CONTENTS

Officer's shoving of a pedestrian who was asking for directions, which resulted in severe injuries requiring back surgery, was not conduct "shocking to the conscience" sufficiently egregious to state a claim for violation of the injured party's federal due process rights.

     An officer was engaged in directing traffic at a busy intersection in Maine one morning, on a street where a road race was taking place. A motorist arrived at the intersection around 9:20 a.m. and was looking for a nearby street. Encountering the race, he drove into the parking lot of a nearby convenience store to seek directions. When others present could not help him, he was directed to the officer.

     The officer had his back to the pedestrian, who took a step forward and said, "Excuse me sir." According to the pedestrian, before he could complete his question, the officer "turned towards me and shoved me hard toward the far curb" of the street. As the officer "shoved me, he was verbally abusive to me. He yelled 'If you don't have a godammed [sic] emergency get the hell out of here.' "

     Because of a pre-existing medical condition, the pedestrian's neck was vulnerable to fracture and herniation, and he claimed that as a result of the officer's shove he underwent back surgery and has since suffered "stabbing pain, and permanent impairment." He filed a federal civil rights lawsuit alleging deprivation of his right to be free from the use of excessive and unreasonable force under the Fifth and Fourteenth Amendments to the U.S. Constitution.

     A federal trial court, while finding the officer's conduct "deserving of discipline," also found that it did not "shock the conscience," and therefore did not violate the plaintiff's due process rights.

     A federal appeals court upheld this result. Although finding that the officer's conduct was an "unnecessary utilization" of physical force and resulted in severe injury, the officer did not use the force "maliciously and sadistically for the very purpose of causing harm." At the time he acted, the officer was "juggling drivers and runners in a busy location, swiveling his head to be sure no problems arose." In these circumstances, a "hard shove accompanied by abusive language," with the evident purpose of getting the pedestrian out of the way, "does not in our view constitute the 'brutal' and 'inhumane' conduct necessary to establish a due process violation."

To "equate his outburst with such brutal conduct as a rape, a nearly two-month unlawful imprisonment, a shooting, or repeated physical assaults [all circumstances in which due process violations were found] would be to lower the very high threshold for constitutional wrongdoing," the court stated. "Only the most egregious official conduct can be said to be 'arbitrary in the constitutional sense.'"

Cummings v. McIntire, No. 01-1301, 271 F.3d 341 (1st Cir. 2001).

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Estranged lover whose affair with female police officer married to state trooper ended "acrimoniously" could not seek damages against trooper in his official capacity, as this claim was barred by Eleventh Amendment immunity. Plea for injunction to prevent trooper from "perjurious" testimony in future court proceedings was "too speculative" to support granting relief.

     A Connecticut man carried on an affair with a female police officer, allegedly believing her to be first separated and then divorced from her husband, who was a state trooper. When he found out that the two were still married, an argument broke out. She allegedly shouted that she would "get him" and that she knew others who would assist her in doing so.

   The estranged lover filed a police report regarding the incident with the local police department and obtained a restraining order against the officer in state court, as well as contacting the police department's internal affairs division to report that the officer had threatened him. He later allegedly learned that the internal affairs complaint was not being pursued, that the police department was actively assisting the officer in getting the restraining order dissolved, and that the police department had informed the FBI that he had filed a false internal affairs complaint regarding the officer.

     He sued various defendants, including the city and the state trooper, seeking money damages and alleging that the trooper had perjured himself in the proceeding to dissolve the restraining order. The complaint also sought an injunction against the trooper presenting perjured testimony in court in the future.

     A federal trial court ruled that the plaintiff could not seek money damages from the state trooper in his official capacity, since this was essentially a claim for money damages against the state of Connecticut, which is barred by Eleventh Amendment immunity. The court also rejected as "too speculative" the claim that an injunction was required to order the trooper to "refrain from offering false testimony under oath in the future." The court found that the plaintiff had presented no facts in the complaint showing any likelihood of future injury. The fact that the trooper "allegedly lied in the past is not in and of itself enough to confer standing to pursue a claim for injunctive relief."

Stack v. City of Hartford, 170 F. Supp. 2d 288 (D. Conn. 2001).

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Arresting officers were not entitled to qualified immunity for arresting a man for a rape committed at a golf course when the facts showed only an eight-minute window of time in which he could have committed the offense, the victim failed to identify him in a line-up, and her description of her assailant did not include any of his "distinctive facial" features.

     A man went golfing at a golf course with his nine-year old son. When it began to rain, they took shelter in a concession stand, and later went to the clubhouse to obtain a raincheck, after which they left. Eight minutes after the time stamped on their raincheck, a female employee of the concession stand notified a co-worker that she had been raped. The police were called, and both the rape victim and the co-worker were questioned and gave descriptions of the alleged assailant.

     The co-worker, who was the cashier at the clubhouse who had issued the raincheck, described the man who had come there with his son, including various distinctive facial features, even though she had no direct knowledge of the rape. The rape victim's description did not include any of this man's distinctive facial features, such as a surgical scar on his cheek, pockmarks on his cheeks, a mustache and beard, missing lower front teeth and a darkened front tooth.

     Two composite sketches were made, and the one based on the cashier's description, which was based on the appearance of the man who golfed with his son, was the one used by the police to distribute to the media. The man went to the police station to attempt to "clear everything up." He gave them the stamped rain check, with the time 8 minutes before the rape was first reported. The officers questioned both him and his son.

     The son initially said that he had been with his father the entire time at the golf course, but equivocated later and said that maybe his dad left him to smoke a cigarette, but later explained that he had only agreed to this because the police told him that his father had said so. The man was arrested. At a line-up, the rape victim failed to identify him as her attacker, but he was still kept in custody. The following day, DNA samples of hair and blood revealed, after testing, that the arrestee was "ultimately excluded" as the rapist. He was not notified of this result, and the police allegedly at first refused to concede that he was no longer a suspect, but charges were not brought against him.

     The arrestee brought a lawsuit against officers, the sheriff and a deputy, and the sheriff's department, claiming violation of his constitutional rights, as well as defamation under Michigan state law.

     A federal court found that there was no probable cause for the arrest. There was "at most, an eight minute window during which" the arrestee could have committed the rape and he was a three to five minute distance from where the rape occurred. Further, the victim had excluded as possible suspects a group of golfers who had sought shelter from the rain near the concession stand, among whom were the arrestee and his son. And finally, the victim mentioned none of the arrestee's distinctive facial characteristics.

     The court also noted that the arrestee "posed no flight risk, had turned himself in, and was fully cooperative with the police," and even allowed his son to be interviewed. Under this total set of circumstances, "no reasonable officer would believe that there was probable cause for an arrest." Summary judgment was granted to the sheriff, on the civil rights and false arrest claims, however, since there was no evidence that he participated in the investigation or in the arrest.

     The court further ruled that the sheriff and his deputy, who had allegedly issued information to the press stating that the victim had identified the arrestee, were entitled to qualified immunity from state law defamation claims. While these statements were incorrect, as the only identification was by the cashier, who had observed the arrestee prior to the rape, but had no direct information about the commission of the offense, the communication with the media was made in the "public interest," and was not made with "malice," as required in such circumstances for liability under state law.

Wrubel v. Bouchard, 173 F. Supp. 2d 716 (E.D. Mich. 2001).

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Officers had probable cause to arrest man for indecent exposure in forest preserve after two women visiting the park reported seeing a naked man "cavorting in the woods" in proximity to a group of children and the arrestee was later identified by name to one of the witnesses. Subsequent acquittal, based on lack of evidence of "lewd conduct," did not alter the existence of probable case to arrest.

     A man acquitted of misdemeanor charges of  "public indecency" sued arresting county law enforcement officers for violation of his civil rights in making the warrantless arrest. The arrestee, who worked at a high school as a maintenance worker, was suspended from his job after the arrest, with his supervisor informing him that, given the charges, it was best that he not "work around children."

     A federal appeals court upheld summary judgment for the defendant county and individual officers. It ruled that the officers had probable cause to make the arrest based on credible eyewitness accounts. Two women who were riding horses through the forest preserve on a Sunday morning reported seeing a "naked man cavorting in the woods" close to where a group a children was playing. The following day, one of these women was dropping one of her children off at kindergarten when she saw a man she believed to be the same individual sitting in his car outside the school. Another parent identified him by name to her and informed her that he had children attending the school.

     The officers, assigned to the county forest preserve, investigated the incident after being informed of these facts, and made the arrest. He was later acquitted, but, as the appeals court noted, the accuracy of the eyewitness identifications "appears to have played no role in that decision." Instead, a directed verdict was granted because the state had "absolutely no evidence of lewd conduct on the part of the naked man witnessed" by the two women. In short, the trial court had ruled that the arrestee "was not the man in the woods in his birthday suit on the day in question."

     Even if he was not, however, the officers had probable cause to make the arrest, based on the credible stories of the eyewitnesses. The appeals court rejected the argument that the officers violated his rights by making a warrantless arrest. While the court agreed that the officers "should have" obtained a warrant, but the Fourth Amendment "demands reasonableness, not perfection." Under these circumstances, an arrest warrant was not "absolutely required."

     The appeals court also rejected the plaintiff's argument that the officers violated the Fourth Amendment by making an arrest outside of the territory in which they had jurisdiction as forest preserve police officers. Even if they arguably violated a state statute in doing so, this did not constitute a violation of  federal constitutional rights. Additionally, the arresting officers did notify the local police department before the arrest, and were not ordered not to proceed.

Pasiewicz v. Lake County Forest Preserve District, No. 00-4270, 270 F.23d 520 (7th Cir. 2001).

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Officers did not have probable cause to arrest female officer for "obstruction" of their investigation of her boyfriend's apparent suicide when she did not physically interfere with them but merely refused to give them her date of birth. Summary judgment in false arrest lawsuit was still proper, however, since defendant officers did have probable cause to arrest her on another, closely-related offense.

     A man died in an apparent suicide. His girlfriend, who was also then a suspended Chicago police officer, arrived at the scene shortly after the death. Officers present tried to question her about the death, but she was allegedly "evasive and refused to provide even basic identifying information such as her date of birth." Based on this, she was arrested for obstructing a police officer in his official duties and detained for approximately ten hours.

     Several weeks later, the charges against her were dropped and she filed a federal civil rights lawsuit against the arresting officers, arguing that the arrest was made without probable cause. The trial court found that the officers had at least arguable probable cause for the arrest and therefore granted them summary judgment on the basis of qualified immunity.

     A federal appeals court did not agree that the officers had arguable probable cause to arrest the plaintiff for obstructing an officer under 720 ILCS Sec. 5/31-1(a). That statute has been interpreted by Illinois state courts as requiring "some physical act" of obstruction, and there was no evidence of any "physical act" of obstruction that the plaintiff committed.

     "This does not, however, win the day for" the plaintiff, the appeals court continued. "The fact that the officers lacked probable cause to arrest her for the precise offense with which she was charged is only one part of our inquiry. Police officers are not required to be legal scholars."

     An arrest is justified, the court stated, when the officers "had probable cause (or arguable probable cause) to arrest the suspect either for the precise offense the officers cited or for a closely-related offense." The court noted that the Chicago Municipal Code specifies that Chicago police officers have the power to arrest for "any violation of" the Code. Chicago Mun. Code Sec. 2-84-230. Another section, Sec. 2-84-290, provides that "any member of the police department who shall neglect or refuse to perform any duty required of him" by the "rules and regulations of the department of police" may, in addition to any other penalty or punishment imposed by law, "be fined not more than $100.00 for each offense."

     In a prior case, Richardson v. Bonds, 860 F.2d 1427 (7th Cir. 1988), the court held that police had arguable probable cause to arrest an off-duty officer for refusal to provide his name and star number in violation of police rules. The appeals court further noted that the U.S. Supreme Court, in Atwater v. City of Lago Vista, 532 U.S. 318, 121 S. Ct. 1536 (2001), has held that arrests for misdemeanor violations that would be punishable only by a fine "do not offend any constitutional principles." (Click here to read prior Liability Reporter article on Atwater).

     At the time of the arrest, the arresting officers had information that the plaintiff was a police officer and had refused to answer questions about her identity even after being ordered to do so by a superior officer. "These facts formed the basis for the obstruction arrest, and the same facts would support a charge of failure to follow police rules," the court held. The appeals court rejected the plaintiff's argument that, as a suspended officer, she could not be arrested for violating police rules. The court noted that the plaintiff did not inform those questioning her that she was under suspension, and they did not discover this information until after she had already been arrested and transported to the station.

Williams v. Jaglowski, No. 00-2600, 269 F.3d 778 (7th Cir. 2001).

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 Man who was shot by an officer, but not arrested or detained, was not owed a duty by the officer to provide him with medical care. Officers did not "shock the conscience" by firing at two men after they heard what they thought was the sound of a bullet being chambered into a gun and one of the officers believed that he saw a weapon being pointed.

    Three officers were hiding near a house while an informant entered to attempt to obtain some drugs. Two men exited the house and one of them threw a rock into the shrubs across the street, believing that the officer he saw there was a man who had recently stabbed his companion's brother. One of the officers then saw one of the men point what he believed to be a gun, having previously heard a sound he believed was a bullet being chambered into a gun, and he immediately fired a shot that struck one of the men in the abdomen. A second officer fired a burst of eight shots which hit no one.

     The two men ran back into the house, and the officers radioed for backup. Approximately an hour and 45 minutes later, a warrant was obtained for the house, and a search was conducted, during which time no gun was found. In the meantime, an ambulance had arrived and taken the injured man to the hospital.

     The two men filed a federal civil rights lawsuit against the officers, both based on the due process clause of the Fourteenth Amendment. One claim was that the officers unconstitutionally denied medical care to the injured man after he was shot, and the other claim was that the defendant officers' overall conduct "was so egregious and outrageous that it deprived them of their rights to life and liberty."

     The trial court granted the officers summary judgment on the basis of qualified immunity on both claims. The plaintiff who was shot by the officer, but who was not arrested or otherwise "apprehended" did not have any "substantive due process" right to medical care, even though he had been "seized" within the meaning of the Fourth Amendment. The court noted that the injured plaintiff ran into the house after being shot and that the officers were not aware at the time that he was wounded.

     Further, at the time, the plaintiff was not a convicted prisoner or a pre-trial detainee. Indeed, he was not in custody, so the officers had no duty to provide him with medical care. The other plaintiff, who was not shot and was also not taken into custody, was not "seized" at all within the meaning of the Fourth Amendment.

     The court also found nothing about the officers' decision to fire under the circumstances which "shocked the conscience" as required to establish a violation of substantive due process. The force that the officers used was "proportionate" to the force that the officers perceived themselves to be facing, even if mistakenly.

Carr v. Tatangelo, 156 F. Supp. 2d 1369 (M.D. Ga. 2001).

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Use of deadly force to apprehend a fleeing arrestee after a bank robbery was reasonable even though a bank teller had reported that the robber was unarmed. The officer heard shots being fired, and did not know that it was other officers who had fired the shots.

     A man walked into a bank and ordered the teller to give him money. After that, he drove a stolen car to a lot behind a nearby bar and waited for the police to arrive. His plan was allegedly to "commit suicide by police intervention." The teller phoned police and informed them of the crime, the description of the robber and the vehicle he was driving and his current location in the parking lot behind the bar. He also indicated that the robber had not displayed a weapon.

     This information was transmitted to officers by radio and a number of them proceeded to the parking lot. The robbery suspect refused to obey orders to get out of his car, and sped away. The officers shot at the fleeing suspect's tire's and managed to hit at least one of them.

     Another officer arriving at the scene heard the shots fired, but did not see who was shooting or why. He observed the robbery suspect speeding out of the lot and turning onto a four lane street in a manner that appeared to be out of control. The suspect later contended that the officer cut him off with his vehicle and then fired at him after the vehicles came to a complete stop, striking him three times. The officer stated that the suspect rammed his driver side door and that he fired three rounds into the suspect's car as they were slowing down.

     The officer argued that he feared for his own safety after the suspect rammed his car and was also concerned about the safety of the public at that time. No weapon was found on the suspect, who subsequently brought a federal civil rights lawsuit against a number of officers, including the officer who shot him, claiming excessive use of force.

     A federal appeals court upheld summary judgment for the defendant officers. The shooting officer had heard shots fired, and observed the suspect fleeing the scene. At the time of the shooting, the officer did not know whether the suspect was armed but reasonably feared that he was. Given the suspect's "bank robbery, his refusal to comply with the commands of armed policemen, his attempt to evade arrest, and his reckless driving," it was reasonable for the officer to conclude that the suspect posed a serious threat to himself and others.

     While it was true that the suspect was not armed "and had no intention of killing anyone except for himself, there is no way" that the officer could have known this.

Dudley v. Eden, #99-3738, 260 F.3d 722 (6th Cir. 2001).

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Bringing reckless driving charges against motorcyclist, if motivated to hinder or prevent him from filing a civil lawsuit against arresting officers who had engaged in a high-speed chase in which he was injured, could constitute a violation of his First Amendment rights, even if criminal charges would otherwise be warranted.

     A number of police officers pursued a motorcyclist while he was speeding from a city into the desert. The chase ultimately resulted in serious injuries to the motorcyclist. Following an investigation, an officer issued the motorcyclist a traffic ticket for careless driving.

     Three weeks later, a lawyer for the motorcyclist wrote letters to the county, the sheriff, and the district attorney, requesting that they preserve all evidence of the incident. One week after that, the district attorney's office withdrew the careless driving ticket and, four days later, filed a complaint charging the motorcyclist with six criminal counts of reckless driving and resisting and evading arrest.

     The motorcyclist filed a federal civil rights lawsuit against the sheriff, the county, and a deputy sheriff, claiming that the prosecution was instituted in retaliation for his known intention to pursue a civil lawsuit over the incident in violation of his right of access to the courts and First Amendment rights generally. He also claimed that the defendants selectively prosecuted him, noting that another motorcyclist who had been speeding through the town with him was not charged.

     While rejecting the claim of selective prosecution, based on the fact that the other motorcyclist was not "similarly situated," having gone on his separate way and not having attempted to evade officers, the appeals court overturned a dismissal of the First Amendment retaliatory prosecution claim.

     Facing criminal charges that were "brought in order to hinder or prevent him from filing a civil lawsuit against defendants is injury sufficient to chill a person or ordinary firmness" from pursuing his First Amendment rights, the court stated.

     The appeals court rejected the defendants' argument that facing criminal charges was not an "injury" because the plaintiff's conduct "warranted the charges." An action "taken in retaliation for the exercise of a constitutionally protected right is actionable under [42 U.S.C.] Sec. 1983 even if the act, when taken for a different reason, would have been proper."

     The court also found that the fact that the motorcyclist had not yet filed his civil lawsuit at the time of the alleged retaliation provided no basis to dismiss his First Amendment claim. The court found that the plaintiff had alleged sufficient facts to indicate that the individual defendants were aware that he was "seriously considering" filing a civil lawsuit against them. The fact that the letter sent by the plaintiff's lawyer, while asking for the preservation of evidence, did not directly refer to the intention to file a civil lawsuit did not alter this result.

Poole v. County of Otero, No. 00-2215, 271 F.3d 955 (10th Cir. 2001).

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Records of internal investigations of police officers against whom civil or criminal complaints had been filed were shielded from a freedom of information act request under West Virginia state law based on an "invasion of privacy" exemption applicable to the records.

     A West Virginia arrestee sued a city and the city's police chief under the state Freedom of Information Act, attempting to compel the disclosure of records of the outcome of internal investigations of every officer against whom civil or criminal complaints had been filed regarding their behavior. The request was broad enough to cover complaints about their behavior in the scope of employment or in their private lives.

     The request was initiated as part of the Plaintiff's pre-filing investigation, as she intended to pursue a federal civil rights claim arising out of her arrest. She had claimed that an arresting officer used excessive force against her, and the officer was subsequently exonerated following a police department internal investigation and an investigation by the FBI.

     The trial court granted an injunctive order compelling the disclosure of  the records sought. Reversing, the Supreme Court of Appeals of West Virginia found that an "invasion of privacy" exemption to the FOIA applied to the records at issue.

     This exemption, codified in W. Va. Code Sec. 29B-1-4(2), is intended to protect individuals from the injury and embarrassment that can result from the "unnecessary disclosure of personal information," the court stated, and a court must balance or weigh the individual's right of privacy against the public's right to know.

     Factors to be examined include:

     1. Whether disclosure would result in a substantial invasion or privacy and, if so, how serious.

     2. The extent of value of the public interest, and the purpose or object of the individuals seeking disclosure.

     3. Whether the information is available from other sources.

     4. Whether the information was given with an expectation of confidentiality.

     5. Whether it is possible to mould relief so as to limit the invasion of individual privacy.

     Examining these factors in the context of the specific request made in this case, the court found that "clearly, the disclosure of the information would result in a substantial invasion of privacy," requiring the disclosure of "all claims of misconduct no matter how egregious, unfounded, or potentially embarrassing." Additionally, the information was "obviously given with an expectation of confidentiality," as the police department's policy and procedural manuals require all investigative reports to be "treated with the strictest of confidence."

     This confidentiality, the court found, "is crucial to continued reports of possible misconduct," and the compelled disclosure of the investigatory materials "might result in 'fishing expeditions' and thereby encourage frivolous litigation.'" Concluding, the court found that the public interest "does not require the disclosure of the requested information."

Manns v. City of Charleston Police Department, No. 28743, 550 S.E.2d 598 (W. Va. 2001).

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Texas police officer was engaged in a discretionary action in pursuing a fleeing suspect, even though he was ordered by a superior to give pursuit, when the manner of conducting the pursuit was left to his discretion. Officer was therefore entitled to official immunity as a defense to a lawsuit brought by an individual injured in a collision with the pursued car.

    A man involved in a fight at a university campus got into his car to leave even though university police instructed him to stay. He fled the scene before the officers could ascertain his identity or license plate number. One officer attempted to follow but stopped after a second officer, his subordinate, activated his lights and siren and pursued the man, pursuant to the first officer's orders. During the chase, the pursued vehicle ran a red light and collided with a car driven by another motorist, injuring one of the passengers in that vehicle.

     The injured passenger filed a negligence and civil rights lawsuit against both officers involved in the pursuit. An intermediate Texas appeals court held that the officer's pursuit of the suspect was a discretionary act, so that the officer could invoke official immunity as a defense.

     Despite the fact that the second officer was ordered by his superior to chase the suspect's vehicle, the court noted, the manner in which the pursuit was conducted was left to his discretion. This was supported, the court found, by the officer's own affidavit, which stated that he had decided to discontinue pursuit before the accident occurred.

     The court found that the officer who pursued the vehicle "established all the elements of his official immunity defense as a matter of law." The court also ruled that the University of Houston, also a defendant in the lawsuit, was entitled to rely on this in establishing its own defense of sovereign immunity.

Clark v. University of Houston, No. 14-96-00005-CV, 60 S.W.3d 206 (Tex. App. 2001).

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Criminal suspect stated a prima facie claim for violation of his constitutional rights based on police sergeant's alleged "coercive interrogation" after he had been shot five times by another officer and was undergoing medical treatment for life-threatening injuries in an emergency room. Interrogated suspect was allegedly "losing consciousness sporadically" during questioning and was not read Miranda warnings.

     A federal appeals court has ruled that a police officer who "conducts a coercive, custodial interrogation of a suspect who is being treated for life-threatening, police-inflicted gunshot wounds" may not invoke qualified immunity as a defense in a civil rights lawsuit for damages under 42 U.S.C. Sec. 1983 under the circumstances presented in the case before them.

     Two officers in California were investigating narcotics activity near a vacant lot in a residential area. While questioning one individual, the officers ordered a bicycle rider approaching on a darkened path that traversed the lot to dismount and place his hands behind his head. During a protective pat-down frisk, an officer discovered a knife in the bicycle rider's waistband. A struggle ensued during which the bicycle rider allegedly drew one of the officer's guns and pointed it at them.

     One of the officers drew her weapon and fired several times. Five of the fired bullets struck the suspect, including one that struck him in the face, damaging his optic nerve and rendering him blind. Another bullet fractured a vertebra, paralyzing his legs, and three more bullets tore through his leg around the knee joint. A police sergeant arrived on the scene along with paramedics and rode to the emergency room in the ambulance with the injured man "to obtain his version of what happened."

     As emergency room personnel treated the injured man, the sergeant began a taped interview. No Miranda warnings were given, and the interview lasted 45 minutes. The medical staff allegedly asked the sergeant to leave the trauma room several times, but the "tape shows that he returned and resumed questioning," turning the tape off each time medical personnel removed him from the room.

     The appeals court found that the sergeant "pressed" the suspect with "persistent, directed questions regarding the events leading up to the shooting," but most of the answers were "non-responsive," with the suspect complaining that he was in pain, was choking, could not move his legs, and was dying. "He drifted in and out of consciousness," and "repeatedly begged for treatment," stating eight times that he believed he was dying, complaining of extreme pain on fourteen separate occasions, and twice stated that he did not want to talk any more. Despite this, the sergeant stopped only when medical personnel moved the suspect out of the emergency room to perform a C.A.T. scan.

     The appeals court ruled that even though the suspect's statements were not subsequently used against him in a criminal proceeding, the sergeant's coercive questioning violated his Fifth Amendment and Fourteenth Amendment rights to be free of  "coercive, custodial interrogation."

     The appeals court also ruled that the law establishing these rights was "clearly established," barring a qualified immunity defense. "A reasonable officer, questioning a suspect who had been shot five times by the police and then arrested, who had not received Miranda warnings, and who was receiving medical treatment for excruciating, life-threatening injuries that sporadically caused him to lose consciousness, would have known that persistent interrogation of the suspect despite repeated requests to stop violated the suspect's Fifth and Fourteenth Amendment right to be free from coercive interrogation."

Martinez v. City of Oxnard, # 00-56520, 270 F.3d 852 (9th Cir. 2001).

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Alaska Supreme Court recognizes claims for damages for spoilation of evidence by third parties. Claim by injured motorcyclists that state trooper intentionally removed driver of the truck which hit them from the scene of the accident in order to prevent him being tested for marijuana use stated a claim for interference with their right to pursue a lawsuit against the driver.

     Two persons were riding on motorcycles when they were involved in a collision with a pickup truck. An Alaska state trooper was the first law enforcement officer to arrive at the scene of the accident, and he removed the driver of the pickup truck from the area for approximately two hours.

     According to the trooper, he did this in order to protect him from threats from "drunken Hell's Angels" at the scene of the accident. The injured motorcycle riders claimed, in a lawsuit against the trooper for intentional spoilation of evidence, that he actually did this because he knew that the driver was under the influence of marijuana at the time of the accident and knew also that the driver would be civilly liable to them as a result.

     Their lawsuit claimed that the trooper intentionally kept the driver away from the accident scene long enough for his condition to improve, and as a result, the lead investigating officer was not alerted to the need to test the driver's blood or urine for the presence of marijuana metabolites. They also claimed that the trooper acted with "malice, bad motives, or reckless indifference" to their interests.

     The trial court dismissed the lawsuit for failure to state a claim upon which relief could be granted. The Supreme Court of Alaska has reversed, ruling that state law recognizes claims for damages for intentional third-party spoilation of evidence. The essence of the complaint, the court found, was an allegation that the trooper removed the driver from the scene of the accident in order to frustrate the ability of injured parties to bring a civil lawsuit against the driver.

     The court reasoned  that recognizing a claim for the relatively rare instances in which a third-party is "independently motivated to destroy evidence to interfere in the outcome of someone else's litigation" will not "impose an intolerable burden upon the universe of possible defendants." Requiring that the destruction or loss of evidence be intentional means that third parties will not be liable if "the missing evidence simply has been discarded or misplaced in the ordinary course of events," thus avoiding a concern that police departments, and numerous other third parties might be required to "undertake wasteful and unnecessary record and evidence retention practices."

     The court also suggested that the trooper might obtain a stay of the proceedings until the underlying dispute between the injured motorcyclists and the driver who struck them was resolved, since it might be impossible for the plaintiffs to show how they have been harmed by the alleged spoilation of evidence until the conclusion of a pending lawsuit against the driver.

Hibbits v. Sides, No. S-9630, 34 P.3d 327 (Alaska 2001).

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     EDITOR'S NOTE: The California Supreme Court recently declined, by 4-3, to recognize intentional third-party spoilation of evidence claims in Temple Community Hospital v. Superior Court, 20 Cal. 4th 464, 84 Cal. Rptr. 2d 852, 976 P.2d 223 (1999). It also previously rejected damage claims for intentional spoilation of evidence by first parties in Cedars-Sinai Med. Ctr. v. Superior Court, 18 Cal. 4th 1, 74 Cal. Rptr. 2d 248, 954 P.2d 511 (1998). In contrast, Montana recognized a cause of action for third-party spoilation of evidence in Oliver v. Stimson Lumber Co., 297 Mont. 336, 993 P.2d 11 (1999).

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Police officer who suffered major injuries while responding to distress call after his vehicle hit at tree at high speed is awarded $15.2 million by jury in lawsuit claiming that the steering mechanism of the car was defective.

     A state court jury in New Jersey has awarded $15.2 million to a police officer in a products liability lawsuit against Ford Motor Company, the manufacturer of the 1995 Ford Crown Victoria cruiser he was driving when he hit a tree at high speed. At the time, the officer was responding  to a distress call.

     The officer suffered from a coma for three weeks and was unable to work for a year after the collision. He was also unable to walk for six months and had to undergo surgery on his teeth, ribs and jaw. Other injuries included a collapsed lung, hip damage, tendon cuts in his hand, and a shattered left femur and tibia.

     The lawsuit claimed that the steering mechanism was defective, and pointed to a recall by the manufacturer, the year after the accident, of the Crown Victoria vehicles over a problem with the "pitman arm," an apparatus coordinating the front wheels and the steering motion of the car. The defendant claimed that the officer was simply driving too fast on a curve at the time of the crash.

Hernandez v. Ford Motor Co., No. MID-L-10461-97 (Middlesex Co., N.J. Super. Ct. Jan. 18, 2002), reported in The National Law Journal, p. B5 (Feb. 4, 2002).

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City and sheriff had no duty, under Louisiana law, to control traffic for the protection of pedestrians, and therefore were not liable for injury to visitor to Halloween haunted house suffered when he was struck by a car on an adjacent street.

     A man visiting a Halloween haunted house sponsored by a historical society in Louisiana exited the premises at night and was struck by a passing car. He filed a lawsuit in state court against the city and the sheriff, claiming that a police duty to "protect the public safety" requires traffic control assistance at public events.

     An intermediate Louisiana appeals court rejected this argument, upholding summary judgment for the city and sheriff. While there were officers present, they were there based on a request from the historical society to engage in crowd control, and not to control traffic on surrounding streets.

     "The question is whether unpaid police officers, who have been asked to have a 'presence' in order to 'keep the peace' at a haunted house event, have a duty to take it upon themselves to control and direct vehicular traffic on the highways surrounding the event in order to prevent a pedestrian from walking into the street in the face of an oncoming vehicle. We do not think so. A person cannot be protected from every risk which he or she faces in life."

     The city and the sheriff were not asked to control traffic at the event, "nor did they assume a duty of traffic control," so that there was "no legal duty incumbent upon them to undertake one."

Arthur v. City of DeRidder, No. 01-0305, 799 So. 2d 589 (La. App. 3d Cir. 2001).

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

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Federal customs agents who strip-searched and x-rayed a female traveler entering the country at an airport, and ordered a pelvic exam after she disapproved of the treatment of the only other African-American passenger on the plane were not entitled to qualified immunity. Initial stop and search was "routine," but subsequent actions were not supported by reasonable suspicion and violated the Fourth Amendment.

     An African-American was returning home to Texas from a vacation in Nigeria. She and a male passenger were the only African-Americans on the flight. When the plane arrived in Miami, passengers disembarked and she observed a customs agent searching the African-American male passenger and "shook her head in disapproval." She later claimed that based on "this look and gesture," another customs inspector instructed a co-worker to detain her and escort her to an examination area.

     Once there, her passport and other documents were taken, she was isolated from other passengers, and she was interrogated. She objected, alleging that she was being singled out because of her race. Every item was taken out of the two passengers' luggage and examined separately and carefully. No narcotics or other items commonly associated with drug couriers was found, but her detention for further questioning continued. A supervisor inspector arrived, who re-examined all travel documents, clothing and luggage, and questioned her. It was then decided to conduct a full body pat-down and strip search.

     A number of female agents conducted this, and touched the woman's crotch area, ordering her to pull down her clothing, removing and examining her sanitary napkin, squeezing her abdomen from the pubis to the thorax, and monitoring her responsive reactions. No signs of drugs or contraband were found. She was allowed to use the bathroom then, but told not to flush the toilet, and agents then examined her urine for signs of contraband, which were not found.

     Following that, and a search of a computer system for frequent travels or past arrests, the customs agents decided that an x-ray and pelvic examination at the hospital should be performed, based on the passenger's "nervousness" and her arrival from a "source country." She was handcuffed and transported to the hospital, after being presented with a consent form and told that if she refused to sign it, she could be held for 35 days "or indefinitely until a judge ordered the x-ray." She alleges that her requests to speak with an attorney or to call home were denied. The x-ray revealed a complete absence of drugs, and she was returned to the airport ten hours after her detention began.

     Her lawsuit against nine named customs employees alleges violation of  her constitutional rights. The individual defendants asked for summary judgment on the basis of qualified immunity, which the trial court granted to subordinates but denied to two customs inspectors. A federal appeals court upheld this result.

     While the initial stop of the plaintiff, including the search of her luggage, was a "routine" border search and did not violate her Fourth Amendment rights, the subsequent steps--such as the strip-search and x-ray examination--were not supported by reasonable suspicion and did violate her Fourth Amendment rights, if all facts were as alleged.

     The appeals court noted that as the search progressed from a stop, to a pat-down search, to a strip search, etc., the customs agents should have reevaluated whether reasonable suspicion existed to justify the "next level of intrusion" in light of the information gained during the encounter. In this case, the fact that initial inquiries revealed "nothing" to justify further suspicion was "disregarded."

     The appeals court upheld the reasoning of the trial court that the subordinate employees who carried out various actions at the direction of their superiors were entitled to qualified immunity, since they acted on their orders and they had no reason to question the validity of those orders, not having knowledge of the entire chain of events. But the two customs agents were properly denied qualified immunity, based on having such knowledge and still proceeding with the investigation.

Brent v. Ashley, No. 99-12169, 247 F.3d 1294 (11th Cir. 2001).

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

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Assault and Battery: Physical

     Officer did not use excessive force in knocking arrestee's feet out from under him and grabbing him around the chest. Arrestee, who had just been taken into custody for being incapacitated by alcohol, said "no" as the officer attempted to handcuff him, and started walking away towards his house, where the officer knew the arrestee kept a BB gun. Flanigan v. Town of Colchester, 171 F. Supp. 2d 361 (D. Vt. 2001).

     A court security officer and two sheriffs' deputies did not use excessive force, as alleged, while taking plaintiff into custody at the conclusion of court hearing for violating a protection order concerning his ex-wife. Evidence failed to support plaintiff's story that the alleged "assault" rendered him "comatose" for several hours, and judge's affidavit supported officers' versions of events that he resisted being placed in handcuffs. Covillion v. Alsop, 145 F. Supp. 2d 75 (D. Me. 2001).

Damages: Punitive

     Florida state statute putting a cap on punitive damages, F.S.A. Sec. 768.73, did not apply to arrestee's claim for intentional violation of his civil rights. Statute's limit on the amount of punitive damages applied to negligence, strict liability, and products liability, rather than intentional wrongs. Appeals court orders further proceedings, however, on whether award of  $102,500 in compensatory and $330,000 in punitive damages against off-duty deputy was justified under the facts or was excessive. St. John v. Coisman, No. 5D00-3031, 799 So. 2d 1110 (Fla. App. 5th Dist. 2001). (.pdf format).

Defenses: Qualified (Good-Faith) Immunity

     Police officers were entitled to qualified immunity for arresting suspect on drug charges after crack cocaine was found in the trailer which he co-owned with his sister. Subsequent dropping of charges after a third party also arrested pled guilty and accepted responsibility for all drugs found did not alter the fact that officers, based on the totality of the circumstances, acted reasonably in arresting the plaintiff at the time they did so. Lea v. Kirby, 171 F. Supp. 2d 579 (M.D.N.C. 2001).

Defenses: Statute of Limitations

     Malicious prosecution claims against officers, based on arrest pursuant to warrant, were not time-barred by Indiana's two-year statute of limitations since the claims did not accrue until the criminal prosecution was dismissed, rather than at the time of the arrest. Appeals court still upholds dismissal of claims against officers, however, in the absence of any allegation that they played an "essential or influential" role in obtaining the warrant or indictment. Snodderly v. R.U.F.F. Drug Enforcement Task Force, No. 99-3688, 239 F.3d 892 (7th Cir. 2001).

False Arrest/Imprisonment: No Warrant

     New York intermediate appellate court overturns $170,000 award in favor of arrestee who claimed he was falsely arrested and prosecuted, and orders new trial. Trial court erroneous instructed jury that the validity of a warrantless arrest depended on an ultimate finding that the arrestee was guilty, rather than merely on a finding that probable cause existed at the time of the arrest. Mucius v. County of Nassau, 733 N.Y.S.2d 458 (A.D. 2001).

     Officers had probable cause to make a warrantless arrest of a man for allegedly hitting his girlfriend, based on her accusations, their observation of her "bruised and disheveled condition," and her expressed fear of further harm. Statements by other individuals challenging the truth of the girlfriend's version did not require the officers to forgo or delay making the arrest. Richardson v. City of Boston, No. 99-P-170, 758 N.E.2d 629 (Mass. App. 2001).

Insurance

     City waived any defense of sovereign immunity in lawsuit brought by motorist injured during police chase by participating in a liability risk pool on the date when the accident occurred. It could not reclaim its waiver of sovereign immunity by ceasing to participate in the state risk pool, in the absence of consent by the plaintiff motorist. Cromwell v. Rapid City Police Department, No. 21582, 632 N.W.2d 20 (S.D. 2001).

Interrogation

     Store customer was not "seized" when a police officer questioned  him after he participated in a fight with store employees. Officer did not arrest or restrain him, and only later sent him a summons in the mail, precluding false arrest claims under Pennsylvania state law or federal civil rights claim. Colbert v. Angstadt, 169 F. Supp. 2d 352 (E.D. Pa. 2001).

Off-Duty/Color of  Law

     Off-duty police officer working as a private security guard at a hotel was not entitled to assert public official immunity from lawsuit for personal injuries filed by hotel guest struck by bullet that officer fired during gun battle with two armed robbers in hotel lobby. Genuine issue of material fact existed, however, as to whether officer was acting as a private security guard and within the scope of his employment, during the gun battle. Lovelace v. Anderson, No. 70, Sept. Term. 1999, 785 A.2d 726 (Md. 2001).

Other Misconduct: Conspiracy

     City marshal who "accompanied" a fired worker off the premises of a private company owned by the city mayor did not act under color of law in doing so. Joint activities of mayor and marshal did not constitute a "conspiracy" sufficient to support federal civil rights liability. Marshal's mere presence did not violate fired employee's rights and he did not use force or take employee into custody, but rather merely "stood by" in case a disturbance developed. Staudinger v. Hoelscher, Inc., 166 F. Supp. 2d 1335 (D. Kan. 2001).

Procedural: Evidence

     Plaintiff arrestee's prior history of drinking habits, ownership of guns, and use of prescription drugs was properly admitted into evidence when the plaintiff answered questions on those issues on cross-examination without objections. Trial judge's comments about arrestee acting as his own lawyer in false arrest lawsuit did not require a new trial. O'Brien v. Johnson, 800 So. 2d 64 (La. App. 4th Cir. 2001).

Property

     Wisconsin state statute governing the return of seized property, W.S.A. 968.20, did not authorize trial court to award the fair market value of the property once it was no longer in the possession of the governmental entity which seized it. Property owner who was acquitted on the carge of receiving stolen property was not entitled to an award of money damages under the statute when city had given the property to another person it believed to be the rightful owner. In re Return of Property in State v. Glass, No. 99-2389, 628 N.W.2d 343 (Wis. 2001).

     Wife could not recover money damages in federal civil rights lawsuit against county sheriff alleging that deputy sheriffs violated her procedural due process rights by seizing her personal property on behalf of her husband. State law proceeding for "wrongful attachment" gave the wife an adequate post-deprivation remedy for the allegedly wrongful seizure. Nicholson v. Moates, 135 F. Supp. 2d 1185 (M.D. Ala. 2001).

Search and Seizure: Home/Business

     City could not be held liable for damages allegedly caused by officers' warrantless search of apartment when there was no evidence that the city's official policies or practices contributed to or caused the alleged unconstitutional search. New trial required, however, on jury verdict for officers, when jury instructions were confusing and might have led the jury to believe that the officer's subjective intent to violate the plaintiff's rights was required for liability, rather than a finding of objective unreasonableness. Hudson v. New York City, #99-7256, 271 F.3d 62 (2nd Cir. 2001).