CONTENTS

Sheriff could not be held liable for "acquiescing" in deputy's alleged "improper conduct" with female passenger in his vehicle when he never learned of it until after a lawsuit was filed; deputy who filed bankruptcy could not be sued for this conduct when plaintiff took no steps in court to object to the discharge of the claim or to seek an exception to the discharge.

     A woman who had been drinking and became lost came to a gas station seeking assistance. After making two unsuccessful attempts to drive the woman back to her friends' house, the gas station attendant called the police. The deputy who arrived at the station at 6 a.m. in the morning moved the woman's car to a nearby parking lot and asked her to get in his cruiser.

     The woman later claimed that the deputy commented on how "very attractive" she was and made disparaging remarks about his wife. She also claimed that once they found her friends' house, the deputy did not pull into the driveway, but parked at the entrance, and then took "inappropriate Polaroid photographs" of her, made sexual comments, and refused to allow her to exit the cruiser. She also said that he wrote her a ticket which he neither signed nor checked off any violations on, and gave her a Breathalyzer test, about which he stated, "We won't be needing this." At approximately 7:30 a.m., she stated, he allowed her to leave the vehicle.

     The woman and her husband filed a lawsuit against both the deputy and the sheriff. The lawsuit claimed that the sheriff should be subjected to supervisory liability because he "acquiesced" in the deputy's conduct. The deputy filed a voluntary Chapter 7 bankruptcy petition a few months after the filing of the lawsuit, and his debts, including any debt arising out of the plaintiff's claim, were discharged under 11 U.S.C. Sec. 524 and 11 U.S.C. Sec. 727.

     Upholding the dismissal of the claims against the deputy by the trial court on the basis of the bankruptcy, a federal appeals court noted that the plaintiffs "took no steps in either the bankruptcy or district courts to set aside or terminate the automatic stay or otherwise obtain an exception to the [bankruptcy] discharge and therefore failed to preserve their rights" against the deputy.

     The appeals court also ruled that the sheriff could not face liability for alleged inadequate supervision. The plaintiffs pointed to the sheriff's alleged failure to discipline the deputy for his misbehavior and that the deputy had a "recent history of failing to report that he was transporting women in his cruiser." The plaintiffs argued that, from these facts, a reasonable jury could have concluded that the sheriff must have "implicitly authorized or approved" of the deputy's alleged misconduct.

     "Timing is everything," the appeals court stated. The sheriff did not learn any of these facts until the plaintiffs filed their lawsuit. After receiving the complaint, the sheriff did investigate the incident, and had disciplined the deputy on a previous occasion for failing to maintain appropriate radio contact and properly log his whereabouts when he transported another female passenger. In the immediate incident, the deputy denied wrongdoing and the sheriff was prevented from interviewing the only other eyewitness, the woman herself, since by that time she had retained an attorney and filed her lawsuit.

     Moor v. Madison County Sheriff's Department, No. 00-6004, 30 Federal Appendix 417 (6th Cir. 2002).

     [Editor's Note: This case was "not selected for publication in the Federal Reporter." The court indicated that this opinion was "not recommended for full-text publication. Sixth Circuit Rule 28(g) limits citation to specific situations," and "if cited, a copy must be served on other parties and the Court." It is reported above for its possible interest to our readers].

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Use of O.C. (pepper spray) by officer attempting to handcuff "belligerent" person who ignored officers' requests and, at the least, passively resisted arrest was not an excessive use of force. Issues of fact existed, however, as to whether an officer held the arrestee around the neck and subjected him to an unreasonable risk of serious injury, causing a broken neck.

     A Kentucky arrestee sued officers for using pepper spray on him and allegedly breaking his neck during an altercation. When two officers responded to a report of a domestic disturbance, they encountered an "intoxicated and agitated" man (the plaintiff) who approached them and objected to their attempts to question his uncle and father concerning the report. The officers perceived his manner as "belligerent and verbally abusive," and he did not back up far enough to satisfy them. When one of the officers asked him to show his hands, which were in his pockets, he moved them, and one of the officers perceived this as a striking motion towards the other officer.

     The first officer grabbed the man's arm, told him he was under arrest and attempted to handcuff him, but the suspect responded by locking his hands together in front of his chest, so that both officers were now unable to place his hands behind his back. One officers sprayed the man's face with O.C. (pepper) spray but it appeared to have no effect, and a physical struggle ensued.

     The plaintiff later contended that one of the officers held him by the neck and deliberately "snapped" his neck out of anger, resulting in a broken neck. The officers contended that no choke hold was used, and that no officer had his hands around the plaintiff's neck, but that instead an officer had him in a "bear hug" around the biceps, and that the arrestee fell after his legs became tangled with the officer's legs after he kicked the officer. Photographs of the officer's uniform confirmed a footprint on part of his pants.

     Granting summary judgment to the officers on a false arrest claim and on the claim relating to the use of the pepper spray, the court noted that the facts showed that the officers had probable cause to make an arrest for "menacing" under Kentucky state law, since the suspect came very close to them, had an aggressive posture, was yelling, and one officer perceived, even if mistakenly, that he was trying to take a swing at the other officer. Under these circumstances, which included the suspect being belligerent and ignoring the officers' reasonable requests, as well as, "at the least, passively" resisting arrest, the use of the pepper spray was not an excessive use of force.

     The court also noted that there was no actual evidence that the O.C. spray caused "anything other than its intended temporary discomfort and disorientation." While "some might say that the use of O.C. spray this early in the confrontation was unnecessary," a reasonable officer could believe that the decision to use O.C. spray in these circumstances "was proper and certainly was not excessive force." The court cited Monday v. Oullette, 118 F.3d 1099 (6th Cir. 1997) ("The decision by [the officer to use pepper spray] rather than risk injury and further delay through a physical confrontation with a large and intoxicated person did not constitute excessive force.").

     Summary judgment was denied, however, on the issue of whether the officer held the arrestee around the neck, subjecting him to an unreasonable risk of serious injury, since there was a genuine issue of material fact as to what actually happened. The court did reject, however, a related claim that the officers engaged in an unreasonable delay in calling for emergency medical assistance once the arrestee's neck was broken. While the plaintiff and two of his witnesses claimed that 45 minutes passed after his injury before he left in an ambulance, dispatch records produced by the officers showed that only six minutes passed between the officers' report that they had arrived at the residence and their call for emergency medical services.

     Fultz v. Whittaker, 187 F. Supp. 2d 695 (W.D. Ky. 2001).

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Arrestee was entitled to a new trial in his excessive force lawsuit against the arresting officer when jury was wrongly instructed that it must find that the arrestee suffered a "serious injury" to find for the plaintiff.

     A patron of a night club was "ushered out" of the premises one night by four "bouncers" from the business and one police officer who had been assigned to the club that night. The five men told the patron that he had had too much to drink, although he claimed that he had drunk only half a beer. The patron, who is black and of Haitian descent, complained that he was being unfairly ejected because of his race.

     The "verbal interaction" between the patron and the police officer continued outside. The patron was ultimately arrested and charged with disorderly conduct and disturbing the peace. He complained that the handcuffs were too tight, but no adjustments were made. The arrestee later testified that he suffered additional harm during the ride to the police station because the driver "continuously applied the brakes abruptly, causing him to bounce about the vehicle."

     At the station, he remained handcuffed for approximately four more hours, although he allegedly repeatedly requested that the cuffs be removed or loosened. After posting bail he went to a hospital and was diagnosed with probable "post traumatic/occlusive loss of sensation" in both hands "of temporary nature." Follow-up treatment was recommended. Other medical records indicated a possible rotator cuff injury, and he claimed that he suffered pain in his wrists for a few months. Criminal charges against him were subsequently dismissed, and he sued the officer for false arrest and excessive use of force.

     The trial court instructed the jurors that they must find that the plaintiff suffered "serious injury" to find the officer liable for excessive force. The jury returned a verdict for the plaintiff on the false arrest claim, but found no liability on the excessive force claim.

     A federal appeals court has ruled that the trial court's instructions concerning "serious injury" were erroneous, that they were not "harmless error," and that they entitled the plaintiff to a new trial on the excessive force claim.

     "Liability may be imposed for the use of excessive force even in the absence of a serious injury," the court stated. "Excessive force claims arising out of arrests are analyzed under the Fourth Amendment's protection against unreasonable seizures," and the plaintiff "must demonstrate that the police defendant's actions were not objectively reasonable, viewed in light of the facts and circumstances confronting him and without regard to his underlying intent or motivation."

     While the severity of the injury "also may be considered," the court acknowledged, a serious injury is not a prerequisite to recovery. Instead of focusing on whether the evidence was sufficient to show a "serious injury," the court said, they should have considered "only whether the officer's actions were unreasonably severe for the circumstances."

     Bastien v. Goddard, No. 00-2224, 279 F.3d 10 (1st Cir. 2002).

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     Editor's note: For other cases rejecting a requirement of "serious injury" for liability for excessive force, see Kostzewa v. City of Troy, 247 F.3d 633 (6th Cir. 2001) (excessive force claims can be maintained regardless of whether injuries "left physical marks or caused extensive physical damage," including, as in that case, when individual's wrists are cuffed too tightly); Glenn v. City of Tyler, 2422 F.3d 307 (5th Cir. 2001) (handcuffing too tightly, without more, does not amount to excessive force, but "significant injury" is not required to prove excessive force); Headwaters Forest Defense v. County of Humboldt, 240 F.3d 1185 (9th Cir.), vacated and remanded on other grounds by 122 S. Ct. 24 (2001) (whether the use of force poses a risk of permanent or significant injury is a factor to be considered in evaluating the need for the force used in a particular case--but it is certainly not dispositive"), Lambert v. City of Dumas, 187 F.3d 931 (8th Cir. 1999) (rejecting "significant injury" requirement for excessive force claims, requiring instead "actual injury"), Rambo v. Daley, 68 F.3d 203 (7th Cir. 1995) (significant injury not required for Fourth Amendment excessive force claims); and Wardlaw v. Pickett, 1 F.3d 1297 (D.C. Cir. 1993) (severity of injury a "relevant factor," but "we do not suggest that an individual must suffer significant injuries in order for the force used to be unreasonable).

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Officers were entitled to absolute immunity for entering a building owned by the plaintiff for the purpose of enforcing a court-ordered home visit by social service workers conducting a home study of the care of children who resided there. Entry did not constitute a "search" and officers did not see or touch business or confidential records or even open the closet where the records were stored.

     A homeowner claimed that officers violated his constitutional rights when they entered a building owned by him but occupied as a residence by a couple and their children. The plaintiff, a doctor, contended that the residence was also used for his own business purposes, including the storage of confidential records of outpatients serviced by an entity for which he is the clinical director.

     The officers were present and demanded entry in order to accompany employees from the county department of social services on a court-ordered visit to the home for the purpose of conducting a home study of the care of the couple's children. The court order for the visit required "full access to the home" to conduct the study, and stated that the date of the visit was to be "non-cancelable and non-negotiable." The residents of the home objected to the entry, mentioning that the doctor did not want any police or department personnel on or in his house or property, but the officers ordered one of the residents to open the door so that the visit could be conducted, and accompanied the social workers inside.

     One of the residents later stated that an officer, following the home visit, asked him where the records were. In upholding the dismissal of the lawsuit, a federal appeals court found that the officers were entitled to absolute immunity for entering the building for the purpose of enforcing the court-ordered home visit.

     Further, the officers' activities did not constitute a search, and the resident did not say that the officers actually saw or touched any of the business or confidential records or even opened the closet where the records were stored.

     While the court order for the home visit stated that "no other person" but the social workers was to be allowed in the home during the home visit, the court found that this language in the order "does not apply to police officers requested to enforce it or to protect a party who is attempting to comply with it, as here."

     Monroe v. Pueblo Police Department, No. 01-1112 30 Federal Appendix 778 (10th Cir. 2002).

     [Editor's Note: This case was "not selected for publication in the Federal Reporter," and a footnote to the opinion states that "this order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. Rule 36.3." The case is, nevertheless, reported here for its possible interest to readers].

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Jury award of $27,000 for arrestee overturned by appeals court. Officer had probable cause to arrest plaintiff, a building manager, following an argument with a tenant's boyfriend in which the boyfriend told the officer that the plaintiff had hit him in the head with a pipe.

     An arrestee in New York City sued the city for false arrest, claiming that he was improperly charged with assault in the second degree and criminal possession of a weapon in the fourth degree. The charges had been dismissed on a motion by the prosecution. The charges grew out of a fight between the plaintiff, who managed some real estate, and the boyfriend of a tenant in the building.

     Because of the "acrimonious relationship" between the tenant and the boyfriend, the plaintiff informed them that they would have to leave the premises. The boyfriend then allegedly pushed him and a physical confrontation occurred. The boyfriend allegedly fell down the stairs and hurt his head, but subsequently, after going to a hospital, filed a criminal complaint claiming that the plaintiff hit him in the head with a pipe.

     The officer arrested the plaintiff after viewing the boyfriend's head injuries, and despite the plaintiff's explanation for what happened. A state court jury awarded the plaintiff $27,000 in damages for false arrest, but an intermediate New York appellate court overturned the award .

     The court noted that it was "undisputed" that the complainant was injured, and that the visible injuries to his head required 27 stitches, as well as that the injuries resulted from a fight with the plaintiff, and that the complainant had filed a criminal complaint stating that the plaintiff hit him over the head with a pipe. These facts provided probable cause for the arrest, "notwithstanding plaintiff's exculpatory explanation" to the officer.

     Drayton v. City of New York, 739 N.Y.S.2d 44 (A.D. 1st Dept. 2002).

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Arrestee convicted of driving under the influence of alcohol was barred from bringing a federal civil rights lawsuit against arresting officer for false arrest arising out of the same incident, since an award on this claim would imply the invalidity of the conviction, which had not been overturned. Arrestee also could not pursue his due process claim for alleged deprivation of property (money) by the arresting officer when adequate state law remedies existed for this alleged intentional and unauthorized action.

     A Massachusetts police officer placed a motorist under arrest for driving under the influence of alcohol, failing to stay within the marked lines of the highway, and failing to stop for a police officer. In a federal civil rights lawsuit filed against the officer by the motorist, he claimed false arrest as well as asserting that the officer took $1,900 in cash from his wallet of which he only got back $1,092. The Plaintiff was found guilty of operating a motor vehicle under the influence of alcohol and not guilty of failing to stop for an officer. His appeal of his conviction was dismissed.

     The federal trial court ruled that the arrestee was precluded from pursuing his false arrest claim because of his criminal conviction on one of the charges. Under the principles set forth in Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364 (1994), damages for an alleged unconstitutional action by an officer can not be awarded if the award would imply the invalidity of a conviction or sentence, unless the conviction or sentence has been "reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into issue by a federal court's issuance of a writ of habeas corpus."

     While noting that some lower courts would not extend the requirements of Heck to "individuals who, like Plaintiff, are not in custody, whether because their sentence has expired or their punishment did not include incarceration," the court stated that the U.S. Court of Appeals for the First Circuit, whose decisions apply in Massachusetts, "has adopted a strict interpretation" that does apply Heck to such circumstances, citing Figueroa v. Rivera, 147 F.3d 77 (1st Cir. 1998). (Under Heck, the principle barring collateral attacks is "not rendered inapplicable by the fortuity that a convicted criminal is no longer incarcerated.").

     The trial court also ruled that the plaintiff could not pursue, in federal court, his procedural due process claim based on his assertion that the officer took and kept some of his money. "Plaintiff cannot successfully argue that the State should have provided him with a full hearing before" the officer "allegedly stole his money," since the "crux of his claim, in fact," is that the officer's act was "intentional and unauthorized" so that "any pedeprivation process was therefore impracticable." Further, available state law postdeprivation remedies, such as a lawsuit for conversion under Massachusetts law, were suitable and adequate. Accordingly, even if his claim about the officer taking his money were true, this alleged conduct did not violate the Fourteenth Amendment.

     Davis v. Schifone, 185 F. Supp. 2d 95 (D. Mass. 2002).

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Officers were not entitled to summary judgment on claim that they detained a shopping mall customer on suspicion of shoplifting without reasonable grounds to do so, but plaintiff customer failed to adequately allege a claim against the city for failure to train officers in arresting, detaining, and interrogating racial and ethnic minorities by citing only this incident in which officers allegedly subjected him to illegal seizure.

     An African-American male went to a shopping mall with his fiance to do some shopping. After they made a purchase at a "Williams-Sonoma" store, the purchase was placed in two store bags, one inside the other. The male was carrying this bag when he and his fiance went on to "Victoria's Secret," and when he left his fiance in that store to go to another store in the mall.

     At some point after leaving Victoria's Secret, he was approached by two uniformed police officers who allegedly asked him what was in the bag. He told them that it had purchases made by his fiance at Williams-Sonoma, and when asked why it was "double-bagged," he allegedly responded "Why don't you ask" the store?

     The man later related that he refused to consent to a search of the bag, and that the officers insisted that he accompany them to the store, declining his request that he wait where he was while one of the officers went to the store to inquire about the purchase. He stated that one of the officers told him that they had enough to arrest him and that he should not leave. Upon reaching the store, one of the officers and five mall security guards waited with him in front of it, while the second officer went inside to investigate. After several minutes, this officer exited the store and stated "It's not him," after which he was allowed to leave, without the officers explaining the basis of their investigation or apologizing to him.

     The Plaintiff claimed, in a lawsuit he subsequently filed against the city, that he was detained because a Victoria's Secret employee called mall security in reference to a "suspicious looking black male" carrying a "booster bag," and then mall security guards called the city police department. He claimed that he was improperly detained, and also that the city engaged in inadequate training of its officers in the arresting, detaining, and interrogating of racial and ethnic minorities.

     The trial court found that the plaintiff failed to state a claim for failure to train against the city. The facts alleged did no show deliberate indifference to the rights of racial and ethnic minorities. The plaintiff merely identified a single incident that caused an alleged constitutional deprivation--the immediate case. "Even if the detention did rise to a constitutional violation, this single incident is insufficient to establish a policy, custom or practice on the part of the Department of Public Safety which would make such an action attributable to the city." The plaintiff did not offer any evidence on the nature of the city's training, and a single incident, under the rule set forth in Oklahoma City v. Tuttle, 471 U.S. 808, 105 S. Ct. 2427 (1985) does not, by itself, give rise to the inference that the training was insufficient.

     At the same time, the court declined to grant summary judgment on the plaintiff's claim that he was improperly detained without reasonable suspicion. The officers stated that a security guard told them that there was one black male and three black females looking "suspiciously" and that the male was carrying a "booster bag." Mall security already had the plaintiff under observation because he was a black male seen exiting Victoria's Secret, and he had a double bag ("which presumably resembles a 'booster bag' ") in his possession. The officers "had no other information when they first approached plaintiff."

     The court noted that when the officers stopped him, the plaintiff was not accompanied by three females and was carrying a bag "labeled 'Williams Sonoma'," the name of one of the stores in the mall. There was no indication that security was told that the "booster bag" had a Williams Sonoma legend on it, and "dozens" of customers were "doubtless in the mall carrying" such legended bags. This left a genuine issue of material fact as to whether the officers had sufficient reasonable suspicion to stop, detain, and interrogate the plaintiff.

     Hall v. City of White Plains, 185 F. Supp. 2d 293 (S.D.N.Y. 2002).

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Family of man shot dead after he threw a knife at officers and screamed "Suicide by cop!" receives $1.25 million settlement in lawsuit against city in which plastic gun was allegedly "planted" at the scene of the shooting to justify it.

     A Miami, Florida SWAT officer shot and killed a man after officers were summoned because of a call from neighbors reporting that he was screaming. The 25-year-old man was allegedly drunk and suicidal at the time following an argument with his girlfriend.

     The man allegedly threw a knife at the officers and screamed "Suicide by cop!" When the officer shot and killed him shortly after that, he claimed that he observed a gun in the man's possession. During a subsequent investigation of the incident, a plastic gun was recovered, and pointed to as justification for the shooting.

     The surviving family of the decedent filed a federal civil rights lawsuit against the city, and it was alleged that the plastic gun was "planted" at the scene. The shooting officer was subsequently indicted on criminal charges of shooting an unarmed man, and had previously been indicted on a similar charge. A $1.25 million settlement was reached in the lawsuit on Feb. 14, 2002.

     Runnels v. City of Miami, U.S. Dist. Ct. No. 00-2930 (S.D. Fla. 2002), reported in The National Law Journal, p. B2 (March 18, 2002).

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Officer fired after motel clerk allegedly falsely accused him of robbing the motel is awarded $4 million against the motel owner and the owner's corporation in malicious prosecution lawsuit.

     A motel clerk who was allegedly angry with a police officer's fiancee complained that the officer had robbed the motel. A grand jury subsequently refused to indict the officer, and an investigation showed no evidence of any involvement by the officer in the purported robbery, but the officer was, nevertheless, fired, and claims that he has since been unable to obtain another job as a police officer.

     The former officer sued the owner of the motel and the motel owner's corporation. After these defendants failed to file an answer to the complaint, and a hearing on damages was held, the court awarded the plaintiff a total of $4 million, including $2.5 million in compensatory and $1.5 million in punitive damages, as well as $8,200 in attorneys' fees.

     Askew v. Patel, No. SC-2000-CV-1601, (Muscogee Co., Ga., State. Ct.), reported in The National Law Journal, p. B2 (March 18, 2002).

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Town and police supervisory personnel were not liable for failing to prevent a police officer's suicide with his service revolver; even if a due process obligation existed to take additional steps to prevent the suicide, it was not clearly established in 1998 when officer took his life, entitling individual defendants to qualified immunity.

     A police officer in a Connecticut town, who also served as the president of a police union local, killed himself by placing a service-issued gun to his head and pulling the trigger. His estate and widow sued the town and several police supervisory personnel, claiming that the decedent's constitutional rights to due process were violated by the defendants' failure to take additional steps to prevent his suicide. State law claims for negligence, wrongful death and loss of consortium were also asserted.

     Prior to the officer's death, he was placed in a police department Employee Assistance Program (EAP) in order to address his "declining mental and emotional state." The plaintiffs argued that this program was defective because it did not refer the officer to a professional, but simply had him consult with his peers. They also contended that a female officer, while acting as the decedent's EAP counsel, initiated an inappropriate sexual relationship with him, which led to marital problems for him.

     The decedent's wife also stated that she warned some of the defendants of the possibility that the officer might attempt suicide and that there were other signs of his difficulties, including a thirty-five pound weight loss in six weeks, repeated attendance problems, and other signs that were serious enough that some of the defendants directly questioned the officer about whether he was contemplating suicide.

     Despite these contentions, the court ruled that the police chief and other officers did not deprive the decedent of any substantive due process rights by failing to take sufficient remedial steps to prevent his suicide with his service revolver at a secluded location, even if they knew he was suicidal. No custodial or special relationship existed between the officer and the municipality which could give rise to a constitutional duty to protect him.

     Additionally, even assuming that there was a due process obligation to protect the officer from committing suicide, the court noted, it was not clearly established in 1998, when the suicide occurred, entitling the individual defendants to qualified immunity.

     The court also found insufficient evidence to show any causal connection between the decedent's union activities and the defendants' alleged failure to take action to prevent his suicide. There was insufficient evidence to support any inference that this alleged inaction was in retaliation for the decedent's union activities, in violation of his First Amendment rights.

     Estate of Smith v. Town of West Hartford, 186 F. Supp. 2d 146 (D. Conn. 2002).

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City was not liable for man's death based on 911 operator's decision to refer call asking for ambulance to a private ambulance company rather than dispatching a city ambulance. City policy and custom did not allow the reference of emergency calls to such private companies.

     A Philadelphia man collapsed in the dining room of the home he and a woman had shared for twenty three years. She immediately dialed the city's emergency response number, 911, and told the answering call-taker that urgent assistance was needed, requesting an ambulance. The operator told her that "someone" was "on the way." Regulations required 911 operators to refer all such emergency medical calls to the Fire Department, which then dispatched Fire Rescue Units.

     Instead of following this established procedure, the operator used a telephone located next to her console to call a private ambulance company to see if it could respond to the call. Without the knowledge of the city, the operator had recently begun working for the private ambulance company during her off hours, and allegedly had a "secret deal" with it to refer it all calls received in her city 911 capacity that she believed they could handle.

     The same operator received a second call after ten minutes when no ambulance arrived at the residence, and again called the private company. A third 911 call was made later, and this time was answered by a different operator, who dispatched a fire department rescue unit. The fire rescue unit had already removed the man from the residence by the time the private ambulance arrived. The man subsequently died.

     A lawsuit was filed against the city, the 911 call taker, and the private ambulance service. The trial court rejected federal civil rights claims against the city. The 911 call taker, in referring the call to the private ambulance service, and thereby allegedly causing a 16 minute and 16 second delay in response time which contributed to the man's death, was not acting under official city policy, but in violation of it.

     The city's alleged custom of permitting city personnel to moonlight for private ambulance companies and condoning the referral of 911 callers with non-emergency conditions to private ambulance companies for transport did not amount to a custom which allowed the caller in this case to forward a 911 call for a heart attack victim to a private ambulance service. There was nothing to establish the city's knowledge of any such custom.

     Beswick v. City of Philadelphia, 185 F. Supp. 2d 418 (E.D. Pa. 2001).

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Arrestee subsequently acquitted on drug charges failed to provide sufficient evidence to show that he was subjected to unequal treatment, including his arrest, because of his African-American race, in violation of his right to equal protection. No evidence was presented that police were aware of other people who were not African-Americans who should have been arrested and prosecuted for drug sales, but failed to act.

     Undercover law enforcement officers in Connecticut arrested an African-American man for allegedly selling one of them drugs. The arrestee subsequently cooperated for a time with the officers as an informant, in exchange for their forbearance of pursuing the charges against him, even though he contended he was not the individual who had made the sale. When he allegedly refused to cooperate further, at one point, the original case was referred to the State's Attorney for prosecution.

     After a jury trial during which he presented alibi evidence of his presence elsewhere on the date the officers claimed he sold crack cocaine in a park, he was acquitted. He then filed a lawsuit against the officers and the towns they worked for, claiming that his right to equal protection of law had been violated, and that he had been singled out for arrest and prosecution because of his race. He also asserted claims for false arrest and malicious prosecution.

     Rejecting all these claims, a federal trial court noted that to show selective arrest and prosecution which would violate his right to equal protection of the law and constitute racial discrimination, the plaintiff needed to show that he was similarly situated to other persons of other races, but treated differently. The plaintiff did not present any evidence, however, that the police officers were aware of other persons who were not African-Americans who should have been arrested and prosecuted for drug sales but were not.

     The mere fact that an allegedly disproportionate number of persons arrested for drug sales were African-Americans, standing alone, was insufficient to support the inference that the defendants acted with discriminatory intent or purposes in arresting and prosecuting the plaintiff.

     The court also found that the officers acted objectively reasonably, even if mistaken, in believing that they had probable cause to arrest the plaintiff on drug trafficking charges and were therefore entitled to qualified immunity on the false arrest and malicious prosecution claims.

     Silberberg v. Lynberg, 186 F. Supp. 2d 157 (D. Conn. 2002).

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Police supervisor was entitled to qualified immunity for state trooper's alleged videotaping of female civilian who was serving as a model for a training video while she undressed in an office to prepare for her role.

     A woman came to a Connecticut State Police training center after being asked to appear in a training video. She subsequently sued a state trooper and his supervisor after she discovered that the trooper allegedly surreptitiously videotaped her undressing in an office while preparing for her role in the video.

     The video in question was to present several "real life" scenarios that officers typically confront, and trooper candidates were to watch the video and later described what they observed, as part of an exercise designed to screen out candidates with poor observation and communication skills. The planned scenes included a depiction of a person driving while intoxicated, a man with a weapon who stops and robs a victim, a simple trespass, a "static" crime scene, and a scene with a "distraught victim."

     A trooper at the training center who was made responsible for the production of training and public service videos allegedly had a "history of inappropriate and otherwise problematic behavior" with female civilians while on duty, and had previously allegedly been given an unsatisfactory performance evaluation for photographing several young women in swimsuits in a private bedroom while filming a public safety announcement. In another incident in his personnel file, a woman filed a formal complaint against him alleging that he made "numerous unwanted and improper" advances toward her and improperly touched her when he escorted her to and from the hospital following her epileptic seizure.

     He invited the plaintiff to the training center to appear in the training video, in which she would play the part of a robber of a convenience store. He also allegedly suggested that she dress "provocatively" so that her appearance would be distracting to the testing candidates and that she display "a lot of cleavage." Once she arrived, wearing a "skimpy low-cut blouse," he allegedly directed her to change her clothing, specifically requesting that she "lose the bra," and suggested that she change clothes in his office, telling her where to stand, and left the room.

     When she removed her shirt and bra, the plaintiff states, she noticed that a video camera sitting on a shelf was videotaping her. She brought the tape to the Connecticut State Police, who investigated the incident and terminated the trooper.

     A federal appeals court has ruled that the trooper's supervisor was entitled to qualified immunity from liability. While the trooper's alleged actions would have violated the plaintiff's "clearly established" Fourteenth Amendment right to bodily privacy in videotaping her unclothed body without her consent, the supervisor did not know that the trooper was taking this action.

     The court noted that it was the Fourteenth Amendment's due process clause rather than the Fourth Amendment's protection against unreasonable searches and seizures which was at issue, since the trooper's objectionable conduct occurred outside of a criminal investigation or other form of governmental investigation or activity.

     "A police officer violates a person's constitutional right to bodily privacy when that officer manipulates the circumstances to view, to photograph, to videotape or otherwise to record that person's unclothed or partially unclothed body without his or her consent where, as here, there is no conceivable investigative or otherwise proper law-enforcement interest advanced by such a viewing."

     A supervisor, however, cannot be held liable for civil rights violations simply because his subordinate violated a person's constitutional rights. He may, however, be found liable for deliberate indifference to the rights of others by his failure to act on information indicating unconstitutional acts were occurring or for his "gross negligence in failing to supervise his subordinates who commit such wrongful acts, provided that the plaintiff can show an affirmative causal link between the supervisor's inaction and her injury."

     The plaintiff argued that the supervisor should be held liable because of the negative information contained in the trooper's personnel file, and because he had viewed one of the earlier scenes for the training video produced by the trooper, the static crime scene video, which allegedly had an "overlong focus on the civilian victim's upper thigh region." Additionally, he had allegedly learned of the trooper's request to the plaintiff that she show "a lot of cleavage" in her role in the video.

     These facts, the court held, even if true, simply "do not provide the sort of actual or constructive notice" of a subordinate's propensity to violate constitutional rights which is required to impose liability on a supervisor. Indeed, the court stated, "there is nothing unduly sexually provocative about the static crime scene or the 'cleavage' request in the situation presented here. In the context of a training video intended, in part, potentially to shock or distract trainees, they would not indicate to a reasonable supervisor that he, in failing to act, consciously disregarded a high risk of harm to a woman such as" the plaintiff.

     The supervisor's delegation of "blanket" or "carte blanche" authority to the trooper to make a training video did not violate any clearly established law. The court ruled that the evidence showed--at most--that the supervisor may have been negligent in not reviewing the trooper's personnel file. The supervisor had no indication that the trooper had prior problems interacting with civilian women, and "mere negligence is insufficient as a matter of law to state a claim" under 42 U.S.C. Sec. 1983.

     Poe v. Leonard, #00-9024, 282 F.3d 123 (2nd Cir. 2002).

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

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Assault and Battery: Handcuffs

     Arrestee did not succeed in showing that officer used excessive force in the application of handcuffs during the arrest. Under the evidence presented, it was reasonable for officers to conclude that their suggestion of leaning forward in the police car had relieved the arrestee's pain, and his complaints were "similar to those normally voiced by others who are similarly restrained." Ostrander v. State of New York, 735 N.Y.S.2d 163 (A.D. 2001).

Assault and Battery: Physical

     In a lawsuit claiming an assault on an individual by a traffic enforcement agent, the city's failure to produce, for a deposition, a particular traffic enforcement agent after also failing to produce his incident report, did not, standing alone result in a conclusion that the agent committed the assault, so that summary judgement for plaintiff was properly denied. Quezada v. City of New York, 737 N.Y.S.2d 84 (A.D. 2002).

Defenses: Absolute Immunity

     County prosecutor was not entitled to absolute immunity for allegedly making false statements in an application for an arrest warrant to revoke an arrestee's bail. An arrestee released on pretrial bail has a Fourth Amendment right to be free of unreasonable seizures. Prosecutor was, however, entitled to qualified immunity because it was not clearly established, in 1997, that there was a Fourth Amendment right not to have a prosecutor, seeking to revoke bail, personally attest to false allegations made by biased sources without further investigation. Cruz v. Kauai County, #00-15065, 279 F.3d 1064 (9th Cir. 2002).

Defenses: Eleventh Amendment Immunity

     County sheriff acted on behalf of the state in enforcing a state court injunction against the picketing of an abortion clinic and abortion doctor's home, and therefore was entitled to Eleventh Amendment immunity from liability in a federal civil rights lawsuit brought by activist. Gottfried v. Medical Planning Services Inc., No. 00-3488, 280 F.3d 684 (6th Cir. 2002).

Defenses: Governmental Immunity

     Arrestee's claim that an officer intentionally stomped on his leg and that officers acted wantonly was not sufficient to claim conduct, under Wisconsin law, W.S.A. 893.80(4), that invoked an exception to governmental immunity for "malicious acts" when arrestee's claim was for negligence and his proposed factual findings did not show that officers were motivated by ill will. Wilson v. City of Milwaukee, 138 F. Supp. 2d 1126 (E.D. Wis. 2001).

Defenses: Qualified (Good-Faith) Immunity

     Officer was entitled to qualified immunity when he made no material misrepresentations in an application for an arrest warrant for extortion and conducted a reasonable investigation first. Prosecutor's subsequent decision to dismiss the charges did not alter the result. Menebhi v. Mattos, 183 F. Supp. 2d 490 (D.R.I. 2002).

Defenses: Statute of Limitations

     Arrestee bringing a personal injury action under Mississippi state law against city and police officer was entitled to the benefit of an amendment to the Tort Claims Act, Miss. Code Ann.. Sec. 11-46-11(3), increasing the statute of limitations period which was enacted at a time when the claim was pending, so long as the claim was not already time-barred at the time of the amendment. Tie-Reace Hollingsworth v. City of Laurel, No. 2000-CA-01462-SCT, 808 So. 2d 950 (Miss. 2002).

Domestic Violence

     Officers had probable cause, under Michigan law, to arrest a husband for domestic assault when they encountered his visibly upset wife, whose finger was bleeding and stated to them that she had told a 911 operator that he had been pushing and grabbing her and the children and had cut her finger in the course of physically taking the phone from her hand. Klein v. Long, #00-2235, 275 F.3d 544 (6th Cir. 2001).

False Arrest/Imprisonment: No Warrant

     An arrestee who faced possible charges of "throwing a deadly missile," and who subsequently pled guilty to reduced charges of simple battery and resisting arrest could not sue officers for wrongful arrest and detention, but could pursue claims for excessive use of force and for officers entering his home to arrest him without a warrant. Moody v. City of Key West, No. 3D01-123, 805 So. 2d 1018 (Fla. App. 3d Dist. 2001), rehearing denied (2002).

     Sheriff had probable cause to arrest public accountant for alleged use of profanity at county board meeting after county commissioner told him that accountant had violated an ordinance against such expressions. Sheriff did not make an arrest, however, but merely asked accountant not to leave until a videotape of the meeting could be reviewed, and was entitled to qualified immunity even if this request could be considered a seizure. Gonser v. Twiggs County, 182 F. Supp. 2d 1253 (M.D. Ga. 2002).

False Arrest/Imprisonment: Warrant

     Police officers had probable cause to arrest timber worker on outstanding warrant for harvesting timber without a license. Officers, rather than acting out of malice, made the arrest only after confirming that the bench warrant was outstanding and after the arrestee was unable to provide documentary proof supporting his claim that he had paid the fine for the offense. Fuller v. Troup County, No. A01A1670, 558 S.E.2d 777 (Ga. App. 2002).

First Amendment

     Officer was entitled to qualified immunity for arresting hunter for disturbing the peace and did not violate the hunter's First Amendment rights by making the arrest after the hunter complained about the officer's interruption of his stalking of an elk to check the hunter's license. The arrest was based on a prosecutor's independent determination that there was probable cause for the charges and there was no indication that the officer fabricated any facts in his report to the prosecutor. Petersen v. Cazemier, 164 F. Supp. 2d 1217 (D. Or. 2001).

Governmental Liability: Policy/Custom

     Arrestee stated a claim against county for sheriff's alleged policy of handcuffing all arrestees which he claimed was instituted with deliberate indifference to consequences such as his fall down a stairway following which he was injured. Jackson v. Sheriff of Ellis County, Texas, 154 F. Supp. 2d 917 (N.D. Text. 2001).

Governmental Liability: Supervision/Training

     City was not entitled to summary judgment on arrestee's claim that there was inadequate training and supervision on how to handle circumstances in which a judge has denied a warrant to search or seize an individual but officers believe that there is probable cause to do so. Pappas v. New Haven Police Dept., 175 F. Supp. 2d 288 (D. Conn. 2001).

Police Plaintiffs

     Transit authority could be sued under Federal Employers' Liability Act (FELA), 45 U.S.C. Sec. 51, for injuries police officer suffered while providing security for parking lot authority maintained at railroad station. Greene v. Long Island Railroad Co., No. 00-9292, 280 F.3d 224 (2nd Cir. 2002).

Procedural: Discovery

     Plaintiff in lawsuit against city and unnamed police officers for injuries suffered when officers allegedly drove a police vehicle into her was not entitled to an extension of time to conduct further discovery when she provided no explanation for why she failed to conduct any discovery during a previous 60-day extension period. Another extension of the discovery period would expose individual officers unfairly to further inquiries aimed at justifying litigation against them almost four years after the incident in question. Lockwood v. City of Philadelphia, 205 F.R.D. 448 (E.D. Pa. 2002).

Search and Seizure: Persons

     Children's Fourth Amendment rights were not violated when they were subjected to medical examinations for suspected sexual assault pursuant to a search warrant despite their claim that it violated their rights to conduct the search over their objections. The exams were properly conducted by medical personnel and were authorized by a warrant supported by probable cause, so that the search was not unreasonable. Pelster v. Walker, 185 F. Supp. 2d 1185 (D. Ore. 2001).