CONTENTS

Assault and Battery: Physical

Arrestee's conviction for resisting arrest did not bar her excessive force claim since it is possible that the officer used the allegedly excessive force after placing her under arrest.

            Animal control officers summoned police officers to the back yard of a residence where a number of individuals were allegedly assaulting them after they attempted to capture a dog which had bitten one of them. The officers handcuffed three individuals. One woman argued with the officers after one of them allegedly stood on a man's back and kicked him. One of the officers then allegedly struck her in the face, knocking her to the ground while her 3 year old daughter watched.

            The woman was subsequently charged with battery on an animal control officer and with resisting arrest. As part of a plea bargain, the battery charge was dropped and she pled guilty to the resisting arrest charge, and was sentenced to three years probation. She then filed a lawsuit, on her own behalf and on behalf of her daughter, alleging that a police officer had used excessive force against her.

            A federal appeals court overturned a trial court dismissal of the lawsuit. The trial court had ruled that the plaintiff's conviction for resisting arrest necessarily barred her federal civil rights claim, since success on that claim would necessarily imply the invalidity of the prior criminal conviction, under the ruling in Heck v. Humphrey, 512 U.S. 477 (1994).

            The appeals court noted, however, there were a number of accusations against the plaintiff arising out of the incident, and that it was not clear which of the incidents was the factual basis for her conviction. Even if she was properly convicted for resisting arrest, the court noted, this did not eliminate the possibility that the officer used excessive force against her after the arrest. "Excessive force used after an arrest is made does not destroy the lawfulness of the arrest," so that, "if she can prove the punch was delivered after she was arrested," she can pursue her excessive force claim. Sanford v. Motts, No. 00-56926, 258 F.3d 1117 (9th Cir. 2001).

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Domestic Violence

Police department was not liable for officer's actions in going to his ex-wife's residence, while on vacation and intoxicated, shooting into the house, and then taking ex-wife's new husband and his own children hostage. Plaintiffs did not show that there was a city policy of ignoring complaints concerning domestic violence by officers.

            A New Jersey police officer, while on vacation and "highly intoxicated," went to the home of his ex-wife, fired his police department issued revolver at the front door to gain entry, shot at and narrowly missed his ex-wife's new husband, and took the new husband and two of his own children hostage. He was later convinced to voluntarily surrender, and he was later fired and successfully prosecuted.

            His ex-wife, ex-wife's new husband, and his children filed suit against the city and various police officials, claiming that the city had an unconstitutional custom or policy of ignoring complaints of domestic violence made against its officers, and that the defendants had engaged in conduct that failed to protect the plaintiffs from acts of violence by enhancing the danger to them.

            Granting summary judgment to the defendants, a federal trial court found that the plaintiffs had failed to show that the police department employees used their authority to create an opportunity for the assailant to attack them that would not otherwise have existed. It reached this ruling despite a police sergeant's alleged failure to investigate a report of the officer's alleged threat against his son and the police chief's failure to return the former wife's phone calls.

            These alleged omissions "cannot reasonably be construed to have 'placed' plaintiffs in greater danger than they had already faced." The officer, frustrated by his alleged inability to see his children, and intoxicated, visited the residence to "vent his anger." The defendants' alleged inactions "did not create or exacerbate the danger" he presented to the plaintiffs. Also, while the officer used a revolver issued by the department, he also possessed five other weapons which were not related to his job as a police officer.

            The court rejected the claim that the city had a policy or custom of ignoring complaints about domestic violence by its officers. It had a written policy governing the investigation of such complaints, which called for immediate investigation of them. Other than the single instance of the sergeant in this case failing to investigate the ex-wife's complaint, there was no evidence of any "well settled" practice of ignoring the policy.

            The court also noted that there was no evidence that the police chief had received the messages that the ex-wife had left with his secretary or was otherwise aware of prior incidents involving the officer. It also found no evidence of inadequate training or supervision of officers.

Hansell v. City of Atlantic City, Civ. A. No. 96-CV-5957, 152 F. Supp. 2d 589 (D.N.J. 2001).

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South Carolina domestic violence statute did not impose a duty on the sheriff's department to provide protection to specific domestic violence victims. Court rejects claim that wife shot and killed by her husband was used a "bait" to capture her husband.

            A husband and wife were living in separate trailers in a "family enclave" in a rural South Carolina county. Sheriff's deputies came to the premises in response to a 911 call. Once there, the wife expressed her fear of her husband, who had allegedly tried to run her off the road earlier that morning. She declined, however, their suggestion that she go to a safe house. Officers returned to the premises later that evening following another 911 call about the husband's behavior, but he was not found when they arrived.

            Later that evening, the husband forced a neighbor to knock on his wife's door, and when she answered the door, he forced his way in and killed her by shooting her in the head.

            The wife's estate sued the county and the county sheriff's department for negligence in failing to protect her.

            The Supreme Court of South Carolina upheld a directed verdict for the defendants. It held that the state's Criminal Domestic Violence Act, S.C. Code Ann. Sec. 16-25-10, 16-25- 20, did not impose a duty on the sheriff's department to protect the plaintiff's decedent from her husband.

            It also ruled that the adoption of the state's Tort Claims Act (TCA), S.C. Code Ann. Secs. 15-78-10 through -200 (Supp. 2000), did not alter the "public duty rule," under which statutes which create or define duties of a public office are presumed to create "no duty of care towards individual members  of the general public."

            The court noted that the husband was not present at the scene when the officers arrived, and therefore was not subject to immediate arrest. Further, the deputies did, in fact, search for him, but could not find him. Finally, a deputy did advise the wife to leave and go to a shelter, but she refused to do so. The court stated that the plaintiff had pointed to no provision of the statute which required the law enforcement agency to "post a guard under these circumstances."

            The court found that the plaintiff had failed to show the existence of a special duty owed to the decedent, "much less breach of such a duty."

            The court also rejected an argument that the sheriff's department had a special duty to protect the decedent because one of its deputies was attempting to use her as "bait" to capture her husband. The flaw in this argument, the court noted, is that the deputy mentioned by the plaintiff in fact attempted to get the decedent to leave the premises, and only advised her to call 911 later if the husband came back after she refused his offer to get her to a "safe house." He did not encourage her to stay in an effort to lure the husband back.

Arthurs v. Aiken County, No. 25331, 551 S.E.2d 579 (S.C. 2001).

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False Arrest/Imprisonment: No Warrant

Woman arrested for alleged narcotics sale to undercover officer stated a claim for false arrest and malicious prosecution when she alleged that she did not meet the description of the suspect sought, was arrested on the basis of an unreliable and suggestive one-person "show-up" identification, and officers had a videotape of the subject sought that they could have compared her appearance to.

            Undercover narcotics officers conducted an investigation of an alleged "crack house," videotaping the home in order to monitor the comings and goings of its visitors and sending an undercover officer into the residence to purchase drugs.

            Three weeks after the undercover officer's first purchase of drugs at the house, officers went to another residence, and asked the woman who lived there to step outside, where the undercover officer identified her as the person from whom he had made the purchase. The woman was arrested, interrogated, strip-searched, and held overnight in jail.

            Charges against the arrestee were subsequently dropped, and she filed a federal civil rights claim for false arrest and malicious prosecution against three officers involved in her arrest.

            Rejecting a motion by the officers to dismiss the case, the trial court noted that the plaintiff allegedly did not meet the description initially given by the undercover officer of the woman from whom he had made the drug purchase, and that the officers had the videotape of the comings and goings to the "crack house" on the day of the purchase available to them.

            According to the complaint, the officers had a description of the suspect sought, videotaped that suspect, and then, "three weeks later, conducted an allegedly unreliable and suggestive show-up" and arrested the plaintiff, "even though she did not match the description of the suspect that they had obtained and even though she could easily have been exculpated by the videotape that Defendants had in their possession for a significant period of time." 

            Under these circumstances, the plaintiff stated a claim, and the officers were not entitled to qualified immunity.

Hutchins v. Peterson, No. 2:00-CV-457, 139 F. Supp. 2d 575 (D. Vt. 2001).

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Police officers did not need warrants to make arrests for allegedly obscene nude dances performed in their presence.

            "Exotic" dancers at an "adult" nightclub, as well as the owner of the club sued the city and individual officers for violating their Fourth Amendment and First Amendment rights by making warrantless arrests at the club for violation of local obscenity ordinances. The lawsuit was filed after one of the defendant nude dancers was acquitted and charges against the remaining defendants were dismissed.

            The Supreme Court of Washington held that the officers did not need arrest warrants to make arrests of nude dancers under a city ordinance prohibiting performers from sexual self- touching during their performances. The court noted that live performances were not entitled to the same level of protection under the First Amendment as that afforded to books and films.

            Further, even if there was some constitutional right not to be subjected to a warrantless arrest for nude dancing, the court stated, the officers would still be entitled to qualified immunity, since any such right was not "clearly established."

            The court did order a new trial in the civil rights claim, however, since a jury instruction given following the trial which led to a verdict in favor of the defendants was confusing and could have led the jurors to believe that they did not need to make a determination that a reasonable person would believe that the dances were obscene in order to find that probable cause for the arrests existed.

Furfaro v. City of Seattle, #68971-7, 27 P.3d 1160 (Wash. 2001).

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Firearms Related: Intentional Use

Firing of "beanbag round" into the face of emotionally disturbed man who had not threatened officers and was not armed was an excessive use of force, federal appeals court rules. Officer was not entitled to qualified immunity from liability.

            An officer's firing of a "less lethal" lead-filled "beanbag round" into the face of an emotionally disturbed man who was walking at a "steady gait" in his direction has been ruled to constitute an excessive use of force. The officer fired at the man although he was unarmed, had not attacked or even touched anyone, had "generally obeyed the instructions given him by various police officers, and had not committed any serious offense."

            In ruling that the officer's actions were excessive, the federal appeals court noted that he had not warned the man that he would be shot if he physically cross an undisclosed line or ordered him to halt. Instead, he simply fired at the man when he arrived at a spot the officer had "predetermined."

            The projectile fired removed the man's eye and left lead shot implanted in his skull.

            The court found that the cloth-cased shot fired by the officer fell short of deadly force, defined as "that force which is reasonably likely to cause death," since it was designed to knock down a target, rendering the individual incapable of resistance, without (in the normal course of deployment) resulting in death.

            Despite this, the court found, it "is not to be deployed lightly," but is only permissible "when a strong governmental interest compels the employment of such force."

            In this case, the officers were summoned to the man's home by a 911 call from his wife, who reported that he had "lost control" of himself and was screaming and banging on the walls of their house after he became upset at being diagnosed with Hepatitis C. He had consumed a half-pint of vodka and some Interferon, his prescribed medication.

            The officers arrived, the court noted, not to arrest him, but to investigate his "peculiar behavior." He made statements that he did not want to live anymore, but did not express threats against others. While he had earlier possessed a crossbow, he had obeyed an officer's instructions to discard it, and only had a bottle or can with him at the time he was shot.

            The court concluded that there was no immediate need to subdue the man, that the crime being committed, "if any," was minor and the danger to the officer and to others "appears to have been minimal, as was the risk of flight." The governmental interest in using force capable of causing serious injury "was clearly not substantial."

            The appeals court rejected the defendant officer's contention that he was entitled to qualified immunity from liability in the injured man's federal civil rights lawsuit.

            "Every police officer should know that it is objectively unreasonable to shoot--even with lead shot wrapped in a cloth case--an unarmed man who: has committed no serious offense, is mentally or emotionally disturbed, has been given no warning of the imminent use of such a significant degree of force, poses no risk of flight, and presents no objectively reasonable threat to the safety of the officer or other individuals."

            Here, all those factors were present, the suspect had complied with the officers' instructions, had discarded his potential weapons whenever asked to do so, and had not assaulted anyone; "in addition, a team of negotiators essential to resolving such situations was en route." No reasonable officer could have believed that the officer's action was "appropriate or lawful."

Deorle v. Rutherford, No. 99-17188, 263 F.3d 1106 (9th Cir. 2001).

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Police officer who shot a woman seconds after she had thrown a knife at another officer was entitled to qualified immunity for incident which occurred in 1987. Appeals court rules that similar conduct today might present a jury question as to whether the officer used excessive force.

            A woman responded to an argument outside her house between a police officer and her brother by throwing various items at the officer or his dog (which was biting her brother). This included bottles and at least one kitchen knife.

            While she later contended that she was throwing the items only at the dog, one officer stated that one of the bottles bounced off his leg and that she held two knives. She threw one of the knives at a second officer, bouncing it off his leg or back, and then allegedly lunged towards him, with the second knife in her possession, when he fired four bullets at her, stopping her.

            Claiming that she did not have a second knife in her possession and was unarmed at the time the officer shot her, seconds after she had thrown the first knife, the injured woman sued the officers for excessive use of force.

            "We (with reluctance and doubt) accept," a federal appeals court stated,  that the law would allow a reasonable jury to find--given the Plaintiff's evidence, including evidence of Plaintiff being unarmed when shot, of the nature of the weapons she had used and the manner of their use, of the number of police officers present and their location and so on--that the amount of forced applied by the Defendant Officers was not reasonable in this case, notwithstanding that Plaintiff had just finished battering and attempting to kill police officers."

            At the same time, the court ruled that the defendant officers were entitled to qualified immunity from liability because it was not clearly established, at the time of the incident in 1987, that "it constituted excessive force to shoot a person under the circumstances presented in this case."

            The appeals court also ruled that the woman's criminal conviction for attempted, second-degree murder of one of the officers and for battery on another police officer did not bar her from pursuing her excessive force claim, since the issue of whether the officer was acting reasonably in shooting her after she committed these crimes was not an issue for the jury in the criminal case.

Willingham v. Loughnan, 261 F.3d 1178 (11th Cir. 2001).

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Police officer did not act unreasonably in shooting fleeing suspect in the back when he believed that the suspect was reaching for a weapon, based on his motions; no liability for shooting and killing suspect who turned out to be unarmed.

            A police officer responded to a report of shots fired and two suspects fleeing on foot from the scene of an armed robbery. He approached a man getting into a car who fit the description of one of the robbery suspects, who initially appeared to surrender, but then turned to flee.

            The officer chased the suspect, who climbed over a short fence and then looked over his shoulder at the officer, and moved his arms as though reaching for a weapon at waist level. The suspect's back remained turned toward the officer and obscured his hands from the officer's view. The officer yelled, "stop," and when the suspect's arms continued to move, fired a single shot into his back just below his right shoulder blade.

            The suspect died, and no weapon was found on his body. His surviving family brought a federal civil rights lawsuit against the officer, his supervisor, and the city, alleging excessive use of force.

            A federal appeals court upheld summary judgment for the defendants. "An officer is not constitutionally required to wait until he sets eyes upon the weapon before employing deadly force to protect himself against a fleeing suspect who turns and moves as though to draw a gun."

Thompson v. Hubbard, No. 00-2505, 257 F.3d 896 (8th Cir. 2001).

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First Amendment

Five alleged instances of primarily verbal "harassment" by a police officer over a three- year period, even if "inappropriate," was insufficient to state a claim for violation of a woman's First Amendment rights to complain about the officer's conduct towards her adult son. A person of "ordinary firmness" would not be "chilled" from expressing her views based on the officer's alleged actions.

            A woman filed a federal civil rights lawsuit against a Nebraska police officer, claiming that he engaged in a pattern of harassment against her in retaliation for her complaints to city and police officials about an altercation between the officer and her adult son that occurred in 1994.

            She complained about five specific incidents, one of which she said took place two days after the fight, one of which she said took place in 1995, and three of which she said took place in 1997.

            She claimed that the officer approached her vehicle and attempted to open her car door while she was stopped at an intersection, bumped into her in a card shop and that she then told him that one of them would have to leave, shouted out the window of his vehicle at her and shook his fist at her, drove by her and glared at and taunted her, and "nearly collided" with her vehicle.

            She asserted that these alleged actions by the officer violated her First Amendment rights by retaliating against her for speaking out against the altercation with her son and "chilling her right to political expression."  A federal appeals court, in upholding summary judgment for the defendant officer, did not agree.

            The court ruled that the plaintiff failed to show that the officer's conduct violated her constitutional rights. His alleged harassing conduct, the court noted, occurred over a period of three years, with "nearly two years passing between the second and third incidents," even though the two individuals lived within only six or seven blocks of each other.

            "Each encounter was brief. There were no verbal threats. There was no physical contact, other than bumping into each other at Hallmark. Although Officer Pfeffer's alleged conduct was unprofessional and inappropriate, it does not rise to the level of a constitutional violation."

            "These few and far between improper actions," the court stated, "would not chill a person of ordinary firmness from engaging in constitutionally protected activity."

Carroll v. Pfeffer, No. 00-2946, 262 F.3d 847 (8th Cir. 2001).

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High-Speed Pursuit

Officers and city were not liable for the death of a bicyclist struck by a pursued vehicle driven by fleeing drug dealer suspects who had previously fired at officers. Officers, who pursued suspects with lights and sirens activated, did not act with gross negligence or recklessness in conducting pursuit.

            Two suspected drug dealers opened fire on an undercover police vehicle containing two officers and an informer. The informer had previously approached the suspect's vehicle at the officers' direction, but hurried back to the officers' car when he saw one of the suspects appear to retrieve a gun. The officers returned fire and then engaged in a high-speed pursuit of the suspects, who drove off. A marked police vehicle also joined the pursuit, activating its lights and siren.

            The pursued vehicle attempted to pass another motorist on the right hand shoulder of the road, striking a man who was wearing blaze orange and riding a bicycle. The bicycle rider was killed, and his estate sued the city and the officers for negligence.

            The Supreme Court of Appeals of West Virginia ruled that the defendants were entitled to summary judgment since there was no evidence that the officers were grossly negligent or reckless in their pursuit of the suspects.

            The court also found that the "criminal acts of the suspects in pursuing the undercover officers, firing at them, fleeing from the police at a high speed, and swerving off of the road" and onto the shoulder "constituted intervening" acts which were not foreseeable by the officers when they initiated contact with the suspects.

            The court rejected the argument that the officers caused the bicyclist's death when they encouraged their informant to initially approach the suspects, allegedly knowing that the suspects wanted the informant dead.

            "While it may have been foreseeable that the informant could be harmed by forcing him to approach the suspects' vehicle, the death of a pedestrian several miles up the road was not foreseeable as a matter of law."

Sergent v. City of Charleston, No. 28479, 549 S.E.2d 311 (W. Va. 2001).

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Negligence: Vehicle Related

California Supreme Court rules that highway patrol officer had a clearly established duty under state law to exercise due care in directing a traffic violator to stop in a particular location. Passengers in vehicle injured after it was struck from behind while stopped on highway's center median could pursue negligence claim against officer and highway patrol.

            Passengers in a car that had been pulled over by a California Highway Patrol officer into the center median strip of a highway for a traffic violation were injured when a pickup truck ran into their automobile from behind. The injured passengers sued the California Highway patrol and the officer, alleging negligence.

            The California Supreme Court rejected a conclusion by the trial court that the highway patrol officer "had no duty to stop plaintiffs on the right shoulder as a matter of law," so that there was no triable issue of fact as to whether the officer "acted with due care or whether his conduct was a legal cause of plaintiffs' injuries."

            The court stated that it was clearly established under California state law that a "law enforcement officer, in directing a traffic violator to stop in a particular location, has a legal duty to use reasonable care for the safety of the persons in the stopped vehicle and to exercise his or her authority in a manner that does not expose such persons to an unreasonable risk of harm."

            The court further found that there was a genuine issue of fact for a jury to determine in this case as to whether the officer acted unreasonably in instructing the motorist to pull over on the center median strip, and whether this contributed to causing the accident.

            The court noted that a portion of the California Highway Patrol Officer Safety Manual "clearly establishes at the very least a general preference for directing a cited vehicle to the right shoulder of a highway, rather than to the center median."

            While the provisions of the manual "may not properly be viewed as establishing the applicable standard of care," the court stated, "they may be considered by the trier of fact in determining whether or not an officer was negligent in a particular case," and therefore they can be introduced into evidence.

            The court also stated that while a jury might find that circumstances such as bad weather or an emergency could have made it reasonable for the officer to direct the vehicle to the center median, that it could find, in the immediate case, that there was insufficient justification for such direction in this case, "especially in view of the good weather and clear visibility prevailing at the time and location of the stop."

Lugtu v. California Highway Patrol, No. S088116, 28 P.3d 249 (Cal. 2001).

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Police Plaintiffs: Defamation

Company which issued video stating that police officers had been "implicated" in deaths of two teenage boys and a subsequent "cover-up" could not be held liable for defamation when officers failed to meet the burden of proving either that the statement was false or that it was made with "actual malice." Arguments disputing the credibility of those who had "implicated" the officers did not alter the fact that they had been accused by some.

            A commercially released video entitled "Obstruction of Justice: The Mena Connection" allegedly stated that two Arkansas police officers had been implicated in the deaths of two teenage boys and a subsequent "cover-up."

            The two teenage boys were run over by a train in a secluded area of Saline County, Arkansas in 1987 in deaths initially ruled accidental. Subsequent autopsies and a lawsuit by the parents of one of the boys resulted in the cause of death on the death certificates being changed to homicide, based on the theory that they were first killed and their bodies then laid on the tracks to make their deaths appear accidental. No one has ever been prosecuted for the boys' deaths.

            The two police officers sued the company which issued the video for defamation. A jury found the company liable and entered judgment in favor of the officers.

            A federal appeals court has overturned that result. It found that the plaintiff officers failed to prove the falsity of the statements in the video by at least a preponderance of the evidence. While they attacked the credibility of the purported eyewitnesses, "which would go to ascertaining whether they had in fact caused the deaths, their attack does not address whether purported eyewitnesses implicated them." Nor did they address whether they were "alleged to have been involved in a cover-up."

            The appeals court further found that, even if the officers had satisfied their burden of showing the statements in the video to be false, "we find their claims still fail," because they had not shown that the company that issued the video made the statements with "actual malice," that is, with knowing falsity or in reckless disregard of the truth.

            Because the officers were public figures, "actual malice" must be shown to impose liability for defamation. The officers failed to meet their burden of showing by "clear and convincing evidence" that the persons who issued the video "had a high degree of awareness of probable falsity or entertained serious doubts as to the truth of the assertion."

            The appeals court also stated that just because the defendant company did not "cross the line into public-figure libel is not to say" that it "stayed within the bounds of ethics and fairness." The various witnesses who attested to the character of the plaintiff officers "bode well for them." That they have "failed to disprove the disputed statements at the requisite levels should not undermine their accomplishments nor diminish their stature."

Campbell v. Citizens for an Honest Government, Inc., No. 00-1411, 255 F.3d 560 (8th Cir. 2001).

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Public Protection: Crime Victims

"Public duty" doctrine does not bar, in Michigan, lawsuit by kidnap/rape victim against police dispatcher for allegedly failing to disclose to the police the location of her assailant following conversations with the assailant's mother, who was her friend.

            A woman who was abducted, assaulted, and raped by her ex-boyfriend sued a police dispatcher who was a friend of her assailant's mother. The defendant dispatcher was allegedly contacted at her workplace by the assailant's mother while the plaintiff was being held captive. The lawsuit claims that the dispatcher was grossly negligent and engaged in active misconduct when she failed to notify the police of the whereabouts of the assailant and allegedly "acted in concert" with the assailant's mother in withholding information from authorities.

            The Complaint asserts that the dispatcher made calls which resulted in locating the assailant's vehicle near a family-owned trailer at a trailer camp and then agreed with the assailant's mother to withhold this information from the police until the mother could speak with her son's attorney. This allegedly allowed a brutal rape, beating, and abduction to continue for a longer period of time, as well as providing the assailant an opportunity to escape the fenced perimeter of the trailer camp with his victim.

            The lawsuit was filed under Michigan state law. The Supreme Court of Michigan has rejected an argument by the defendant police dispatcher that the "public duty" doctrine, first recognized by that court in White v. Beasley, 453 Mich. 308, 552 N.W.2d  (1996), should be extended to protect government employees other than police officers who are alleged to have failed to provide protection from the criminal acts of third parties.

            The court noted that a state statute, M.C.L. Sec. 691.1408(1) authorizes the state to defend and indemnify employees facing potential liability for injuries caused by the employee "while in the course of employment and while acting within the scope of his or her employment." The statute, which does provide for a measure of governmental immunity, assumes that government employees may face liability for performing their jobs in "a grossly negligent manner."

            The court declined to extend the principles stated in White to the circumstances in this case. In White, the court ruled that when a police officer's duty is a duty to the public, such as the general duty to provide police protection, then a failure to perform it, or an inadequate or erroneous performance, "must be a public, not an individual injury," for which civil liability will not be imposed in the absence of special circumstances creating a special relationship with an individual.

            Police officers "must work in unusual circumstances. They deserve unusual protection," the court stated. "However, for purposes of determining the liability of public employees other than police officers, we will determine a government employee's duty using the same traditional common-law duty analysis applicable to private individuals."

Because a lower court relied solely on the public duty doctrine in granting summary judgment to the defendant police dispatcher, the Michigan Supreme Court ordered the lawsuit reinstated.

Beaudre v. Henderson, No. 114261, 631 N.W.2d 308 (Mich. 2001).

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Public Protection: Motorist

Officer was not liable for failure to extract trapped motorist from burning vehicle after accident. Officer did what he could to attempt rescue and did nothing to place motorist in added danger.

            A motorist lost control of his car and collided with a tree. The car caught on fire, and a police officer on the scene was unable to extricate the motorist from the vehicle, as the doors would not open.

            The officer's jeep did not have a fire extinguisher, so he called for help. The officer managed to shatter a window by firing through it, and attempted to reach the motorist in that manner, but was forced to retreat before doing so because the fire became too intense.

            The motorist died from thermal injuries from the fire and from a laceration of his liver.

            The motorist's surviving family sued the officer and the city, claiming that the officer failed to take proper and adequate measures to rescue him, claiming a violation of constitutional due process.

            The plaintiffs claimed that the officer deliberately placed the motorist at risk of injury by discharging his weapon into the car and by failing to take appropriate measures to extinguish the fire.

            A federal trial court rejected the plaintiffs' federal civil rights claim. The situation facing the officer required "quick thinking and an immediate response." While it may have been "negligent" to fire his weapon into the car, there was nothing to suggest that he acted with "intent to injure" the motorist. Nothing that the officer did could be properly characterized as "arbitrary, or conscience shocking, in a constitutional sense."

            To the contrary, the court reasoned, the officer "acted with obvious concern for the welfare" of the motorist. Faced with a dangerous situation requiring immediate action, he made multiple rescue attempts "at great risk to his own safety," and only used his gun when "every second was critical." Given the damage to the car, the inability of the motorist, who was not conscious, to aid in his own escape, and the speed at which the fire advanced, the officer "simply was unable to prevent the tragedy that ultimately occurred."

            Indeed, the court noted, there was no evidence that the motorist even survived the initial collision with the tree, and the plaintiffs did not show that the officer did anything that independently caused or aggravated his injuries. Their argument that the liver lacerated may have been caused by the officer's bullet "is only speculation unsubstantiated by police or medical examiner reports."

            Finally, the court rejected the argument that the city sold the damaged vehicle or disposed of any evidence with the intent to interfere with the plaintiffs' lawsuit. The plaintiffs' specific request to preserve the wrecked auto was mailed "weeks after its disposal," the court noted, and after the city had sent the proper notice to the correct address advising interested parties on the procedure necessary to retrieve the impounded car.

Opoku v. City of Philadelphia, 152 F. Supp. 2d 809 (E.D. Pa. 2001).

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Racial Discrimination

Alleged eight minute response time to 911 call reporting attack on African-American pool hall co-owner by his fellow investors, even if true, did not show denial of equal protection. Plaintiff did not show that any delay was racially motivated or that response time was unreasonable.

            An African-American co-owner of a pool hall claimed that the city, its police chief, and several police officers engaged in racial discrimination against him, based on their response to a 911 phone call made by a janitor at the pool hall after a physical confrontation broke out between himself and other investors in the pool hall who were purportedly attempting to "take over" the business.

            On his way to the pool hall to discuss the matter with the investors, he telephoned police to request assistance. Once there, after a physical confrontation broke out, a janitor at the pool hall called 911. The plaintiff had arrived at the pool hall with a loaded gun in his briefcase, and the other investors wrestled him to the ground and placed him in handcuffs.

            When the officers arrived, they separated the investors from the plaintiff, and eventually cited the plaintiff for carrying a concealed weapon without a license and carrying a loaded weapon.

            The plaintiff asserts that the officers violated his right to equal protection and that they were motivated by a discriminatory attitude towards African Americans, based on an alleged delay in their response to the phone calls requesting assistance.

            The defendants argued that an officer arrived at the pool hall five minutes after the plaintiff's phone call, and three minutes after the pool hall janitor made his call. The janitor stated that the police arrived approximately five to eight minutes after he called.

            The court ruled that even if it did take an officer eight minutes to respond to the call, there was no evidence to support the argument that the officer "was dispatched but waited around the corner," until after "the plaintiff had been attacked and beaten" by the investors, or that his actions were "racially motivated." The plaintiff also provided no precedent suggesting that eight minutes was an "unreasonable response time."

Brew v. City of Emeryville, No. C-99-4720, 138 F. Supp. 2d 1217 (N.D. Cal. 2001).

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Noted in Brief

Assault and Battery - Physical

            Defendant police officers were entitled to summary judgment on lawsuit alleging that one of them had hit the plaintiff in the mouth with a nightstick while he was attempting to obtain the identifying number of a police car for purposes of lodging a complaint about the officers' behavior in allegedly beating his friends. Plaintiff was unable to identify which of the two officers allegedly assaulted him, and did not claim either that both officers attacked him or that one stood idly by while the other committed the assault, so that individual capacity claims against the two officers could not be supported. Roberts v. Prince George's County, Md.,  No. Civ. A. 2000-186, 157 F. Supp. 2d 607 (D. Md. 2001). [N/R]

Damages: Compensatory

            Damage award of $3.5 million in non-economic damages to an arrestee who suffered the loss of one eye and an impairment to his left hand in an alleged assault by police officers was excessive under both federal and Maryland state law. Punitive damage awards of $150,000 each against two officers and $100,000 against a third were also excessive. Court orders reduction of non-economic compensatory damages to $1.25 million and of punitive damages to $50,000 each against two offices and $35,000 against a third, or, in the alternative, a new trial on damages. McCollum v. McDaniel, 136 F. Supp. 2d 172 (D. Md. 2001). [N/R]

Firearms Related: Intentional Use

            Genuine issues of material fact as to whether officer reasonably could have believed that mentally ill suspect he shot posed a risk of harm precluded summary judgment for officer. Facts disputed include whether the officer actually and reasonably believed that the suspect was armed. Clem v. County of Fairfax, No. CIV. A. 00-1684-A, 150 F. Supp. 2d 888 (E.D. Va. 2001).

            The mother of an emotionally disturbed man shot eight times and killed by police officers while he "incoherently" waved a pipe at them in a field where he had wandered after a car accident was awarded $1.2 million in damages against the city by a jury that found that the officers acted negligently. Decedent was found 30% at fault for his own death. Lifton v. City of Vacaville, No. CIV S 98 1678 (U.S. Dist. Ct. E.D. Calif.), July 10, 2001, reported in The National Law Journal, p. B3 (Aug. 20, 2001).

Governmental Liability: Policy/custom

            Single act of alleged excessive force by police officers is insufficient to impose liability upon a county since it does not show the existence of a county policy, practice or custom. Vincent v. Prince George's County, Md., 157 F. Supp. 2d 588 (D. Md. 2001). [N/R]

Negligence: Vehicle Related

            Father of minor awarded $20,000 in damages for child's permanent prominent facial scarring caused by accident after transit police officer's vehicle failed to stop at stop sign. Neason v. Transit Management of Southeast Louisiana, Inc., #2000-CA-1271, 789 So. 2d 31 (La. App. 2001). [N/R]

            Jury awards $5 million to motorist who suffered brain damage from collision with speeding police vehicle. Six witnesses testified that officer's overhead lights were not turned on, while three officers stated that lights were operating. Jury rejects defense argument that motorist was intoxicated and ignored the police vehicle's lights when she turned left into its path. Krall v. Des Plaines and Neubauer, No. 00-L-004096 (Circuit Court of Cook County, IL.), reported in The National Law Journal, p. A6 (November 5, 2001).

Strip Search

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

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