CONTENTS

Officer's alleged action in striking the arrestee's face and slamming his head into the floor after he had been subdued, if true, violated the Fourth Amendment's prohibition on excessive force so that officer was not entitled to qualified immunity from liability. Appeals court could decide legal issue on appeal despite officer's dispute of arrestee's version of the facts.

     A misdemeanor arrestee in Ohio sued the arresting officer claiming that unnecessary force was used against him during the booking process for an offense of violating a city "open container" ordinance for carrying an open container of an alcoholic beverage. Specifically he claimed that the officer hit him in the face and slammed his head into the floor after he was subdued.

     The facts alleged included an acknowledgment that the arrestee had moved his feet in a manner that the officer interpreted as an attempt to kick another officer, and tackled the arrestee in the police station. The arrestee claimed that it was then, when the officer had already subdued him, and was on top of him, and he was handcuffed, that the officer told him not to try to kick officers and hit him in the face twice, followed by banging his head into the floor at least three times.

     The trial court denied the officer's motion for summary judgment on the basis of qualified immunity, a result upheld by the federal appeals court.

     The appeals court held that, if the facts were as alleged by the arrestee, the officer's actions would constitute excessive use of force under the Fourth Amendment and violate clearly established law, since there was no evidence that the arrestee posed a threat to the officer or anyone else after the officer was on top of him.

     The appeals court further found that it could decide the appeal despite the officer's dispute of the arrestee's version of the facts. For purposes of deciding whether or not the officer was entitled to qualified immunity, "we must take the facts in the light most favorable to the plaintiff," and these questions are "strictly legal" rather than factual.

     The officer argued that the Eighth Amendment should govern the arrestee's claim, rather than the Fourth Amendment, since the arrestee was already in custody, and that under that standard the officer would be liable only if he used force "maliciously and sadistically for the very purpose of causing harm."

     The appeals court found that the trial court was correct in ruling that an excessive force claim occurring in the course of an arrest or other seizure is instead governed by the Fourth Amendment and its reasonableness requirement. The booking procedure, the court held, is a continuation of the seizure that begins with an arrest.

     Under the Fourth Amendment standard, the court noted, the officer's subjective intentions are not relevant. Instead, the issue is whether the force used is objectively reasonable under the circumstances. The appeals court found that the arrestee's right to protection during the booking process from the force allegedly used by the officer after he was subdued was clearly established so that no reasonable officer could have believed that he could continue to beat a handcuffed arrestee after that point while sitting on top of them.

     Phelphs v. Coy, #00-4257, 356 F.3d 295 (6th Cir. 2002).

     »Click here to read the decision on the court's website.

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Officers acted objectively reasonably in forcing a diabetic motorist to a stop and forcibly removing him from his truck through the use of pepper spray, baton blows, and bites from a police dog when his erratic driving was serious enough that people might have been killed by it, and he refused to comply with lawful orders once he was stopped.

     A motorist suffered from juvenile diabetes and was driving home from a family dinner at a restaurant, alone in his truck. The last thing that he remembers prior to the end of his subsequent encounter with police was that he was attempting to turn around to meet his wife at a gas station.

     Having fallen into a diabetic shock, he continued driving, but his driving was allegedly erratic enough that he attracted the attention of a retired police officer who followed his truck and then called the Maryland State Police, reporting the erratic driving. The driving included his having crossed over to the left into oncoming traffic lanes and also swerving off to the right, sideswiping guardrails. The retired officer assumed that the driver was intoxicated, and felt that "there was going to be a tragic event."

     A Maryland state trooper then began following the driver, and observed additional swerving completely across the road onto the median strip and then onto the opposite side, and up onto an embankment. When the trooper tried to stop him, the motorist accelerated, crossing the median entirely into the oncoming traffic lanes and running between six and twelve cars off the road. A deputy who was ahead of the pursued vehicle set up a road block and eventually forced the motorist's car to a stop against a guardrail, after he did not slow down for the road block.

     The motorist failed to respond to repeated orders to turn off his ignition and get out of his vehicle. The deputy broke the car window to attempt to remove the motorist from the car.

     The motorist continued to be unresponsive, keeping at least one hand on the steering wheel and attempting to shift into gear with the other, a behavior which he resumed after having been sprayed with pepper spray. The deputy now tried more verbal commands, followed by blows with a baton, and finally, the use of a K-9 dog which was placed in the truck and pushed out of the truck by the motorist. The K-9 was reinserted into the truck, bit the motorist on the right arm and shoulder, and the officer was finally able to remove the motorist from his vehicle since he stopped revving the truck.

     When a state trooper on the scene learned that the motorist was a diabetic, an ambulance was called for him, and he was sent to the hospital with no police guard. He was subsequently issued six traffic tickets which were later dismissed. The motorist filed a federal civil rights lawsuit alleging excessive use of force and unreasonable seizure.

     The federal trial court ruled that the defendant officers were entitled to qualified immunity.

     "They were undoubtedly entitled to stop the plaintiff, both to investigate the cause of his erratic driving behavior and to keep people from being killed by it. Having stopped the plaintiff, who failed to comply with lawful orders to shut off his truck so that he could not further travel, create a new hazard, or cause harm to the officers who had stopped him and others, the defendants were clearly authorized to use physical force to subdue the plaintiff and effectuate his arrest."

The officer's "escalating use of force was a measured response engendered by their objective observations and conclusions from plaintiff's erratic behavior that he needed to be subdued to prevent harm to himself, other motorists, and the officers. All of their conduct, in short, was such that an objectively reasonable officer would not have believed that it violated plaintiff's constitutional rights."

     Moore v. Winer, 190 F. Supp. 2d 804 (D. Maryland 2002).

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

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Two environmental activists (including the estate of one now deceased) awarded a total of $4.4 million in a lawsuit against three F.B.I. agents and three police officers for false arrest in case where they were injured when a homemade bomb exploded in their car. Arrest was based on a claim that arrestees were transporting the bomb to use for a terrorist act protesting the logging of redwood trees.

Two environmental activists from an organization called "Earth First" have been awarded a total of $4.4 million in damages in a federal civil rights and false arrest lawsuit against three F.B.I. agents and three Oakland, California police officers. One of the two plaintiffs is deceased, so the claims on her behalf were pursued by her estate.

The two were injured twelve years ago when a pipe bomb in their car exploded in May of 1990 in Oakland as they were traveling to a presentation where they intended to promote demonstrations planned for later that summer that their organization was promoting to protest the logging of ancient redwood trees.

Several hours later, the two injured persons were arrested by the F.B.I. and Oakland police who accused them of having assembled and transported the homemade pipe bomb in order to use it in an act of "eco-terrorism" as part of the protest. All charges against the two were subsequently dropped approximately six weeks later for lack of sufficient evidence. No charges for the bombing were ever brought, to this date, against anyone else.

The two plaintiffs asserted that the bombing of their car, which resulted in injuries to both of them, was actually the result of persons having made death threats against them for their anti-logging activities.

The lawsuit they filed asserted claims for false arrest, violation of civil rights, illegal search, and conspiracy. The jury was unable to return an award on whether one of the two plaintiffs (Darryl Cherney) was falsely arrested and returned a verdict in favor of the defendants on the conspiracy claim.

But the verdict of the jury agreed with the plaintiff's argument that the defendants violated their First Amendment rights and civil rights generally. The jury did find that plaintiff Judi Bari, who subsequently died of cancer, and was more seriously injured in the explosion, was falsely arrested and that improper searches of her home were conducted in violation of the Fourth Amendment. It also found that Cherney's Fourth Amendment rights had been violated during the search of his home.

The jury awarded a total of $2,399,000 against the F.B.I. and $2,001,000 from the Oakland Police Department to the two plaintiffs. (Click here for a table breaking down the damage awards by plaintiff and claim). In testimony in the case, Oakland police investigators stated that they largely relied on advice from the F.B.I. San Francisco office's counterterrorism unit for the handling of the case, but the F.B.I. agents in the case denied that they had somehow misled the police investigators into focusing their attention on the plaintiffs as "violence-prone" radicals who had probably themselves been responsible for the explosion.

Oakland defendants reportedly are planning post-trial motions to set aside the awards and plan an appeal if those are denied.

     Bari v. Buck, #911-01051CW, U.S. Dist. Ct. N.D. Cal. June 111, 2002), reported in The New York Times, National Print Edition, page A14 (June 12, 2002).

    »Click here to read the jury award on the internet (.pdf format).

    »Click here to read the jury instructions on the internet (.pdf format).

   »Click here to read the complaint on the internet.

 »Click here to read prior federal appeals court opinion Bari v. Sims, #97-17375, 192 F.3d 1283 (9th Cir. 1999), denying qualified immunity in the case.

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Officer was entitled to official immunity from false arrest and assault lawsuit under Texas law based on his authority to inspect the record of a commercial vehicle, since his decision concerning whether to arrest the driver for failure to produce the record was discretionary rather than ministerial.

     A Texas state trooper pulled an eighteen wheel truck over for failing to maintain a single lane. The officer asked the driver to produce his "logbook" or "record of duty status." While the driver refused this request, he did show the officer the last entry, even though state law required him to show the officer the record of the previous seven days. The entry shown, however, was allegedly "not even appropriately updated."

     The trooper requested assistance and his supervisor responded. When the trucker again refused to produce his logbook, he was placed under arrest and charged with interference with public duties. He was subsequently found guilty.

     He subsequently filed a lawsuit concerning the circumstances surrounding his arrest. He claimed that he was burned when the supervisor put him on the hood of his patrol car to arrest him, that the supervisor aggravated a previous injury to his right arm when he twisted it behind his back and that the supervisor also aggravated a previous injury to his leg and hip. The lawsuit sought damages for false imprisonment, assault, and intentional infliction of emotional distress.

     Upholding the trial court's grant of summary judgment for the defendant officer (the supervisor who made the arrest), an intermediate Texas appeals court noted that the officer had a right to inspect the "record of duty status" logbook under both federal and state law. See 49 C.F.R. Sec. 395.8(k)(2) and 37 Tex. Admin. Code Sec. 3.62(a).

     The appeals court found that the defendant officer was entitled to official immunity under Texas state law.

     "Official immunity is a common-law affirmative defense that shields government officers and employees from personal liability arising from their performance of (1) discretionary duties (2) in good faith (3) within the scope of their authority." This defense generally applies only when the employee's job requires the exercise of personal judgment and discretion, as opposed to "ministerial" actions which must be done without discretion.

     Determining whether probable cause exists that the person has committed an offense involved personal discretion as does an officer's decision regarding "if, how, and when to arrest a person," the court ruled. The officer's decision concerning whether to arrest the driver for interfering with official duties therefore constituted a discretionary function for which he was entitled to official immunities.

     The court also rejected the arrestee's argument that the official immunity defense did not apply to his assault claim because an officer could not have in good faith intentionally assaulted the trucker. The court found that several courts have previously applied official immunity to cases involving allegations of intentional misconduct, and held that "official immunity does apply to allegations of intentional torts."

     Kersey v. Wilson, # 2-01-226-CV, 69 S.W.3d 794 (Tex. App. 2002).

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

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Information that police detective allegedly omitted from his probable cause affidavit for an arrest warrant for a robbery suspect would have not altered the affidavit in a material way, so that the omission did not violate the suspect's Fourth Amendment rights.

     A suspect was arrested for a robbery under a warrant issued in Connecticut on the basis of an affidavit submitted by a police detective. After he was acquitted of the charges by a jury, he sued the detective for violation of his civil rights as well as for the intentional infliction of emotional distress under state law.

     The lawsuit claimed that the detective violated the arrestee's rights when he procured the arrest warrant by recklessly withholding and "concealing" evidence that was material to a determination of probable cause, and that the judge would not have issued the warrant for his arrest if the information were included.

     A federal trial court rejected these claims. It found that inclusion of the omitted information in the probable cause affidavit would not have made any material change in it, so that the warrant would still have been issued.

     The affidavit did make it clear that the victims of the robbery who initially recognized the suspect from the crime scene were not the same as the victims who ultimately identified him through a photo lineup. The court found that the omitted information "is either available in the current affidavit by way of easy inference or it is not relevant to the probable cause finding," so that there was probable cause for the arrest.

     The fact that the identification may have been mistaken did not alter the fact that the officer was entitled to rely on it. Officers "must rely on statements of victims of crime in order to perform their job." Victims, in turn, "experience significant stress in connection with crimes that are perpetrated against them," so that "it is unrealistic to think that a recollection of such events will be flawless."

     An acquittal, the court noted, "is not to be equated with the absence of probable cause." In this case, a jury found that there was reasonable doubt as to whether the arrestee had committed the crime. "The standard for whether there was probable cause to arrest him for the robbery, however, is markedly different. The same evidence can be insufficient for one but sufficient for the other."

     Garcia v. Gasparri, 193 F. Supp. 2d 445 (D. Conn. 2002).

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

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Factual issues existed as to whether officers reasonably believed that they saw a gun, a muzzle flash, or were otherwise threatened with deadly force by a motorist that they shot and killed after stopping him for a traffic violation. Officers were therefore not entitled to qualified immunity from liability.

     An officer stopped a motorist in California for an alleged traffic violation. A series of events followed during which the officer and his backup officer fired at least fourteen rounds at the motorist, hitting him three times. He was given immediate medical treatment but died in the hospital within six days of the incident.

     The motorist's heirs filed a wrongful death and civil rights lawsuit. The officers sought qualified immunity, arguing that they used reasonable force because they believed that the motorist was threatening them with a handgun at the time he was shot.

     The plaintiffs' evidence in opposition to the officers' motion consisted of a declaration by their lawyer and a declaration by the motorist's mother to the effect that she "did not believe that her son owned or possessed a gun or could have displayed a gun in the manner alleged by the officers."

     The trial court found that the officers' statements were consistent with one another, but denied the motion, reasoning that it would be inappropriate to grant summary judgment on the basis of the officers' statements alone, even though the officers were the only surviving witnesses to the incident.

     A federal appeals court upheld this result. It stated that its independent review of the evidence revealed a number of discrepancies that could lead a reasonable fact finder to question the officers' accounts of the incident. Among other things, the decedent's hands were covered with particles consistent with gunshot residue, the court noted, but the gun that he allegedly displayed was never fired and "was a collector's item registered to a deceased police officer." No fingerprints were found either on the gun or on the ammunition found in the decedent's pocket.

     Further, the officers' statements in support of the motion for summary judgment, the court found, were not "entirely consistent with their statements made in administrative interviews that occurred shortly after the shooting."

     One of the officers provided "differing accounts" as to whether he actually saw the decedent with a gun and as to whether he fired before or after he believed that the decedent had fired a shot. The other officer, according to the court, provided differing statements as to what the decedent yelled before the shooting and states that he heard the first officer warn him about the decedent's gun, a statement that the first officer never claims to have made.

     An audio tape of the incident submitted as evidence failed to resolve these discrepancies, the court noted, "because it fails to capture clearly the critical moments immediately before the shooting."

     Therefore, since the evidence supported conflicting inferences as to whether the decedent possessed, pointed, or fired a gun, and as to whether the officers reasonably believed that they saw a gun, saw a muzzle flash, or were otherwise threatened with deadly force, the court stated that it could not determine as a matter of law on the basis of the existing record whether the officers' use of deadly force was reasonable.

     Lee v. Hanna, No. 01-55403, 32 Fed. Appx. 937 (9th Cir. 2002).

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

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Off-duty police officer did not use excessive force in shooting a man he observed attempting to enter various homes in his neighborhood. Suspect was trying to escape from a house he did enter, and his right hand was out of the officer's sight when he rotated his shoulder, giving him reason to believe that he was in immediate threat of serious bodily harm.

     An off-duty Nebraska police officer was home at 6 a.m. one morning when his wife noticed a man attempt to enter their front yard. When his progress was impeded by some bushes, he proceeded down the sidewalk, down a neighbor's driveway in between some houses. The officer watched the man attempt to enter two different neighbors' homes through their back doors, but fail to do so because the doors were locked.

     The officer instructed his wife to call 911 and took his service revolver and proceeded outside. He saw the suspect cross a neighbor's yard and enter a home. While the officer initially decided to wait for backup, he subsequently determined that he should also enter the home. Once inside, he saw his neighbor and they both heard a noise coming from upstairs.

     The officer, with his gun drawn, informed the suspect that he was an officer, that he should halt, and that he should put his hands up. The suspect had a purse in his left hand, but the officer could not see his right hand. Despite the officer's warning, the suspect stepped to the side and ran out the back door onto the deck, jumping over the deck railing onto the ground fifteen feet below.

     The officer repeated his warning, and the suspect landed in a crouched position and then rotated his left shoulder. The officer fired a shot that struck the suspect in the lower right back and exited out his groin. The suspect proved to be unarmed, and he subsequently sued the officer for excessive force in arresting him.

     The jury returned a verdict in favor of the officer. A federal appeals court upheld this result. It found that the officer had probable cause to use deadly force under the circumstances, and could reasonably believe that he was facing an immediate threat of death or serious bodily injury when he could not see the suspect's right hand when he rotated his left shoulder.

     The appeals court upheld the jury instructions which were given as proper, and found that remarks by the officer's lawyer during closing arguments, suggesting that the plaintiff had "no protection under the Fourth Amendment" for what the officer did to him because he "put himself in harm's way," did not warrant the granting of a new trial.

     Billingsley v. City of Omaha, #01-1487, 277 F.3d 990 (8th Cir. 2002).

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

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Passenger injured in high-speed pursuit of car in which she was riding is awarded $11 million by Illinois jury.

     A passenger who suffered permanent brain injuries when a car in which she was riding crashed into a commercial building has been awarded $11 million in damages against the city which employed the officers who chased the vehicle. The then (in 1997) 17 year old woman was riding in a car with four other persons when Evanston, Illinois police officers began following the vehicle in an unmarked car because the driver was allegedly wanted on a warrant for drug offenses.

     The driver of the pursued vehicle claimed that he did not realize that the vehicle following him was the police and that a 70 m.p.h. chase ensued. The officers subsequently testified that they did not exceed 35 m.p.h. and that they activated their sirens and lights during the two minute pursuit. An appeal of the award by the defendant city is anticipated.

     Prado v. Evanston, Circuit Court of Cook County, Illinois, Law Division, reported in the Chicago Tribune, Section 2, page 5 (June 13, 2002).

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U.S. Supreme Court to review federal civil rights lawsuit over custodial interrogation of a wounded suspect while being treated in a hospital for life-threatening injuries. Suspect was never charged with a crime, so no statements were ever used in court, but appeals court ruled that he could still pursue his claims.

  A man blinded and paralyzed after an officer shot him in the eye and spine during a scuffle was being treated in a hospital emergency room and an officer present on the scene persistently attempted to interview him, despite pleas from both the injured man and his doctors to leave him alone. The injured man, in excruciating pain, reportedly begged the interrogating officer to stop questioning him, but the officer refused to leave and kept up the questioning for at least 45 minutes.

     He subsequently sued the officer for violating his federal civil rights, despite never having been charged with any crime.

     Rejecting the defendant officer's motion for summary judgment on the basis of qualified immunity, a federal appeals court stated that the question to be determined was whether "a police officer who conducts a coercive, custodial interrogation of a suspect who is being treated for life-threatening, police-inflicted gunshot wounds may invoke qualified immunity in a civil suit for damages under 42 U.S.C. Sec. 1983. Under the circumstances of this case, we hold he may not." The appeals court rejected the argument by the city that the officer did nothing wrong because the plaintiff never asked for an attorney.

     "In light of the extreme circumstances in this case," the appeals court stated, "a reasonable police officer" could "not have believed that the interrogation of suspect Martinez comported with the Fifth and Fourteenth Amendments. Accordingly, the district court did not err by holding that on these facts qualified immunity was not available to Chavez to insulate him from Martinez's civil rights suit for damages."

     The "animating purpose" of Miranda, the appeals court said, is adequately achieved only if the Fifth Amendment "cast its protection against coerced self-incrimination not just over the courthouse, but also over the jailhouse, the police station, and other settings in which law enforcement authority was invoked to curtail a criminal suspect's freedom of action in any significant way." In this case, the court found, the police officer's conduct "actively compelled and coerced" a plaintiff to utter statements that he "could reasonably believe might be used in a criminal prosecution or lead to evidence that might be so used." The appeals court found that even though, in this case, the statements were not used against the suspect in a criminal proceeding, the "coercive questioning" violated his Fifth Amendment rights.

     "Likewise, a police officer violates the Fourteenth Amendment when he obtains a confession by coercive conduct, regardless of whether the confession is subsequently used at trial." And the due process violation is "complete with the coercive behavior itself."

     The U.S. Supreme Court has now granted review of the case, and will hear arguments concerning it this fall. The three questions presented are:

     1. Was the Ninth Circuit correct in characterizing the Court's Fifth Amendment discussion in United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), as non-binding and ignoring its ruling favorable to a civil rights defendant? (In that case, the U.S. Supreme Court held that a constitutional violation of the privilege against self-incrimination guaranteed by the Fifth Amendment "occurs only at trial.").

     2. Does the violation of the Fifth Amendment, potentially resulting in an award of civil damages occur at the time of the purported coercive interview or only when and if the state introduces the constitutionally violative statement in a criminal proceeding?

     3. Was the Ninth Circuit correct in holding that the conduct of the investigating officer in this case was so offensive (in violating clearly established law) as to deny him qualified immunity as a defense?

     Martinez v. Oxnard, No. 01-1444, cert. granted 2002 U.S. Lexis 4044. Appeals court decision below is Martinez v. City of Oxnard, No. 00-56520, 270 F.3d 852 (9th Cir. 2001).

     »Click here to read the appeals court decision on the internet. (.pdf format)

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Officer was not liable for death of intoxicated arrestee because of alleged failure to confine him securely enough in police vehicle to prevent the struggle that led to his death.

     A man was arrested after hitting his wife, was observed to be very drunk, and, when told that he was being taken to jail said that he "wasn't going," remarking that either he or the officer taking him would be dead first. The officer handcuffed his hands behind his back and placed him in the back seat of the police car, but, despite the threat, neglected to shackle his legs, fasten his seatbelt, or close the plexiglas partition between the driver's seat and the back seat.

     During the drive to the jail, the arrestee managed to bring his cuffed hands to the front of his body by putting his feet through his arms, and having done so, he grabbed the steering wheel of the car and veered the car into a ditch. The officer received some assistance from a private citizen passing by, but the officer also accidentally sprayed himself with pepper spray while trying to spray the arrestee, temporarily blinding himself.

     The officer and the other man wrestled the arrestee to the ground. A struggle ensued during which the arrestee died while the other man was pressing on his neck. The death was "from the effect" of the pressure on his neck, "possibly combined with fatigue and inebriation, but that is unclear," a court later commented.

     A civil rights lawsuit against the officer claimed that he was deliberately indifferent to the arrestee's safety by failing to secure him adequately after the death threat. The trial court granted summary judgment for the defendant officer, finding that the failure to protect the arrestee from the events which occurred might have been negligent but did not rise to the level of deliberate indifference and a constitutional violation.

     The court also noted that the officer did not himself attempt to use deadly force against the arrestee and could not have anticipated that the bystander who assisted him would do so. Further, when it became apparent that the private citizen was apparently using a choke hold, the officer made a reasonable effort to stop him by telling him to ease up. The officer was not aware, at the time, that the small, unarmed bystander was a "martial arts expert."

     The appeals court also found that the private citizen who aided the officer was not acting under color of state law, exposing him to possible liability under 42 U.S.C. Sec. 1983 for violation of civil rights simply because he provided "brief, ad hoc assistance" to the officer in restraining the arrestee.

     Proffitt v. Ridgway, #00-3229, 279 F.3d 503 (7th Cir. 2002).

     »Click here to read the decision on the internet.

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Police officers were not subject to liability for the alleged improper destruction of property in a home during the execution of a residential search warrant on a "group liability" theory. Officers who remained outside of the home during the search could not be held liable for officers' alleged actions inside on the basis that they were "integral participants" in the allegedly unlawful conduct.

     Officers arrived at a Los Angeles home to conduct a search for weapons and contraband allegedly related to various gangs. The home was selected for a search because of allegations that certain residents of the house had an affiliation with one of the gangs targeted in "Operative Sunrise," a massive group of searches in gang affiliated homes.

     The searches, including the search of this home, were all conducted with warrants. When residents of the home in this case did not respond to officers who announced their presence through a bullhorn and with two telephone calls, the officers attempted to break down the door with a sledgehammer. Their first attempt to do so was unsuccessful, but the homeowner's son subsequently opened the door for them. A number of occupants of the house were removed.

     The homeowner subsequently returned, following the search, to find that the "house was a mess." She sued all the officers involved in the search, including those who stood armed outside the house while other officers inside moved furniture, opened doors and drawers, broke a lock on a closet door, moved clothes and auto parts around, and broke drawers off a dresser.

     Following an eight-day trial, the jury found that none of the officers had searched the house in an unreasonable manner.

     The homeowner appealed the verdicts, claiming that the trial court erred in failing to give her proposed jury instructions on "group liability," depriving her of an inference that, despite the fact that no officer took responsibility for the "destruction of the living room and causing a urine smell in her iron, all officers could be held liable for these actions if they were part of the searching team."

     The appeals court stated that the case "presents a difficult question: can officers be held liable for an allegedly unlawful search when there is no direct evidence of their individual participation? We conclude that in this case they cannot. This case also presents a difficult situation: a search of a house, pursuant to a warrant, that results in the destruction of personal property. Our reaction to the situation is great sympathy" for the homeowner.

     In order for a person to be liable for federal civil rights violations under 42 U.S.C. Sec. 1983, the court reasoned, there has to be a showing that they personally participated in the alleged violation of the plaintiff's rights, as there is no vicarious liability under Section 1983. Any "team liability" instruction that does not require individual participation is improper since it "allows a jury to find a defendant liable on the ground that even if the defendant had no role in the unlawful conduct, he would nonetheless be guilty if the conduct was the result of a 'team effort.'"

     The court noted that no individual officer involved in the alleged destruction of property in the living room was identified. This was despite the fact that the residents, at one point, were brought back into the house so that the house was not, at all times, under the officers' exclusive control, so that the officers were the only ones who knew what occurred during the search. The court stated that the circumstances in which a "group liability" instruction might be proper as to the officers inside the house would be that in which the house was under the exclusive control of the officers.

     The appeals court further ruled that it would be absolutely improper to give a jury instruction that would allow "team liability" to be imposed on officers who remained armed outside the residence during the search, securing the premises or guarding residents who were brought outside. "The evidence in this case did not indicate that those officers who simply remained outside were integral participants in the 'unlawful conduct,' that is, the destruction of personal property and the manner in which" the house was searched.

     "We reject the idea that simple membership in a group, without personal involvement in and a causal connection to the unlawful act, can create liability under Section 1983."

     Jones v. Williams, #00-56929, 286 F.3d 1159 (9th Cir. 2002).

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

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County sheriff did not violate the rights of pawnbrokers by conducting administrative searches of their businesses to ensure compliance with a Florida state record keeping statute, but statute did not empower him to immediately seize property for which records could not be produced.

     Pawnbrokers in Florida filed a federal civil rights lawsuit against the Broward County Sheriff's office, challenging the conducting of searches of their stores and wrongfully seizing goods found that were believed to be stolen or which the sheriff argued did not comply with the record keeping requirements of a Florida state statute, F.S.A. Sec. 539.0001.

     The sheriff's detectives allegedly inspected the stores and demanded documentation of the origin of all items in the store that were not openly "tagged" with markers corresponding to the documentation in its records. When store managers were unable to provide forms for some items, the detectives seized the items, including some items that the store manager claimed were his personal property. The sheriff's office interpreted the state statute as requiring pawnbrokers to create and maintain a transaction form for each of the items in their shops and to produce such forms immediately at the request of the investigating officers.

     The pawnbrokers argued that the act only required them to keep and produce forms for items acquired within the three years preceding the search. The trial court granted summary judgment for the defendant sheriff.

     On appeal, the court affirmed in part and reversed in part. It agreed that the Florida Pawnbroking Act gave the county sheriff the right to conduct administrative searches of pawnshops without a warrant to ensure compliance with the statute's record keeping requirements. Accordingly, the searches, by themselves, did not violate the pawnbrokers' rights.

     At the same time, the court agreed with the business owners that the statute only required them to maintain forms on items acquired within the past three years, so that items could not be seized merely because it did not have an available tag or form.

     Therefore, the seizure of the pawnbrokers' property, unauthorized by the statute, violated their due process right to pre-deprivation notice and a hearing. Additionally, even for items which were more recently acquired, the statute did not give the sheriff the authority to immediately seize the items for failure to produce the required forms, since the statute gives pawnbrokers participating in an "electronic transfer program" 24 hours to produce the original of any transaction form transmitted to the sheriff electronically.

     "The sheriff argues vigorously that this result will functionally deprive him of any authority to enforce the Act's" requirements, because on any occasion when he asks a pawnbroker for documentation regarding a particular item, the pawnbroker "could simply state that the item was acquired more than three years ago, and the sheriff would be required to take him at his word." The court found that, if that was true, the problem was with the Act itself, an issue not for the courts but for the state legislature to grapple with "should it wish to do so."

     Quik Cash Pawn & Jewelry Inc. v. Sheriff of Broward County, 279 F.3d 1316 (11th Cir. 2002).

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Vehicle owner had no privacy interest in auto parked on city street; no warrant was required to seize vehicle after default judgment issued for failure to pay parking fines. Administrative parking violation notices provided were sufficient to give vehicle owner notice of available pre- and post-deprivation remedies.

     The owner of a vehicle seized as it was parked on a New York City street filed a federal civil rights lawsuit to challenge the city's action. The vehicle was seized because of the owner's failure, over time, to pay a number of parking ticket fines. The owner argued that the seizure of his car without a warrant violated his Fourth Amendment rights. He further claimed that the use of an execution form which incorporated, by reference, computer database information about vehicle owners who had judgments entered against them for failure to pay parking fines was not sufficiently particular to satisfy the Fourth Amendment,

     He further claimed that the manner in which such seizures were carried out deprived him of his property interest in the vehicle without substantive or procedural due process of law.

     A federal trial court rejected all of these claims.

     First, the court found that there was no privacy interest that the owner had in a vehicle parked on a city street, and therefore the city and its law enforcement officials were not required, under the Fourth Amendment, to obtain a warrant for the seizure, following the entry of a default judgment against the vehicle owner for failure to pay for the multiple parking ticket fines owed to the city.

     The court upheld the execution forms the city used as sufficiently particular to satisfy the Fourth Amendment, even if, for the sake of argument, a "warrant" of some sort was required, despite the incorporation by reference of computer database information, because of the context in which the seizure occurred, one in which "the core privacy concerns embodied in the warrant requirement" were not implicated, especially since the forms specified that they were to be used for "street vehicle" seizures and not for entering private property to seize a vehicle.

     The court noted, in passing, that any failure to comply with New York state's civil practice rules or legislative schemes did not constitute a violation of federal constitutional rights.

      The court finally found that the procedure and notices used were sufficient to satisfy both the substantive and procedural due process rights to property held by the vehicle owner. As to substantive rights, the vehicle owner failed to show that he was treated any differently than any other parking regulation violator when his vehicle was seized. As to procedural rights, the court found that the city's administrative parking violation process, along with the availability of remedies in state court, provided the plaintiff vehicle owner with adequate pre-deprivation and post-deprivation remedies, as well as sufficient notices that such remedies were available.

     The fact that the city had a rule allowing the car owner to pay a lesser fine for a parking ticket if the payment was made in full within a week did not deprive the owner of any property interest when the fine was increased to the full amount after seven days, so he was not entitled to any additional hearing before the full fine became due.

     The owner had received multiple notices that the parking tickets were past due, as well as that default judgments for fines were pending, and then, finally, that default judgments had been entered against him.

     Rackley v. City of New York, 186 F. Supp. 2d 466 (S.D.N.Y. 2002).

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Assault and Battery: Choke Holds

     Trial court's determination that a trooper who detained a shopper in a grocery store did not use a choke hold in the apprehension was supported by the evidence that the officer had grabbed the detainee around the shoulders, rather than by the throat or neck, as well as officer's testimony that he never used choke holds and had never been taught or trained to use them. Wasserman v. Bartholomew, No. S-9604, 38 P.3d 1162 (Alaska 2002).

Defenses: Eleventh Amendment Immunity

     Georgia sheriff was an agent of the county, rather than an agent of the state, under prior precedent, so that he was not entitled to Eleventh Amendment immunity from suit against him in his official capacity for alleged excessive use of force. Manders v. Lee, #01-13606, 285 F.3d 983 (11th Cir. 2002).

Dogs

     Police officer did not use excessive force in releasing a police dog into the woods to search for and hold a suspect when he had reason to belief he had already committed serious crimes, including threatening someone with a gun while intoxicated, and posed an immediate threat to the safety of the officers and the public and was actively attempting to evade capture through flight. Neeley v. Samis, 183 F. Supp. 2d 672 (D. Del. 2002).

Domestic Violence

     Sufficient exigent circumstances existed for officer to make a warrantless entry into a home to make an arrest when he was called to the home to investigate a possible domestic dispute, noticed clothing strewn about the street in front of the residence, and was approached by a woman with an arm that appeared disfigured who told him that the man inside the house had broken her arm. Walker v. West Caln Township, 170 F. Supp. 2d 522 (E.D. Pa. 2001).

Expert Witnesses

     The trial court did not abuse its discretion in allowing expert witness testimony on the ultimate issue in the case of whether a deputy's use of force was proper against a Vietnam veteran who was fatally shot by a deputy responding to a domestic violence call. Crawford v. Bundick, No. 01-2864, 32 Fed. Appx. 785 (8th Cir. 2002).

Family Relationships

     Parents of motorist shot and killed by police officer could pursue a Fourteenth Amendment claim for the deprivation of their son's relationship despite the fact that he was an adult and had fathered a child, when he had never become part of another "family unit" since he had not married, but his siblings could not do so. Russ v. Watts, 190 F. Supp. 22d 1004 (N.D. Ill. 2002).

False Arrest/Imprisonment: No Warrant

     An officer was not liable for issuing a citation finding a motorist at fault for an accident despite motorist's contention that he did so in retaliation for the motorist having previously complained about the officer. The officer's investigation still provided probable cause for the issuance of the citation, based on the motorist's own admission, the other driver's account of the accident, and the apparent damage to the vehicles. An officer has qualified immunity to make an arrest or issue a citation when either it was objectively reasonable to believe that probable cause existed or reasonable officers could disagree on whether probable cause was there. Menon v. Frinton, #01-7639, 31 Fed. Appx. 735 (2nd Cir. 2002).

     Officer had probable cause to arrest bar owner for assault after bar patron told officer that owner had assaulted him and officer observed blood on patron's lips and owner admitted having struck a second patron. Officer, under these circumstances, was not required to investigate the bar owner's version of the incident more completely before making an arrest. Curley v. Village of Suffern, No. 99-9367, 268 F.3d 65 (2nd Cir. 2001).

False Arrest/Imprisonment: Warrant

     Detective was entitled to qualified immunity from liability on false arrest claim when he was present at, but did not participate in, a probable cause hearing. Detective had no affirmative duty to correct any testimony presented that he knew to be false or misleading, and even if he had such a duty, it would be unreasonable for the detective to believe that his conduct in subsequently making an arrest under the warrant issued at the hearing was unlawful. Pacheco v. Edgington, # 00-16937, 32 Fed. Appx. 299 (9th Cir. 2002).

     County and sheriff's department could not be held liable for civil rights violation for deputy's action in entering a home in alleged violation of the Fourth Amendment to execute a bench warrant against a third party (not the homeowner), in the absence of any evidence that the county or department had a custom or practice of relying on insufficient information in serving arrest warrants. Werbicki v. County of Los Angeles, #00-56801, 32 Fed. Appx. 302 (9th Cir. 2002).

First Amendment

     Woman who allegedly intended to place religious leaflets on car windshields had standing to sue county prosecutor and superintendent of state patrol to enjoin, on First Amendment grounds, enforcement of state statute prohibiting such leafleting, since she faced a credible threat of enforcement of the statute after they refused to tell her lawyer that they would not enforce it. Deida v. City of Milwaukee, 192 F. Supp. 2d 899 (E.D. Wis. 2002).

Governmental Liability: Policy/Custom

     County sheriff was not liable for violation of civil rights on the basis of enforcement of a state court order for replevin (possession) of property (employer's records in the possession of a former employee) in the absence of any claim that the sheriff participated individually in the action or that the seizure was conducted pursuant to any official policy or custom. Buzzanco v. Lord Corporation, 173 F. Supp. 2d 376 (W.D. Pa. 2001).

     Plaintiff failed to show sufficient evidence of a city custom to impose liability for excessive use of force when only a single incident of use of such force was shown. A newspaper article reporting that 87 people a year filed complaints against the police department did not show how many of these complaints alleged the use of excessive force. Ward v. City of Des Moines, 184 F. Supp. 2d 892 (S.D. Iowa 2002).

Police Plaintiff: Defamation

     Mayor's critical statements about a police department with between five and eight members could not be the basis for a defamation lawsuit by one of the officers on the basis of a "small group theory" that the statements could be taken to apply to each individual officer. The mere conclusory belief that the statements reported in a newspaper article concerned the individual plaintiff officer were insufficient for liability under Virginia law. Dean v. Dearing, No. 011154, 561 S.E.2d 686 (Va. 2002).

Police Plaintiff: Products Liability

     Police officer who was struck by a police vehicle with an allegedly defective brake system failed to adequately present evidence of defective design in his products liability lawsuit against the car's designer and manufacturer. Bourgeois v. Garrard Chevrolet, Inc., No. 2002-C-0288, 811 So. 2d 962 (La. App. 4th Cir. 2002).

Procedural: Discovery

     Personnel records of police officers who would offer expert opinions in lawsuit on the alleged excessive use of force were not privileged from discovery under the West Virginia Freedom of Information Act, W.Va. Code 29B-1-1 et seq. or under state police regulations concerning the confidentiality of personnel files. The records also were not privileged as law enforcement investigatory materials or as official information. Rollins v. Barlow, 188 F. Supp. 2d 660 (S.D. W. Va. 2002).

Racial Discrimination

     Police department's pursuit of indictment and prosecution of former teacher for alleged sexual assault of minor student, based on student's false accusations was not racial discrimination, since teacher did not allege or show that the conduct was motivated by racial considerations. Clark v. La Marque I.S.D., 184 F. Supp. 2d 606 (S.D. Tex. 2002).

     Police officers did not engage in racial discrimination or selective enforcement of laws in stopping African-American motorist whose car was weaving in traffic and in shooting him when an altercation occurred during which he stabbed one officer. There was no evidence that any defendant had failed to enforce the law in a similar manner against similarly situated people of other races. Gaddis v. Redford Township, 188 F. Supp. 2d 762 (E.D. Mich. 2002).

Search and Seizure: Courthouse Security

     Security procedures for entry into county court facilities, including the use of x-ray machines and hand searches of persons, their belongings, and their clothing were a valid "administrative search" to which individuals wishing to enter the courthouse impliedly consented. Smith v. Washington County, C98-0531CV; A106905, 43 P.3d 1171 (Ore. App. 2002).

Search and Seizure: Home/Business

     Officers were entitled to qualified immunity for alleged improper search within hunter's deer hangpole located 25 yards from a wooden structure on a 50 acre tract of recreational land. There were genuine issues of material fact as to whether structure qualified as a "home" and whether the deer hangpole was within the curtilage of the "home" or in an open field. While it was clearly established that the Fourth Amendment warrant requirement applies to the curtilage of a home, the officers could reasonably have believed that the deer hangpole stood in open fields. Hart v. Myers, 183 F. Supp. 2d 512 (D. Conn. 2002).