CONTENTS

Arrestee's standing conviction for obstructing an officer barred his excessive force claim against the arresting officer for using pepper spray against him, since an award in his favor would imply the invalidity of his conviction, California intermediate appeals court rules.

     A deputy sheriff in California called for a tow truck for a car parked near an auto body shop which had an expired registration. The son of the shop's owner approached the deputy, but denied owning the vehicle. When the car was hitched to the tow truck, however, he returned with a set of keys and got into the driver's seat. The deputy ordered him out of the vehicle several times, only to allegedly be told by the son that "you're not taking it," and "f---- you."

     The deputy used pepper spray in the son's eyes after he ignored additional orders to get out of the car, and the son then allegedly cursed at and pushed the deputy. Further disputes occurred later between the deputy, other officers who arrived to assist him, the son, who was ultimately taken into custody, and the owner of the auto shop. The son was convicted of resisting or obstructing a peace officer, and he and his father filed a federal civil rights lawsuit against the city, the county, the sheriff's department, and the ten deputies involved in the incident.

     The defendants successfully moved for summary judgment in the trial court against the son on the ground that the standing conviction for resisting or obstructing a peace officer precluded his claims.

     An intermediate California appeals court upheld that result. Under Heck v. Humphrey, 512 U.S. 477 (1994), the court noted, to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a federal civil rights claimant must prove that 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 question by a federal court's issuance of a writ of habeas corpus." None of those events have occurred in this case.

     The appeals court also noted that in California, the lawfulness of an arrest is an "essential element of the offense of resisting or obstructing a peace officer." If the "officer was not performing his or her duties at the time of the arrest, the arrest is unlawful and the arrestee cannot be convicted" for resisting or obstructing. "Excessive force by a police officer," the court further stated, "is not within the performance of the officer's duty."

     The court also ruled that the reasonableness of the officers' conduct had already been determined in the criminal conviction, so that the arrestee's conviction also barred state law claims for assault and battery, intentional infliction of emotional distress, and false imprisonment.

     Susag v. City of Lake Forest, No. D038608, 115 Cal. Rptr. 2d 269 (Cal. App. 2002).

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Jury properly awarded compensatory damages of $15,184 and punitive damages of $37,916 to bystander documenting police conduct at event who claimed that an officer assaulted him and tackled him to the ground while he had his hands up in the air. Defendant officer was not unfairly prejudiced by the admission of evidence concerning the conduct of other officers present on the occasion.

     A man in Maine claimed that he had been assaulted by police officers as he attempted to document alleged police misconduct at a large public outdoor event in which crowds of people--some intoxicated--were present to see "tall ships" come into the port. A jury awarded the plaintiff $15,184 in compensatory damages and $37,916 in punitive damages against one of the officers.

     The trial court rejected the officer's claim that the damages awarded were excessive, and also declined to grant the defendant officer a new trial on the basis of his contention that he was unfairly prejudiced by the introduction of evidence of the conduct of other officers present on that occasion.

     The court noted that "it was clear from the outset of this case that the evidence could not be limited solely to what the two defendant police officers and the single civilian plaintiff saw and did during the few moments their paths crossed," especially since the defendant officers themselves considered highly relevant (and wanted the jury to hear) the circumstances which officers were faced with--including an "almost uncontrollable fight" and an exchange with a group of young people that preceded the incident with the plaintiff.

     The trial judge noted that he had cautioned the jury that they were only ultimately concerned with what the defendant officers did, and the judge further pointed to the fact that the jury arrived at different verdicts concerning the two officers as confirming that the "jury was able to distinguish among police officers and did not automatically attribute all negative testimony against every available police officer."

     On the issue of damages, the plaintiff had reasonable medical expenses of $184 and "also introduced persuasive evidence of pain, humiliation and fear," so that a compensatory award of $15,184 was not unreasonable. The jury could find, based on the evidence, that the plaintiff was "an innocent bystander, doing nothing to provoke the police, except for the fact that he was expressing concern about police misconduct against others and calling out to his friend (so they would both remember) the license plate numbers of the police vehicles."

     The jury could also find that this attempt to "document police misconduct" was what angered the officer and led him to "tackle the plaintiff to the ground (with resulting injuries) even though at the time of the tackle the plaintiff was walking away, as ordered, with his hands in the air." Under these circumstances, the jury could conclude that only an award of punitive damages would deter this officer and other officers from such conduct in the future. "The award of $37,916 to send that message is not excessive."

    Cummings v. Libby, 176 F. Supp. 2d 26 (D. Maine 2001).

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Detainee was not a prevailing party entitled to an award of attorneys' fees in his federal civil rights lawsuit seeking the return of documents seized from him by officers during a traffic stop despite the fact that the defendants agreed to return photocopies of some of the documents. The court did not rule on any of the plaintiff's claims and the return of the photocopies did not prevent the city from using the documents to investigate and charge the plaintiff with credit card fraud.

    The plaintiff was a passenger in a vehicle driven by a woman stopped by an officer who requested to see her driver's license. She instead produced a state of Michigan photo identification of "Donald Beane," which had the picture of the passenger. The officer then asked the passenger to identify himself and requested further identification when the passenger stated that he was Dana Richardson. In the passenger's wallet were credit cards and picture identifications, all in "Beane's name." Richardson also had some personal papers, including his mother's death certificate and mortgage papers. The officer seized all of the papers, credit cards and identifications.

     The passenger repeatedly and unsuccessfully sought the return of the seized items and filed a lawsuit in state court seeking to have the items returned and the government enjoined against using the material in an criminal investigation against him. The city removed the case to federal court, and following an initial hearing, the parties agreed that the city would return some of the seized materials, but because of the continuing investigation the city would only return photocopies, rather than originals. The passenger's wallet and some of his personal papers were later returned by the city. The passenger was subsequently arrested and charged with four counts of credit card fraud, but the charges were later dropped for lack of sufficient evidence.

     The passenger ultimately moved to voluntarily dismiss his lawsuit, and filed a petition seeking an award of attorneys' fees and costs as a prevailing party under 42 U.S.C. Sec. 1988, and its state law equivalent, Mass. Gen. Laws ch. 12, Sec. 111. The trial court declined to award any attorneys' fees, finding that the passenger was not a prevailing party because the court did not issue any substantive rules and the case did not proceed to trial.

     A federal appeals court upheld this result. The trial court never ruled on the merits of the plaintiff's claims that the seizure of his documents was unconstitutional and that the city should therefore be enjoined from using them in its investigation. The return of the documents--and particularly photocopies of them, did not prevent the city from continuing with its investigation.

     Given the "limited nature" of the plaintiff's "success," the trial court's refusal to find that the plaintiff was a prevailing party or to award attorneys' fees were not an abuse of discretion. The appeals court also rejected the argument that the plaintiff, by receiving some of his documents back achieved his goals in the lawsuit by "receiving something akin to a consent decree," and therefore should be awarded attorneys' fees, citing Maher v. Gagne, 448 U.S. 122 (1980) (permitting attorneys' fees in judicially apprroved settlements).

     The plaintiff conceded, the appeals court pointed out, that trial judge had not ruled on the merits of any of his claims or ordered the parties to comply with the return of any documents. The mere fact that the trial court was involved in the parties' discussion of possible resolutions was not the equivalent of a consent decree. Additionally, the court noted that the U.S. Supreme Court, in Buckhannon Bd. and Care Home, Inc. v. W. Va. Dept. of Health and Human Res., 532 U.S. 598, 121 S. Ct. 1835 (2001), has rejected the "catalyst theory" permitting an award of attorneys' fees if the litigation served as a "catalyst" in prompting the defendants to take action to meet the plaintiff's claims.

     Richardson v. Miller, #01-1309, 279 F.3d 1 (1st Cir. 2002).

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Two arrestees awarded $501 and $1 in damages in their false arrest/excessive force lawsuit against the arresting officer are awarded $21,009.22 in attorneys' fees and $1,029 in costs by trial court as prevailing plaintiffs.

     Two arrestees sued their arresting officer (and initially other defendants) on a variety of civil rights claims, initially including racial discrimination, unlawful search and seizure tactics, false arrest and excessive force, as well as various state law claims. Ultimately, the only issue presented to the jury was whether the officer should be held liable for violating the plaintiffs' constitutional rights by unlawfully detaining them, falsely arresting them, and using excessive force.

     After a jury awarded $501 in compensatory damages to one arrestee and $1 in nominal damages to the second, the trial court awarded the plaintiffs' attorney's fees and court costs under 42 U.S.C. Sec. 1988. The award was reduced, however, from the plaintiffs' requested amount of $85,168 in attorneys' fees and $3,077 in costs to $21,009.22 in attorneys' fees and $1,029 in costs, reflecting the plaintiffs' "partial success" in achieving recovery on the claims they initially made. The court noted that the plaintiffs ultimately prevailed on only one of thirteen claims against only one of three defendants, so that the 166 hours claimed for trial preparation and 68.7 hours claimed for the three day trial were unreasonable.

     The court's award instead represented recovery of attorneys' fees for 50 hours of attorney time for trial preparation and 30 hours for the trial. The court also found the request of the plaintiffs' attorneys for 26 hours of attorney time in assembling the petition requesting the fees to be unreasonable and allowed only four hours of attorney time for it.

     The court also reduced the amount of attorney time awarded for consulting with expert witnesses to four hours rather than the requested 11.1 hours, especially since the plaintiffs ultimately did not use an expert witness at trial. Costs reduced as excessive included expenses for photocopying.

     Okot v. Conicelli, 180 F. Supp. 2d 238 (D. Maine 2002).

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Officer's arrest of suspect, in November 1997 in Michigan, for refusal to provide identification after being requested to do so did not violate clearly established constitutional law. Arresting officer and police chief were entitled to qualified immunity from liability.

     Two individuals told officers that they had witnessed a fight in an alley. During the conversation, two other men walked by and one of them was identified as having been involved in the fight. One of the officers approached this individual and asked to see his identification. The suspect replied, "No. What for?" After the officer informed him that he was investigating a fight and that a witness had pointed him out, the officer again asked for the suspect's identification and warned that he could be arrested if he refused, which is exactly what followed.

     The arrestee was charged with disorderly conduct under a city ordinance making it a misdemeanor to "assault, obstruct, resist, hinder, or oppose any member of the police force" in the "discharge of his/her duties." A trial court subsequently rejected a First Amendment challenge to the ordinance under which the arrest was made, but found that the arrest was invalid because the suspect was free to decline to speak to the officer.

     The arrestee filed a federal civil rights lawsuit. The trial court declined to grant the defendant officer and the police chief qualified immunity on the Plaintiff's Fourth and Fourteenth Amendment claims.

     Reversing, and ruling that these defendants were indeed entitled to qualified immunity, a federal appeals court has held that it was not clearly established in November of 1997, when the incident occurred, that an arrest based on the refusal to provide identification after a request from the police to do so violated the Fourth Amendment or that the city ordinance involved was, as the plaintiff argued, void for vagueness as applied to him.

     The appeals court also noted that the ordinance in question did not "criminalize the refusal to provide identification upon request, or make it unlawful to fail to provide 'satisfactory' or 'verifiable" identification in the absence of standards for determining what identification would suffice, but instead prohibited "hindering or obstructing" an officer in the performance of his duty. The court found that in the circumstances of this case, a reasonable person would understand that if he refused an officer's request for identification after being pointed out to that officer by another citizen in connection with a fight, that his conduct might "hinder or obstruct" the officer in the discharge of his duties.

     Risbridger v. Connelly, #00-2471, 275 F.3d 565 (6th Cir. 2002).

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Officer's use of a police dog trained in a bite-and-hold technique to find and apprehend a motorist who ran away after what seemed to be a routine traffic stop was not an excessive use of force under the Fourth Amendment; motorist's fleeing gave officer some grounds to believe that more serious misconduct might have been involved. Officer did not know, for a fact, that motorist was unarmed.

     A Minnesota police officer pulled a vehicle over for failing to dim his lights when approaching an oncoming car. "The traffic stop seemed routine," until the officer started to get out of his squad car after calling in the vehicle's license plate information. The driver of the vehicle then opened his car door, got out, looked at the officer, and ran from his car. The officer attempted to follow the motorist through a swampy area nearby, but then called for help. Both a helicopter and a K-9 unit were dispatched to help him locate, apprehend, and secure the suspect.

     While the officer was waiting for back-up, he examined the motorist's vehicle and noticed damage from a recent incident in which the motorist drove his vehicle into a roadside curb, damaging the vehicle and flattening a tire. The officer believed this might have be indicative of a stolen vehicle. When the K-9 unit arrived, the dog was commanded to "bite and hold" when he found the suspect. The dog found and bit the suspect in his upper leg and the officer inspected the area to ensure that the suspect was unarmed before calling off the dog.

     When this was done and when the suspect let go of the dog and put his hands up, the dog was called off. The entire apprehension took between 10-15 seconds. The dog's bite had pierced the suspect's femoral artery, causing substantial blood loss.

     The motorist eventually pled guilty to disobeying a police officer. He argued that he had run away because he feared that he might have been over the legal alcohol consumption limit, and he was afraid that a conviction for driving under the influence would hinder his prospects for a career as a commercial pilot. His blood alcohol level was over the legal limit, but he was not charged with intoxicated driving, as his blood loss may have altered the results of the blood alcohol test.

     The motorist's federal civil rights lawsuit claimed that the use of the police dog was an excessive use of force. The trial court granted summary judgment to the defendant city and officers.

     The court found that the use of the dog, trained in the bite-and-hold technique, was not excessive force in violation of the Fourth Amendment, under the circumstances. The officer had grounds to believe, because of the damage to the vehicle and the motorist's conduct in fleeing the scene, that misconduct more serious than a traffic violation may have been involved. Further, while the officer did not see a gun when he stopped the motorist, this did not establish that he knew that the motorist was unarmed.

     The court found no evidence that the dog was improperly trained or "unnecessarily aggressive." The dog went through extensive certified training, which was demonstrated by monthly police logs entered into evidence. This training was consistent with that used by many other governmental entities, as certified by the U.S. Police Canine Association (USPCA).

     Finally, the court found that even if it reached the conclusion that the use of the dog was unreasonable under the circumstances, there was no clearly established law that it was unreasonable at the time of the incident in September of 1999, so that the defendant officers would be entitled to qualified immunity under federal law and to official immunity under Minnesota law. The official immunity under state law would also extend to the city.

     Kuha v. City of Minnetonka, 176 F. Supp. 2d 926 (D. Minn. 2001).

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Police officer had probable cause to arrest suspect for unlawful use of a credit card based on information provided by retailer that an unauthorized person, the suspect, had used the card to order a computer.

     An employee of Sears was arrested by a police officer for unlawful use of a credit card. He subsequently sued the city for false arrest, false imprisonment, and malicious prosecution. Rejecting these claims and upholding the trial court's dismissal of them, an intermediate New York appellate court noted that the officer, at the time of the arrest, had information provided by Sears that the plaintiff had used a credit card number, without authorization from the credit card holder, to place an order for a computer.

     The officer also knew that the order form filled out by the arrestee stated that the computer was to be picked up by a person named Freeman, and that a co-worker of the arrestee's named Al Freeman had been arrested and charged with utilizing his position as a Sears sales employee to commit grand larceny through the unlawful use of a credit card.

     Taken together, the court found, these "undisputed circumstances" would have led a reasonable person to conclude that it was "more probable than not" that a crime had been committed by plaintiff."

     Brown v. Sears Roebuck and Co., 736 N.Y.S.2d 671 (A.D. 2002).

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Louisiana appeals court upholds award of $200,000 in damages for police sergeant's action "without good cause" in arresting high school principal for allegedly "obstructing" child sexual abuse investigation. Principal contended that police personnel who attempted to get child released to them by school did not identify themselves as police and did not follow established school board policy for such releases.

     A New Orleans high school principal was arrested by a police sergeant in her school office and charged with obstruction of procedures for investigating sexual abuse of a child. The sergeant and city argued that the principal violated the law by refusing to release a student to police Child Abuse personnel so they could proceed with their investigation.

     The principal claimed that he refusal to release the child was based on the failure of police personnel to comply with school board policy relative to providing documentation prior to the release of children to persons other than parents or guardians. The principal also claimed that the police personnel who had previously sought the release of the child were in plain clothes and did not identify themselves as police.

     All charges against the principal were eventually dismissed and she sued the arresting sergeant and the city. After a bench trial, the trial judge found that when the sergeant arrived on the scene, "her purpose was not to achieve access to the child but rather to arrest" the principal "for no good reason whatsoever." The judge found that the consequences to the principal, who was in custody for several hours, were "horrendous," and awarded her $100,000 in general damages, plus $100,000 in lost wages.

     An intermediate Louisiana appeals court upheld this result on appeal. The appeals court found sufficient evidence to support the trial judge's conclusion that, as the principal's witnesses testified, a social worker and a detective who had previously come to the school seeking to have the child released to them did not identify themselves as police department personnel or provide documentation usually required by the school for the release of a child to someone other than a parent or guardian.

     The appeals court also rejected the city's argument that the damages awarded were grossly excessive because the incident was "only minor and very brief." The court pointed to the principal's testimony that she experienced "great humiliation and embarrassment as a result of her arrest, caused at least partially by the fact that the arresting police officers" insisted on "parading" her through the school and out the front door rather than complying with her request that she be taken out an easily accessible back door.

     The arrest received state wide publicity and the principal testified that she experienced sleepless nights, hair loss, nervousness, rashes, crying spells, and jitters, which led her to seek psychiatric counseling and destroyed her confidence and led her to miss much work during the following year. She claimed that this led her to be eventually required to take early retirement despite the fact that she was only 49 years old and had never considered retirement prior to her arrest. The lost wages claim was easily supported by expert witness testimony of an actuary who calculated that the wages lost could be as high as $463,929, even if the principal never received another raise in salary.

     Dumas v. City of New Orleans, No. 2001-CA-0448, 803 So. 2d 1001 (La. App. 2001).

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Attorney's continued "frivolous" filings after a warning from the court warranted a $1,000 fine and other sanctions. Lawyer, reacting to the trial court's concern that his 34-page civil rights complaint against various police departments "cannot be understood" responded with a 160-page "Amended Complaint" which "compounded the difficulties" and asserted claims that were "legally and factually nonsensical."

     A New Jersey lawyer filed a 34-page complaint asserting various civil rights violations on behalf of multiple (eleven) plaintiffs against various local police departments. The trial court wrote a 48-page unpublished opinion "plus charts" to "map out and adjudicate these confusing and largely non-meritorious claims because they were so poorly pleaded and argued by plaintiff's counsel." Most of the claims asserts in the Complaint were dismissed.

     The trial court also ordered the attorney to appear and show cause why he should not be subjected to sanctions for violation Federal Rule of Civil Procedure 11 for signing and asserting "unsupported and untenable claims" on behalf of his clients under 42 U.S.C. Sec. 1981, the Thirteenth Amendment and state common law.

     The trial judge has now ruled that the lawyer should, indeed, be sanctioned. The court noted that the attorney was found in another case, Carlino v. Glucester City High School, 57 F. Supp. 2d 1 (D.N.J. 1999) to have violated Rule 11 just one month prior to filing the immediate case, and had been ordered, in that prior litigation to pay a $500 fine and attend two continuing education courses.

     The court noted that the initial Complaint asserted claims on behalf of eleven persons, but made factual allegations and legal claims on behalf of only one of them, and failed to make any allegations at all against a number of named defendants. In his amended complaint, the court found, the attorney simply "repeated the claims initially made only on behalf" of one plaintiff for each of the named plaintiffs, increasing the length of the Complaint from 34 to 160 pages. The court believed that it appeared that the lawyer "did not conduct any further legal or factual research before filing the Amended Complaint."

    He then followed that up by filing a Second Amended Complaint, again without "conducting any obvious legal research or additional fact-finding," the court found. The court ruled that the lawyer's submissions of the Complaint, the Amended Complaint, and the Second Amended Complaint all constituted a violation of Rule 11(b)(2) and 11(b)(3) prohibiting the presentation of frivolous legal claims or claims without any evidentiary or factual support.

     The court also noted that the lawyer was not inexperienced so that his "repeated violations cannot be attributed to lack of experience or knowledge of what is expected from attorneys who practice in this Court." The trial judge ordered the attorney, in order to protect the rights of his clients, to send a copy of the court's opinion to each and every plaintiff ever named in the case, and to submit to the court, within 30 days, "a well organized and thorough summary" of at least twenty pages of the requirements that Rule 11 places on attorneys and how the courts have interpreted that rule. The court ordered that this summary "must be researched and written" by the lawyer himself and not an associate or an assistant, and "may not paraphrase hornbook law." Finally, the court imposed a $1,000 monetary fine.

     Leuallen v. Borough of Paulsboro, 180 F. Supp. 2d 615 (D.N.J. 2002).

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Officers were not entitled to qualified immunity on arrestee's claim that they coerced her confession to participating in the making of bomb threats against her employer by lengthy questioning, verbal harassment, and making threats about the custody of her son.

     After a Wal-Mart store had experienced a number of bomb threats which were telephoned to the premises, an investigation was conducted that involved store personnel, video surveillance, and a number of town police officers. After a female employee came under suspicion, officers went to the employee's home and asked her to accompany them to the police station for questioning.

     Once there, she was read her Miranda rights and signed a waiver card, following which she was interrogated for a period of time, allegedly for as long as five hours. In the course of the questioning, she was shown a photo taken from a videotape of a person smoking a cigarette near the store pay phones, thought to possibly be the person who made at least one of the threatening phone calls. She identified herself as the person in the photo, and ultimately confessed to making one of the bomb threats. She was arrested and pled not guilty, with the charges against her eventually dismissed.

     She sued her former employer and four of the town's police officers, alleging coerced confession, false arrest and malicious prosecution. The officers were granted qualified immunity on the false arrest and malicious prosecution charges, with the court finding that there had been probable cause for the arrest and prosecution. But the court declined to grant the officers similar immunity on the coerced confession claim.

     The court noted that the circumstances under which the confession was obtained "are hotly disputed," with the plaintiff arguing that one of the officers repeatedly used profanity during his interrogation to get her to confess. He also allegedly asked if she took her son to church every weekend, and told her, when she said no, that "you're a no good F-ing mother." He also allegedly continually told her that she was lying and that the sooner she admitted to her crime, the sooner she could go home.

     One of the officers also allegedly told her that "if nobody can take care of your [three year old] son we'll have child services come and take you son away from you," and that if she did not cooperate, they would make sure "that my son was taken away from me." The plaintiff also claimed that she was denied permission to leave the room to smoke a cigarette.

     The officers denied using profanity or mentioning the plaintiff's son.

     The trial court noted that "it is clearly established that police officers may not coerce a confession from a criminal suspect. Accordingly, defendants are entitled to qualified immunity only if it was objectively reasonable for them to believe that their actions were lawful." Because the parties dispute the circumstances surrounding the confession, a factual determination of the defendants' conduct was necessary before the court could "decide whether it was objectively reasonable for them to believe that their conduct was lawful."

     Edwards v. Pretsch, 180 F. Supp. 2d 499 (S.D.N.Y. 2002).

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Operation of a police training school by a village was a "proprietary function" imposing the same duty of care and same liability as a private individual or institution would have had while engaging in the same activity. Municipality, school, and school personnel, including director and commanding officer were not entitled to governmental immunity under New York law from liability for trainee's injuries during firearms training exercise.

     A deputy sheriff in New York enrolled in a police training school sponsored by a village and sanctioned by the New York Municipal Police Training Council of  the Division of Criminal Justice Services. While participating in a nighttime training simulation, a part of the school program of instruction, he was injured when a handgun loaded with blank ammunition discharged as he was attempted to wrestle it from a "suspect."

     The deputy and his wife filed a negligence lawsuit in state court against the village, and against the school's director, commanding officer, and instructor, claiming that the injuries were the result of negligence in the administration and operation of the school. The defendants asserted a defense of governmental immunity.

     An intermediate New York appellate court has ruled that the operation and management of a police training school is a "proprietary function" rather than a "governmental function," so that the defendants were not entitled to assert a defense of governmental immunity under state law.

     When a municipality is engaged in a "governmental function," such as one "undertaken for the protection and safety of the public pursuant to the general police powers," it generally will not be held liable for the negligent performance of those functions unless it can be shown that a "special relationship" exists between the injured party and the municipality.

     When a municipality "acts in a proprietary capacity," however, the court stated, "it is generally subject to" the "same duty of care as private individuals and institutions engaging in the same activity." The court noted that the school enrollment was open to any police officer, a fee was charged for each enrollee's attendance and the plaintiff's injury arose out of the operation, management and control of a police training school "which we find to be a proprietary function subjecting defendants to the same duty of care as a private individual or institution engaged in the same activity."

    Lemery v. Village of Cambridge, 736 N.Y.S.2d 503 (A.D. 2002).

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Police officer shot in the chest in a parking lot is awarded $1.3 million against employer of his attacker; officer's lawsuit claimed that employer knew about, but ignored drug use by its traveling work crews, including the attacker.

     A police officer in Texas was approached in a parking lot by a woman who said that her husband was making statements that he would kill her. The officer went to confront the woman's husband who was elsewhere in the lot, and the man shot him in the chest. The shooter was later convicted of a charge of attempted murder.

     The officer filed a lawsuit for gross negligence against the shooter's employer, a company which sent work crews traveling around the country to refurbish railroad right of ways. The officer claimed, in the lawsuit, that the employer knew about the improper use of  drugs by these crews, but ignored the danger that this represented. The employee who shot the officer had valium and crystal methamphetamine in his body when the incident occurred.

     The officer was temporarily comatose from an air embolism following the shooting and was awarded $1.3 million by a jury against the defendant employer, which is appealing the award.

     Ianni v. Loram Maintenance of Way Inc., No. 96-151 (El Paso Co., Texas, 120th Dst. Ct.), reported in The National Law Journal, p. B3 (Feb. 11, 2002).

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Decedent's family had no constitutionally protected privacy interest in preventing officer from making public statements containing information about his highly personal sexual behavior of an allegedly autoerotic nature, and were not entitled to a "name-clearing hearing."

     A Utah newspaper in 1997 published an article that reported that hikers had found the dead body of man, "identified only as a white male in his 60s" about 30 yards from a dirt trail. The article went on to say that the police first suspected foul play, but were now saying that the death was an accident.

     "It looks like it was one of those autoerotic things," the article quoted a sheriff's sergeant as saying. "We're still waiting for the autopsy results, but there was some type of binding involved." The decedent was subsequently identified and had a wife and two children. Further investigation eventually led to criminal charges concerning the death, a widely-publicized trial, and a murder conviction. The decedent's family members, citing the prior statements of the sergeant to the press, asked the county to hold an administrative "name-clearing hearing," but received no response to this request.

     The decedent's wife and two children then filed a federal civil rights lawsuit claiming that the statement to the press and the failure to hold the name-clearing hearing had deprived them of liberty and privacy interests protected under the U.S. Constitution.

     A federal appeals court has upheld the dismissal of the lawsuit for failure to state a claim. It ruled that the surviving wife had no constitutional right to privacy on information concerning her husband's alleged highly personal sexual behavior under these circumstances. The court noted that the contested disclosure concerned "only the behavior of an unnamed decedent" and revealed no information about the wife or her marital relationship "as such, only an opportunity for some prurient readers to speculate about that relationship after authorities had identified her husband as the decedent" to which the officer referred.

     Rejecting the plaintiffs' due process claim, the appeals court found that the defendants' conduct, "however ill-advised, inappropriate, or ill-considered it might have been, does not 'shock the conscience of federal judges'--at least not the conscience of these three federal judges." Accordingly, there was no right to a name-clearing hearing.

     Livsey v. Salt Lake County, No. 00-4005, 275 F.3d 952 (10th Cir. 2001).

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Oregon appeals court holds that a city which "mistakenly" seized marijuana from a patient entitled to possess it under state statute must return the drugs to him despite federal law prohibiting the delivery of controlled substances. Court points to a provision of the federal statute immunizing law enforcement officers from civil or criminal liability for handling controlled substances if it is done within the performance of their duties.

     While police officers in Oregon were executing a search warrant for a residence, a third party drove up. The officers searched him and found a tin containing a small amount of marijuana in his possession. They charged him with possession and delivery of a controlled substance, but charges against him were later dismissed, since he has a medical condition that qualifies him for the lawful medical use of marijuana under ORS 475.306, the Oregon Medical Marijuana Act.

     After the charges were dismissed, the Defendant moved for the return of his "property, that is, his marijuana." The city opposed the motion, arguing that because marijuana is a Schedule I controlled substance as defined by 21 U.S.C. Sec. 812, returning it would require the city to commit a federal crime of delivering a controlled substance, 21 U.S.C. Sec. 841(a). The trial court rejected this argument, and ordered the return of the drug.

     Upholding this result on appeal, an intermediate Oregon appeals court noted that the federal Controlled Substances Act, 21 U.S.C. Sec. 885(d) confers immunity on all state and federal law enforcement officers engaged in the enforcement of the Act or of any state or municipal law related to controlled substances. "No civil or criminal liability" may be imposed under the statute on officers in these circumstances.

     This, the court noted, confers immunity on law enforcement personnel engaged in "undercover drug operations." In this case, "there is no debate that defendant is entitled to possession of marijuana" under the Oregon state statutes. "Even assuming that returning the marijuana otherwise might constitute delivery of a controlled substance, the city does not explain--and we do not understand--why police officers would not be immune from any federal criminal liability that otherwise might arise from doing so."

     State of Oregon and City of Portland v. Kama, A109667, 39 P.3d 866 (Ore. App. 2002).

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

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Administrative Liability: Supervision.

     A possible claim for supervisory liability was stated by plaintiffs who claimed that supervisors of undercover drug agents selected agents with "inclinations" towards violence and "poor psychological profiles," and knew about, yet failed to investigate prior incidents of brutality. Adorno Colon v. Toledo Davila, 137 F. Supp. 2d 39 (D. Puerto Rico 2001).

Assault and Battery: Physical

     Officer did not "shock the conscience" by hitting a protester who grabbed him from behind while the officer was attempting to arrest another protester during a demonstration. Officer's action of swinging his arm backwards after protester had grabbed his ankles was also objectively reasonable under the Fourth Amendment. Darrah v. City of Oak Park, No. 00-1253, 255 F.3d 301 (6th Cir. 2001).

Defenses: Qualified (Good-Faith) Immunity

     Reasonable officers could disagree as to whether there was probable cause for arresting a motorist (who was a police officer) for intoxicated driving after a traffic stop following the motorist's vehicle being observed crossing the center and white lane-control lines, and after the motorist appeared to fail a field sobriety test and refused to take a second one. Fersner v. Prince George's County, Md., 138 F. Supp. 2d 685 (D. Md. 2001).

Expert Witnesses

     Expert witness testimony that officers should not have shot a fleeing suspect was admissible in excessive force lawsuit, even though the question of whether the officers actually saw the suspect possessing a weapon did not determine whether they could use deadly force. Expert's opinion could help the jury decide whether the officers' use of force was reasonable under the circumstances. Wilson v. City of Des Moines, 160 F. Supp. 2d 1038 (S.D. Iowa 2001).

False Arrest/Imprisonment: No Warrant

     Officers were entitled to investigate further when man was found dressed only in his underwear in a van parked in a "park and ride" parking lot at a transit terminal and stated "you caught me" when officers approached. Suspect's action in trying to lock door to the van and holding it closed when officers tried to remove him from the vehicle for questioning gave officers grounds for an arrest for obstructing governmental administration. Diehl v. Munro, 170 F. Supp. 2d 311 (N.D.N.Y. 2001).

False Arrest/Imprisonment: Warrant

     An objectively reasonable officer could conclude that the failure to obtain a Washington state warrant after arresting a suspect in that state on a facially valid Oregon felony arrest warrant did not violate the suspect's constitutional rights. Case v. Kitsap County Sheriff's Department, No. 98-36260, 249 F.3d 921 (9th Cir. 2001). (.pdf format).

Firearms Related: Intentional Use

     State trooper acted intentionally in shooting a motorist during a traffic stop, believing motorist was reaching for a gun. Because North Carolina Tort Claims Act did not allow recovery against the state for intentional injuries, the state Industrial Commission did not have jurisdiction over the estate's claim concerning the shooting. Fennell v. North Carolina Department of Crime Control and Public Safety, No. COA00-824, 551 S.E.2d 486 (N.C. App. 2001).

First Amendment

     City ordinance which prohibited residential picketing was a permissible time, place, and manner restriction on speech in the traditional public forum of residential streets so that arrests of anti-abortion protestors for disobeying it did not violate their First Amendment rights. Veneklase v. City of Fargo, No. 98-2147, 248 F.3d 738 (8th Cir. 2001). (.pdf format).

     Use of a public school as a polling place did not automatically make it a traditional public forum and police officers did not violate petition circulators' First Amendment rights by removing them from the school property. United Food and Commercial Workers v. City of Sidney, Ohio, 174 F. Supp. 2d 682 (S.D. Ohio 2001).

Governmental Liability: Policy/Custom

     Plaintiff did not show that the city had a custom or policy that caused the deprivation of his due process rights to his property in the absence of a pattern of similar incidents in which property seized during searches was not returned after it was determined that it had no connection to any crime. The fact that construction equipment was seized from two residences and that criminal charges related to the seizures were later both dropped did not show such a pattern when both searches were conducted on the same day by the same officer. Brown v. Knapp, 156 F. Supp. 2d 732 (N.D. Ill. 2001).

Malicious Prosecution

     Police officers' alleged failure to follow some leads or to take accurate investigation notes in child sexual abuse investigation only showed possible carelessness, rather than the malice required to support a claim under New York law by an arrested day care aide for malicious prosecution. Ramos v. City of New York, 729 N.Y.S.2d 678 (A.D. 2001).

Police Plaintiff: Vehicle Related

     A New York police officer who was seriously injured when his police vehicle hit a public bus was properly awarded $1,347,500 for future lost earnings in a lawsuit against the bus company, but jury's award of $0 for future pain and suffering was "inconsistent and against the weight of the evidence. When officer's permanent injuries were "uncontroverted," no reasonable interpretation of the evidence supported the jury's decision that he was entitled to nothing for future pain and suffering. Hothan v. Metropolitan Suburban Bus Authority, 734 N.Y.S.2d 632 (A.D. 2001).

     The determination of whether a vehicle collision was an "accident" must be made from the point of view of the alleged wrongdoer rather than from the point of view of the insured victim for purposes of auto insurance uninsured motorist coverage. Police officer's injury from hit-and-run driver's intentionally trying to run him down in order to escape in a stolen vehicle were not the result of an "accident" under this test, so the officer could not recover under his uninsured motorist coverage. Shaw v. City of Jersey City, 787 A.2d 268 (N.J. Super A.D. 2002).

Privacy

     City's purported failure to remove the arrestee's photo and arrest sheet from its records after they had been sealed under a criminal procedural rule did not violate his constitutional right to privacy. Crime victim's subsequent positive identification of plaintiff as the man who shot him based on viewing the photo gave the officers a "complete defense" to plaintiff's subsequent false arrest claim. Brown v. City of New York, 735 N.Y.S.2d 21 (A.D. 2001).

Procedural: Appeal

     City attorney's inability to access their office, located in proximity to the World Trade Center, for appropriately one month after the terrorist attack on the building was a "unique circumstance" warranting the trial court to extend the period of time for the city and police officers to file a notice of appeal of the jury's verdict and award of $21,003 in damages for an arrestee in his civil rights lawsuit. Ishay v. City of New York, 178 F. Supp. 2d 314 (E.D.N.Y. 2001).

Procedural: Discovery

     It was not an abuse of discretion for a trial court to dismiss a federal civil rights lawsuit against a city with prejudice based on plaintiff's failure to comply in a timely manner with orders for discovery. Serra-Lugo v. Consortium-Las Marias, #01-1441, 271 F.3d 5 (1st Cir. 2001).

Procedural: Jury Selection

     Trial judge did not abuse discretion in refusing to ask potential jurors in lawsuit over shooting by officer how they felt about certain highly publicized police misconduct cases. Questions asked were sufficient to probe jurors' views about police misconduct litigation generally and about potential biases in favor of officers. Monroe v. City of Phoenix, Ariz., No. 99-16974, 248 F.3d 851 (9th Cir. 2001). (.pdf format).

Public Protection: Motoring Public & Pedestrians

     County sheriff was not liable for injury to driver and passengers of motor vehicle injured when they hit rock on the highway that the sheriff observed and failed to remove. Idaho law would not impose on the sheriff a common law duty to remove rocks on the highway or warn motorists of them, and any statutory duty to remove obstructions from the highway were on the state, not the county. Udy v. Custer County, Nos. 26345, 26346, 34 P.3d 1069 (Idaho 2001).