CONTENTS

Arresting officer did not use excessive force in handcuffing arrestee despite his claim that his arm was injured. Officer "need not credit everything a suspect tells him," and arrestee displayed no obvious signs of physical injury.

     A federal appeals court has rejected an arrestee's claim that the arresting officer used excessive force in handcuffing him despite the fact that the arrestee told the officer that he had an injured arm.

     A police officer, the appeals court noted, "need not credit everything a suspect tells him. This idea is especially true when the officer is in the process of handcuffing a suspect." The appeals court pointed to the statement in another recent decision, Caron v. Hester, 2001 U.S. Dist. Lexis 19382, 2001 WL 1568761 (D.N.H.) pointing out that statements by suspects claiming (at the time of their arrest) to have pre-existing injuries are, "no doubt, uttered by many suspects who, if given the choice would prefer not to be handcuffed at all and, if they must be restrained in that manner, would prefer that the handcuffs be in front."

     In this case, the officer was arresting the plaintiff after midnight on the side of the road, and reasonably believed that the arrestee, who had no obvious signs of injury specifically to his arm, was a fugitive who had evaded capture. Under these circumstances, the appeals court found, the officer's discounting of the arrestee's arm-injury claim (which was not made until after the officer began to arrest the plaintiff, despite the fact that he had then been in the officer's company for roughly 30 minutes when the handcuffing began) was "reasonable."

     Perhaps, the court stated, if the arrestee had, before the "physical part of the arrest began," also told the officer that his arm was injured, "we would be more inclined to conclude that the Constitution required" the officer to "credit that statement. But, that is not what occurred here."

     The plaintiff's handcuffs were removed about fifteen minutes after his initial handcuffing. The plaintiff admitted, the court said, that even after the handcuffing, he never asked the officer to handcuff him in front of his body, instead of behind his back or to remove the handcuffs altogether. The plaintiff also admitted that he never asked the officer for medical assistance, and there was no evidence of "delay for delay's sake during the time" the plaintiff was kept handcuffed.

     The appeals court also rejected the argument that the arrestee suffered an unreasonable seizure because his transportation to the jail from which he was released and his transportation back from that jail after he was released took roughly 18 total hours. The evidence showed that the arresting officer took the arrestee to the local police station shortly after his arrest at around one o'clock in the morning, where he stayed for roughly two hours before he was transported by other officers, via one county jail where he stayed for some hours, to the jail of the county from which the outstanding warrant came. "No delay for delay's sake has been alleged or is supported by the evidence." The arrestee's journey to the jail in the county that issued the arrest warrant, "despite its extended nature, was still a 'brief detention'" and a reasonable detention incident to the plaintiff's lawful arrest, the court stated.

     Rodriguez v. Farrell, #00-13147, 294 F.3d 1276 (11th Cir. 2002).

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Officer may have had probable cause for arresting a motorist for a "horn-honking" offense in arguable violation of a local noise ordinance, but the officer was not entitled to qualified immunity on the motorist's excessive force claim, as no reasonable officer could believe that the officer's alleged physical abuse of the motorist was legal after the arrest had been fully achieved.

      A twenty-nine year old African-American female driving home from her job as a paralegal honked her horn for a car in front of her to "go with the flow of traffic" and the car proceeded. A police officer on the scene pulled her over and allegedly asked her "what the hell was wrong" with her and "who the hell" she "thought she was," and asked for her driver's license. When she asked why she was pulled over, he allegedly told her that he is "the fucking boss around here," asks "all the questions," and not to ask him questions.

     He allegedly then pulled the door open, put his retractable night stick "in her face" and, according to the motorist, told her things like "he should kick my black ass, he is the boss," and that she was a "black bitch," and that "if I were a man, he would kick my ass." He allegedly grabbed her and pulled her out of the car, shoving her hand against her back and placed her under arrest. She was handcuffed and then the officer allegedly led her to the trunk of her car "and slammed my head down onto the trunk and he kept spreading "my legs with his foot." The motorist later stated that she did not resist the officer at any time during the incident.

    She was allegedly told that she was being arrested for "assault." At the detention facility, she was strip searched, given a medical exam, and kept in custody until the next morning. She later sought medical attention for bruises and aching wrists and was diagnosed with "bilateral wrist trauma" and possible carpal tunnel syndrome. She was charged with battery on an officer, failure to have a valid driver's license, resisting arrest with violence and failure to obey an officer, and issued a traffic citation for improper use of her car horn. The charges were subsequently dropped.

     A federal appeals court rejected the defendant officer's claim that he was entitled to qualified immunity on the plaintiff's federal civil rights excessive force claim. The court found that while the officer may have had arguable probable cause to make an arrest for the motorist honking her horn in violation of a local anti-noise ordinance, and was therefore entitled to qualified immunity on a false arrest claim, the same could not be said of the officer's use of force.

     If the facts were as alleged by the motorist, no reasonable officer could have believed that his actions were justified by the minor offense which provoked the arrest, or, in any event, that the officer's alleged physical abuse of the motorist was legal after the arrest was fully effected and when the motorist was not resisting in any way.

     Lee v. Ferraro, #00-16054, 284 F.3d 1188 (11th Cir. 2002).

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Trial court's refusal to further reduce jury's award of $3.5 million of non-economic damages below $1.25 million it granted was not an abuse of discretion in a federal civil rights action by an arrestee who suffered permanent damages, including the loss of an eye, from officers' alleged use of excessive force following pulling him over for traffic offenses. County was vicariously liable, under Maryland law, for officers' violation of state constitutional rights.

     A Maryland federal court jury awarded a motorist a total of $4,112,670 in damages on his excessive force claim under 42 U.S.C. Sec. 1983 and Maryland state law. The award included $67,670 for past medical expenses, $145,000 for past and future lost wages, $3.5 million in non-economic damages, and punitive damages totaling $400,000. The defendant law enforcement officers and employing county filed a motion for a new trial or a reduction in the award.

     The trial judge reduced the non-economic damages to $1.25 million and the punitive damages award to $135,000. The total award after reduction was $1,597,670, which was accepted by the plaintiff. On appeal, the defendants argued that the trial court erred in charging the jury on respondeat superior liability of the county under Maryland state law, and that it was required to further reduce the jury's award on non-economic damages. Rejecting both arguments, a federal appeals court upheld the award.

     The case involved a motorist signaled to pull over by a county police officer because of his failure to display a tag on the front of his vehicle. The motorist, a fifty-year-old black male, allegedly continued driving for over a mile, and then pulled over, telling the officer that he left his wallet at home and motioned for the officer to follow him to his house. When he went to go into the house to get his driver's license, the motorist claimed, the officer sprayed pepper spray at him, missing him, but hitting his daughter.

       An altercation occurred at that point on the porch. It was disputed whether or not the motorist closed the house's door on the officer's arm as he then ran into the house. The officer called for backup and two other officers, one with a dog, arrived, entering the house and making their way to the attic where they found the motorist hiding under some insulation.

     The officers state that they landed on top of the motorist as they attempted to restrain him from lunging past them, and then released the dog. The motorist claimed that he got down on his hands and knees and surrendered, but that the officers kicked him and began stomping him, with one officer's foot going through the ceiling and the motorist being told to lower himself down through the hole, with the officers following him down. The officers then allegedly began to beat him again with a metal "asp" and one of the officers allegedly called him a "dumb nigger," with the dog being released on him several times as the officers beat him.

     The motorist's injuries included several fractured bones in his face, broken ribs, a broken left hand and right leg, a collapsed left lung, numerous lacerations from dog bites, and a ruptured right eye which had to be surgically removed. The officers testified that the motorist suffered all of his injuries in the fall. The two officers who allegedly also fell through the same hole were not injured. The motorist was found not guilty on criminal charges of assaulting the officers and was only convicted of two traffic offenses, fleeing and eluding on foot and displaying a registration plate issued to another motorist.

     The appeals court found that the trial judge properly instructed the jury that, under Maryland state law, the officers' employer, the county, was vicarious liable for injuries caused by county employees who violate a plaintiff's state constitutional rights while acting in the scope of their employment. (This is unlike federal law under 42 U.S.C. Sec. 1983, which does not allow vicarious liability simply on the basis of an employer-employee relationship, but instead requires a showing that the harm was caused by an official policy or custom). The appeals court rejected the defendants' argument that, because they had stipulated to the county's liability, the instruction was unnecessary and confusing to the jury. The defendants compared this instruction to the mention of insurance in a lawsuit, but, as the appeals court quoted from the trial judge's ruling, "The plaintiff sued the county and was entitled to have the jury instructed on the theory of law under which the county would be held liable. This is not a question of statutory indemnification such as those involved in the cases cited by the defendants."

     "The county's argument in this regard is no different from that which might be made by any employer who would prefer not to be held accountable for the" misconduct of its employees, the court reasoned.

     The appeals court rejected the argument that the trial judge erred in not further reducing the non-economic damages. While the defendants argued that there was no testimony or evidence at trial relating to ongoing physical or emotional injuries, and no evidence that the plaintiff's life had been permanently altered because of the incident, the appeals court found that those facts were already taken into account in the reduction made. There was evidence of the "severity of the beating and the full extent of the injuries suffered," as well as of the plaintiff's numerous surgeries and the loss of his eye, which were properly weighed by the trial judge in finding that the case supported a non-economic damages award of $1.25 million.

     McCollum v. McDaniel, #01-1578, 32 Fed. Appx. 49 (4th Cir. 2002).

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Officers were not entitled to qualified immunity for investigatory stop and subsequent arrest of a man standing on his own porch based solely on a tip from an anonymous source that the officers knew nothing about, after receiving a phone call which gave no clear evidence of any illegal activity.

     An anonymous caller to 911 stated that a white male with a beard had "shouted at him" from a porch of a house on a particular street in North Akron, Ohio. The caller said that "some guy on his porch, I don't know him, he looked at me and said 'Shut the fuck up' and he pointed something at me." The caller said that he did not know "what he pointed, I don't even know this guy. He looks like he is pretty drunk though."

     Officers dispatched to investigate found a man on a porch at the location. It was disputed whether the man removed both or only one hand from his pockets in response to the officers' orders. The officers claimed that they were justified in stopping the man and patting him down as he went to the door of his house to ask his father to film the encounter with a video camera in the living room. After tackling him, they argued that they had probable cause to arrest him when they found a work knife in one of his pockets.

     The man claimed that the officers told both him and his wife, also present on the porch, to go to the left side of the porch, and that he did take both of his hands out of his pockets, and then "by habit just put them back in." A jury subsequently acquitted the man on charges of assaulting an officer, and charges of carrying a concealed weapon and resisting arrest were dropped.

     Ruling that the officers were not entitled to qualified immunity on the arrestee's federal civil rights claim that they arrested him without probable cause, the trial court found that the anonymous tip was insufficient to allow the officers to conduct a Terry v. Ohio investigatory stop. Without such a Terry stop, there was no basis to carry out a search or arrest the man, assuming, for the purposes of qualified immunity, that he complied with the officers' commands to take his hands out of his pockets and did nothing to provoke the manner in which he was arrested.

     Under these circumstances, the officers were found to have acted in an objectively unreasonable manner, since they were stopping the arrestee on his own porch based solely on the basis of an anonymous phone call from a source that the officers knew nothing about. The "tip" itself did not give them any "clear evidence" of any illegal activity, and the knife which was found was the "fruit of an improper Terry stop" and therefore could not be used as the basis for a lawful arrest.

     At the same time, the court found that the plaintiff showed no basis for municipal liability, as there was no evidence of a series of unlawful Terry stops, arrests, etc. that would give the city notice that its training programs were allegedly deficient, and there was no evidence of an official policy of making false arrests. The city was also entitled, under Ohio law, to immunity from the arrestee's state law claims of alleged malicious prosecution, false arrest, and intentional infliction of emotional distress, because their actions were in the performance of an governmental function and carried out without malice, bad faith, or wanton misconduct.

     Feathers v. Aey, 196 F. Supp. 2d 530 (N.D. Ohio 2002).

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A father's murder of his infant daughter was "too remote" from a sergeant's actions in responding to the mother's call reporting domestic violence four days earlier to support a claim by the mother for deprivation of her constitutional rights.

     A police sergeant in Ohio responded to a report that a father, who was a friend of his, had threatened to kill his infant daughter and the daughter's mother. The sergeant allegedly told the mother that she should wait until she could go to court to file charges (following a three day holiday weekend) before going to get the infant from the father's sister, with whom the baby was staying. The sergeant later stated that he doubted the truthfulness of the mother's story, believing that his friend was not going to hurt anyone. The sergeant made one attempt to find the father, but was unsuccessful.

     The mother subsequently filed a criminal complaint against the father and was awarded temporary custody of the daughter in a separate proceeding. The father then shot and killed both his daughter and himself, as well as setting fire to his house. The mother sued the sergeant, among others, claiming that he violated the rights of the daughter and herself to due process of law and equal protection.

     A federal appeals court ruled that the defendant sergeant was entitled to summary judgment. The father's actions in killing his infant daughter were "too remote" from the sergeant's actions in responding to the mother's domestic violence report four days earlier to support liability. The sergeant had found the mother secure in her nephew's house with no signs of physical abuse, and the child was still alive days later, after the mother had obtained an attorney and after legal proceedings concerning the infant and father took place.

     Additionally, even if the sergeant's actions in telling the mother to wait to retrieve the infant until after she could go to court had the effect of potentially increasing the risk to the infant, he was entitled to qualified immunity, because in February of 1997, the date the father shot and killed his daughter, the law was not "clearly established" that substantive due process rights under the Fourteenth Amendment might be violated by official actions rendering a victim "more vulnerable" to danger.

     Sheets v. Mullins, #00-4162, 287 F.3d 581 (6th Cir. 2002).

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Jury properly awarded $30,000 in compensatory and $100,000 in punitive damages to 14 year-old African American boy arrested and held in custody for ten hours without probable cause on suspicion of being a "lookout" for a reputed drug house being searched pursuant to a warrant. Officers had no real basis for charging arrestee as a drug lookout.

     Three undercover police officers acting as "containment" during the execution of a search warrant on an apartment where drug dealing was suspected saw a 14 year-old African American boy nearby. As soon as the boy saw the officers, running with guns and with masks covering their faces, he fled, later saying that he ran for fear of being robbed or shot. The officers later contended that they identified themselves as police and ordered the boy to halt, but he later said that he never heard the officers verbally identify themselves.

     The boy ran up to a marked police car that was in the area and was not involved in the drug raid. He told the two officers in the car that he was being chased by robbers. These two officers told one of the undercover officers, who arrived in pursuit of the boy, to halt and to drop his gun, not realizing that he was an officer. They later stated that they had been prepared to shoot him. After the undercover officer identified himself and asked them to do so, they handcuffed the boy, who did not resist in any way.

     The boy was searched "from head to toe," as was the route he ran, and no evidence linking him to drugs or any other crime was discovered. The officers allegedly never told him why he had been arrested, and placed him in a squad car. He was later taken downtown to a police station and booked. After remaining in a cell for four hours, he received a municipal citation for obstructing an officer, and then remained locked in his cell for another 5 hours without being allowed to contact his parents or an attorney. He was then driven home, and the citation was later dismissed.

     The boy sued the officers under 42 U.S.C. Sec. 1983 for false arrest and excessive force. A jury found no excessive use of force by the officers, but awarded $30,000 in compensatory damages and $100,000 in punitive damages on the false arrest claim. The trial court also awarded $86,375 in attorneys' fees to the plaintiff.

     A federal appeals court upheld this result. It found that the officers did not have probable cause to arrest the plaintiff. The appeals court said there was sufficient evidence from which the jury could have found that the officers had failed to identify themselves sufficiently to notify him that they were police, and there was no real evidence that the boy was a drug lookout or was knowingly resisting or obstructing them in the performance of their duties, particularly in light of the boy's actions in seeking assistance from other officers against what he perceived as robbers chasing him.

     The appeals court further found that the award of punitive damages was justified under the circumstances. There was evidence that after the arrest, one officer pulled the boy's pants and underwear down in the course of searching him, the officers did not explain why he was being detained, ignored his explanation of why he ran, detained him without allowing him to speak with an attorney or his parents, took several hours to issue a citation which was later dismissed, and did not release him for several hours after the citation was issued.

     This combination of facts, the court ruled, gave the jury sufficient evidence to find that the officers "demonstrated a callous disregard" for the plaintiff's rights, "especially considering his age and the fact that his parents were at the scene of the arrest pleading for his return to their custody."

     Marshall v. Teske, #01-2722, 01-2793, 284 F.3d 765 (7th Cir. 2002).

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State trooper was entitled to qualified immunity for applying for a warrant for a man's arrest for assault and battery and two violations of a domestic violence prevention order on the basis of her interview with the man's ex-wife, as this gave her a reasonable belief that there was probable cause for a warrant.

     A man arrested for assault and battery and violations of a domestic violence prevention order claimed that his ex-wife and the state trooper who obtained the warrant for his arrest entered into a "conspiracy" to have him arrested despite knowledge that "no such incident occurred."

     Finding that the state trooper was entitled to qualified immunity from liability, a federal trial court noted that the trooper testified that the ex-wife, during an interview, told her of numerous incidents of abuse by the arrestee over a period of many years, and claimed that he had violated a domestic violence prevention court order on at least two occasions. The ex-wife provided supporting documentation regarding the order.

     The court found no support for the plaintiff's contention that the trooper knew or should have known that his ex-wife's allegation of an assault and battery was false, or that she made any false statements in applying for the arrest warrant. Accordingly, even if there was a genuine issue as to whether the plaintiff ever actually physically abused his ex-wife, this did not alter the fact that the trooper reasonably believed that she had probable cause to apply for the issuance of the warrant, entitling her to qualified immunity from liability.

     Wilson v. Zellner, 200 F. Supp. 2d 1356 (M.D. Fla. 2002).

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Police officer was not entitled to qualified immunity on his use of deadly force against a mentally ill suspect when a reasonable officer under the circumstances could not believe that the suspect posed a threat of serious injury to the officer or others.

     A woman made a phone call from her home to the police asking for help with her 58 year old husband who suffers from dementia, depression, and various physical problems. She told the police dispatcher that he had stopped taking the medication prescribed for his mental illnesses and that his condition was poor. He had been urinating on himself and the floor, dropping lit cigarettes on the carpet, and had not eaten for three days. He was refusing to see his doctor, move, or "do anything," she explained.

     Two officers responded to the call, arriving simultaneously at the home. Within a short time after their arrival, each officer had subjected the man to pepper spray, and one officer shot him three times, severely injuring him. Neither officer suffered any injury. The suspect filed a lawsuit claiming that the officers had used excessive force against him, in violation of federal and state law.

     Summary judgment was granted on all claims except the excessive force claim against the officer who shot the plaintiff. Upholding this result, and finding that the officer was not entitled to qualified immunity on his use of deadly force, the federal appeals court found that no reasonable officer under the circumstances could believe that the suspect posed a threat of serious injury to the officer or other persons.

     The officers testified that the suspect, before the shots were fired, had empty hands, that the prior use of pepper spray had blinded and disabled him, and that the suspect was a 58-year-old heavy smoker who had refused to move or eat for days. The officer, on the other had, was a recently-discharged marine armed with a metal baton, and before firing did not see any bulges in the suspect's pockets or waistline to suggest that he might be armed.

     While the officer later asserted that the suspect rapidly "charged" him, both officers allegedly originally told police investigators, the appeals court stated, that the suspect was "not running," but rather "stomping" forward in a "very odd" manner like a "robot," with his hands open and waving in front of him, "movements consistent with his recent subjection to pepper spray."

     The appeals court further found that an unarmed mentally ill suspect had a clearly established right under the Fourth Amendment to be free from the use of deadly force at the time he was shot at his home, absent any belief that he posed a threat of serious physician harm to other persons. Further, the plaintiff had not been suspected of any crime at the time of the shooting, and was not fleeing a crime scene. The decision to use deadly force in these circumstances, the court commented, "simply does not lie near the 'hazy border between excessive and acceptable force,'" and "any mistaken belief to the contrary would not have been reasonable." Therefore, the officer was not entitled to qualified immunity from liability.

     Clem v. Corbeau, #01-1799, 284 F.3d 543 (4th Cir. 2002).

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Deputy who allegedly shot through window of house at suspect who had a holstered gun after chasing him there despite the fact that he did not fit the description of the suspect sought was not entitled to qualified immunity in federal civil rights lawsuit filed over suspect's death.

     A confidential informant called a county sheriff's office in Florida to report gunshots and a tan vehicle containing marijuana plants traveling in a certain vicinity. In a second call, the informant changed the story to say that the car was gray, not tan, and was parked behind a certain convenience store, with the driver inside the store, wearing shorts, a baseball cap and no shirt, and the car's passenger "hiding behind the store." Three deputies responded to the call. They located the car at the store and took the passenger into custody at gunpoint, placing him in the back of one of their vehicles, but did not find the driver inside the store.

     A third call from the informant informed police that the driver was now running in the direction of a particular street, and one of the deputies drove in that direction to attempt to find him. A 17-year-old male teenager, who allegedly did not match the description of the driver, and who was wearing shorts, a t-shirt, and was capless, ran out of his residence on that street carrying a duffel bag after receiving a phone call. The deputy saw him and gave chase on foot, with his gun drawn. The teenager, realizing that he was being chased, went back into the house and allegedly seized a holstered gun and a small green box, and reached for the refrigerator door.

     The deputy, who could see the teenager inside the house through the open kitchen window, shot him twice, once in the left leg and then in the upper left back. It was later asserted that the teenager had taken no actions to threaten the officer. The deputy then ran around to the front of the house and entered. The teenager was subsequently pronounced dead.

     A federal appeals court rejected the shooting deputy's claim that he was entitled to qualified immunity in a federal civil rights excessive force lawsuit filed by the surviving parents of the deceased teenager.

      Under the circumstances, the deputy could be found to have acted unreasonably when the complaint alleged that the decedent did not match the informant's description of the person sought, that the officer had no probable cause to believe that the suspect had committed a felony, and that the officer fired from outside the residence without "informing himself" of what the decedent was doing. A second resident of the house allegedly saw the decedent's gun still holstered after the shooting, and it was asserted that the decedent was reaching for the refrigerator door, not acting to threaten the officer, at the time the shots were fired.

     The plaintiffs alleged that the decedent's gun was removed from its holster by an "unknown police officer" after the shooting. The appeals court found that if the facts were as the plaintiffs alleged, they had "met their initial burden of persuasion" that the officer did not have grounds for the use of deadly force under the circumstances, so he was not entitled to qualified immunity.

     George v. Pinellas County, No. 01-12159, 285 F.3d 1334 (11th Cir. 2002).

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Police chief's policy-making role and personal involvement in the execution of search warrants against five students suspected of planning an armed assault at a high school was sufficient to state a claim against the city for violation of federal civil rights.

     In December of 1999, a number of law enforcement officials in Kansas learned of a supposed planned attack on a local high school which two students stated was being planned by five fellow students there. The planned attack was supposed to take place on Monday December 20, 1999, and one of the informants reported that the five suspects had drawn up a map of the school and how they would make their attack. The informant also indicated that the five boys had laid out black clothing, a 9 mm handgun, an SKS rifle, a sawed off shotgun, and several .22 caliber rifles and handguns.

     Based on this information, affidavits were used to obtain several search warrants. Fifty four members of the combined forces of the Kansas Bureau of Investigation, Kansas Highway Patrol, Labette County Sheriff's Office, Altamont Police Department and the Kansas State Fire Marshall's Office participated in the after midnight raids in which the five teenage boys, now known as the "Altamont Five" were arrested. Juvenile complaints alleging conspiracy to commit First Degree murder were filed against the five students. Following much media attention, the charges against the five arrestees were dismissed on April 14, 2000, after the five students spent approximately 50 to 60 days in confinement, followed by house arrest until the charges were dismissed.

     The five arrestees filed a federal civil rights lawsuit against the City of Altamont, its police chief, and a number of other defendants, alleging false arrest, Fourth Amendment search and seizure violations, and a number of other claims. The city argued that the trial court should dismiss claims against the municipality because there were insufficient allegations of a city custom or policy resulting in a constitutional deprivation.

     Rejecting this argument, the trial court found that allegations that the police chief, who is a policy-maker for the city, was personally involved in the execution of the search warrants (although not in the drafting of affidavits or obtaining the warrants) was sufficient to state a claim for Fourth Amendment violations against the city. The Complaint alleged that the chief of police, in executing the search warrants, knew that the information upon which the warrants were based was "unreliable" due to the "well-known history" of one of the informants and the uncorroborated nature of some of his information, and the court found that this was sufficient to state a claim for violation of the Fourth Amendment probable cause requirement. The court also found that the chief of police individually was not entitled to qualified immunity from liability on this claim.

     Smith v. Barber, 195 F. Supp. 2d 1264 (D. Kan. 2002).

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Arrestee with developmental handicap was properly awarded $1 in nominal damages and $10,000 in punitive damages on a claim that a police officer improperly coerced his confession to a charge of stealing a wallet during a custodial interrogation.

     A federal appeals court has upheld an award of $1 in nominal damages and $10,000 in punitive damages against a police officer on a claim that he improperly coerced a developmentally handicapped nineteen-year-old male into confessing to stealing a wallet during a custodial interrogation at a police station. After the plaintiff obtained the services of the public defender, the prosecutor dismissed the criminal case that had been instituted on the basis of the confession.

     The plaintiff claimed that he was taken to the police station and was told to sign a written confession prepared by the officer. While the plaintiff's testimony was "unclear and confused," the appeals court stated, it provided the jury with "circumstantial evidence that the plaintiff did not understand what he was doing when he signed both the Miranda waver form and the confession."

     While the defendant officer contradicted all of the plaintiff's testimony and assured the jury that the plaintiff had confessed voluntarily and after being fully advised of his rights, "the jury had before it enough evidence to support a verdict that the plaintiff had been coerced during custodial interrogation."

     Ayuyu v. Tagabuel, #01-15119, 284 F.3d 1023 (9th Cir. 2002).

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City was not liable for injury suffered by officer who was accidentally shot by fellow officer during drug raid. Failure of city to use a specially trained unit to conduct raids on suspected drug dealers' residences did not constitute "deliberately indifferent" behavior that shocked the conscience and violated the injured officer's due process rights. Shooting officer's actions resulted from his own negligence, not from the city's failure to train him adequately.

     A Pennsylvania police officer filed a federal civil rights law suit against the city which employed him, claiming that it should be held liable for injuries he suffered when he was shot by a fellow officer accidentally while participating in a drug raid on a suspected drug dealer's residence. The fellow officer who shot him neglected to set the safety mechanism on the shotgun he was carrying, resulting in the plaintiff sustaining serious injuries from a buckshot. The officer who discharged the shotgun was a member of the Emergency Services Unit (ESU) of the Police Department, but the ESU was not used in the raid.

     The plaintiff officer claimed that it violated his Fourteenth Amendment right to due process by requiring him to participate in a high risk drug raid with officers who were not "adequately trained and by failing to use the ESU despite the fact that it comprises 'officers who volunteered their candidacy, were then specially selected as members of the ESU, and were then to be specially and continually trained to manage highly dangerous incidents of violence arising in the City.'"

     Upholding the dismissal of these claims, a federal appeals court found that the city's failure to use the specially trained unit to raid suspected drug dealer residences was insufficient to constitute "deliberate indifference" which shocked the conscience and thus violated the plaintiff officer's due process rights.

     The appeals court stated that the plaintiff officer's injuries were not caused by the "dangers of the drug raid but by the negligence of a fellow police officer." Additionally, the plaintiff had not shown that any alleged failure to train on the part of the city contributed to his injuries. In fact, he himself stated in his complaint that the officer "who engaged in the injurious act merely neglected to set the safety device." As "unfortunate as the mistake was, such a mistake cannot form the basis of a Sec. 1983 claim for 'failure to train,'" the court concluded.

     Pahler v. City of Wilkes-Barre, #01-2275, 31 Fed. Appx. 69 (3rd Cir. 2002).

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City and officers were not liable for deaths of deranged husband and his son which arose from a two-day armed standoff with police and ended in a murder-suicide. Exigent circumstances supported a warrantless entry into the home based on the damage to the wife and son based on the husband's conduct, and the use of force, including tear gas, a battering ram and incendiary devices was reasonable, rather than excessive, under the circumstances.

     Ohio police went to the home of a mentally ill father who had reportedly ceased taking his medication and had brandished his weapons in front of home health care workers in a menacing fashion. The officers also were informed that he had told a relative the night before that his guns were "loaded and ready," and then had unexpectedly, the next morning, kept his son home from school. Further, his bedridden wife had placed a call asking for nursing home placement.

     The officers went to the home in an attempt to investigate the situation, and the father cited the Fifth Amendment, sang the Star Spangled Banner, and then slammed the door in their faces when they identified themselves as officers. One of the officers kicked the door until it opened and entered the house and was shot by the father. A two day armed standoff subsequently developed, in which the man barricaded himself inside the home with his wife and son kept inside with him.

     The immediate neighborhood was evacuated and various attempts at negotiation were attempted. It was feared that the man was becoming increasingly incoherent and might harm himself, his wife, or his son. An armed entry into the house was attempted, with the use of incendiary devices, a battering ram, and tear gas. An exchange of gunfire took place and two more officers were injured, and the officers retreated.

     A subsequent entry was made by an armored vehicle ramming through the living room and injecting more tear gas. More gunshots were heard from inside the house and it turned out that the man had shot himself and then killed his son.

     A federal appeals court upheld summary judgment for the defendant city and officers in a federal civil rights lawsuit alleging that they acted with deliberate indifference to the safety of the wife and child inside the home or used excessive force against the father and his family during the two-day standoff, or somehow provoked the confrontation.

     The court found that exigent circumstances justified the initial warrantless entry into the home of the mentally ill father, based on the known facts and his reaction to the officers, which created "heightening fears" of a reasonable officer that the father posed an immediate threat to his family. Their strategy of initially going to the home and attempting to learn more through consensual questioning after receiving reports of his threatening behavior, even if it may have provoked him, did not "create" the exigency to justify their warrantless entry, as the safety of the family "already appeared endangered."

     The appeals court also found that the officers' use of force in making a tactical assault on the home in an attempt to rescue his wife and son, including the use of tear gas, a battering ram and incendiary devices was "objectively reasonable," rather than excessive under the Fourth Amendment, in light of the circumstances, including the man's use of deadly force against the officers. The court noted that the officers only used deadly force when the man was firing at them.

     The officers were faced with a situation in which they had "limited" choices among necessarily risky alternative tactics for attempting to rescue the family. The police chief's decision to initiate a rescue with "suboptimal equipment," instead of waiting for thermal imaging technology which might have improved the chances for a successful assault on the home was, at worst, negligence, not deliberate recklessness, and could not be the basis for a substantive due process claim that police actions increased the risk to the family by launching an "ineffective" assault on the home.

     The court also found that, under Ohio state law, Ohio R.C. Sec. 2744.03(A)(6)(b), the individual officers were entitled to statutory immunity from liability for wrongful death, even if their actions were found to be negligent in some respects, when they did not act recklessly.

     Ewolski v. City of Brunswick, #00-3066, 287 F.3d 492 (6th Cir. 2002).

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Assault and Battery: Handcuffs

     Defendant officers were not entitled to summary judgment on the issue of whether they used excessive force in handcuffing a suspect and carrying him to a vehicle, but their use of a four-point restraint to tie his arms and legs together when he continued to resist efforts to control him did not constitute excessive use of force. Tobias v. County of Putnam, 191 F. Supp. 2d 364 (S.D.N.Y. 2002).

     City held liable by jury for $1 million for death of disabled detainee who fell face forward on the sidewalk after officers took away his cane and handcuffed him behind his back when he allegedly became verbally resistant to them. The officers argued that the decedent had fallen without warning and that he may have died of acute alcohol intoxication, or suffered a seizure or black out which caused him to fall. Eady v. City of Los Angeles, No. TC 014-169 (Los Angeles Co., Calif. Superior Court, May 8, 2002), reported in The National Law Journal, p. B3 (July 22, 2002).

Assault and Battery: Physical

     After two separate juries, in successive trials on an arrestee's federal civil rights lawsuit, both returned verdicts for the defendant officer on an arrestee's claim that excessive use had been used following his arrest, a federal appeals court upholds the verdicts and the refusal of the trial court to grant a third trial, ruling that the jury could, based on the evidence, find that the injuries suffered by the arrestee were sustained prior to his arrest. Caldwell v. Davis, #01-0183, 31 Fed. Appx. 34 (2nd Cir. 2002).

Attorneys' Fees: For Plaintiff

     Prevailing party in original federal civil rights lawsuit may, in the discretion of the trial court, be awarded attorneys' fees under 42 U.S.C. Sec. 1988 for defending its consent decree from a collateral attack brought by a third party in a subsequent action, including fees for work reasonably spent to monitor and enforce compliance with the decree, even as to matters on which it did not prevail. In this case, however, trial court did not abuse its discretion in denying fees. This case did not involve law enforcement defendants, but the reasoning could apply in a case that did. San Francisco NAACP v. San Francisco Unified School District, #00-16864, 284 F.3d 1163 (9th Cir. 2002).

Defamation

     A police officer's report that a correctional officer was "disorderly" was insufficient to state a federal civil rights claim for injury to the correctional officer's reputation, based on the village's communication to the plaintiff's employer of the report. Defamation alone is insufficient to state a federal civil rights claim and a cause of action would only exist if the plaintiff could show stigma to his reputation, plus other injury. In this case, injury to reputation was all that was shown. Ruggiero v. Phillips, 739 N.Y.S.2d 797 (A.D. 2002).

Defenses: Indemnification

     Federal appeals court orders further proceedings to determine whether Native American tribal police who had a commission from the county sheriff's office was entitled to indemnification from the county under the Oklahoma state Tort Claims Act, 51 Okl. Stat. Ann. Sec. 162, subd. B, pars. 1, 4c, after a jury returned a verdict against him in an arrestee's excessive force claim under 42 U.S.C. Sec. 1983. The fact that the jury concluded that he used excessive force and the trial court concluded that the officer was not entitled to qualified immunity were insufficient to preclude indemnification or to require a finding that the officer acted in bad faith. Lampkin v. Little, #01-7018, 01-7019, 286 F.3d 1206 (10th Cir. 2002).

Defenses: Statute of Limitations

     Lawsuit for defamation against officer, based on his alleged phone call to arrestee's employer, was dismissed as time-barred under an Illinois one-year statute of limitations, but the plaintiff was allowed to conduct further discovery to determine the exact date of the alleged call. Stobinske-Sawyer v. Village of Alsip, 188 F. Supp. 2d 915 (N.D. Ill. 2002).

Emotional Distress

     A claim for intentional infliction of emotional distress under Massachusetts law was not sufficiently asserted by the bare allegation that the family of a woman who an individual refused to date, the city, and the police department conspired to deprive the plaintiff of certain rights. Plaintiff also made "no rational connection" between the defendants and the alleged deprivation of his rights to obtain a firearms license or a business license for purposes of asserting a federal civil rights claim. Baxter v. Conte, 190 F. Supp. 2d 123 (D. Mass. 2001).

False Arrest/Imprisonment: No Warrant

     Defense verdict returned for city and airport personnel in false arrest lawsuit brought by lawyer who claimed false arrest when she was denied boarding of an airplane and arrested for repeatedly saying the word "bomb" while her oversized bag was searched at a security checkpoint. Levin v. United Airlines, Inc., No. YC038405 (Los Angeles, Co., Calif. Superior Court), reported in The National Law Journal, p. B2 (July 15, 2002).

Federal Tort Claims Act

     Arrestee's claims for negligence and intentional infliction of emotional distress growing out of his alleged wrongful arrest by the U.S. Air Force and military police officers had to be dismissed as sovereign immunity for those claims were not waived under the Federal Tort Claims Act, 28 U.S.C. Sec. 2680(h). Tinch v. United States, 189 F. Supp. 2d 313 (D. Md. 2002).

First Amendment

     City ordinance restricting the use of amplified sound to 25-foot audibility from a private property line was so limiting that it constituted a complete ban on the use of amplified sound for any form of speech and violated the First Amendment. Court rules that the ordinance in question was not a reasonable time, place and manner restriction on speech, but an impermissible prior restraint which violated the rights of those seeking to hold a live music festival on private property. City council member, however, was entitled to qualified immunity from liability for money damages. Lilly v. City of Salida, 192 F. Supp. 2d 1191 (D. Colo. 2002).

     Georgia statute which prohibited the advertising and distribution of sexual devices violated the First Amendment. Georgia statute, O.C.G.A. Sec. 16-12-80, was not expressly preempted by federal Medical Device Amendments of 1976, 21 U.S.C. Sec. 360k(a) when its purpose was not related to the safety or effectiveness of the sexual devices, but rather related to public morality and the distribution of allegedly obscene material. Owner of retail establishment selling devices could pursue federal civil rights claim. This That and Other Gift & Tobacco v. Cobb County, #01-13482, 285 F.3d 1319 (11th Cir. 2002).

Freedom of Information

     Plaintiff's failure to exhaust available administrative remedies on the denial of its Freedom of Information Act (FOIA) request for documents relating to the FBI's automated system called "Carnivore" for surveillance of internet communications warranted dismissal of  its lawsuit under 5 U.S.C. Sec. 552(a)(6), since it did not file an administrative appeal. The plaintiff's failure to pay fees imposed by the FBI for processing requested documents also constituted a failure to exhaust administrative remedies, precluding the lawsuit. Judicial Watch, Inc. v. FBI, 190 F. Supp. 2d 29 (D.D.C. 2002).

Frivolous Lawsuits

     Arrestee's federal civil rights lawsuit claiming that the FBI and Drug Enforcement Administration (DEA) had surgically implanted an electronic tracking device in his body could not be dismissed as "fantastic and delusional" since they raised factual questions and the arrestee was not proceeding as a pauper, having paid a filing fee, so that the provisions of 28 U.S.C. Sec. 1915 for the screening of frivolous pauper lawsuits did not apply. Official capacity claims, however, were barred against FBI and DEA agents under the Federal Tort Claims Act, FTCA, 28 U.S.C. Secs. 2401 and 2675, since the plaintiff failed to file claims with the agencies as required by the statute. Marino v. Gammel, 191 F. Supp. 2d 243 (D. Mass. 2002).

Negligence: Vehicle Related

     There was a genuine issue of fact as to whether a police officer drove his vehicle recklessly when he responded to a burglary report, precluding summary judgment in a lawsuit for injuries which occurred after he collided with a motorist's car. Dunlea v. Township of Belleville, 349 N.J. Super. 506, 793 A.2d 888 (N.J. Super. A.D. 2002).

Off-Duty/Color of Law

     Two off-duty officers liable for $32 in compensatory damages and $150,000 in punitive damages for allegedly frightening members of a family by pulling their car over, shouting obscenities at them, and threatening them with guns drawn. The two officers, a married couple, claimed that they had only stopped the car after someone in it threw something at their vehicle. No damages were awarded against the employing city, as the jury found that the officers acted outside the scope of their employment. Miller v. Visser, No. 00-CV-9058 (U.S. Dist. Ct., N.D. Okla.), reported in The National Law Journal, p. B2 (July 29, 2002).

Procedural: Discovery

     Plaintiff's failure to comply with an order to sign a release to authorize the unsealing of certain records relating to the events giving rise to his lawsuit, for purposes of discovery, was sufficient to support the dismissal of his federal civil rights claim when he was expressly warned that this was a possible sanction for his failure to comply. Fulton v. Mangini, 206 F.R.D. 76 (W.D.N.Y. 2001).

     Dismissal of arrestee's federal civil rights wrongful arrest action against sheriff's department and deputies because of his failure to comply with discovery, including failure to appear at a scheduled deposition was within the trial court's discretion. Voit v. Jefferson County Sheriff's Department, #01-5887, 31 Fed. Appx. 189 (6th Cir. 2002).

Property

     Police officers and city and county for which they worked could not be sued under California law for conversion of man's marijuana which they seized and destroyed, despite the existence of a state statute, the Compassionate Use Act, allowing for the medical use of the drug. The trial court ruled that the statute created an affirmative defense under state law to criminal prosecution for possession of the drug, but did not create a private right to sue for damages for the seizure and destruction of the drug. Rodrigs v. City of Capitola, No. DV 139674 (Santa Cruz Co., Calif., Super. Ct., April 15, 2002), reported in The National Law Journal, p. B2 (July 15, 2002).

Search and Seizure: Home/Business

     A genuine issue of material fact as to whether police officers had knowledge concerning the actual location of a telephone caller who reported that an intoxicated man was attempting to get into her house precluded summary judgment for the officers in a lawsuit filed by a homeowner after the officers mistakenly went to and entered his home, rather than the home of the caller. Davenport v. Simmons, 192 F. Supp. 2d 812 (W.D. Tenn. 2001).

     Police officer was in hot pursuit of suspect when he entered a home without a warrant and his entry therefore did not violate the occupants' Fourth Amendment rights. Officer had probable cause to believe that the visitor to the home was an immediate threat to either the officer or the public, when he had previously injured his sister and slashed his parent's tires. Hickey v. Hayse, 188 F. Supp. 2d 722 (W.D. Ken. 2001).

Strip Searches

     Strip search of woman arrested on a misdemeanor charge was sufficient, under District of Columbia law, to support a claim against U.S. Marshals for intrusion upon seclusion, a form of invasion of privacy, even if their actions did not violate the U.S. Constitution. Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 1346(b), 2671-2680 does not waive the sovereign immunity of the United States for constitutional claims. Helton v. United States, 191 F. Supp. 2d 179 (D.D.C. 2002).