CONTENTS

After a four hour armed standoff and failed negotiations, it was reasonable for officers to fire tear gas into a mentally disturbed man's vehicle to extricate him after he had previously shot at police and refused to surrender. No liability for "excessive force" or subsequent confrontation that led to his death.

    A lawsuit against a California city and its police department officials argued that officers used excessive force in violation of the Fourth Amendment when they fired tear gas into a man's car, allegedly provoking "a confrontation with a mentally disturbed man that they should have known would lead to his inevitable death." A confrontation following the use of the tear gas did, indeed, result in his fatal shooting.

     Upholding summary judgment in favor of the defendants, a federal appeals court found the officers' actions to be a reasonable use of non-lethal force under the circumstances.

     The court noted that the decedent had led the officers on a three-hour chase, disobeyed police orders to desist, and shot at police officers. At the time the tear gas was used, he also posed a serious threat to others. "He was unstable, armed, and had threatened to fire on police again."

     While it was true that he was barricaded in his car, he had refused to surrender "or even put his gun down after a four-hour standoff. In sum, the government interest at stake was great."

     Further, as to the "nature and quality of the intrusion, while the use of tear gas was certainly intrusive--it was intended to and did result" in the decedent leaving the car--"it was not deadly force and did not in itself" harm him.

     "It is reasonable for police, following four hours of armed standoff and failed negotiations, to use non-lethal force to extricate a subject who has shot at police and refuses to surrender."

     Bayer v. City of Simi Valley, No. 01-55736, 43 Fed. Appx. 36 (9th Cir. 2002).

     »Click here to read the decision on the AELE website.

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Mere fact that an arrestee was handcuffed did not mean that police officer acted excessively in using any amount of force. Officer was justified in using more force than would ordinarily be necessary based on arrestee's active resistance and the location of the incident in which the officer was alone at night on a "lonely stretch of country road."

     A police officer pulled a truck over while working on an alcohol countermeasures taskforce during a Memorial Day weekend, acting because the vehicle had no license plates. (The officer did not see a temporary registration tag on the back window until after the stop). The officer smelled alcohol emanating from the truck, but the driver refused to participate in a field sobriety test.

     A background check on the driver revealed a prior arrest for possession of narcotics and unlawful use of a weapon. The officer sought to arrest the driver for transporting an open container of alcohol. After he placed the driver under arrest and handcuffed him, the officer leaned his head and shoulders into the truck to search it. The door of the truck then closed on the officer from behind, prompting an altercation between the officer and the arrestee, during which the arrestee suffered "some extensive bruising, especially in his chest area."

     The arrestee sued the officer for alleged excessive use of force, and a jury returned a verdict for the officer.

     On appeal, the plaintiff argued that because he "basically complied with the officer's request's throughout the encounter" and because the handcuffs immobilized his hands, that any amount of force was excessive in affecting his arrest.

     The appeals court rejected this argument.

     It found that the jury could have reasonably believed the officer's version of the incident, which was that he was "alone at night on a lonely stretch of country road, confronted by a belligerent and larger man who had been arrested on a weapons charge in the past." Additionally, though the plaintiff was handcuffed when removed from his vehicle, he "continued to yell" at the officer, and then, when the officer placed himself in a vulnerable position by bending over and putting his head inside the vehicle, "the belligerent man" attempted to take advantage of the situation "by closing the door on the officer."

     The jury could find that the force used by the officer was in response to this resistance and reasonable under the circumstances. Additionally, the court noted that once the officer had "regained control of the situation," he "ceased using force."

     The facts, construed in support of the jury's verdict, showed that the arrestee was not "submitting quietly during his encounter with the officer," but rather actively interfering with the officer's performance of his duties. Even though the plaintiff claimed, and the officer agreed, that he was not "actively resisting at the exact moment of the arrest," the court found that this did not alter the result.

     "Police officers deal with fluid situations, and we judge whether police acted reasonably in them according to the totality of the circumstances, not freeze-frames." Additionally, no prior case law supported the notion that no amount of force could be used against a handcuffed suspect. The court also noted that "feet, too, can be weapons."

     Youngblood v. Wood, #01-3109, 41 Fed. Appx. 894 (7th Cir. 2002).

     »Click here to read the decision on the AELE website.

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Arrestee's federal civil rights lawsuit claiming that he was improperly taken into custody for pointing a gun at police officers approaching his door was barred by prior determination, during city police department firearms license revocation hearing, that the officers, rather than the arrestee, was telling the truth about the incident.

     New York City police officers saw a man on the roof of a building yelling that other men with guns were trying to kill him. In an attempt to gain access to the roof, they rang several doorbells, then began kicking the door. The owner of the building was in a back office conducting business and heard a loud noise, and went to the door carrying his gun. The officers claimed that he pointed the gun at them through a window in the door, although he denied doing so. He was arrested on criminal charges of menacing and criminal possession of a weapon, but the charges were later dropped.

     Subsequently, the arrestee's pistol license was revoked based on his "behavior during the incident, and his attempts to explain it" during a hearing before the city Police Department License Division. The hearing officer, contrasting the testimony of the arrestee and the officers, ruled that the officers were telling the truth and that he did "not credit" the arrestee's explanation of the incident.

     The arrestee sued the city under 42 U.S.C. Sec. 1983 for false arrest and Fourth Amendment violations. Upholding summary judgment for the defendant city, a federal appeals court found that the factual findings from the license revocation hearing had "collateral estoppel effect" in the federal civil rights lawsuit. When a governmental agency acting in a judicial capacity resolves a disputed issue of fact "properly before it which the parties have had an adequate opportunity to litigate," federal courts "must give the agency's fact-finding the same preclusive effect to which it would be entitled in the state's courts," citing University of Tennessee v. Elliott, 478 U.S. 788 (1986).

     In this case, the hearing officer acted in a "judicial capacity," the court found, hearing witnesses, permitting cross-examination, and issuing a written decision subject to judicial review. Under New York state law, these factual findings--that the officers were truthful about the incident and that the arrestee was not--barred the arrestee from relitigating these issues when he had previously had a full and fair opportunity to contest the prior determination. See Juan C. v. R.C. Cortines, 89 NY.2d 659, 679 N.E.2d 1061 (1997).

     Since the hearing officer found that the arrestee pointed his pistol at the police officers and that he lied when he claimed that the gun had been holstered, there was probable cause for his arrest for menacing the officers. The court also found that the officers were entitled to qualified immunity, given that they were aware of the possibility that someone on the roof had been threatened with a firearm and then saw the arrestee appear at the door with a gun. Their perception of risk under these circumstances was therefore "objectively reasonable," so that even if they lacked probable cause, they were entitled to qualified immunity.

     Rodriguez v. City of New York, #00-9415, 41 Fed. Appx. 486 (2nd Cir. 2002).

     »Click here to read the decision on the AELE website.

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•••• EDITOR'S CASE ALERT ••••

Sheriff's deputy was not entitled to qualified immunity for making an arrest based on a civil dispute over the ownership of a car.

     Is an officer entitled to qualified immunity, as a matter of law, for seizing an individual based on a civil dispute? A panel of the U.S. Court of Appeals for the Ninth Circuit answered "no."

     The case arose from the seizure of a man by a sheriff's deputy and other members of the Lander County Sheriff's Office in August of 1996. The man seized had met with a deputy District Attorney in order to attempt to resolve a dispute over the ownership of an automobile that he believed he had purchased. Also present at the meeting were the deputy and the other party claiming ownership of the vehicle.

     In the course of the meeting, the prosecutor told the man that he did not have good title to the car, that he planned to turn the title over to the other party, and that whoever had the title was entitled to possession of the car. In response, the man "grabbed the official title document" from the prosecutor and "attempted to eat it so as to prevent the title from being used to deny his claim to the car." The prosecutor grabbed the document back and ordered the man to leave his office.

     After the man left, the prosecutor realized that he might have had the vehicle keys in his possession, and he dispatched the deputy to recover the keys, instructing him to arrest the man for disorderly conduct if he "caused any problems." The deputy found the man at a nearby cemetery, and asked him to talk. After the man told the deputy to "stay out of the matter since it was civil in nature," the deputy chased him, caught him, and tore off his shirt, ultimately subduing him with the assistance of other officers and the use of pepper spray which caused him to black out. He was then transported to the hospital where he underwent treatment for a fractured rib and neck pain, and was issued a citation for resisting and delaying a public officer.

     A trial court denied the deputy's motion for summary judgment on the basis of qualified immunity.

     Upholding this result, a federal appeals court noted that "by its definition, probable cause can only exist in relation to criminal conduct. It follows that civil disputes cannot give rise to probable cause." In the trial court, the deputy had argued that there was probable cause to arrest the plaintiff because he attempted to "snack on" an official document "in violation of Nevada's forgery statute," and because he failed to heed the deputy's "request to talk." The appeals court noted that the deputy had "abandoned these arguments on appeal."

     The appeals court further found that concluding that there was an arrest "is not a difficult question" under the circumstances of the case. It found that the deputy and those other officers who assisted him did not take aggressive action against the plaintiff because of a "safety issue," but rather because they believed he had a set of car keys. The deputy knew that the dispute was civil not criminal, yet pursued the plaintiff, subjecting him to tackling, chemical spray, and handcuffing, subduing him with sufficient force to send him to the hospital.

     "Under these circumstances, it would have been decidedly unreasonable to assume that 'he was free to leave after brief questioning.'" He had been arrested, without probable cause, in violation of his Fourth Amendment rights, the appeals court concluded.

     The appeals court found that the principle that civil disputes do not provide probable cause to arrest is clearly established law. It also rejected the argument that the prosecutor's advice that the plaintiff was not the lawful owner of the car and instructions to the officer to retrieve the keys from him or else arrest him necessarily made the officer's conduct objectively reasonable.

     A lawyer's advice, the court noted, does not render an officer's "conduct per se reasonable," although it may be evidence of good faith. The officer's argument, therefore, raised a possible factual issue as to his good faith. Given that, however, he was not entitled to qualified immunity as a matter of summary judgment, since the facts alleged by the plaintiff were that the deputy violated his right not to be arrested in the absence of probable cause to believe that he committed a crime, a right that was "clearly established and would be known to a reasonable officer in the circumstances."

     Stevens v. Rose, #00-15840, 298 F.3d 880 (9th Cir. 2002).

     »Click here to read the decision on the court's website. (.pdf format).

     EDITOR'S NOTE: Prior decisions ruling that civil disputes cannot give rise to probable cause to arrest include Allen v. City of Portland, 73 F.3d 232 (9th Cir. 1995), Wooley v. City of Baton Rouge, 211 F.3d 913 (5th Cir. 2000), Peterson v. City of Plymouth, 60 F.3d 469 (8th Cir. 1995), and Moore v. Marketplace Rest., 754 F.22d 1336 (7th Cir. 1985).

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Arrestee's agreement to release his right to pursue a federal civil rights lawsuit against state police officials in exchange for prosecutor's dismissal of the remaining criminal charges pending against him was valid and enforceable.

     An arrestee filed a federal civil rights lawsuit against the Kentucky State Police (KSP), the KSP Commissioner, a KSP captain, a KSP supervisor, and a KSP trooper, claiming that the trooper used excessive force against him during an arrest following a traffic stop, causing him serious injury. The motorist faced criminal charges of third-degree assault, first degree fleeing a police officer, a second offense of driving under the influence of a controlled substance, reckless driving, and a second offense of being a persistent felony offender.

     Subsequently, with the advice of his lawyer, he entered into a written plea agreement in state court, pleading guilty to the assault and DUI charges and agreeing to dismiss his federal civil rights lawsuit in exchange for the dismissal of the remaining criminal charges. The trial court accepted this guilty plea and sentenced him to eighteen months in prison. The KSP defendants in the federal civil rights lawsuit then filed a motion to dismiss, but the arrestee opposed the motion. The federal trial court dismissed the lawsuit.

     The arrestee appealed the dismissal, arguing that he was not required to comply with the release-dismissal agreement because he did not receive credit for 90 days of jail time, credit he maintained that the prosecutors promised him that he would receive. The appeals court noted, however, that the agreement made no mention of any such credit.

     Under the principles set forth in Town of Newton v. Rumery, 480 U.S. 386 (1987), a release-dismissal agreement such as the one the plaintiff arrestee entered into is valid and enforceable "as long as the agreement has been entered voluntarily, there is an absence of prosecutorial misconduct, and there is no adverse effect on relevant public interests," with the burden of proving the validity of the agreement on the party attempting to enforce it.

     The appeals court found that all three parts of this test were met, so that the agreement was valid and enforceable.

     Prowell v. Kentucky State Police, #01-6264, 40 Fed. Appx. 86 (6th Cir. 2002).

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Officers did not have probable cause to arrest teenager in a car based on one anonymous phone tip that the car occupants had a gun and a second tip, from an identified person, that the car occupants were "dissing" an identified person.

     An arrested teenager and his father brought a federal civil rights lawsuit against a New York municipality and a number of its officers over the teenager's arrest while driving around with some other teenagers in a car. The arrest was allegedly based solely on one anonymous phone tip that three or four teenagers in the car had guns, followed by a subsequent tip from a person known to one of the officers that "three guys" in a red car were "dissing" an identified person.

     Following the two tips, officers spotted a red car bearing the license plate reported by the anonymous informant in the vicinity reported by both informants. They then arrested the plaintiff teenager. The plaintiffs' lawsuit claimed that the officers did not have probable cause and used excessive force.

     Denying summary judgment to the defendant officers, the trial court noted that an anonymous phone tip alone cannot be the basis of probable cause. Indeed, an anonymous tip, unless "suitably corroborated," does not even have "sufficient indicia of reliability to provide reasonable suspicion" to make an investigatory stop, citing Alabama v. White, 496 U.S. 325 (1990), "let alone probable cause to arrest."

     The defendant officers, submitting a tape of the phone tip, argued that the informant had actually identified herself. Reviewing the tape, the court noted that while the caller did initially state her name, the officer answering the call replied "Mrs. What," indicating that he did not hear or understand the name, and that the caller then declined to repeat her name after being told that she could remain anonymous if she wanted to. The police department's call records also identified the caller as an anonymous informant. Since the officer had no basis on which to assess the caller's reliability, the call could not, standing alone, provide probable cause to arrest.

     The officers also claimed that the second tip, which came from a person one of them knew and had dealt with before, told them that the occupants of the red car were "looking to assault" a named person. The informant herself, however, stated that all that she had told the officers was that she had overheard a friend of the named person tell him that there was a car, "I think he said red, with three guys in it and they were dissing George." The court noted that this statement about "three guys" "dissing [disrespecting] George," even if true did not provide any reason to think that the "three guys" in the "possibly red car were engaged in any criminal activity at all." Accordingly, the second tip, standing alone, also provided no probable cause for an arrest.

     The trial judge further found that "even taken together, the two tips do not furnish probable cause sufficient to justify" taking the teenager into custody or charging him with a crime, "since neither tip provides tangible information suggesting a fair probability" that he had committed any criminal activity.

     The two tips together may have provided reasonable suspicion sufficient to justify an investigatory stop under Terry v. Ohio, 392 U.S. 1 (1968) --approaching the driver of the car to ask some questions, the court acknowledged. But the defendant officers did not argue that this is what they did or that the detention of the teenager was "anything but an arrest."

     Marinis v. Village of Irvington, 212 F. Supp. 2d 220 (S.D.N.Y. 2002).

     »Click here to read the decision on the AELE website.

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State trooper was not entitled to qualified immunity for his shooting of a Port Authority police officer in full uniform who he stated he believed to be an armed murder suspect he had been pursuing. Injured officer claimed that trooper unreasonably failed to look into vehicle where sought suspect had just committed suicide and unreasonably shot him only because, like the suspect, he was a "black man with a gun."

     A New Jersey State Trooper shot and seriously injured a Port Authority Police Officer who he mistook for an armed criminal suspect. The trooper had been chasing a "tall black male" who had fled in a car after murdering a police officer. The chase ended on the George Washington Bridge where, after colliding with another vehicle, the suspect shot himself to death. Moments later, the trooper arrived at the toll plaza, still believing he was in pursuit of the suspect.

     In response to a radio transmission about the chase, the Port Authority officer, dressed in standard police uniform, also arrived at the plaza. Two witnesses at the scene subsequently stated that they recognized him to be a police officer. The state trooper, claiming to see a "tall thin black male" with a gun aimed at him, fired his shotgun at the officer. The officer suffered permanent injuries, including the loss of use of his right leg.

     The officer sued the state trooper under 42 U.S.C. Sec. 1983. A federal appeals court overturned the trial court's determination that the state trooper's conduct was "objectively reasonable" so that he was shielded by qualified immunity.

     The evidence showed that the suspect sought was, at the time both plaintiff and defendant arrived on the scene, dead inside his Camry car on the bridge, having shot a bullet into his own mouth. While the trooper testified that he looked in the vehicle but could see no one, the plaintiff argues that he could not have looked in, since if he did, he would have seen the suspect's dead body sprawled across the front seat.

     Witnesses at the scene did not support the trooper's version of what followed, according to the court. While he stated that he saw the Port Authority officer point his weapon at him, the other witnesses did not. The trooper stated that the officer's clothing was dark and that he could not tell that he was wearing a uniform of any kind. He admitted, however, that there was sufficient light for him to see that the officer was a light-skinned black male. Two other witnesses on the scene had no difficulty in identifying the officer as police, based on the uniform he was wearing.

     The trooper did not immediately shoot his weapon at the officer upon seeing him, later stating that he "had froze in fear." The trooper claims that he screamed for the officer to drop his gun and shot after the officer had raised his arms up and down three or four times. The officer, on the other hand, says that he did not hear or even see the trooper before getting shot by him. He also denied getting in a three-point stance or pointing his gun at anyone or raising his arms up and down as the defendant claimed. He did admit, however, that he approached the trooper with his gun extended in front of him and held with both hands.

     The plaintiff officer argued that the trooper shot him not because the totality of the circumstances indicated that he was the armed suspect sought and posed a dangerous threat, but because the trooper, ignoring other evidence, acted "based on the single fact" that he, like the suspect, "was a black man with a gun." He argued that the trooper acted unreasonably by neglecting to look in the window of the suspect's vehicle, by failing to wait for backup, and for not recognizing that the officer's behavior and movements were "inconsistent with those that should have reasonably been expected of the suspect."

     The appeals court concluded that these alleged facts would be sufficient to support the claim that the trooper's shooting of the officer constituted an unreasonable seizure violative of his Fourth Amendment rights. The court also found that the trial court failed to view the facts in the light most favorable to the plaintiff for purposes of deciding the officer's qualified immunity summary judgment motion, and appears to have "overly credited" the trooper's account of what happened at the toll plaza. A jury, the appeals court found, must resolve the disputed factual issues before a court can determine whether it would have been clear to a reasonable officer that the trooper's conduct was unlawful.

     Based on Alston v. City of Camden, 168 N.J. 170, 773 A.2d 693 (2001), the court held that the trial judge was correct in ruling that the trooper was shielded from liability under the N.J. Tort Claims Act, N.J. Stat. Ann. Sec. 59:5-2, granting immunity to public employees for any injury "resulting from or caused by a law enforcement officer's pursuit of a person. Alston rejected prior caselaw stating that the rule in the statute did not apply to injuries resulting from the use and handling of police firearms.

     Curley v. Klem, #01-1093, 298 F.3d 271 (3rd Cir. 2002).

     »Click here to read the decision on the Internet. (.pdf format)

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•••• EDITOR'S CASE ALERT ••••

Police officer did not act reasonably in arresting man for shouting abusive comments at officers and answering them with sarcasm, which "amounted to no more than criticism of the police" and did not constitute either fighting words or incitement of others to imminent unlawful violence. Qualified immunity defense was not available.

     A City of Huntington Beach, California officer arrested a man for shouting abusive comments at police, and the arrestee sued, claiming deprivation of his constitutional rights, including his First Amendment right to free speech, as well as a number of state law violations.

     The defendant officer argued that he had probable cause to make the arrest under Cal. Penal Code Secs. 148 and 415, prohibiting resisting or obstructing an officer in the discharge of their duties and the use of "fighting words," respectively.

     Upholding the rejection of this argument by the trial court, a federal appeals court ruled that the officer arrested the plaintiff without probable cause.

     What the plaintiff shouted before his arrest was "Don't let'em do it! They don't have a search warrant," and "That's fucked up, those pigs can't do that without a search warrant." He then walked away, and the officers partner began to explain why "his comments weren't necessary," so that the plaintiff could "have a better understanding" of what the police were doing. In response, the plaintiff replied, "I speak no English. I'm a foreigner." At that point, the arrest was made.

     The appeals court rejected the argument that the remarks could be validly prohibited as either obstructing the police by inciting the crowd or as fighting words. The plaintiff could not be arrested "for his words unless they are somehow stripped of their First Amendment protection. While the First Amendment does not protect threats," the court noted, citing Rankin v. McPherson, 483 U.S. 378 (1987), the "bar is high" for speech to "qualify as illegal advocacy of violence, without the protection of the First Amendment."  Such speech can be prohibited, as stated in Brandenburg v. Ohio, 395 U.S. 444 (1969), only when advocacy is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." (Indeed, in Rankin, the firing of a police clerk for remarks approving of an assassination attempt on the President was held to violate her First Amendment rights when the remarks were found not to be a threat, and based on other factors concerning the nature of the employee's job duties).

     In this case, the appeals court found, the plaintiff's speech "amounted to no more than criticism of the police." As noted in City of Houston v. Hill, 482 U.S. 451 (1987), the First Amendment "protects a significant amount of verbal criticism and challenge directed at police officers." The appeals court stated:

Along with good judgment, intelligence, alertness, and courage, the job of police officers requires a thick skin. Theirs is not a job for people whose feelings are easily hurt.

     The court also rejected the officer's argument that he was entitled to qualified immunity. "Although mistaken in believing that he had probable cause to arrest" the plaintiff, was the officer's "mistake reasonable? We conclude that it was not, and thus" he was not protected by qualified immunity. "No officer could reasonably believe that a person could lawfully be arrested for shouting criticism at the police and answering police questions with sarcasm." 

     Resek v. City of Huntington Beach, #01-56029, 41 Fed. Appx. 57 (9th Cir. 2002).

     »Click here to read the decision on the AELE website.

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State trooper's pursuit of a speeding van proximately caused the death of a motorist whose car was struck by the pursued vehicle so that the state was liable under Nebraska state law for the motorist's death. Nebraska Supreme Court orders a trial on the issue of damages.

     A Nebraska state trooper patrolling the highway encountered a speeding van. After using radar to determine that the van was traveling at 94 miles per hour, the trooper turned his car around, activated his siren and overhead lights, and began a pursuit that lasted approximately 27 miles through three different towns as the motorist increased his speed to over 100 miles per hour.

     The pursued motorist passed through a roadblock and accelerated. At an intersection of the highway with a street, the van collided with two vehicles. The driver of one of the cars was killed. The estate of the deceased motorist filed a wrongful death lawsuit against the state seeking damages for her pain and suffering as well as medical and funeral expenses.

     The trial court dismissed the claim against the state, finding that the pursued driver was suffering a "psychotic episode" which continued after the collision, and had been "undeterred" by the collision in his "obsession to return home" at a high rate of speed. Accordingly, the trial court found that, although the state trooper's pursuit was "obviously a factor" in the accident, the evidence did not show that the pursued driver would have driven other than as he did in the absence of a pursuit.

     The Supreme Court of Nebraska disagreed, reversed and remanding for a trial on the issue of damages alone, and ruling that the trooper's pursuit of the van, which included the use of the roadblock, was a proximate cause of the accident, so that the state was liable for the motorist's death under the State Tort Claims Act, Neb. Rev. St. Sec. 81-8,215.01. That section of the law, the court found, imposes "strict liability" on the state when death or injury is proximately caused by the actions of a "pursuing law enforcement officer and the claimant is an innocent third party."

     The court noted that the pursued driver was clearly aware that he was being pursued by law enforcement, and increased his speed at several times during the pursuit. Despite the trial court's finding that the driver was suffering from a "psychotic" condition, the court stated that it was not disputed that some of the driver's actions while driving "were for the purpose of eluding his pursuer," including swerving around the roadblock and accelerating after passing it.

     Immediately after the accident, the pursued driver said that "I knew we had to outrun that police officer because he was going to kill us." This driver's reasons for evading the pursuer, "whether real or imagined," the court said, "are not relevant to our determination. What is important is the fact that at certain times," his "actions were a result of his attempts to evade his pursuer." His attempts to elude the police, the pursuit, and the roadblock were factors contributing to the van's arrival at the intersection at a time which resulted in the accident.

     The court concluded that the trooper's actions "set in motion a series of events through which the accident occurred. These events were combined in one continuous chain which ultimately resulted in the accident." While the question of proximate cause, in the face of conflicting evidence, is ordinarily one for the trier of fact, and a court's determination will not be set aside unless it is clearly wrong, the Supreme Court of Nebraska held that, under these circumstances, the trial court's finding of no proximate cause was clearly wrong, with the only issue remaining the amount of damages to be awarded.

     Meyer v. State of Nebraska, #S-01-303, 650 N.W.2d 459 (Neb. 2002).

     »Click here to read the decision on the Internet.

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Officer had probable cause to proceed with charges against male high school student accused by female student of sexually assaulting her and later menacing her in violation of his conditions of release. Arrestee's contention that investigative network of police and prosecutors focusing on domestic violence and sexual abuse cases had an "anti-male" bias and a "secret, sinister agenda" was "unsupported speculation."

     A man claimed that a city and one of its police officers violated his rights during an investigation which resulted in his arraignment in state court, first on a charge of sexual assault, and later on charges of violating his conditions of release by allegedly coming within 500 feet of his purported victim to menace her. His lawsuit asserted both federal and state law claims.

     He alleged that the officer failed to conduct "any type of reasonable investigation," but instead "admittedly accepted the story of the complaining witness as true without any critical inquiry of the truth or veracity of the allegations or the credibility of the witness despite the many inconsistencies and exculpatory information that was recklessly or purposely omitted or mischaracterized in his Affidavit as a result of his incompetence and/or bias."

     On the issue of alleged bias, and on the issue of municipal liability, the plaintiff claimed that the officer violated his rights as a result of the failure of the city to train or supervise him properly and as a result of its customs or policies.

     In particular, he complained about the city's participation in or cooperation with the "Washington Investigative Network (WIN)," a multi-disciplinary unit of police investigators, prosecutors, and an advocate coordinator who work together to conduct investigations involving domestic violence and sexual abuse. He argued that this unit had a "secret, sinister agenda" and a "real and perceived anti-male attitude" which resulted in his arrest.

    The trial court found no real evidence that the city's association with "WIN" had been undertaken "for the purpose of denying the plaintiff or any other male his civil rights," and dismissed his contention that WIN had a secret agenda and an anti-male attitude as "unsupported speculation."

     It also found the allegations of failure to adequately train or supervise unsupported. To the contrary, the record showed that the officer acted as a "well-trained investigator of patently credible allegations against the plaintiff." It also showed that the officer was trained in criminal investigation in general and the investigation of sexual assault and child-victim cases in particular. Further, the officer consulted with the prosecutor's office in the course of his investigation, and it was actually the prosecutor who determined that the officer's investigation had yielded probable cause to arrest and prosecute.

     Examining the particular facts of the case, the court found that the officer had probable cause to initiate the charges against the plaintiff. Both the plaintiff and his accuser were students at the same high school and had dated. The accuser, during a taped statement, reported that the plaintiff had forced her to engage in sexual intercourse, and an assistant principal reported that the plaintiff initially denied the incident, but then admitted having "rough" sexual intercourse with his accuser.

     When the officer questioned the plaintiff, he made a contradictory statement denying that he had been alone with the accuser on the night the assault allegedly took place. The officer also had a statement from one of the plaintiff's former girlfriends that, during their brief relationship, he had been physically and sexually abusive, and frequently used alcohol and marijuana. All these circumstances supported the accuser's claim that the plaintiff, when intoxicated, had sexually assaulted her.

     The officer's charges that the plaintiff had violated the conditions of his release by coming close to the accuser and menacing her in the hallways at school was supported not only by her statements, but by confirmation by other witnesses. Given all of this, the officer's alleged "bias" or motive for arresting the plaintiff was not relevant to the issue of probable cause.

     The federal court also found that the city was entitled to immunity from state law claims by the plaintiff. In Vermont, the court stated, "municipalities can only be held liable for injuries arising from their proprietary, as opposed to governmental duties," and "there can be little question that police work is a quintessential governmental function." Given that the court had determined that the officer acted with arguable probable cause under federal law, it ruled that he was also entitled to qualified immunity under state law from the plaintiff's malicious prosecution claim.

     Treon v. Whipple, 212 F. Supp. 2d 285 (D. Vt. 2002).

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Exigent circumstances justifying an officer's warrantless entry into a home were present when she was informed by a second officer, who she believed to be truthful and reliable, that an armed suspect had run inside, but appeals court orders further proceedings on whether officer was entitled to qualified immunity on her purported failure to comply with the Fourth Amendment's "knock and announce" requirement before entering.

     More than eleven police officers in Toledo, Ohio responded to an emergency call for backup following the firing of gunshots in an area. After hearing from another officer that an armed suspect had run into a house at a particular address, one officer entered that residence and began to search for the suspect, who was not found inside. The residents of the house filed a federal civil rights lawsuit against that officer and ten of her fellow officers, alleging a violation of their Fourth Amendment rights.

     The trial court's grant of qualified immunity to the other ten officers was upheld in a prior unreported appeal, Smith v. Stone, No. 99-3208, 2000 U.S. App. Lexis 11785, 2000 WL 687672 (6th Cir. May 19, 2000), while further proceedings were ordered as to the officer who entered the house. On remand, the trial court denied the officer's motion for summary judgment.

     Reversing in part, a federal appeals court found that the officer's warrantless entry into the home was justified by a reasonable belief in the presence of exigent circumstances. She submitted an affidavit stating that she had been informed about the armed suspect's purported run into the house from another officer who had been her partner for several years at the time of the shooting incident, and that he had always proved himself to be "truthful and reliable."

     The appeals court found that these "undisputed facts" supported the reasonableness of the defendant officer's reliance on this information and her belief that exigent circumstances justified the warrantless search of the plaintiffs' residence. The court found that it was "simply immaterial" whether a written incident report summarizing the partner's view of the incident was later asserted to be false, because the defendant officer had no reason to doubt his reliability at the time he informed her of the armed suspect, "much less an opportunity to learn about the allegedly false statement."

     The appeals court still ordered further proceedings, however, on the issue of whether the officer was entitled to qualified immunity for her asserted failure to satisfy the Fourth Amendment's "knock and announce" requirement before entering the plaintiffs' residence. See Wilson v. Arkansas, 514 U.S. 927 (1995) for the U.S. Supreme Court's ruling that the common-law knock-and-announce principle forms a part of the Fourth Amendment reasonableness inquiry.

     Smith v. Stone, #00-4574, 40 Fed. Appx. 197 (6th Cir. 2002).

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Search warrant for home which did not contain any description of the evidence sought failed to comply with the Fourth Amendment's requirement of particularity. An officer's alleged verbal description to the homeowners of the items to be searched for was not sufficient to overcome this defect, and the warrant did not refer to or incorporate the application or affidavit used to obtain it. Rank and file officers on the search team were entitled to qualified immunity, but the leader of the search team was not.

     After an agent of the Bureau of Alcohol, Tobacco and Firearms (BATF) received two reports that homeowners kept an automatic rifle, a rocket launcher, a grenade launcher and grenades on their ranch in western Montana, he prepared an application for a search warrant and supporting affidavit, presenting it to a magistrate judge who issued the warrant.

     While the application properly described both the place to be searched and the items sought, the warrant itself omitted the items sought entirely. In the space provided to list the items to be seized, the agent mistakenly typed a description of the home. The agent led BATF agents and members of the county sheriff's department in executing the warrant.

     During the search, no illegal weapons were found and no explosives, but the search team photographed the home's interior and recorded the serial numbers of the legal firearms found. The agent left a copy of the search warrant with neither the application nor the affidavit attached. He also verbally told the one homeowner present that the search was being conducted because "somebody called and said you have an explosive device in a box." Nothing was seized, and no charges resulted.

     The homeowners sued the officers for violation of their Fourth Amendment constitutional rights. The trial court granted summary judgment to the defendants on the basis of qualified immunity.

     A federal appeals court has held that the search warrant, by failing to contain any description of the evidence sought, failed to comply with the Fourth Amendment's requirement of particularity.

     The agent's alleged verbal description of what the search team was looking for was insufficient to overcome this defect. The appeals court ruled that the rank and file officers on the search team were entitled to qualified immunity, since they had acted reasonably, relying on statements by their superiors that a warrant had been obtained, and a briefing as to what items could be seized. They had no duty to read the warrant and therefore could not have known that it was defective. On this basis, the appeals court also rejected a claim that each of these officers was "liable as a bystander for failing to intercede" and prevent their co-defendants' constitutional violations.

     The search team leader, however, the agent who had obtained the warrant, was not entitled to qualified immunity. In the absence of a statement of the items to be sought and seized, the warrant was "so facially deficient" that he could not reasonably have presumed it to be valid if he read it.

     The appeals court rejected the plaintiffs' argument, however, that they could also pursue a claim for violation of their general right to privacy in addition to their Fourth Amendment claim concerning unreasonable searches and seizures. The constitutionality of the search was governed by the Fourth Amendment's "explicit textual protection" rather than the more general right to privacy. The plaintiffs could not "double up" on their constitutional claims, the court stated. "Where a claim can be analyzed under 'an explicit textual source' of rights in the Constitution, a court may not also assess the claim under another, 'more generalized' source."

     Ramirez v. Butte-Silver Bow County, #99-36138, 00-35955, 298 F.3d 1022 (9th Cir. 2002).

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Tying up an arrestee to a metal pole in a deserted parking lot and leaving him there for officers from another jurisdiction to pick up on outstanding arrest warrants violated his due process rights under Maryland state constitution. Officers were entitled to qualified immunity on federal due process claim, but appeals court warns that officers are "now on notice" that such "Keystone Kop" activity in the future would "implicate federal due process guarantees."

     Police officers responding to a disorderly conduct noise complaint at an apartment complex obtained identification from three men found drinking beer on the premises. They then arrested one of the men on an outstanding traffic warrant issued by a neighboring county. After they took the arrestee into custody, they attempted to arrange a prisoner exchange with the other county's police department, but were denied an informal exchange because the other county's officers were too busy that evening.

     The normal procedure for formal custody transfers usually requires that the arrested individual be taken to a commissioner in the county where arrested and then transferred by the sheriff's department to the county that issued the warrant. The officers wanted to avoid this, if possible, because the procedure is "time consuming."

     The arresting officers were evidently "skeptical" of the explanation that the other county's officers were too busy to come take custody of the arrestee. They drove the arrestee to a deserted shopping center parking lot in the neighboring county. Once there, they tied him to a metal pole using three pairs of flex-cuffs and left a note at his feet explaining that there were outstanding warrants for him. They then drove out of sight and placed a call to the non-emergency number of the county's police department, reporting the situation without identifying themselves to the operator or disclosing that it was police officers who had tied the arrestee to the pole.

     Officers from the other county arrived in approximately ten to 15 minutes to untie the arrestee and take him into custody. He then filed a lawsuit against the two officers who tied him up and the county which employed them, alleging violation of his civil rights under both the Maryland and U.S. Constitution.

     The trial court granted summary judgment on the basis of qualified immunity on the federal civil rights claim. A jury then awarded a total of $647,000 in compensatory and punitive damages on the claim that officers' actions violated his due process rights under the Maryland state constitution. Maryland Constitution Declaration of Rights, Art. 24.

     The jury's award was found to be excessive by the trial court, and the plaintiff rejected a reduction of the award to $240,000. In a second trial limited to the issue of damages, the jury awarded a total of $40,000 in compensatory and punitive damages ($25,000 in compensatory damages against the two officers and the county, $5,000 in punitive damages against one officer, and $10,000 in punitive damages against the county). The trial court refused the plaintiff's request that he be awarded attorneys' fees under 42 U.S.C. Sec. 1988 as a "prevailing party," noting that he did not prevail on his federal claims, but only on his state law claim.

     A federal appeals court upheld the rejection of attorneys' fees by the trial court, and most of the other rulings of the trial court. It overturned the award of punitive damages against the county, however, because Maryland state law disallows any such award against a county. Section 5-303(c)(1) of the Local Government Tort Claims Act clearly states that a "local government may not be liable for punitive damages. (The text of the provision may be searched for on the Maryland legislative website by clicking here).

     Upholding qualified immunity for the defendant officers on the federal due process claim, the appeals court stated that the officers "should have known, and indeed did know, that they were acting inappropriately. But whether they understood their conduct violated clearly established federal law is an altogether different question." The court stated:

"The officers' conduct violated police regulations as well as state law and was dealt with under those provisions. But not every instance of inappropriate behavior on the part of police rises to the level of a federal constitutional violation. Going forward, officers are now on notice that the type of Keystone Kop activity that degrades those subject to detention and that lacks any conceivable law enforcement purpose implicates federal due process guarantees. Going backward, however, and imposing retrospective liability would eviscerate the requirement of notice at the core of the qualified immunity defense."

     The appeals court also upheld the trial court's rulings that the initial $647,000 jury award was excessive, in light of the brevity of the detention, the absence of any physical abuse, and the fact that, although the plaintiff did suffer from emotional distress, no medication or counseling was required to resolve it. Additionally, there was no claim for lost wages or medical treatment in connection with "this ten minute incident," and the plaintiff did not see any type of doctor about it "until three years later on the advice of his lawyer."

     Robles v. Prince George's County, Maryland, #01-1662, 01-1728, 302 F.3d 262 (4th Cir. 2002).

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Damages: Compensatory

     Jury's award of $250,000 in damages for past pain and suffering to motorist for injuries suffered in fight with off-duty police officer was excessive, requiring a new trial unless the plaintiff agreed to a reduction to $150,000 for that portion of the award. Becker v. City of New York, 745 N.Y.S.2d 857 (N.Y. City Civ. Ct. 2002).

Defenses: Eleventh Amendment Immunity

     Deputy sheriff was acting on behalf of the state in the area of state courthouse security by serving criminal trespass notices on the plaintiff, following his courthouse protest, prohibiting him from entering all state court facilities or grounds. He therefore could not be held liable, in his official capacity, for purported violations of the plaintiff's First Amendment rights, since he was not acting on behalf of the county. Huminski v. Rutland County Sheriff's Department, 213 F. Supp. 2d 520 (D. Vt. 2002).

Defenses: Indemnification

     City's refusal to indemnify officer in case where jury awarded $605,001 in excessive force lawsuit over incident in which arrestee died of brain injury was not arbitrary or capricious. City's own investigation determined that the officer acted intentionally, relieving it of the duty of defending and indemnifying him. City was not barred from raising this defense to indemnification by its own prior denial, in the underlying lawsuit, that the officer had acted intentionally or recklessly. Banks v. Yokemick, 2214 F. Supp. 22d 401 (S.D.N.Y. 2002).

Defenses: Service of Summons

     The dismissal of an arrestee's federal civil rights lawsuit against arresting officers for failure to achieve service of process was an abuse of discretion when the trial court did not rule on whether the arrestee showed good cause for delay and the ruling did not indicate that the trial court knew it had could, in its discretion, grant an extension of time to the plaintiff. Hurst v. Names Unknown, #02-1440, 42 Fed. Appx. 895 (7th Cir. 2002).

Defenses: Statute of Limitations

     D.C. statute of limitations on arrestee's false imprisonment and excessive force claims was not tolled (extended) by his subsequent arrest on unrelated charges two weeks after his release, or by his subsequent imprisonment on those charges. Arrestee actually initially filed a federal civil rights lawsuit over the first incident after the second arrest, but withdrew it, waiting five years to re-file it. Arnold v. District of Columbia, 211 F. Supp. 2d 141 (D.D.C. 2002).

False Arrest/Imprisonment: No Warrant

     Police officer had probable cause to arrest fisherman for use of illegally large cast nets, even if the formula that the officer used for measuring circular nets was the incorrect formula. Officer observed that the nets were very large and reasonably believed them to be of an illegal size. Grix v. Florida Fish and Wildlife Conservation Commission, No. 4D01-3492, 821 So. 2d 315 (Fla. App. 4th Dist. 2002).

Federal Tort Claims Act

     Former deputy U.S. Marshal's claim that the CIA and Bureau of Narcotics tested psychoactive drugs on him without his consent or knowledge was not barred by the intentional tort exception to the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 2671 et seq., since they could be interpreted as asserting claims for negligent supervision. Plaintiff's claims also were not barred by the Federal Employees' Compensation Act, 5 U.S.C. Sec. 8116 et seq. since his allegation that he was involuntarily given LSD while attending a holiday party at the Post Office as part of a CIA experiment did not relate to dangers created by his employment. Ritchie v. U.S.A., 210 F. Supp. 2d 1120 (N.D. Cal. 2002).

First Amendment

     An arrestee's actions in pouring a drink on another patron in a casino did not involve the exercise of his First Amendment right to speech, so summary judgment was properly granted in his federal civil rights lawsuit over his arrest for doing so. Corrigan v. Jaeger, #01-16903 43 Fed. Appx. 69 (9th Cir. 2002).

Freedom of Information

     Newspaper was entitled, under New Jersey Right to Know Law, N.J.S.A. 47:1A-1 et seq., to disclosure of transcript of 911 calls concerning confrontation between motorist and officers that resulted in criminal charges against three officers. Newspaper was also entitled, under common law, to release of 911 call tape recordings, but police reports were not to be disclosed under either statute or common law since the potential impairment of an ongoing investigation outweighed the public interest in disclosure. Asbury Park Press v. Lakewood Township Police Department, 804 A.2d 1178 (N.J. Super. L. 2002).

Governmental Liability: Policy/Custom

     Homeowner waived her claim for municipal liability for alleged unreasonable search of her home when her appeals court brief merely stated that she "expressly preserves" that claim without specific and distinct arguments as to how the city was responsible. Jones v. William, #00-56929, 41 Fed. Appx. 964 (9th Cir. 2002).

     Arrestee could not establish city's liability for purported illegal search in which his pants were unbuckled and allowed to drop, when there was no evidence that the only officer the plaintiff identified participated in or was even aware of the purported search. Moody v. City of Lewiston, 213 F. Supp. 2d 1 (D. Me. 2002).

Miscellaneous: Towing

     Florida statute allowing a county to operate a wrecker operator system did not give a county sheriff authority to establish a system under which towing companies would rotate in providing services at the site of a wreck or to threaten arrests of tow company's employees for allegedly soliciting business at the scene of a wreck when the county board had never adopted the sheriff's rules by a formal vote. Rebel Enterprises, Inc. v. Palm Beach Sheriff, #01-15738, 299 F.3d 1261 (11th Cir. 2002).

     Business owners were entitled to notice and an opportunity to be heard before their vehicle was towed from a private residential property. Redwood v. Lierman, No. 4-01-0612, 772 N.E.2d 803 (Ill. App. 4th Dist. 2002).

Negligence: Vehicle Related

     Driver of all-terrain vehicle struck by car operated by deputy under the supervision of the sheriff, who was also present in the car, alleged sufficient facts about collision to assert a negligence claim against the defendants in their official capacity under Federal Rule of Civil Procedure 8. Dillon v. Brown County, Nebraska, 214 F. Supp. 2d 1031 (D. Neb. 2002).

Procedural: Discovery

     Trial court should not have converted a motion to dismiss a federal civil rights lawsuit over the plaintiff's two arrests under warrants meant for his brother to a motion for summary judgment without first allowing the plaintiff notice and a "reasonable opportunity" to conduct discovery. Carter v. Baltimore County, Md., #01-2242, 39 Fed. Appx. 930 (4th Cir. 2002).

Public Protection: Ill Persons

     Parents of child who died from choking could not recover damages against city for failure of emergency medical technicians to rescue him. The child had no due process right to be rescued or any constitutional right to be given competent services once his rescue was undertaken. Brown v. Commonwealth of Pennsylvania, #01-3234, 300 F.3d 310 (3rd Cir. 2002). A rehearing in this case was granted on September 9, 2002, and further developments in this case will be reported in subsequent publications.

Public Protection: Minors

     Adoptive parents of child could not recover damages against county or county employees based on constitutional claim that they failed to protect the child from physical abuse by the child's natural mother. The governmental defendants did not create the danger at issue or have any special relationship imposing a duty of care, as the alleged injuries occurred when the child was in the care of his natural mother prior to his removal from the home. Robbins v. Cumberland County Children and Youth Services, 802 A.2d 1239 (Pa. Cmwlth. 2002).

Search and Seizure: Home/Business

     Tenant of apartment failed to show that search warrant issued for her apartment to seek a murder weapon suspected to be there was improperly issued. The tenant did not point to any evidence that the information submitted in support of the warrant was unreliable and stale. Hamilton v. City of New Haven, 213 F. Supp. 2d 125 (D. Conn. 2002).

     Police officers could reasonably believe that homeowner's nephew, who stated that he was in control of the house for the weekend, had authority to consent to a warrantless search of the premises after he reported to police that minors present in the house were having a drinking party with alcoholic beverages. Carter v. Rosenbeck, 214 F. Supp. 2d 889 (C.D. Ill. 2002).

Search and Seizure: Person

     Airline passenger gave implied consent to a random search of his bag by security personnel, enforced by a city police officer, by placing the luggage on an x-ray conveyor belt. The random search of the bag for weapons and explosives did not violate the passenger's Fourth Amendment rights. Torbet v. United Airlines, #01-55319, 298 F.3d 1087 (9th Cir. 2002).

     Article: "Use of Force Policies & Training, A Reasoned Approach," by Thomas D. Petrowski, FBI Special Agent and Instructor, FBI Academy. Vol. 71, No. 10 FBI Law Enforcement Bulletin pgs. 25-32 (October 2002). (.pdf format). (First part of a two-part article. The second part will appear in the November 2002 issue. Subsequent and prior issues of the FBI Law Enforcement Bulletin are available on-line at: http://www.fbi.gov/publications/leb/leb.htm.)

     Report: Crime in the United States, 2001, annual FBI report (October 2002).