CONTENTS

Hospital employee's claim that deputy sheriff's supervisor was present when the deputy handcuffed her to a metal cart in the hospital elevator as a "joke," but did nothing to stop this was sufficient to state a claim for supervisor liability for violation of her Fourth Amendment rights.

     A female kitchen helper in a hospital was transporting a metal cart of dishes on an elevator when two uniformed officers of the local sheriff's department got on the elevator. After the doors closed, the deputy, without uttering a word, allegedly proceeded to handcuff the woman's wrist and then immediately handcuffed the other end of the handcuffs to a bar of the metal cart. The other officer present was a sergeant who was the deputy's supervisor.

     When the elevator reached the first floor, the officers exited and the woman followed them, still handcuffed to the cart. The deputy then made a "joke" about not having the key to the handcuffs, but then released her. Another officer from the sheriff's department came to the hospital the next day to tell her that she had been handcuffed as a "joke" and that she had not really been arrested.

     The woman filed a federal civil rights lawsuit under 42 U.S.C. Sec. 1983 against the deputy, his supervisor, and the county. The trial court dismissed claims against the county, finding no basis for municipal liability, but declined to dismiss claims against the deputy and his supervisor.

     The court rejected the deputy's argument that the plaintiff was not "seized" as "having no merit." The plaintiff "could reasonably have believed on the facts alleged that she was not free to go about her business" because the officer had handcuffed her.

The court further rejected the supervisor's argument that he could not be held liable because the plaintiff had not alleged that he was "personally involved" in the incident. "It is well-established," the court stated, "that a supervisor may be liable under Sec. 1983 if he 'knew of the violations and failed to act to prevent them.'" The allegations that he was present and witnessed the entire incident and did nothing to stop the deputy from handcuffing the plaintiff even though he was the deputy's supervisor were sufficient to state a claim based on "the inaction of a supervisor with knowledge of the alleged violation."

Lara v. County of San Mateo, No. C-01-1265, 163 F. Supp. 2d 1107 (N.D. Cal. 2001).

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Officers used reasonable force in subduing woman with chemical spray and pushing her to the ground when an altercation broke out as she was attempting to "directly interfere" with officer's attempts to maintain order and resisted arrest for attempting to interfere with the arrest of her son.

     A woman arrested by officers at a family barbecue in a public park when she attempted to interfere with the arrest of her adult son on an outstanding warrant claimed that officers used excessive force against her, including the spraying of a chemical irritatant in her hair.

     She allegedly argued with the officers regarding the nature of the warrant and her son ran into a large group of people and tried to run out of the park. One of the officers called for additional backup due to the escalating situation. As officers proceeded to attempt to arrest her son, she and other friends and family members allegedly swore at the officers and "advanced" upon them, following which fights broke out between the officers and the arrestee's friends and family.

     The mother next allegedly ran to interfere with an officer engaged in a fight with a 17-year-old female family friend, at which point the officer sprayed the mother's hair with a chemical irritatant. She was then placed under arrest, allegedly pushed to the ground and handcuffed, and then placed in a police vehicle. While she was in the vehicle, the chemical irritant in her hair allegedly ran into her eyes and ears. Within minutes, an officer sprayed her with water to remove the chemical irritant.

     Suing the city and officers, she claimed that the force used was excessive, and that her finger was fractured during the handcuffing.

     A federal appeals court rejected the plaintiff's complaints. Even assuming that her version of the facts was correct, the court said, the nature and quality of the alleged intrusions were "minimal," considering that she was interfering with an officer's efforts to arrest another person, which resulted only in the officer spraying the chemical irritant into her hair. The injury to her finger occurred "during what she admits was a normal handcuffing procedure., and any harm to her face came from the chemical irritant dripping.

     The plaintiff's "active interference" with an arrest "posed an immediate threat to the officers' personal safety and ability to control the group," and even her own testimony, the court found, "belies" the assertions that she and her family and friends did not physically or verbally threaten any of the officers or in any other manner breach the peace, except for the combat between one officer and the 17-year-old.

     Because no violation of the Fourth Amendment occurred, the court concluded, no claims could be maintained against the city or its supervisors, as well as no claims against the officer.

Jackson v. City of Bremerton, No. 99-36159, 268 F.3d 646 (9th Cir. 2001).

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Officer's use of "slight" force in arresting motorist who subsequently suffered a heart attack was not excessive. Officer had no knowledge of motorist's prior medical history, and motorist slapped officer. $175,000 jury verdict overturned.

     A 74-year-old female motorist with a history of coronary heart disease and three separate prior bypass surgeries, as well as emphysema and problems with her breathing, depression, and other medical problems, was driving her son to his friend's house in 102 degree weather. When she came to an intersection where a police officer was attending an oncoming funeral procession, she allegedly drove around the police car which had flashing lights.

     Although she had seen the funeral procession, she later stated that she knew that she "couldn't sit there an hour in the sun." The officer made a radio call and another officer pursued and stopped the motorist. While the officer was writing up a ticket for her, she began to feel ill and decided to go to the doctor, driving off after letting her son out of the vehicle. Officers followed her with flashing lights and ultimately stopped her.

     An officer put handcuffs on the motorist after, according to him, she slapped him. Her wrist was somewhat cut, and bled. She was taken to a police station where she was sent by ambulance to a hospital after examination by emergency medical technicians.

     It was later determined that she had suffered a "small" heart attack, which one of her doctors stated may have been contributed to by the confrontation with the officers. She also later pled guilty to a harassment charge based on slapping the officer as well as to a charge based on her bypassing the funeral procession roadblock. Then she filed a lawsuit against the arresting officer for excessive use of force.

     A jury returned a verdict for the plaintiff against the officer and awarded $175,000 in damages. The trial court set aside the jury's award, ruling that the officer's use of "slight" force in the course of arresting the plaintiff was not excessive, in light of the fact that the officer did not know the plaintiff's prior medical history and the plaintiff evidently slapped him in the course of the arrest.

     In the alternative, the court ruled that the officer was entitled to qualified immunity from liability. "It is a sad fact that any confrontation and any force may have contributed to a heart attack. The result, however, does not convert reasonable force under the circumstances into excessive force." If the plaintiff's heart attack was caused by that force, "it was because she had a predisposition to such an attack if there were a confrontational triggering event."

     Finally, the court also ruled that were there to be liability, the jury's award was excessive and that a new trial for damages would therefore be required, if liability were imposed, unless the plaintiff agreed to a reduction in the damages to $90,000.

Hendon v. City of Piedmont, No. CV 00-PT-2421-E, 163 F. Supp. 2d 1316 (N.D. Ala. 2001).

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Officers were entitled to absolute witness immunity for alleged perjured testimony in plaintiff's earlier civil rights lawsuit claiming excessive use of force during his arrest, but not on his claim that they engaged in an out-of-court conspiracy to suppress and fabricate evidence relevant to that lawsuit. Plaintiff did not, however, successfully present evidence of such an out-of-court conspiracy.

An arrestee who claimed he was injured while being restrained by officers during his arrest pursued a federal civil rights lawsuit against a number of defendants. A jury reached a verdict for the defendants, which was upheld by a federal appeals court. See Paine v. City of Lompoc, 160 F.3d 562 (9th Cir. 1998).

In a subsequent federal civil rights lawsuit, the plaintiff arrestee claimed that two of the officers who testified in the first proceeding engaged in a "conspiracy to suppress and fabricate evidence" pertinent to his police brutality claims, including presentation of false testimony in court and other alleged out-of-court conduct.

The trial court denied summary judgment to the defendant officers. A federal appeals court has now reversed.

The officers, the court noted, like all witnesses in judicial proceedings, are entitled to absolute immunity from liability for their testimony. "The purpose of such immunity is to encourage witnesses to come forward and speak freely in court by relieving the potential defendant of any fear that he will later have the burden of litigating the propriety of his conduct as a witness," the court explained, citing Briscoe v. LaHue, 460 U.S. 325 (1983).

At the same time, the officers were not entitled to any such defense on the plaintiff's claim that they also engaged in out-of-court conduct designed to improperly defeat the plaintiff's claims in his first lawsuit. Having said that, however, the appeals court found that there was no evidence against these particular officers tying them to any out-of-court, non-testimonial conspiracy to fabricate or suppress evidence or the testimony of others.

Paine v. City of Lompoc, No. 99-56347, 265 F. 3d 975 (9th Cir. 2001).

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Officers had probable cause to arrest woman in responding to domestic violence call, despite her contention that her boyfriend had hit her and then called the police before she could.

     Two officers arrived at a Colorado residence in response to a phone call from a man who claimed he had been assaulted by his live-in girlfriend. They found the man in the front yard of the house, holding a cordless telephone and bleeding from the mouth. He stated that he had been hit by his girlfriend and had not struck back because he had been charged with domestic assault on two previous occasions.

     One of the officers interviewed the girlfriend, who claimed that the man had hit her, and then called the police before she could. The officer noticed a wound on the woman's hand and asked her if she hit the man. She said she did not know he was injured, but suggested it might have been the result of her trying to defend herself. She showed the officer injuries allegedly caused in earlier fights with her boyfriend, including red marks on her arms. She also told the officers of guns and drugs in the house, which she said belonged to her boyfriend. Marijuana, a water pipe, a 9mm pistol and a sawed-off shotgun were confiscated.

     The officers photographed the man's mouth and the woman's hands, and arrested the woman for misdemeanor harassment. They allegedly ignored the man's son, who stated that he had seen his father cause his own injuries by striking himself in the face with a rock before the police arrived, and who purportedly attempted to show them the bloody rock. Charges against the arrestee were later dismissed

     The arrestee sued the town and police officers, claiming that she was wrongfully taken into custody, and that this was the result of discriminatory treatment of women by the police department in domestic violence situations. She also claimed that the police failed to adequately respond to her later complaints of threats, harassment, and property damage committed by her boyfriend.

     Upholding summary judgment for the defendants on the plaintiff's equal protection and substantive due process claims, as well as a "failure to train" claim against the city, a federal appeals court ruled that the officers had probable cause to arrest the plaintiff.

     The court rejected the plaintiff's claim that the officers' decision to arrest her rather than her boyfriend was a miscarriage of Colorado's mandatory arrest law, Colo. Rev. Stat. 18-6-803.6(1). Under that law, when an officer determines there is probable cause of domestic violence, "the officer shall, without undue delay, arrest the person suspected of its commission."

     This was not, however, the court noted, a case where the police failed to enforce the law--suspecting the plaintiff of domestic violence, they took her into custody. The court found that they had probable cause to do so, as all officers at the scene noticed the boyfriend's bloody mouth and shirt, as well as abrasions on the plaintiff's right hand. The boyfriend stated that she had punched him, a conclusion not disputed by the arrestee at the time, who later admitted that "I said if Tuxie got hit, then I must have hit him."

     The officers were justified in believing the plaintiff had assaulted her boyfriend under these circumstances. Their decision not to arrest the boyfriend was "well within" their discretion.

     The appeals court upheld the trial court's refusal to admit into evidence statistical compilations as evidence of a pattern of discriminatory conduct on the part of the town's police. These statistics, covering department records of arrests in domestic assaults and "regular" assaults from 1992 through 1995 were rejected as unreliable by the trial court because of the adoption in 1994 of a mandatory arrest rule in domestic violence cases, which altered the arresting officer's discretion.

     The appeals court also noted that the plaintiff's arguments were "predicated on the belief that women are always the victims of domestic violence," a belief the court rejected as "spurious."

Eckert v. Town of Silverthorne, #00-1030, 258 F.3d 1147 (10th Cir. 2001).

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Officers lacked probable cause to arrest photographer who was only observing and photographing "animal rights" protest at convention center for failure to heed their "dispersal" order; police chief could be held individually liable if he "knowingly refused" to terminate a "series of acts" which led to the arrest.

     When a medical organization held a meeting at a convention center in San Francisco, "animal rights" groups decided to hold a protest of medical experimentation. An attorney and amateur photographer went to the demonstration intending to take photographs, perhaps meet a potential client, and serve as a "legal observer," but not as a participant.

    After expressing concern that the demonstrators were blocking access to the center and were failing to stay on a pedestrian island, a representative of the medical association, which had leased the entire facility, signed a "citizen's arrest" form given to them by the police, and officers started to make arrests after giving an order to disperse which was not obeyed. The photographer was among those who were arrested, and later stated that she did not hear the dispersal order.

     The photographer sued the city and county as well as various officers, claiming unlawful arrest. The trial court dismissed the claim, in part because the plaintiff could not identify the arresting officers.

     A federal appeals court has reinstated the lawsuit. It found that the plaintiff had made a prima facie case by showing that the arrest was conducted without a valid warrant, which shifted the burden to the defendant to provide some evidence that the arresting officers had probable cause for a warrantless arrest. The plaintiff obtained a copy of the arrest report and, assuming the officers listed were in fact the arresting officers, named them in her suit.

   The appeals court noted that none of the officers testified to having seen the photographer during the demonstration, much less to having seen her break the law. On this basis, the plaintiff "has made out a valid claim of unlawful arrest."

     Turning to the facts, the appeals court also rejected arguments by the defendants that the officers had probable cause to arrest her for intentional interference with the convention center's business. Instead, the record merely showed that she was "taking photographs of the protestors from a position 8-10 feet away from the doors and conversing with convention attendees and protestors."

     The court also rejected the argument that the photographer had violated a state statute prohibiting "riot, rout or unlawful assembly" by failing to disperse after the order to do so. "No one," the court reasoned, "claims the demonstration was a riot or rout," and California courts have interpreted the "unlawful assembly" portion of the statute as requiring a "clear and present danger of imminent violence before bystanders can be arrested along with participants in an unlawful assembly." In this case, the protest "did not involve a sufficient threat of violence to justify arresting nonparticipants" for failure to disperse.

     The appeals court found that there was testimony that the city had a common practice of having complainants sign "citizen's arrest" forms and then fill in the names of arrestees and their offenses later, and ruled that this might be found to be a policy of using incomplete citizen's arrest forms to affect unlawful arrests.

     Finally, the court reversed the dismissal of the city's police chief as a defendant. The chief, the court held, "could be held liable in his individual capacity if he knowingly refused to terminate a series of acts by others, which he knew or reasonably should have known would cause others to inflict a constitutional injury." Based on testimony that there was a common pracice in the department to use citizen's arrest forms without specifying who should be arrested and for what violation, and that officers were trained to use the forms in this way, the court ordered further proceedings on the claims against the police chief.

Dubner v. City and County of San Francisco, No. 99-17319, 266 F.3d 959 (9th Cir. 2001).

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Officer's alleged misrepresentations in affidavit for arrest warrant were not knowing. County did not violate the arrestee's Fourth Amendment rights by failing to require that a prosecutor review and approve officers' arrest warrant affidavits.

     An employee of a veterans' organization had a CPA examine its financial records because of concern over allegedly missing raffle ticket money. The group then contacted a police officer to request an investigation. The officer subsequently filed a criminal complaint against one of the employees of the organization, alleging misappropriation of the money. The employee was subsequently arrested under a warrant issued on the basis of the officer's affidavit.

     Prior to the time of a scheduled preliminary hearing, the prosecutor concluded that the complaint was not supported by sufficient evidence to proceed, and all charges were withdrawn. The arrestee then sued the officer and county, among other defendants, claiming violations of her federal civil rights by false arrest and malicious prosecution.

     Granting summary judgment for the defendants, the trial court found that any alleged misrepresentations by the officer in his affidavit for the arrest warrant did not establish that he knowingly and deliberately, or with reckless disregard for the truth, made false statements or omissions. In particular, he had no knowledge that the employee in question had been authorized to pay herself out of raffle-ticket proceeds. Further, her omitted statement that she had stopped paying herself out of proceeds was merely a claim of innocence, which would have been "of little probative value" to the judge reviewing the affidavit.

     The court also rejected the claim that the county violated the plaintiff's Fourth Amendment rights by not requiring the district attorney's prior approval of criminal complaints and arrest warrant affidavits. Whether a prosecutor reviewed arrest warrant affidavits or not, an arrest still had to be founded on probable cause, and the plaintiff's rights were sufficiently protected by her ability to bring a lawsuit for false arrest, malicious prosecution, and abuse of process.

Freeman v. Murray, No. 3:99CV2179, 163 F. Supp. 2d 478 (M.D. Pa. 2001).

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Passenger in speeding car who was struck by a bullet fired by an officer seeking to stop the vehicle was "seized" for Fourth Amendment purposes even though officer did not intend to strike him, but officer was entitled to qualified immunity based on arguable grounds to believe that escaping vehicle posed a threat of serious harm to himself or others.

     A sheriff's deputy blocked a moving truck, based on his suspicion that it was a stolen vehicle described in a radio report. The truck failed to stop and allegedly rammed into the back of the officer's vehicle. Instead of then stopping, the suspect's vehicle then sped off at speeds of eighty or eighty-five miles per hour, while pursued by the deputy.

     The deputy fired three rounds into the truck, and did not first warn the truck's occupants. He later testified that he fired because the truck swerved as if to smash into his cruiser. He stated that his intention was to disable either the truck or the driver so that he could force the truck off the road. Instead, one of the bullets punctured the spine of a passenger in the truck, paralyzing him instantly below the chest.

     The injured passenger filed a federal civil rights lawsuit against the deputy, the county, and the county sheriff, claiming that excessive force was used against him. The trial court ruled that the passenger had not been "seized" within the meaning of the Fourth Amendment by the defendant deputy's bullet, and that the use of force was reasonable under the circumstances, granting summary judgment to all defendants.

     On appeal, the passenger argued that the trial court erred in finding that he was not seized, that issues of fact remained as to whether the deputy's actions were objectively reasonable, and that, even if no seizure occurred for Fourth Amendment purposes, he still had a valid Fourteenth Amendment substantive due process claim based on the deputy's "deliberately indifferent and conscience-shocking conduct."

     A federal appeals court agreed that the passenger had been "seized." It is "not necessary for the means by which a suspect is seized to conform exactly to the means intended by the officer." It is enough that a person "be stopped by the very instrumentality set in motion or put in place in order to achieve that result." In this case, the deputy fired his weapon to stop the driver and passenger, and the passenger was struck by one of those bullets. Because the passenger was "hit by a bullet that was meant to stop him, he was subject to a Fourth Amendment seizure."

     The appeals court also concluded that a reasonable jury could have found that the deputy acted unreasonably in firing at the pickup, since there was a material issue of fact as to whether the truck's continued escape presented an immediate threat of serious harm to the deputy or others. Additionally, a reasonable jury could find that it was feasible for the deputy to warn the truck's occupants of the potential use of deadly force prior to opening fire.

     On the other hand, the deputy's contentions that the suspects rammed his vehicle twice rather than once, and swerved as if to run him off the road before he fired his weapon, if proved, would establish that the driver and passenger represented a threat to the deputy or others on the road and suggest that it was not feasible to give the truck's occupants a prior warning.

     The appeals court concluded that the deputy was entitled to qualified immunity because a reasonable officer in his position "could have believed that he had sufficient probable cause to apply deadly force." He had clearly demonstrated to the truck's occupants that he wanted them to stop and had seen the driver instead speed up to avoid apprehension. A reasonable officer could have concluded that the "suspects, who were fleeing down a major highway at approximately eighty to eighty-five miles per hour in a pickup towing a trailer laden with two personal watercraft and apparently were not about to stop, posed a serious threat of harm to other motorists."

     The appeals court also found that the law concerning the need to warn the occupants of the vehicle before firing was not sufficiently established. While the U.S. Supreme Court, in Tennessee v. Garner, 471 U.S. 1 (1985), stated that a police officer must warn a suspect of the potential application of deadly force "where feasible," the appeals court noted that "aside from establishing a broad mandate to provide some form of warning, the Garner Court made no effort to define under what factual situations such a warning would be necessary."

     The appeals court rejected the plaintiff's "substantive due process" claim. Utilizing the standard set forth in County of Sacramento v. Lewis, 523 U.S. 833 (1998), the court reasoned that "a violation of substantive due process could be found only if the plaintiff can show that the officer had a "purpose to cause harm unrelated to the legitimate object of arrest." There was no evidence to suggest that the deputy's actions were motivated by anything but the desire to arrest the occupants of the pursued truck.

     The appeals court remanded for further proceedings on the claims against the county, the sheriff, and the deputy in his official capacity.

Vaughan v. Cox, No. 00-14380, 264 F.3d 1027 (11th Cir. 2001).

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Officers acted properly in shooting and killing a man who answered his door holding what appeared to be a rifle. No constitutional or statutory right existed to prohibit an officer from using deadly force when faced with an apparently loaded weapon.

     Officers went to a residence in response to a report of a fight. They encountered a young woman who appeared to be injured, who told them that the two males who assaulted her had fled to the apartment on the top floor of the building. The officers went to that apartment and stated that they announced their presence and, for their safety, covered the peephole so the occupants could not see them.

     When the door opened, an officer saw a man holding what he believed to be a long barrel rifle. He fired four times at the man, striking him three times and killing him. The man's estate sued the city and the officers for alleged violation of his Fourth Amendment rights.

     A federal appeals court upheld summary judgment for the defendants. "No constitutional or statutory right exists that would prohibit a police officer from using deadly force when faced with an apparently loaded weapon," and the officers could reasonably believe that the suspect posed a significant threat of death or serious physical injury to them or others. The court also rejected state law negligence claims.

Sinclair v. City of Des Moines, Iowa, No. 01-1050, 268 F.3d 594 (8th Cir. 2001).

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City policy of allowing police officers to substitute the fact that a "citizen's arrest" has been made for probable cause to arrest was unconstitutional.

     A California arrestee sued the arresting officer and the city which employed him, claiming a violation of his Fourth Amendment right to be free from unreasonable searches and seizures. The plaintiff claimed that he was detained and arrested pursuant to an official city policy that permitted officers to arrest persons pursuant to a citizen's arrest by the accuser, without probable cause to believe the person has committed a crime.

     A jury returned a verdict for the plaintiff on all claims and awarded punitive damages against the officer after finding that he had been either malicious or reckless in violating the plaintiff's rights.

     The trial judge upheld this result, rejecting the officer's claim that he was entitled to qualified immunity. The court also ruled that the city's policy of allowing police to substitute a citizen's arrest for probable cause to arrest was clearly unconstitutional.

     The jury's finding that the city has a policy, custom or practice that permits officers to arrest persons pursuant to a citizen's arrest without probable cause to believe the person has committed a crime was "supported by an array of evidence." In fact, "each and every member" of the police department who took the stand "testified that they accept and take physical custody of citizen's arrest without regard to probable cause."

     A captain, who was the senior police department official called as a witness to speak authoritatively on the city's policy, "explained that the officer should take the person into custody where the accuser has made a citizen's arrest even if the officer is certain that the arrest is unlawful." Another former captain who testified at trial stated that an "officer may take a citizen to jail based upon a citizen's arrest despite a known lack of probable cause to arrest."

     "It is well-settled, and beyond re-examination," the court ruled, "that a police officer must, save a few narrow exceptions not applicable to this case, have either an arrest warrant or probable cause to arrest." Therefore, "it follows that any policy that allows the police to substitute a citizen's arrest for probable cause to arrest must be stricken as unconstitutional." The city's policy "permits the delegation of" the nondelegable duty of finding probable cause and "would facilitate the private abuse of criminal charges" and "amount to a substitution of a experienced officer's judgment for that of an ordinary citizen."

Corcoran v. Fletcher, no. 98-5817, 160 F. Supp. 2d 1085 (C.D. Cal. 2001).

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Jury awards $15 million to man incarcerated for 15 years for murder and armed robbery conviction based in part on lineup in which officers allegedly "manipulated" three witnesses to incorrectly identify the plaintiff as the criminal.

     A federal jury awarded $15 million to a man incarcerated for 15 years in prison in Illinois on a conviction for murder and armed robbery that was allegedly tainted by police detectives' "manipulation" of three witnesses to improperly identify the arrestee as the killer. An Illinois appeals court overturned the plaintiff's conviction in 1994, and in 1995, after the prosecutor declined to put him on trial a second time, the Governor of Illinois concluded that he is innocent and pardoned him.

     The case began with the 1979 killing, by a black man, of the white owner of a small grocery store in Chicago. The plaintiff, in town to visit his mother, was picked up the next day by police who believed he resembled a composite sketch of the killer/robber drawn up after consultation with witnesses. According to the plaintiff, police detectives "manipulated" three eyewitnesses to the crime into identifying him.

   The plaintiff presented evidence to show that one of the witnesses was shown a photo of him in a photo array before picking him out of the lineup, and that his photo was the only photo presented of someone who would be in the lineup. The plaintiff also claimed that the detectives gestured towards him while one of the witnesses was in the process of deciding who to identify.

   The third witness in the case testified that he had told the detectives that he did not recognize anyone in the lineup, and that they then proceeded to tell him that he should "look closer" at number three, who was the plaintiff. When he did so and told them that he still didn't recognize anyone in the lineup as being the killer, one of the officers purportedly stated that they had "evidence" that it was number three, and asked, "Don't you think it was number three?"

     A federal appeals court decision in the case, Newsome v. McCabe, #00-2326, 256 F.3d 747 (7th Cir. 2001) held that the plaintiff's malicious prosecution claim did not state a constitutional claim which could lead to federal civil rights liability under 42 U.S.C. Sec. 1983, because a state-law remedy for malicious prosecution was available and there was no constitutional right not to be prosecuted without probable cause under the due process clause of the Fourteenth Amendment.

     At the same time, the court ruled that the plaintiff could pursue claims against the officers that they withheld exculpatory information about fingerprints from the prosecutors (the plaintiff's fingerprints did not match those which the officers obtained at the scene of the crime), and conducted a lineup violating clearly established rights.

Newsome v. James, No. 96C-7680, Oct. 29, 2001, U.S. Dist. Ct., N.D. Ill, reported in The National Law Journal, p. A1 (Nov. 12, 2001).

     Editor's Note: Shortly before the trial and jury verdict in the case reported above, the trial court issued a decision ruling that the defendant officers could assert absolute witness immunity to claims relating to alleged perjurious testimony during his criminal trial, but also ruling that the officers could not assert absolute prosecutorial immunity against the claim that they violate his due process rights by withholding material exculpatory evidence from the prosecutor. Newsome v. James, No. 96C-7680, 2001 U.S. Dist. LEXIS 16888 (N.D. Ill.). Click here to read the text of this decision on the AELE website.

City was not vicariously liable for off-duty officer's alleged action of injuring a pedestrian while driving in an intoxicated condition, or for the failure of another off-duty officer, a passenger in the vehicle, to prevent the first officer from driving.

     A pedestrian in New York City was injured when he was struck by a vehicle owned and operated by an off-duty probationary city police officer. Another off-duty officer was a passenger in the first officer's vehicle at the time. Both had allegedly consumed alcohol prior to the accident and the driver was subsequently charged with driving while intoxicated.

     The injured pedestrian sued the city, claiming, among other things, that the passenger officer negligently failed to prevent the driver from driving while intoxicated, and that both officers violated a city police department patrol guide regulation which required them to remain fit for duty 24 hours a day. He also claimed that two on-duty officers, summoned to the scene, failed to follow proper police procedures when investigating the accident. The plaintiff asked the court to strike the city's answer to his complaint based on these officers' alleged failure to obtain evidence that the off-duty officers were intoxicated.

     Rejecting all these claims, an intermediate New York appellate court held that the regulations in the New York City Police department Patrol Guide "do not establish clear legal duties which would serve as a basis for imposing liability" under these circumstances. Further, the city could not be held vicariously liable for the off-duty activities of the two officers in the vehicle, since they were not "acting within the scope of their employment."

     The court also upheld the trial court's refusal to strike the city's answer as a sanction for the on-duty officers' failure to obtain evidence that the off-duty officers were intoxicated. "A sanction for spoilation may be applied where key physical evidence is lost or destroyed by a party," the court remarked, "not where a party neglects to obtain evidence in the first place.

Carroll v. City of New York, 730 N.Y.S.2d 548 (A.D. 2001).

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Police officer could violate the Fourth Amendment if he intentionally and repeatedly shot and killed a pet dog, absent provocation and knowing that it belonged to a family which was readily available to take possession of the animal.

     A married couple sued a police officer, the township, and various police officials, based on the officer's shooting and killing of their pet dog, asserting that the shooting violated their Fourth Amendment rights. The dog, Immi, a three-year-old Rottweiler pet, had been placed in the fenced yard of the couple's residence while they were in the process of moving.

     While the dog did not have a dog licensee, she wore a bright pink, one inch wide collar with many tags, including a rabies tag, her microchip tag, a "guardian angel" tag, an identification tag with the couple's address and telephone number, and a lifetime license which belonged to the couple's prior Rottweiler pet. The dog wandered out of the yard into an adjacent parking lot beyond the fence.

     The officer, passing in a patrol car, pulled over and called to the dog. Looking out the open screened window of her house, the wife saw the officer facing the dog and reaching for his gun. She states that she screamed "That's my dog, don't shoot," and the officer hesitated a few seconds and then fired five shots at the pet. The dog allegedly fell to the ground immediately after the first shot, and the officer continued firing as she tried to crawl away. One bullet entered the dog's right mid-neck region and three or four bullets entered her hind end.

     Reversing in part summary judgment for the defendants, a federal appeals court ruled that the killing of a person's dog by a law enforcement officer constitutes a seizure under the Fourth Amendment. The court further found that there were genuine issues of material fact as to whether the officer's shooting, in this case, was unreasonable, based on the plaintiff's version of the incident, in which the dog did not act aggressively or pose any danger to anyone, and the officer shot repeatedly without any provocation and "with knowledge" that the dog "belonged to the family who lived in the adjacent house and was available to take custody."

     At the same time, the appeals court upheld summary judgment on a Fourteenth Amendment claim for deprivation of property without due process of law, finding that the state of Pennsylvania provided the dog owners with adequate postdeprivation remedies for the officer's shooting of their pet. Under the Pennsylvania Political Subdivision Tort Claims Act, the officer would not be given immunity for willful misconduct. 42 Pa. C.S.A. Sec. 8550.

     The appeals court also rejected claims against the township, as no evidence showed that the officer's actions were caused by any official policy or custom, and also found no liability on the part of defendant police chiefs. It allowed the plaintiffs to proceed against the individual officer both on their federal civil rights claim and on a state law claim for intentional emotional distress.

Brown v. Muhlenberg Township, No. 00-1846, 269 F.3d 205 (3rd Cir. 2001).

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No special relationship existed between municipalities which operated 911 system and caller who stated that he was being chased in a car by two men, one of whom had earlier threatened to kill him; cities and sheriff had no liability for caller's subsequent death.

     A motorist and his cousin were being chased in Florida at high speed by two men in a black Honda driven by someone who had threatened to kill them earlier in the day. While the motorist continued to drive, his cousin called 911 on a cell phone. The 911 system was operated by the county sheriff, and the call was subsequently routed to 911 systems operated by two local cities.

     One of the 911 operators suggested that the pursued men drive to a police station in order to discourage the men chasing them from harming them. The continuing chase caused the vehicle in which the callers were driving to strike another vehicle, leading to their immediate death.

     The motorist's estate sued the sheriff and the two cities for alleged negligent failure to assist the decedent. Upholding dismissal of the lawsuit, an intermediate Florida appeals court found that there was no "special relationship" between the 911 operators and the decedent, as required for liability under the circumstances.

     Such a special relationship can only be based, the court stated, on an express promise or assurance of assistance, justifiable reliance on such promises, and harm suffered because of the reliance.

     The court noted that there was no express promise of protection by the 911 operators or promise to provide any assistance other than to direct the caller to the nearest police station. Additionally, there was no justifiable reliance on any promise of assistance. The plaintiff's decedent did not have a "clear alternative" that he could have pursued but which he did not pursue in reliance on law enforcement's efforts.

Pierre v. Jenne, No. 4D01-709, 795 So. 2d 1062 (Fla. App., 4th Dist., 2001)

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State police officers were individually entitled to assert a sovereign immunity defense against arrestee's Connecticut state constitutional claims concerning his arrest and the search of his home, even though he claimed that the officers acted in a manner that was "wanton, reckless or malicious."

     A man arrested by state police officers in Connecticut filed a lawsuit in state court asserting claims against the individual officers for deprivation of his due process rights and his right to be free of an unreasonable search and seizure under article first, Secs. 7 and 9 of the Connecticut state constitution. The plaintiff claimed that officers forced their way into his home without a search warrant, and after he submitted to an arrest struck him and threw him to the ground, as well as that his home was searched in a separate incident on the basis of search warrant issued in response to an affidavit containing false claims.

     The defendants obtained a dismissal of the lawsuit in the state trial court, based on a defense of sovereign immunity.

     Sovereign immunity may be bypassed in the state by filing, with the state's claims commissioner, a claim for permission to bring suit, but the plaintiff did not pursue that avenue, arguing that a claim for violation of a state constitutional provision falls within an exemption from filing suit with the claims commissioner.

     An intermediate appellate court in Connecticut has rejected this argument and upheld the dismissal of the lawsuit. The court held that the fact that the plaintiff sought relief from the defendants in their individual capacity did not preclude their right to invoke sovereign immunity. "Obviously, the state can act only through its officers and agents," and such officers and agents "are protected from legal proceedings by sovereign immunity, unless they are alleged to have acted in excess of their statutory authority or pursuant to an unconstitutional statute."

     The court ruled that the result was not altered by the plaintiff's claim that the officers acted in a manner that was "wanton, reckless or malicious."

     The court also rejected the argument that a prior decision of the Connecticut Supreme Court, Binette v. Sabo, 710 A.2d 688 (1998), recognizing a private claim for money damages under article first, Sec. 7 of the state constitution governed the case so as to supersede sovereign immunity. The court noted that the Binette case did not address the issue of sovereign immunity, and addressed the alleged misconduct of municipal, not state, police officers.

     The defense of sovereign immunity could not be overcome by a state constitutional claim, the court ruled, "unless the plaintiff clearly has alleged facts that, if proven, would distinguish his claim for relief from standard claims of police misconduct." The court found that the acts of misconduct alleged by the plaintiff were not sufficiently "egregious" to meet this test.

Martin v. Brady, No. 20808, 780 A.2d 961 (Conn. App. 2001).

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Assault and Battery: Physical

     A $150,000 settlement was reached by New York City in an excessive force/false arrest lawsuit filed by an arrestee who claimed that he was repeatedly punched and kicked by an officer who was arresting him for robbery based on accusations by a woman he encountered on the sidewalk outside his apartment building. All charges against the plaintiff were later dismissed. Grant v. City of New York, No. 22691/89 (Kings Co., N.Y. Sup. Ct.), reported in The National Law Journal, p. B3 (Nov. 13, 2001).

Attorneys' Fees: For Plaintiff

     A jury's rejection of the plaintiff's federal civil rights lawsuit precluded the award of attorneys' fees under 42 U.S.C. Sec. 1988 even though he won his state law claim for battery against a deputy sheriff and was awarded $35,000 in damages. McFadden v. Villa, No. E028151, 113 Cal. Rptr. 2d 80 (Cal. App. 2001).

Defenses: Qualified (Good-Faith) Immunity

     Officers had probable cause to take a 17-year-old into custody as a suspected runaway when she fit the general description of the person sought and was seen in close proximity to where the runaway was reported seen; officers were entitled to qualified immunity on the minor's mistaken identity claim. Debellis v. Kulp, No. 00-3386, 166 F. Supp. 2d 255 (E.D. Pa. 2001).

Defenses: Statute of Limitations

     Woman's claim that she had been sexually assaulted by a police officer when she was twelve years old accrued under New York law when she became an adult, so that the statute of limitations on all claims expired three years after she became an adult; alleged "conspiracy" to "cover-up" the alleged assault did not extend the limitations period, as the plaintiff already had all information necessary to file her lawsuit. Paige v. Police Dept. of City of Schenectady, No. 00-9584, 264 F.3d 197 (2nd Cir. 2001).

     Plaintiff's false arrest lawsuit, filed twenty-nine months after his arrest, was not barred by two year statute of limitations, since his right to bring the lawsuit did not accrue until the criminal prosecution against him was dismissed. Pascual v. Matsumura, No. CIV. 99-00706, 165 F. Supp. 2d 1149 (D. Hawaii 2001).

False Arrest/Imprisonment: No Warrant

     Officers had probable cause to arrest attorney for obstructing their duties and resisting arrest when he interrupted, for twenty minutes, their stop of his client for traffic violations and repeatedly refused to return to his car, as well as claiming that he did not have to supply his driver's license and insurance card because of his status as a lawyer. Abrams v. Walker, #00C-5768, 165 F. Supp. 2d 762 (N.D. Ill. 2001).

     Officer had probable cause to arrest a man for threatening to strike another officer based on statements of the victim and two of his co-workers. An arresting officer may rely on the statements of victims and witnesses to determine the existence of probable cause. Hotaling v. LaPlante, No. 98-CV-901, 167 F. Supp. 2d 517 (N.D.N.Y. 2001).

Police Plaintiff: Assault and Battery

     Restaurant owners and corporation might be liable for employee's act of spitting on the food to be served to a state trooper, since food preparation was within the scope of his employment, but there was no showing that the restaurant or its owners ratified the employee's act. Phillips v. Restaurant Management of Carolina, L.P., #COA00-411, 552 S.E.2d 686 (N.C. App. 2001).

Police Plaintiff: Fireman's Rule

     "Police Officer's Rule" barring negligence claims by police officers in the state for injuries in the course of tasks relating to risks that could be reasonably anticipated in the performance of an officer's duties barred officer's claim against a property owner for officer's slip on ice in the driveway while leaving the premises after questioning the owner about a report that his vehicle was involved in damage to mailboxes in the area. Krajewski v. Bourque, No. 2000-98-Appeal, 782 A.2d 650 (R.I. 2001).

Police Plaintiff: Vehicle Related

     A police officer struck by a motorist while directing traffic reached a $1.6 million settlement before jury selection in his state lawsuit against the driver. The officer was wearing a reflective vest and holding a flashlight at 6 p.m. when the accident happened, while the motorist claimed that he did not see the officer. Albra v. Euchner, No. 1640/00 (Westchester Co., N.Y. Sup. Ct.), reported in The National Law Journal, p. B5 (Sept. 17, 2001).

     A police chief injured when a tow company's truck crashed into his van will receive a $1.1 million settlement for injuries which included amputation of part of his right foot and reconstruction of his left knee. The chief was driving down a hill when he alleges the driver of the tow truck failed to properly yield the right of way. Schroeder v. Everready Towing and Recovery Inc., No. 012-00897 (City of St. Louis, Mo., Cir. Ct.), The National Law Journal, p. B4 (Oct. 15, 2001).

Privacy

     Officer's action in revealing an employee's criminal record to his employer in the course of investigating a theft at the workplace did not violate Massachusetts law concerning disclosure of criminal offender record information. Bellin v. Kelley, 755 N.E.2d 1274 (Mass. 2001).

Procedural: Discovery

     Plaintiff's use of a false name in filing his federal civil rights lawsuit and failure to disclose his true name and identity throughout the litigation obstructed the discovery process, including the defendants' discovery of his arrest history, and resulted in the forfeiture of his right to pursue his claims. Dotson v. Bravo, #00-C-7352, 202 F.R.D. 559 (N.D. Ill. 2001).

Public Protection: Motoring Public

     City was not liable for injuries to passengers in vehicle struck by intoxicated driver who had been released on his own recognizance and been driven to city impound lot by police officer. Officer's action in driving the driver to the lot was discretionary, and driver had told officer that relatives were meeting him there to drive retrieved vehicle. Officer had no reason to believe driver would consume more alcohol and then himself drive vehicle. Boutin v. Perrin, No. 00-862, 796 So. 2d 691 (La. App. 2001).

Search and Seizure: Home/Business

     Arrestee could pursue a claim for unreasonable search of his property even if the evidence seized was introduced in the criminal trial which resulted in his still-outstanding conviction. A successful claim that the search was illegal would not necessarily imply the invalidity of his conviction, since the evidence could have been admitted because of doctrines like the independent source rule, inevitable discovery, and "especially harmless error." James v. York County Police Dept., Civ. A. No. 1:CV-01-1015, 167 F. Supp. 2d 719 (M.D. Pa. 2001).

Search and Seizure: Vehicle

     Officers were justified in conducting a search of a vehicle's passenger compartment and front seat for weapons in order to ensure their safety after an arrestee refused to exit his car and was therefore taken from it by force; officer was also justified in drawing her gun on arrestee during an initial investigatory traffic stop when he was totally uncooperative, refused to turn the vehicle's motor off, refused to leave the car, and moved it without permission. Smith v. City of New Haven, #3:99-CV-157, 166 F. Supp. 2d 636 (D. Conn. 2001).