. 1708 (1998).

     Further, while it is "conceivable that officers might be tempted to fill their quota by issuing citations for borderline or non-existent violations out of laziness, there is no allegation that the numerical quotas are so onerous that it is impossible for a diligent DMV officer to meet them without breaking the law. To be sure, the alleged ticket quota policy makes a law enforcement officer's job more difficult. We are sure that is not enough, standing alone, to constitute a substantive due process violation," the court commented.

     The court rejected a claim that the policy violated the "Privileges and Immunities" clause of Article IV of the Constitution, since there was no allegation that the "ticket quota" policy discriminated against citizens of states other than North Carolina.

     Finally, the court held that the plaintiffs had no standing to assert the Fourth Amendment rights of those who "might" be "illegally searched or seized solely because of the existence of the challenged policy in this case--they must allege an actual or imminent injury to their own Fourth Amendment rights, not someone else's."

     Gravitte v. North Carolina Division of Motor Vehicles, #01-1718, 33 Fed. Appx. 45 (4th Cir. 2002).

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Illinois jury awards $11 million to 17-year-old passenger injured in car allegedly pursued at 70 m.p.h. by officers who wanted driver because of outstanding warrant on drug charges. Municipality found liable for 80% of award, while driver of pursued car found liable for 20%.

     A woman who suffered a permanent brain injury when the vehicle she was riding in crashed while being pursued by police at high-speed was awarded a total of $11 million in damages by an Illinois jury. The driver of the vehicle was sought on an outstanding warrant for drug charges, which is what occasioned the pursuit.

     The pursued driver claimed that he did not know it was police officers following him in their unmarked car. The pursued vehicle reached speeds of 70 m.p.h. before it crashed into a commercial building at the intersection of an alley with the street.

     The officers testified that they had not exceeded 35 m.p.h. during the pursuit and that their sirens and lights were activated early in the pursuit, which they said only lasted two minutes.

     The passenger, 17 at the time of the incident five years ago, suffered a broken neck and jaw in addition to the brain damage. The plaintiff argued that the officers had determined that the chase was becoming too dangerous but still continued it. The jury apportioned damages in the case to render the municipality that employed the officers liable for 80% of the jury's award, with the other 20% the responsibility of the driver of the pursued car. The city will reportedly appeal the award.

     Salonica Prado v. The City of Evanston, et al., No. 97L-14541, Circuit Court of Cook County, Illinois, Law Division, June 11, 2002, reported in The Chicago Daily Law Bulletin, p. 3 (July 12, 2002).

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Bar owner held liable for $4.5 million to injuries off-duty officer suffered from attack by patron when he went there to celebrate his graduation from SWAT team training.

     A Florida jury awarded $4.5 million to an off-duty police officer who was hit on the head at a bar when he went there to celebrate his graduation from SWAT team training. The incident occurred when another bar patron started to talk to the officer's girlfriend, while yet another person hit him on the head with a bottle of beer, and a fight followed.

     The lawsuit by the off-duty officer claimed that the injuries were caused by the bar owner's alleged failure to provide adequate security on the premises, while the bar owner argued that the presence of security would not have prevented the fight or the injuries in question.

     Zelaya v. U.S. Euro Micro Ventures, No. 00-32681(6), Miami-Dade County, Fla., Circuit Court, Feb. 26, 2002, reported in The National Law Journal, p. B4, May 13, 2002.

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Sheriff's office did not violate the privacy rights of a 13-year-old girl when it issued a press release stating that she had engaged in consensual sex with an 18-year-old man whom she had met on the internet. There was no reasonable expectation of privacy in the statements she made to law enforcement officers and the press release was "substantially true," defeating any defamation claim.

     A 13-year-old girl met an 18-year-old man in an internet chat room. They corresponded and later agreed to meet for a date, with the girl telling her mother she was going to a "friend's house." The man picked the girl up from her home in his van and later allegedly had sexual intercourse with her in the van. The girl did not view it as rape at the time or characterize it that way in initial interviews with law enforcement officers who interviewed her later that evening.

     The 18-year-old was subsequently arrested for sexual assault on a child. The information officer for the sheriff's office issued a press release on the subject, headlined "Chat room encounter leads to second Internet-related sex arrest in five weeks." The press release contained information about the incident and details about the arrest.

     The press release included a description indicating that the two had gone to the back of the man's van, "where they had what the victim described as 'consensual' sex. Under Colorado law, a victim cannot consent to sex if she is less than 15 years old and the actor is more than 4 years older than the victim." The press release also related details of a prior arrest in which a 26-year-old man allegedly met a 15 year-old girl on the internet and convinced her to model for sexually suggestive photographs.

     The 13-year-old's mother filed a federal civil rights lawsuit alleging that the issuance of the press release violated her daughter's constitutional rights of privacy and association and defamed her by publishing an account of the incident containing a "false statement" that the pair "had what the victim described as 'consensual sex.'" She also claimed that the press release had sufficient information to permit her daughter to be identified by people who knew her, even though it did not state her name, and caused her to be ostracized and ridiculed by her peers.

     Upholding summary judgment for the defendants, a federal appeals court ruled that the 13-year-old did not have a "reasonable expectation of privacy" in the statements she made to law enforcement officers concerning the incident. It also rejected any claim that it violated the girl's "right of association" since the plaintiff failed to identify any particular relationship protected by the Fifth Amendment right of association, and the U.S. Constitution does not protect a "general right of social association."

     The appeals court also found that the statement in the press release indicating that the girl had stated that she had engaged in "consensual sex" with the 18-year-old was "substantially true" even if she had not used those exact words, and therefore could not be the basis for a defamation claim.

     Loeks v. Reynolds, #01-1183, 34 Fed. Appx. 644 (10th Cir. 2002).

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California Supreme Court rules that county and sheriff's department were not liable for negligence for failing to protect a woman from being fatally shot by her ex-husband at a courthouse. The defendants did not increase the risk of harm to the decedent, and the posting of signs "warning" persons of the alleged lack of security at the courthouse would have discouraged litigants from resorting to the courts. Those entering courthouse were, in any event, aware that persons entering were not screened for weapons.

     The minor children of a woman who was shot to death by her former husband in a Los Angeles, California courthouse sued the county and the county sheriff's department for alleged failure to provide adequate security against third party violence inside the courthouse. Claims asserted included negligence, negligent infliction of emotional distress, wrongful death and violation of federal civil rights.

     The California Supreme Court has ruled that the trial court properly rejected each of these claims.

     In the absence of any evidence that any officer at the courthouse voluntarily took on special duties to protect the decedent from her ex-husband while in the courthouse or to control her husband's conduct, or that any law enforcement personnel did anything to induce the decedent to rely on a promise of special protection or did anything to increase the risk of harm to her, the decedent's children failed to state a cause of action based on the vicarious liability of the county or sheriff's department for the alleged negligence of its personnel.

     The court rejected the argument that the death was caused by a "dangerous condition" on the public property of the courthouse imposing liability under the state Tort Claims Act, Cal. Gov. Code Sec. 835. When the risk of injuries from third parties, such as the decedent's ex-husband, is not increased or intensified by any condition of the public property, courts will "ordinarily decline to ascribe" the injuries which result solely from the acts of third parties to the supposed "dangerous condition."

     The court found that the county did not maintain the courthouse in question in any manner that increased the risk of criminal activity, such as a fatal shooting. It rejected the argument that the county should have posted signs warning people entering the courthouse of the alleged inadequate security there. It noted that such "warning signs" would have the effect of discouraging litigants from resorting to the courts, and would not have been helpful to the decedent in this case in any way. The decedent was aware of the danger presented by her ex-husband and was "presumably aware," based on her prior experience, that persons entering the courthouse in which the shooting took place were not screened for weapons.

     As for federal civil rights liability, the court noted that the decedent was not in law enforcement custody at the time of the shooting, and there was no showing that the defendants had either created the danger to the decedent or somehow rendered her more vulnerable to an existing danger. For the "state-created danger" theory of governmental liability to be available under 42 U.S.C. Sec. 1983, the court stated, the governmental actors must "affirmatively place" a particular person in a position of danger they would not otherwise have faced. Mere "inaction" by the governmental actor in the face of a known, existing danger is not enough to trigger a federal civil rights obligation to protect private persons from each other.

     In this case, the danger faced by the decedent that she would be shot by her ex-husband was "the same inside the courthouse as outside. The circumstance that the state, by enacting a general statute prohibiting the possession of a firearm in any courthouse, curtailed her ability to arm herself in self-defense" did not alter the result.

     Zelig v. County of Los Angeles, #S081791, 119 Cal. Rptr. 2d 709, 45 P.3d 1171 (Cal. 2002).

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Police officer's failure to immediately report his reasonable suspicion that a female middle school teacher was sexually abusing one of her female students did not subject him or the city liable for violation of the student's due process rights.

     An Indiana police officer was informed by fellow officers that they had overheard, via a phone scanner, sexually explicit cell phone conversations between two females, including an unknown adult female and a younger female, known in the conversations by her first name only. After receiving this information, the officer intercepted cell phone conversations four or five times over the next two months, and the contents of the conversations caused him to believe that the adult female was a middle school teacher and that the younger female was a student.

     The officer became concerned that the younger girl might be the victim of molestation and discussed the matter with other officers and a lieutenant during shift line-up. During the discussion, another officer recognized the younger girl's first name because it was an uncommon name, and indicated that he knew a middle school male teacher who had a fourteen or fifteen year old daughter matching the first name.

     The officer, through further investigation, including interception of another cell phone conversation, during which he called the home phone of the male teacher, and heard that phone ring on the intercepted call, believed that this teacher's child was the young person who had been part of the overheard conversations. The officer conducted further investigation at the school the girl attended, which ultimately resulted in a female teacher there admitting to molesting the girl. A written report was filed and the teacher was ultimately prosecuted for child molestation and served jail time.

     The young victim of the molestation sued the officer individually and in his official capacity, as well as the city, claiming that the Defendants violated her right to substantive due process under the Fourteenth Amendment by failing to intervene sooner to stop the ongoing molestation. The complaint also asserted that the city had failed to properly train its officers on how to investigate child abuse crimes.

     The federal trial court granted summary judgment to the defendants. The court noted that the police officer's failure to immediately report his reasonable suspicion that the minor child was being sexually abused by her teacher did not "create the danger" or make the minor more vulnerable to danger than she otherwise would have been. The relationship between the teacher and student was "abusive well before police heard the suspicious cellular telephone conversations between the two," so that the officer's acts or omissions "did not increase the risk of injury beyond what it would have been" had the officer not intervened at all.

     Additionally, the officer and the city made no "false promise of protection" to the girl, and she never requested protection from the police. The officer merely "stood by and permitted the status quo to continue until he had information from which he could identify" the girl, and did not knowingly place her in a position where the teacher would have "additional access and opportunity to continue the molestation."

     Given that no violation of the plaintiff's constitutional rights occurred, the court reasoned, it need not decide whether the training that officers received concerning the investigation of child abuse cases was adequate, since the alleged failure to adequately train did not result in any actionable deprivation.

     Doe v. City of Marion, 196 F. Supp. 2d 750 (N.D. Ind. 2002).

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Resident of a home who was not its owner had a reasonable expectation of privacy, but his privacy was not violated by noncompliance with the "knock-and-announce rule" when he was not present during the execution of a search warrant. Further, as a non-owner, he lacked standing to assert a claim for damage to the property, such as the breaking of doors.

     A man who lived in a home in Pennsylvania owned by his daughter filed a federal civil rights lawsuit against a police detective and the police department for allegedly violating his Fourth Amendment rights during the execution of a search warrant on his residence. Specifically, he claimed that the detective and his fellow officers failed to knock and announce their presence before forcibly entering the house and allegedly damaging three doors. The plaintiff was not present at the time of the entry or during the search.

     The trial court granted summary judgment for the defendants, and a federal appeals court upheld the result. While the plaintiff, who resided in the house, had a "legitimate expectation of privacy" in the home and its contents, the court found that he failed to allege "an injury in fact to any privacy right he enjoyed." The court stated that it was "critical to note that he did not and does not contest the validity of the search warrant that was executed at the house," but merely the failure to knock and announce before a forced entry was made.

     While protecting a resident's interest in privacy is one of the rationales for the "knock-and-announce" requirement, the court stated, it did not see "how that failure" to do so impinged on the plaintiff's privacy interests "given that he was not at the house at the time of the forced entry."

     Another purpose of the "knock-and-announce" rule, the court acknowledged, is to "prevent needless damage to property," such as the breaking of doors that occurred here. As a non-owner of the premises, however, the plaintiff failed to "demonstrate that he had a possessory interest in the property that was allegedly damaged," and therefore had no standing to bring a claim asserting property rights under the Fourth Amendment. His daughter, who owned the home and the doors, may have been able to, but she was not a plaintiff in the case.

     Eiland v. Jackson, #01-3139, 34 Fed. Appx. 40 (3rd Cir. 2002).

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Colorado Supreme Court holds that U.S. and Colorado constitutions protect an individual's "fundamental right to purchase books anonymously," and imposes a requirement under state law that bookstores be given an opportunity for an adversarial hearing prior to the execution of a search warrant seeking customer purchase records, to balance the need for the search against the privacy interests of the customers.

     A Colorado bookseller brought a lawsuit seeking to restrain a police department and its officer from executing a search warrant authorizing a search of the bookseller's premises for information concerning customer purchase records. The case concerned an investigation into a suspected methamphetamine lab being operated out of a trailer. During a search of the trailer, a mailing envelope from the bookseller addressed to a particular suspect was found, along with an invoice number on the label. There was no indication on the label, however, of what books had been purchased.

     Four suspects were believed to have been living in the trailer, and two of the books seized from the master bedroom of the trailer home were "Advanced Techniques of Clandestine Psychedelic and Amphetamine Manufacture," and "The Construction and Operation of Clandestine Drug Laboratories." Officers wanted to determine whether these books were purchased from the bookseller and delivered to the suspect listed on the mailing envelope. They determined that both books were for sale on the bookseller's website and served the bookseller with a DEA administrative subpoena seeking the title of the books which were purchased on the invoice number in question.

     The bookseller replied that it would not comply with the subpoena, based on its concerns for its customers' privacy and First Amendment rights. Subsequently, officers obtained a search warrant, and the bookseller and a prosecutor persuaded the officers not to execute the warrant until the bookseller could litigate its validity.

     The Colorado Supreme Court held that "both the First Amendment to the United States Constitution and Article II, Section 10 of the Colorado Constitution protect an individual's fundamental right to purchase books anonymously, free from governmental interference. Law enforcement officials implicate this right when they seek judicial approval of a search warrant authorizing seizure of customer purchase records from an innocent, third-party bookseller."

     The court held that the Colorado Constitution "requires that the innocent bookseller be afforded an opportunity for an adversarial hearing prior to the execution of a search warrant seeking customer purchase records. At that hearing, the court must apply a balancing test to determine whether the law enforcement need for the search warrant outweighs the harm to constitutional interests caused by its execution."

     The court further held that, in order for law enforcement officials to prevail at such a hearing, "they must demonstrate a compelling governmental need for the specific customer purchase records that they seek. When conducting the balancing test, the court may consider whether there are reasonable alternative methods of meeting the government's asserted need, whether the search warrant is unduly broad, and whether the law enforcement officials seek the purchase records for reasons related to the content of the books bought by any particular customer."

     The court found, applying this test, that the search warrant in the immediate case was "not enforceable and should not have been issued."

     The city argued that the information sought was necessary to prove that the operator of an illicit drug lab acted with the "level of intent necessary to secure a conviction under state statute," to prove the identity of the perpetrator, and to "connect" a suspect to the lab.

     The court held that the city's need for the bookstore customer's purchase records was not sufficiently compelling to outweigh the harm, in the form of a "substantial chilling effect" that the search would have on the willingness of the bookseller's customers to purchase a controversial book. Additionally, the city had other alternate ways to identify which suspect occupied the bedroom in which the books were found, such as fingerprinting items from the bedroom, examining the bed and flooring for hair or other DNA samples, or interviewing neighbors, trailer park managers, and other visitors to the trailer to determine who occupied the bedroom.

     Tattered Cover, Inc. v. City of Thornton, #01SA205, 44 P.3d 1044 (Colo. 2002).

     »Click here to read the decision on the internet.

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Assault and Battery: Chemical

     Officer's use of pepper spray was not unreasonable when arrestee had been climbing stairs toward the officer, screaming threats to harm him and gesturing wildly with his arms, ignoring the officer's order to stay back. Jim v. County of Hawaii, #00-16979, 33 Fed. Appx. 857 (9th Cir. 2002).

Assault and Battery: Handcuffs

     Officers' use of handcuffs during an investigatory stop of a suspect who fled from officers in a high crime area where there had recently been a shooting of a police officer by an individual with a machine gun and who had made a motion as though he were carrying a weapon was not an excessive use of force. Officers' display of their weapons during the stop was also justified. Mearday v. City of Chicago, 196 F. Supp. 2d 700 (N.D. Ill. 2002).

Assault and Battery: Physical

     Officers did not act unreasonably in "escalating" their use of force against large naked man running around hotel premises after their initial attempts to restrain him with lesser force failed, and they had reason to believe that he posed a risk to himself and others, including the officers. Officers were not liable for his subsequent death, found to have been caused by cardiovascular disease and the effects of multiple drugs, after a lengthy altercation. Caricofe v. Mayor and City Council of Ocean City, Maryland, #01-1809, 32 Fed. Appx. 62 (4th Cir. 2002).

Attorneys' Fees: For Defendant

     Defendant municipality was entitled to payment by plaintiff in civil rights case of its costs incurred after making a settlement offer when the offer was not accepted and the judgment finally obtained by the plaintiff was not more favorable to him than the offer, pursuant to Federal Rule of Civil Procedure 68. Payne v. Milwaukee County, #01-1818, 288 F.3d 1021 (7th Cir. 2002).

Defenses: Statute of Limitations

     An arrestee had to file his false arrest lawsuit within the applicable two year statute of limitations, despite the fact that the federal court would not have acted on his claim while his state criminal appeal arising out of the same incident was pending, since the cause of action for wrongful arrest accrued at the time of the arrest. Lawsuit filed after two year period was properly dismissed. Nesbitt v. City of Champaign, #01-3163, 34 Fed. Appx. 226 (7th Cir. 2002).

False Arrest/Imprisonment: No Warrant

     Police chief had probable cause to arrest a motorist for several traffic violations, and his subsequent search of the driver was incident to a lawful arrest and therefore did not violate the Fourth Amendment. Burley v. Nichelini, #00-16098, 34 Fed. Appx. 537 (9th Cir. 2002).

     Officers had probable cause to arrest homeowner for possession of stolen property based on anonymous "crime stoppers'" tip that stolen lawnmowers were on her property, together with discovery of one of the lawnmowers on the property and subsequent search that resulted in finding of second stolen lawnmower and other stolen property at her home. Subsequent court proceedings in which arrestee's husband pled guilty to criminal charges and charges against her were dropped in exchange did not alter the result. Reasonover v. Wellborn, 195 F. Supp. 2d 827 (E.D. Tex. 2001).

     Municipal employee who alleged that he was threatened with arrest if he did not resign did not show a violation of equal protection, since other former employees were not similarly situated, as they were not facing possible criminal charges. Bligh v. Town of Bloomfield, #01-7294, 33 Fed. Appx. 573 (2nd Cir. 2002).

False Arrest/Imprisonment: Warrant

     Man arrested under warrant on charges of falsely swearing, in firearms purchase form, that he had not been convicted of a felony, could pursue his false arrest claim based on genuine issue of material fact as to whether he showed the arresting officers a certificate of conviction which showed them that he had previously been convicted of a misdemeanor rather than a felony. There was also a genuine issue as to whether the investigating officer, who wrote the affidavit which was the basis for the warrant, knew that the prior conviction was only for a misdemeanor. Thompson v. Sweet, 194 F. Supp. 2d 97 (N.D.N.Y. 2002).

First Amendment

     Virginia state statute, Virginia Code Sec. 46.2-930, prohibiting loitering on bridges, being used to prevent anti-abortion protesters from gathering there, was unconstitutionally vague, providing inadequate notice of what conduct was prohibited, but city was not liable for damages under 42 U.S.C. Sec. 1983, as plaintiffs failed to show that any deprivation of their rights was caused by an official municipal policy or custom. Lytle v. Doyle, No. 299CV1366, 197 F. Supp. 2d 481 (E.D. Va. 2001).

Governmental Liability: Policy/Custom

     Georgia sheriff was the county's final policymaker in relation to his law enforcement duties, including the maintenance and recall of criminal warrants, and acted on behalf of the county rather than the state, so that the county could be held liable for his actions. Summary judgment for the county by trial court reversed on appeal. Grech v. Clayton County, Georgia, #01-13151, 288 F.3d 1277 (11th Cir. 2002).

     A county's failure to keep records of oral complaints made against police officers did not constitute a persistent and widespread practice or custom of authorizing or encouraging police misconduct where the county did maintain a formal procedure for receiving written complaints and kept records of those. Gardner v. Hill, 195 F. Supp. 2d 832 (E.D. Tex. 2001).

Privacy

     Family of deceased former police sergeant had no claim for violation of the constitutional right to privacy or due process based on police lieutenant's ordering of autopsy and photographs of the decedent's body. His actions did not constitute a taking of property, and the surviving family was not deprived of their father's body, or prevented from disposing of it as they saw fit. Additionally, the body was not disturbed from a resting place. Helmer v. Middaugh, 191 F. Supp. 2d 283 (N.D.N.Y. 2002).

Procedural: Evidence

     State troopers destroyed tapes relating to an incident in good faith pursuant to normal practices before any litigation was pending, and additionally, the plaintiffs received transcripts of the tapes, so that there could be no adverse inference as to "spoilation of evidence" in an arrestee's claim for injuries. Arrestee could not collect damages for his fall and cracked skull while restrained at the police station following his arrest for driving while intoxicated, based on testimony by plaintiff's own expert witness that he was properly restrained, and that, while there were alternative restraining methods, they posed their own risks. Raymond v. State, 740 N.Y.S.2d 743 (A.D. 2002).

Racial Discrimination

     Hispanic gunshot victim did not produce any evidence that he was subjected to differential treatment, ill will, or vindictive action by a police officer who allegedly delayed summoning an ambulance for him. Plaintiff did not adequately plead facts to support an equal protection "class of one" claim. Additionally, there was no "special relationship" between the plaintiff and the city imposing a duty to protect him from harm when he was not in custody and the police officers did not create his need for medical assistance. Torres v. City of Chicago, 194 F. Supp. 2d 790 (N.D. Ill. 2002).