CONTENTS

Officers did not use excessive force in attempting to restrain a possibly intoxicated man whose mental condition was in question and who was swinging his arms wildly and struck at least one officer. No liability imposed for arrestee's subsequent death, allegedly from positional asphyxiation, when it took the efforts of three officers and the use of pepper spray to subdue him.

     Police officers and the city which employed them were sued for excessive use of force and wrongful death by the survivors of an arrestee who allegedly died of positional asphyxiation after three officers restrained him and he was squirted with pepper spray.

     The decedent had been reported as sitting in a parking lot, talking to himself and appearing to the caller to either have been drinking or to have been mentally unstable. When an officer asked him to stand up, he did not comply, and he resisted subsequent efforts by officers to cuff him. The decedent was not entitled, the court noted, to resist arrest under the applicable Florida law. All officers present were in full uniform, and he was clearly on notice that they were police.

     The federal trial court also found that the arresting officer's perception that the arrestee posed a threat to the officers and others was reasonable, since he violently resisted the officers. A dashboard videotape of the incident showed that the arrestee swung his arms wildly and struck at least one officer. Additionally, he knocked the sunglasses off of one officer, and a witness testified that the first officer did not appear able to control the physically larger arrestee, and could not have done so had not the other two officers arrived on the scene.

     The court found that the force used was reasonable in light of the fact that it took all three officers and a burst of pepper spray to subdue the arrestee and ensure that he could not continue kicking, swinging his arms and attempting to flee. The officers did not draw their weapons and they never punched or kicked the arrestee, the court pointed out, and also never struck him with their nightsticks or flashlights.

     The cuffing of his hands and legs, the prone restraint applied, and the pressure on the arrestee's upper torso, which was presumably from one of the officer's knees being pressed to the arrestee's back, the court found, were all the result of the arrestee's "illegal, physical, and prolonged resistance." Accordingly, the officers and city were not liable for either excessive use of force or wrongful death. The court also pointed out that the arrestee's actions in striking at least one of the officers were a battery and a felony under Florida law.

     Fernandez v. City of Cooper City, 207 F. Supp. 2d 1371 (S.D. Fla. 2002).

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Plaintiff who settled his excessive force claim against four officers for a small sum 35 years ago, allegedly in exchange for the dropping of criminal charges against him, could not pursue a new lawsuit now on the basis of affidavits from one of the officers recanting his version of the incident and stating that all four officers lied in their testimony. Neither federal nor New York state law provided a basis for extending the statute of limitations.

     A plaintiff appealed a decision dismissing, as barred by the statute of limitations, a lawsuit seeking damages for alleged "police brutality" inflicted upon him 35 years ago. While he acknowledged that the claim would normally be barred by the statute of limitations, he argued that he could still sue at this late date because the settlement of his prior timely lawsuit was "obtained by fraud," his currently pleaded causes of action were "concealed by fraud," and he can now establish the "truth through the testimony of a conscience-stricken police officer who admits that he participated in the brutality and that he and the other defendants lied about" his claims.

     A federal appeals court upheld the dismissal of the lawsuit, finding that the plaintiff's contentions, even if accepted as true for the purposes of the appeal, did not permit his current suit to proceed.

     "This appeal illustrates, in a dramatic context," the court stated, "the tension between the judicial system's instinct to provide a remedy for every wrong and the system's recognition that the passage of time must leave some wrongs without a remedy."

     The plaintiff claimed that he was stopped on the street and "brutally attacked" by four police officers in 1967 when he was 16 years old. He claimed that he was placed in the back of a police vehicle, beaten there while restrained, and then taken to a police station where officers continued to hit and kick him until he lost consciousness, suffering permanent blindness in one eye and requiring ten days of hospitalization. The officers testified that he had sworn at them and struck one of them, and that they had used force only to subdue him.

     The plaintiff had initially been charged with assaulting an officer and resisting arrest, and was subsequently convicted, but the conviction was overturned on appeal, and a second trial resulted in a deadlocked jury. With a third trial pending, the plaintiff and his mother chose to settle their civil suit, and were allegedly told that the pending criminal charges would be dropped if they settled for $30,000 paid by the city, an amount that did not cover his medical expenses.

     In June of 1999, one of the officers involved in the 1967 incident submitted a sworn statement to the county District Attorney, stating that the four officers' testimony in the case was "fabrication." He stated that he never saw the plaintiff throw a punch or kick any of the officers involved and that one of the officers had "laid out the story as to what the reports should say." In a second affidavit he signed in May of 2000, the officer stated that there was a "pattern of brutality" in the police department at the time, with "beatings by senior officers, especially the detectives to extract confessions" being "common place." He also claimed that the attorney for the officers at the time had been allowed to be present in the Grand Jury room while witnesses in the criminal case had testified, and gave the officers "detailed accounts" of each civilian witness's testimony "so that we could adjust our presentation."

     The plaintiff's current lawsuit was filed in January of 2000, asserting federal claims under 42 U.S.C. Sec. 1983 and RICO, 18 U.S.C. Sec. 1961, naming as defendants the two officers still living who participated in the incident, as well as the city and its police department. He contended that claims asserted for conspiracy to cover-up and against the city for failure to protect and for alleged municipal policies, as well as the RICO claim were based on facts that became known to him only in 1999.

     The appeals court ruled that neither a federal legal doctrine of "equitable tolling" (extension) of the statute of limitations or the New York law of "equitable estoppel" would permit the plaintiff to sue in these circumstances after so long a time. Even if it were true that the officers "committed fraud" and "concocted" a false account of the incident, the court noted, the facts of what occurred were fully known to the plaintiff at the time of the attack, and he had reason to believe then that the individual officers were lying when he settled his initial claim against them.

     As for the claims against the city, the court noted that the plaintiff had made no showing that the city had "actively concealed from him the existence of a municipal policy concerning either police brutality or false testimony concerning such misconduct."

     "The result seems harsh, given the apparent persuasiveness" of the officer's recantation, the court stated, yet "we know of no basis in federal or New York law to make an exception" to accommodate the plaintiff's claims "just because he now appears to have much stronger evidence than he had in 1967."

     The court noted that "there are undoubtedly other plaintiffs who lost at trial or settled for modest amounts in the face of evidence they now believe they can successfully impeach." To "reopen all such claims might compensate a few deserving plaintiffs, but it would also put at risk many blameless defendants who could not fairly defend after expiration of the interval the state legislature has determined is appropriate."

     Pearl v. City of Long Beach, #01-7914, 296 F.3d 76 (2d Cir. 2002).

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County and police department were not liable for alleged failure to protect a woman against continued domestic violence by a man who had previously been arrested on three separate occasions for abusing her. Plaintiff did not show that the defendants placed her in any greater danger or that there was any policy of inadequate training on domestic violence.

     A woman claimed that she was the victim of domestic violence by a man for approximately two years, during which time she made repeated complaints to the police department. She claimed that the county, its police department, and county officials violated her constitutional rights by failing to adequately train police officers on domestic violence and failing to protect her from abuse.

     A federal appeals court rejected all these claims. It found that there was no special relationship between the police department and the plaintiff and there was also no evidence that the defendants affirmatively put the plaintiff in a greater position of danger than she otherwise would have been in.

     The plaintiff was not in custody during the time in question, so that no special obligation to protect her existed on that basis. The court also found that the mere fact that she had obtained restraining orders on several occasions and alerted police officers to the threat posed by her alleged abuser did not give rise to a special relationship.

     The facts also did not support a conclusion that the defendants placed the plaintiff in a position of danger. Between 1995 and 1997, the court noted, the alleged abuser was arrested on three separate occasions for abusing the plaintiff. Rather than showing that the officers placed the plaintiff in a position of danger, this showed that they "repeatedly" took action "to intervene in incidents of physical violence," arresting "the responsible party."

     The plaintiff failed to demonstrate an official county policy of inaction with respect to domestic violence, or that it was deliberately indifferent to the known problems of domestic violence in its training program. The plaintiff also failed to show that the county violated her right to equal protect or had an "invidious intent" to discriminate against the victims of domestic violence in its police response.

     O'Brien v. Maui County, #00-16571, 37 Fed. Appx. 269 (9th Cir. 2002).

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•••• EDITOR'S CASE ALERT ••••

County and sheriff's department was not liable for ex-husband's shooting of his ex-wife on the basis of the alleged failure to serve him with a domestic violence order of protection. State statute creating a duty to serve such orders in a timely manner did not create a federal claim for violation of civil rights for alleged failure to do so.

     A wife filed for divorce, obtaining an order of protection because of her husband's alleged physical and mental abuse. While he allegedly continually violated the order by making unwanted visits, he did not threaten her at the time. After the divorce, she obtained another order of protection after he allegedly beat her very badly. A third order which she obtained was allegedly violated by her ex-husband by him forcing her from her home at gunpoint and then assaulting her, and he was arrested. She then dismissed the order of protection because he "promised not to hurt her again," and felt that his assistance was needed to help their son with his drug problem.

     After her ex-husband allegedly tried to run her off the road while she was traveling home with a man she was dating, she sought and obtained yet another order of protection. An officer with the sheriff's department later stated that he attempted to serve the ex-husband with this order at least three times and that another officer also made an attempt, but the man apparently was living elsewhere than the address they had. This officer admitted that he did not attempt to serve the order at the man's place of employment, which was known, and did not call the ex-wife to tell her that he had been unable to serve his ex-husband.

     The ex-husband knew of the existence of the order, however, from a phone call with his ex-wife. He subsequently broke into the woman's home carrying a pistol and shotgun at 3:10 a.m. and shot her in the chest while she was in bed with another man. He scuffled with that man before shooting his ex-wife several more times, subsequently leaving the premises and committing suicide.

     The ex-wife sued the county and sheriff's department, claiming a violation of her civil rights on the basis of the failure to serve the order of protection on her ex-husband.

     A federal appeals court upheld summary judgment for the defendants. It found that the failure to serve the ex-husband with the protective order did not violate the plaintiff's "right of access" to the courts, her First Amendment rights, or her right to equal protection.

     The court found that there was no evidence that the county or sheriff's department intentionally and purposefully discriminated against victims of domestic violence or women either generally or with respect to the service of protection orders. The court also ruled that the Tennessee legislature's creation of affirmative duties on state officials to serve ex parte orders of protection in a timely manner (see Tenn. Code Ann. Secs. 36-3-618, 38-8-201(a)), did not give rise to a due process claim that could be pursued under 42 U.S.C. Sec. 1983 for violation of federal civil rights.

     The appeals court reasoned that the defendants did not "create or enhance" the danger to the ex-wife from her ex-husband. While the sheriff's department was "well aware of the seriousness of the domestic problems involving Plaintiff and her ex-husband," the failure to serve the order of protection "did not create or increase the danger" or "place her specifically at risk."

     The court noted that it was a "matter of speculation as to whether timely service of the ex parte order of protection would have deterred Plaintiff's ex-husband, inasmuch as he was not deterred by the prospect of being charged with committing murder or attempted murder."

     Jones v. Union County, Tennessee, #01-5149, 296 F.3d 417 (6th Cir. 2002).

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Arresting officer was not entitled to qualified immunity because it was clearly established under Maryland state law that the arrestee's small penknife was legal and could not be the basis for an arrest for carrying a concealed weapon.

     A police officer responded to a report about an alleged theft at a store, involving four black men in their twenties. The officer saw four black males leave the area of a car and enter a nearby shopping mall. The officer called for backup, and a sergeant from the sheriff's office arrived. The four men were subjected to a patdown search and detained until the store manager arrived and told the officers that the men were not the thieves.

     During the patdown, the sergeant had found a three-inch folding knife in the pocket of one of the men. After it was determined that the men were not involved in the store theft, he placed this man under arrest for carrying a concealed deadly weapon in violation of Md. Ann. Code art. 27 Sec. 36. That provision prohibits the carrying of various concealed deadly weapons, including knives, but contains an exception for penknives without switchblade. The charges against the arrestee were later dropped.

     He subsequently filed a federal civil rights lawsuit against the sergeant and the county sheriff's department, alleging false arrest in violation of his Fourth Amendment rights. The trial court rejected the sergeant's claim for qualified immunity.

     A federal appeals court upheld this result. It noted that, while the knife had subsequently been lost, there was no dispute that it had a three-inch blade, was folded, and was not a switchblade. The court found that it was clearly established under Maryland law that the knife in question came under the penknife exception to the statute and was not illegal. While the statute itself did not define "penknife," the highest court in Maryland defined it as long ago as 1978, in Mackall v. State, 283 Md. 100, 387 A.22d 762 (Md. 1978), clearly stating that a penknife was any knife whose blade folds into the handle. Subsequent cases held that such knifes were not illegal to possess and carry with blades that were 3-3/4 inches long or with blades five inches long.

     While the defendant officer suggested that a reasonable police officer would not necessarily know "specific Maryland cases on penknives," the court stated that "a reasonable officer is presumed to know clearly established law." While qualified immunity "protects law enforcement officers from bad guesses in gray areas," in this case, because the legality of the penknife was clearly established, the defendant officer was not in a gray area. The possession of the penknife did not create probable cause for an arrest.

     Sorrell v. McGuigan, #01-1565, 38 Fed. Appx. 970 (4th Cir. 2002).

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Officer who filed affidavit for arrest warrant had information which provided a reasonable belief that the arrestee had caused the death of his wife, entitling him to qualified immunity from a lawsuit for violation of the arrestee's Fourth Amendment rights.

     A man who was arrested for the alleged murder of his wife pursuant to an arrest warrant subsequently had the indictment dismissed, and then brought a federal civil rights lawsuit against the sheriff's department sergeant who had investigated the murder and filed the affidavit for the arrest warrant. The lawsuit claimed that the officer violated the plaintiff's rights under the Fourth Amendment to be free of unreasonable searches and seizures.

     Holding that the sergeant was entitled to qualified immunity, a federal appeals court ruled that the information within his knowledge at the time that he applied for the arrest warrant had provided him with a reasonable belief that the arrestee was probably the cause of his wife's death.

     The warrant application was not "so lacking in indicia of probable cause as to render official belief in its existence unreasonable," the court stated. In this case, the husband possessed a strong motive to harm or kill his wife, he had the opportunity to commit the crime, he was linked to the murder by physical evidence, and the officer was entitled to "disbelieve his alibi." The officer, from a "procedural standpoint," acted in "a prudent manner, and his view of the probable cause question" also passed muster in state court, the appeals court noted, resulting in a finding of probable cause after a two-day hearing, and a subsequent indictment.

     The husband's possible motive stemmed from extramarital affairs that both he and his wife were allegedly involved in, and there was evidence that the husband had repeatedly physically abused and threatened to kill his wife, and that they were engaged in violent disputes over who should have custody of their children, with the husband allegedly saying that he would kill his wife before "she got the kids." Additionally, the husband admitted to being on the scene of the murder for at least one hour before he called the authorities to report that his wife was missing. He subsequently allegedly failed to express grief or remorse, despite the fact that his wife was missing (and was subsequently discovered to be murdered) and that the evidence indicated that foul play had occurred.

     The U.S. Supreme Court, in Malley v. Briggs, 475 U.S. 335 (1986), the appeals court noted, emphasized that qualified immunity in the context of arrest warrants protects "all but the plainly incompetent or those who knowingly violate the law." In this case, the appeals court ruled, the plaintiff failed to show this kind of culpability.

     Gomez v. Atkins, #01-2112, 296 F.3d 253 (4th Cir. 2002).

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Officer did not use excessive force in shooting arrestee four times in the chest when he was armed with a tire iron and posed an immediate threat to another officer who was trapped under the vehicle which the officer was attempting to drive off in.

     An Indianapolis police officer shot a man four times in the chest while apprehending him for carjacking. The arrestee subsequently brought a federal civil rights lawsuit for excessive force, both against the officer who shot him and against other officers on the scene for their alleged failure to intervene. The arrestee claimed that he was shot after he had already been apprehended and subdued. The officers stated that the shots were fired because the arrestee posed an immediate threat to the safety of the officers at the scene, and that it was only after the officer fired two shots, paused, and then fired again, that the arrestee stopped actively resisting the arrest.

     According to the officers, the incident occurred after an officer pursued the arrestee, who was allegedly driving a stolen van. The suspect abandoned the van and ran to a car that was waiting at a stop sign, smashing the driver's side window with a tire iron and ordering the passengers out of the vehicle. Before the suspect could escape in the car, the officer placed his body between the car and the driver's door, preventing the suspect from closing the door.

     Other officers arrived to assist, and the suspect tried to back the vehicle up to escape, resulting in the officer in the door being knocked to the ground and falling under the car as the suspect moved it. The suspect continued to resist despite being sprayed with mace and despite one of the officers shooting one of the car's front tires. One of the officers was being dragged by the vehicle as it moved in reverse. This officer, believing that his own life and the life of the officer under the vehicle were in danger, fired the four shots that injured the suspect. The suspect was subsequently found guilty of robbery, carjacking, auto theft and resisting arrest.

     The trial court believed the officers' version of the incident and found that the shooting was objectively reasonable and did not constitute excessive force. A federal appeals court upheld this result, rejecting the argument that the trial court erred in crediting the officers' version of the facts rather than the arrestee's.

     The appeals court noted that all officers present testified that the arrestee's attempts to escape in the car had endangered their safety and that they had made "progressively more forceful efforts" to control him before the officer shot him four times. They also stated that no shots were fired after the arrestee was taken into custody. "Given the great deference that we afford the trial judge's determinations of witness credibility, we cannot find that the court clearly erred in believing the officers' version of events."

     The appeals court also agreed that the force used was reasonable under the circumstances, in light of the arrestee being armed with a tire iron, and the danger to the officers, especially to the officer trapped under the vehicle. He had committed a dangerous felony and was trying to escape, and could have endangered others if he had managed to do so.

     Finally, the other officers at the scene could be liable for "failing to intervene" only if the shooting officer had violated the plaintiff's constitutional rights. Since the shooting officer did not use excessive force, the plaintiff had no basis for his failure to intervene claim against the remaining defendants, the court stated.

     Harris v. Lair, #01-1968, 37 Fed. Appx. 818 (7th Cir. 2002).

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Deputy did not use excessive force in shooting a suspect three times while arresting him when the suspect was accused of stealing several firearms and pulled out a weapon and fired, or appeared to do so.

     A man and his girlfriend went to another man's home for the alleged purpose of "executing a false robbery," supposedly with the other man's full consent. While there, they took a number of guns, video games, and compact discs, and left in the resident's truck. Shortly thereafter, a deputy sheriff in a patrol car started chasing the truck.

     The man, who was driving, pulled the truck to the side of the road, and started running away, escaping on foot. He successfully eluded police officers, search dogs, and a police helicopter until the next day when he spotted the helicopter circling overhead and started running towards a bridge. He subsequently claimed that, as he was attempting to surrender to several officers who appeared there, a deputy sheriff shot him twice, once in the face, and once in the right arm, allegedly without identifying himself as a police officer or giving a warning. He also claims that the deputy was positioned so that he could not see that he was wearing a police uniform, and that the deputy shot him a third time after he was wounded.

     The deputy's story was very different. He stated that he emerged from behind a tree as the suspect approached the bridge and repeatedly ordered the plaintiff, by name, while facing him, to stop and fall to the ground. The suspect did not comply, but instead raised his hand to the middle of his body, and shot at the deputy with a shotgun. He then fired the first two shots, and fired the third shot when the suspect's arm continued up and out towards the center of his body.

     A federal appeals court upheld summary judgment in favor of the deputy. Even viewing the facts in the "light most favorable" to the plaintiff, the court stated, the officer used reasonable force to apprehend him.

     The deputy had been sent to apprehend a suspect to an aggravated robbery, who had stolen a number of firearms, the court pointed out. When the deputy encountered him, the suspect "pulled, or seemed to pull, a gun from his waistband" and then "fired, or seemed to fire, the gun" at the deputy.

     Under these circumstances, the deputy "undoubtedly had probable cause to believe he was in danger." Further, the plaintiff admitted that he was running away from the police helicopter and he had eluded capture for approximately twelve hours and was still fleeing. The deputy, therefore, reasonably believed that the use of force was necessary to apprehend him.

     Whether or not the officer gave a warning or the suspect could see that he was uniform, because the officer reasonably believed that he was in imminent danger, giving a warning "would not have been feasible." Further, the court commented, the helicopter provided a sufficient warning to the suspect that the "police were after him."

     Given all that, the court found, the burden shifted to the plaintiff to show that there was a genuine issue for trial. But he offered "no corroborating evidence to his story," and in particular "offers no explanation as to why, shortly after the incident, he pleaded guilty to felonious assault with a gun."

     Turpin v. Mueller, #00-4585, 37 Fed. Appx. 151 (6th Cir. 2002).

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Officer who allegedly elbowed a protester at a lawyers' meeting did not violate her First Amendment rights when his alleged motive was personal revenge for being embarrassed at a prior event, rather than deterrence of political expression. Force officer used to remove protester from public event was reasonable.

     Three members of an organization called "Americans for Legal Reform (ALR)" conducted a protest at a bar association's annual "Law Day" event. They claimed that an officer used excessive force in preventing one of them from walking in the direction of a congressman and another speaker at the event. A second member claimed that while she was attempting to extricate the first plaintiff from the officer's restraint, the officer "elbowed" her in the shoulders a few times, while conceding that these strikes were not intentional. The third member claimed that the officer had, earlier, elbowed him intentionally, and speculated that this was done because of an incident that had occurred one year earlier.

     In that earlier incident, the same officer had allegedly taken a sign away from the protester, who was demonstrating at a courthouse. The demonstrator had complained to the officer's superior, who returned the sign to him. The demonstrator believed that embarrassment to the officer might have motivated the alleged intentional elbowing a year later.

     A federal appeals court upheld the rejection of the plaintiffs' excessive force and First Amendment claims. It noted that the officer viewed the first protester's movement in the direction of the two speakers as a threat, and responded by blocking his path, only restraining him and removing him from the meeting when he attempted to maneuver himself around the officer to continue his progress towards the speakers.

     The court noted that the officer did not strike the protester, even though he believed that he was "fighting back and attempting to grab his firearm." Further, after successfully removing him from the meeting, he released him. Under these circumstances, "no reasonable jury could conclude that this brief and minimal use of force" was objectively unreasonable, the court concluded.

     The officer's alleged use of force against the other two plaintiffs did not take place during a "seizure," the court noted, resulting in an analysis of their claims under substantive due process as provided by the Fourteenth Amendment. Under County of Sacramento v. Lewis, 523 U.S. 833 (1998), the legal test for this is whether the officer's conduct "shocks the conscience." The court said that no reasonable jury could find that the unintentional elbowing of one protester and the alleged intentional elbowing of the other, during which neither person sustained any injury, constituted conduct which "shocks the conscience."

     The appeals court further found that there was no evidence on which to base a claim for violation of First Amendment rights. Even if the officer did intentionally elbow the one protester, the plaintiff himself speculated that the motive might have been personal revenge in retaliation for the officer's alleged embarrassment for the prior incident a year before, rather than deterrence of the expression of the ALR's views.

     Kash v. Honey, #01-7794, 38 Fed. Appx. 73 (2nd Cir. 2002).

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Federal appeals court overturns $20,000 malicious prosecution award against sheriff's department arising from suspect's arrest for possession of marijuana with intent to distribute. The circumstances surrounding the plaintiff's acceptance of delivery of a package containing the drugs gave the officers probable cause to believe he was guilty of the charged offense.

     A Louisiana sheriff's department Lieutenant received a phone call from a Drug Enforcement Administration (DEA) agent informing him that United Parcel Service (UPS) employees in California had discovered a package containing approximately 20 pounds of marijuana addressed to "C. Charles" at an apartment in Metairie, Louisiana. The Lieutenant discovered that the name on the mailbox there was "M. Gordy" rather than "C. Charles," but assumed that the addressee's name was fictitious. He subsequently obtained a warrant to search the premises after a controlled delivery of the package would be attempted.

     The resident accepted delivery of the package from someone he believed was a UPS delivery man, and signed the receipt with his "nickname," which was "Chuck Gordon." The officers waited a few minutes before approaching the apartment to execute the warrant, during which time the resident stepped out of the apartment for a moment, and then went back inside and locked the door. The officers later testified that the resident "scampered inside after making eye contact with officers" who were wearing "raid jackets" identifying them as police. The officers then forced their way into the apartment and arrested the resident, taking custody of the package.

     The police report prepared by one of the officers allegedly omitted certain facts, "most notably" that the resident had not opened the package and that the package contained approximately 15 pounds of marijuana, instead of 20 pounds as the officers had expected. The prosecution of the arrestee for possession of marijuana with intent to distribute was pursued for a time, but was subsequently abandoned, and the record of the state court proceedings was expunged at the arrestee's request.

     The arrestee filed a lawsuit under 42 U.S.C. Sec. 1983 against the sheriff, the Lieutenant, and two officers involved in the arrest. Claims were asserted for false arrest, unlawful search and seizure, and malicious prosecution. All the claims except for a malicious prosecution claim were dismissed as time barred under the one year statute of limitations in Louisiana, and claims against the sheriff were dismissed for failure to show his personal involvement in the incident.

     A magistrate judge awarded the plaintiff $20,000 in damages on the remaining claim that he had been maliciously prosecuted because the officers provided false or misleading information to the district attorney. The judge also found that the officers were not entitled to qualified immunity.

     A federal appeals court overturned this award, finding that the circumstances present at the time of the search and arrest provided the officers with sufficient probable cause to believe that the plaintiff was guilty of the charged offense.

     In reaching that result, however, the appeals court noted that "it would be an understatement to say that this circuit's caselaw regarding so-called 'Fourth Amendment malicious prosecution' claims under Sec. 1983 is both confused and confusing."

     It is clear, however, that state law malicious prosecution is not, by itself, actionable as a violation of federal civil rights, since "no constitutional provision specifically guarantees against the institution of groundless criminal prosecutions," so that a "malicious prosecution" claim under Sec. 1983 is a "misnomer."

Nevertheless, the rule in this circuit is that the elements of the state-law tort of malicious prosecution and the elements of the constitutional tort of "Fourth Amendment malicious prosecution" are coextensive. [...] Most other circuits emphasize, however, that a malicious prosecution claim under Sec. 1983 is more appropriately characterized as a "Fourth Amendment claim for unreasonable seizure which incorporates certain elements of the common law tort." [...] As the Eleventh Circuit succinctly put it, the "federal 'right' to be free from malicious prosecution is actually a description of the right to be free from an unlawful seizure which is part of the prosecution." Whiting v. Traylor, 85 F.3d 581, 584 n. 4 (11th Cir. 1996).

     The appeals court stated that in the Fifth Circuit, a plaintiff in a Sec. 1983 malicious prosecution action "need establish only the elements of common-law malicious prosecution." The crux of the case is whether there was probable cause for the criminal proceedings against the plaintiff, the court concluded. The issue is whether a reasonable officer--at the time when criminal proceedings were instituted and based solely on the facts as the officers honestly and reasonably believed them to be--would believe to a "fair probability" that a crime had been committed.

     The appeals court found that such probable cause was present in this instance. The trial judge, the appeals court found, relied "entirely on technical deficiencies" in the search warrant for the determination that the officers lacked probable cause. While the officer's affidavit requested that a search warrant be issued "subsequent to this [controlled] delivery," the warrant itself--which was issued just two hours after the officer received the DEA tip, authorized the officers to search the apartment "forthwith."

     The trial judge reasoned that the search warrant went "beyond the scope justified by probable cause because there was no justification for searching 'forthwith'" and also that the defect in the search warrant was not cured by the affidavit or the fact that the officers did not execute the search warrant until after the package was delivered.

     The appeals court found that the trial judge erred by focusing on probable cause to search the apartment, even though she had already dismissed the plaintiff's claim for an unreasonable search in violation of the Fourth Amendment. Focusing on whether there was probable cause to institute the criminal proceedings at the time the charges were filed, the appeals court found, the officers had a reasonable basis to believe that the plaintiff was guilty of the offense.

     The package sitting on the floor of the apartment contained "a significant amount" of drugs, and the package was addressed to the apartment where the plaintiff lived with his mother. Additionally, he signed for and accepted the package, using his nickname "Chuck," a variation of "Charles." Further, as the police were approaching the apartment, the arrestee, for whatever reason, walked outside the apartment, but "quickly went back inside and locked the door."

     While there was some evidence suggesting that the resident may not have been guilty, including his failure to open the package and the absence of any evidence of drug use or trafficking during the search, "the probable cause inquiry does not require a showing that the officer's belief was correct or that it was more likely true than false," but rather only that "we find a basis for an officer to believe to a 'fair probability' that a violation occurred."

     Because there was probable cause to charge the plaintiff with possession of marijuana, "we need not reach the related issues whether the officers" caused the prosecution by omitting relevant information from the police report, whether they acted out of malice, or whether they were entitled to qualified immunity."

     Gordy v. Burns, #01-30234, 294 F.3d 722 (5th Cir. 2002).

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State police officer was not liable for malicious prosecution or false arrest of man arrested for alleged criminal sexual conduct with a child on the basis of taking down "false information" from a deputy prison warden who called him. Arrestee did not show that officer was personally involved in the alleged violation of the arrestee's rights. Additionally, under Michigan law, the issue of probable cause was decided in court when the arrestee was bound over for trial at a preliminary hearing and he could not relitigate that issue.

     A Michigan man and his daughter were arrested and charged with criminal sexual conduct in the second degree for allegedly allowing sexual activities to take place between the man and his thirteen year old granddaughter during a family visit to a correctional institution where he was incarcerated for a previous conviction of criminal sexual conduct with another family member. Despite denials by all three persons that any such conduct had occurred, prison officials terminated the visit, and an investigation ensued, which included both prison officials and state police.

     As part of the investigation, a deputy prison warden allegedly called a state police officer involved in the investigation, and the officer took down provided information. Both the man and his daughter were subsequently acquitted by a jury of the criminal sexual conduct charges.

     The man subsequently sued a number of persons, including state police officers and a state child protection worker for malicious prosecution and false arrest. Upholding dismissal of all these claims, a federal appeals court found that the state police officer who allegedly received the phone call from the deputy prison warden could not be held liable since the plaintiff had failed to show that he was personally involved in any deprivation of his rights. He did not show that this officer "encouraged, acquiesced in, or directly participated in the alleged misconduct."

     The court also found that the plaintiff had failed to establish a claim for malicious prosecution, false arrest, or false imprisonment under Michigan state law. "To support these claims, he contends that no probable cause existed to charge him with criminal sexual conduct," but under state law, the issue of probable cause was adjudicated in his preliminary hearing, when he was bound over for trial, and he was "precluded from relitigating the issue of whether probable cause existed."

     Morris v. Boyd, #01-1433, 39 Fed. Appx. 281 (6th Cir. 2002).

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Owners of cars and trucks allegedly destroyed or damaged after being towed to a city impound lot failed to establish that a city policy violated their right to due process by erroneously denying the presence of their vehicles there, or that the city was "deliberately indifferent" to the problem of city employees or agents allegedly stealing from or damaging vehicles placed in the lot.

     A class action lawsuit was filed on behalf of persons whose vehicles were towed to, and subsequently damaged or destroyed at, a city impoundment lot in Chicago. The lawsuit, asserting due process claims under 42 U.S.C. Sec. 1983, contended that the city was liable for these incidents of damage or destruction on the basis of its policies.

     Four such policies were claimed. The plaintiffs argued that the city failed to notify vehicle owners in a timely manner that their vehicles had been towed to the lot. Second, they argued that the city denied to vehicle owners that their vehicles were present at the lot even though it knew or should have known that the vehicles were in fact present there. Third, the plaintiffs claimed that the city, through its agents, "systematically broke into and entered vehicles towed" to the lot and stole property from these vehicles. And finally, the plaintiffs asserted that the city, through its agents, systematically compacted and destroyed vehicles that were towed to the lot without notice to the owners, often in an attempt to cover up the theft and vandalism done to the vehicles.

     A federal appeals court upheld summary judgment for the defendant city. While there were a number of individual instances of problems, the court found that the plaintiffs had failed to show problems widespread enough to constitute official city policy or custom.

     It found that three incidents during a four year period in which city employees or agents mistakenly informed vehicle owners that their cars were not at the impound lot were too few to show a widespread custom of misinforming vehicle owners. Further, two incidents of damage and theft perpetrated by employees at the city impound lot during that time period also were insufficient to establish a "permanent and well-established" custom sufficient to impose municipal liability.

     Of the 181,911 vehicles towed to the lot in a four year period, the court noted, there were four instances in which the vehicle owners did not receive a notice form, all of them involving named plaintiffs in the lawsuit. Three plaintiffs, however, did not receive the notice forms because the addresses to which they were sent were not the addresses at which any of them still lived. "Before their vehicles were towed, all three had moved without reporting their address changes to the Secretary of State." In the case of a fourth plaintiff, while the reason she did not receive a notice was unclear, she did learn that her vehicle had been towed, and retrieved it from the lot four days later. Accordingly, the alleged policy of failing to send timely notices out was also not shown.

     The court noted that most theft from vehicles in the impound lot was done by third parties, and that the city had "extensive and largely successful" measures in place to protect impounded vehicles, and provided "fully adequate remedies" under state law for damage. As for theft or damage by city employees, the court noted that they were subject to immediate discharge if caught, a policy that had been enforced against the two employees of the lot who were caught performing "proscribed acts."

     The court also found that remedies available under state law were fully adequate to address deprivation of property rights, even though those state law remedies did not allow car owners to recover attorneys' fees that would have been available to the plaintiffs under 42 U.S.C. Sec. 1988 if their federal civil rights lawsuit had been successful.

     Gable v. City of Chicago, #01-1941, 296 F.3d 531 (7th Cir. 2002).

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•••• EDITOR'S CASE ALERT ••••

Police officers' alleged actions of obtaining a search warrant for a residence "attached" to a restaurant, but then also searching the restaurant under the same warrant violated clearly established law so that they were not entitled to qualified immunity from liability.

     Police officers arrested a man for possession of cocaine. When he declined to consent to a search of his residence, an officer obtained a search warrant. In the affidavit, the officer listed twenty-one occasions between 1990 and 1998 when officers were apprised of the arrestee's illegal drug activity, with nearly two-thirds of the tips coming from anonymous callers and the drug hotline, and the rest coming from confidential informants and law enforcement officers.

     The apartment where the arrestee resided was in the same building as a barbeque restaurant owned by his brother. While the restaurant and apartment had the same address, each had its own separate entrance and there was no access between the two. The officers, however, searched both the apartment and the restaurant, finding marijuana and cocaine hidden in the residence, but nothing illegal in the restaurant.

     The restaurant owners, which included both the arrestee's brother and his wife, sued the officers and city for violation of their Fourth Amendment right not to be subjected to unreasonable searches and seizures. During the search, the officers allegedly pried the couple's locked safe from the floor, broke it open, and destroyed property. The plaintiffs also claimed that they were not provided with a copy of the warrant or an inventory of the items seized from their business despite their requests. They also claimed that the officers seized cash, the safe, a checkbook, and business documents, all of which were only returned to them after they hired a lawyer.

     An appeals court, rejecting the defendant officers' request for qualified immunity, found that "if there is no information that the entire structure is being used as a single unit, there must be probable cause to search each unit." In this case, there was no such information, and there was no indication that the arrestee had any connection with the restaurant other than being a relative of the owners.

     While there were four tips listed in the affidavit which stated that the arrestee had some connection to the restaurant, the court noted that one was six-and-a-half years old and two were over three years old. The most recent was six months old. While these tips might arguably have been enough if the officers investigated and confirmed that the arrestee actually owned or ran the restaurant, they did not confirm any of these anonymous tips. Additionally, the officers' request to the alarm company not to notify the arrestee's brother or his wife of the search, rather than requesting that it not notify the arrestee, indicated their knowledge that the arrestee did not own or operate the restaurant.

     There was no mention in the affidavit that the officers were interested in searching the restaurant. Taken together, the court commented, the affidavit and warrant "appear to reference the restaurant merely as a way to identify" where the arrestee's residence was located. Accordingly, the officers were not entitled to qualified immunity and "interpreted the warrant too broadly in searching the restaurant."

     Ruby v. Horner, #01-4003, 39 Fed. Appx. 284 (6th Cir. 2002).

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     EDITOR'S NOTE: In a strong dissent, one judge on the three judge panel stated that he would grant qualified immunity to the officers. The dissenting judge noted that the officers sought a warrant only after the arrestee was arrested with a "significant amount of cocaine," so that they could have reasonably believed that the arrest corroborated the multiple anonymous tips. He contended that the very fact that the police contacted the restaurant's security company before executing the search shows that they believed that the warrant covered the entire building, and the affidavit did describe anonymous tips that the arrestee was selling drugs from the restaurant. "I would find on this record that the police officers reasonably believed that the warrant was supported by probable cause and covered both the restaurant and the apartment. This is not a case of plain incompetence or knowing violation of the law."

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Assault and Battery: Physical

     Police officers did not use excessive force in the process of putting a detainee into their patrol car, even if they did act "roughly" in pushing and pulling him into the car. They acted in circumstances where the detainee refused to take a preliminary breath test or to have his photograph and fingerprints taken, and he yelled to protest his arrest and threatened to sue the officers, as well as actively resisting the officers' efforts to put him in the vehicle. Lockett v. Donnellon, #00-2169, 38 Fed. Appx. 289 (6th Cir. 2002).

Defenses: Notice of Claim

     State law claim for false arrest against county and police officers was properly dismissed for failure to comply with statutory notice of claim requirements contained in N.Y. McKinney's County Law, Secs. 50-e, subd. 1(a), 52. Evans v. Nassau County, 184 F. Supp. 2d 238 (E.D.N.Y. 2002).

Defenses: Official Immunity

     Officer did not have official immunity under Louisiana state law in a negligence lawsuit brought by an arrestee who claimed that he was injured by the too-tight application of handcuffs. The decision to apply the handcuffs did not involve policy matters, but instead was "ministerial." Saine v. City of Scott, No. 2002-265, 819 So. 2d 496 (La. App. 2002).

Defenses: Qualified (Good-Faith) Immunity

     Police officer's alleged failure, before signing affidavit in support of criminal complaint for cruelty to animals, to investigate the truthfulness and reliability of a videotape showing the conditions under which horses were kept and the accompanying statements made by a fellow officer was not "reckless disregard for the truth." Officer was entitled to qualified immunity in federal civil rights lawsuit over subsequent arrest under warrant. Pennington v. Penner, 207 F. Supp. 2d 1225 (D. Kan. 2002).

     Leader of narcotics task force was entitled to qualified immunity from civil rights lawsuit based on plaintiff's arrest and incarceration since plaintiff failed to identify any clearly established constitutional or statutory right that the defendant had violated. Fannon v. Shewell, #00-2081, 37 Fed. Appx. 744 (6th Cir. 2002).

Dogs

     Mere conclusory allegations that the city had a policy of not adequately training officers in the use of dogs could not be the basis for federal civil rights liability for the city, in the absence of any evidence. Officer had objective reasonable basis for belief in probable cause for arrest for drug violation when dog located suspect during search for drug dealer, suspect possessed rolling papers, and friend with arrestee admitted he had been smoking marijuana. Collins v. City of Manchester, 208 F. Supp. 2d 123 (D.N.H. 2002).

False Arrest/Imprisonment: No Warrant

     Woman's apparent voluntary presence in a stolen automobile provided officer with sufficient probable cause for an arrest. Sanders v. City of Philadelphia, 209 F. Supp. 2d 439 (E.D. Pa. 2002).

     Hispanic motorist who was a police officer did not establish liability for false arrest or violation of equal protection based on other officers stopping his vehicle when he was "driving erratically and the passenger car door was opened while the car was moving." The plaintiff showed no evidence that the officers were motivated by race or any other impermissible bias. Gonzalez v. City of New York, No. 00-9520, 38 Fed. Appx. 62 (2nd Cir. 2002).

Governmental Liability: Policy/Custom

     Arrestee could not sue sheriff for liability for alleged assault by officer on the basis of failure to train and supervise, in the absence of any evidence of more than the single incident at issue. Zentner v. Dunbar, 205 F. Supp. 2d 924 (N.D. Ill. 2002).

Injunctive Relief

     Arrestee's roommate, who claimed that officer injured him during the course of the arrest, did not have standing to seek an injunction to prevent future similar incidents when it was "extremely unlikely" that similar circumstances would again occur, especially since the roommate had subsequently moved to a nursing home. Christopher v. Dept. of Highway Safety and Motor Vehicles, 209 F. Supp. 2d 1290 (S.D. Fla. 2001).

Malicious Prosecution

     Police officer lacked probable cause for pursuing prosecution of motorist a second time for allegedly having inadequate brakes on his vehicle since officer did not have either the training or authority to conduct a safety check of the motorist's vehicle. New trial granted on malicious prosecution claim. Hicks v. City of Buffalo, 745 N.Y.S.2d 349 (A.D. 2002).

Police Plaintiff: Firefighter's Rule

     Claim against highway patrol officers for injuries that city police officers suffered in collision with their vehicle after they joined city officers' pursuit of a car was barred by the firefighters' rule under California law. Highway patrol officers were "jointly engaged" in the pursuit even though they were not summoned to do so and were not in radio contact with the city police department or its officers. McElroy v. State of California, No. G028063, 122 Cal. Rptr. 2d 612 (Cal. App. 4th Dist. 2002). (.pdf format).

Police Plaintiff: Premises Liability

     Police officer could not recover damages, under New York state law, from building owner for his injuries after he fell from an allegedly wobbly ladder borrowed from nearby gas station while checking the building's roof for criminal activity. Officer did not show a connection between his injury and the building owner's alleged negligent maintenance of his yard. Sconzo v. Emo Trans, Inc., 744 N.Y.S.2d 471 (A.D. 2002).

Police Plaintiff: Vehicle Related

     Police officer could not recover for injuries against driver of vehicle which dragged him as he was trying to make an arrest when he failed to establish, as required by New York state's "No-Fault" Law, McKinney's Insurance Law Sec. 5102(d), that he suffered "serious injuries." Murphy v. Arrington, 744 N.Y.S.2d 255 (A.D. 2002).

     Police officer could not bring common law negligence lawsuit against employing city based on injuries he suffered during a motorcycle training course, since he was performing his official duties at the time and received salary and medical benefits under the General Municipal Law Sec. 207-c. Brady v. City of New Rochelle, 744 N.Y.S. 2d 494 (A.D. 2002).

Property

     Denial of arrestee's motion, at the conclusion of criminal prosecution, for return of seized pistol barred federal civil rights lawsuit for deprivation of property on the basis of police department property clerk's refusal to return the weapon. Lewandowski v. Property Clerk, 209 F. Supp. 2d 19 (D.D.C. 2002).

Public Protection: Crime Victims

     Civil rights claim could be pursued on behalf of child allegedly abused in foster care by private person based on county official's alleged inadequate investigation into claims of mistreatment. Serena H. v. Kovarie, 209 F. Supp. 2d 453 (E.D. Pa. 2002).

     Web document: Resolution of the DoJ's "pattern and practice" litigation against the Columbus Div. of Police (2002).

     Web document: DoJ's proposed stipulation Order and the Consent Decree governing the Pittsburgh Police Dept. (2002).