CONTENTS

Release agreement which arrestees had signed in exchange for dropping of criminal charges were enforceable, barring their federal civil rights claims against arresting officers for false arrest and excessive force.

     Two arrestees, who were a Chicago police officer and his female friend, sued two East Chicago, Indiana police officers for false arrest and excessive force in violation of their federal civil rights when they were arrested for disorderly conduct and resisting law enforcement after an argument broke out because the Chicago police officer was upset over officers transfers of wood from the street to the grassy area between the street and the sidewalk in front of his residence. Both arrestees, however, had previously signed releases waiving any such claims in exchange for the dropping of criminal charges.

     A federal appeals court upheld the release agreements as enforceable.

     It rejected the argument that somehow the release agreements were improper under Indiana state law because they recited that "Zero ($0.00)" was the "sole consideration" given for the releases of the arrestees' civil rights claims against the officers. The court reasoned that the actual meaning of this was simply that no money was part of the consideration for the releases, with the sole exchange contemplated being the dismissal of criminal charges.

     Additionally, the appeals court found that the evidence showed that the release agreements were signed voluntarily. One of the arrestees was himself a police officer who understood the criminal justice process and who also avoided potential job problems by entering into the agreement, and both arrestees were represented by a lawyer who actively bargained with the prosecutor for the dismissal of the charges, and the discussion about the deal went on for a "significant period of time."

     Further, the prosecutor engaged in no misconduct in negotiating the releases, and the criminal cases against the arrestees were not unfounded. Despite the fact that the release agreements were entered into without judicial supervision, there was no violation of public policy in enforcing them. The court noted that there was no showing that the charges against the arrestee were in any sense "trumped up" in response to their possible civil rights lawsuit.

     Gonzalez v. Kokot, #02-1514, 314 F.3d 311 (7th Cir. 2002).

    »Click here to read the decision on the Internet.  [PDF]

     •Return to the Contents menu.

Federal appeals court upholds criminal conviction of officer for violating suspect's civil rights by allegedly releasing police dog to bite him without any warning while he had his hands up, was not resisting police orders, and had not made any sudden moves. Trial court did not abuse its discretion in admitting evidence of officer's alleged subsequent involvement in the misuse of police dogs, or in allowing the government to present rebuttal expert witness testimony that the officer's use of her dog in the immediate case was improper.

     A federal jury convicted a police officer, of unlawfully releasing her police dog in violation of 18 U.S.C.A. § 242, a federal criminal statute prohibiting acts under color of law depriving an individual of their protected civil rights. On appeal, the officer challenged evidentiary rulings in which the trial court admitted testimony of subsequent incidents of intentional misuse of a police dog by the officer; and permitted a government expert to testify on prevailing practices for use of a police dog.

     A federal appeals court has upheld the trial court's evidentiary rulings, and the officer's conviction.

     An officer was conducting surveillance of buildings in an area where there had been a number of commercial burglaries, and at 2 a.m. spotted two men on the roof of a printing plant building. In response to his call for assistance, other officers arrived on the scene, including a county officer with a K-9 dog. The officers then illuminated the roof with a powerful light from a helicopter.

     The two suspects climbed down from the roof in response to the officers' orders and placed their hands in the air, while the officers surrounded them in a semicircle. The officer with the K-9 allegedly released the dog, which attacked a suspect who still had his hands in the air when the dog bit him in the leg. There was testimony that the suspect did not make any sudden movements, had not failed to comply with any police commands, and had not lowered his hands or attempted to flee in any way before the dog was released, and that no warning was made prior to the release of the dog, according to the testimony offered by the prosecution.

     The officer, in her defense, claimed that she gave a warning while the suspects were on the roof and that the bitten suspect did not raise his hands or obey orders to stop when he climbed down from the roof. She claimed that the suspect turned his body and feet to the left and believed that he was going to attempt to flee in a direction where she believed there were no officers. She claimed that she yelled at him to stop, and then released the dog.

     It was subsequently discovered that the two suspects on the roof were homeless and merely sleeping there. A federal grand jury charged the officer with acting under color of law to willfully deprive the bitten suspect of his right to be free from the use of reasonable force. The officer was eventually convicted by a jury and then sentenced to 120 months imprisonment.

     A federal appeals court rejected the argument that the trial court erred, under Federal Rule of Evidence 404(b), evidence of two subsequent acts of her intentional misuse of a police dog. This rule provides that "evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith" but may be admissible for "other purposes, such as proof of . . . intent."

     The evidence admitted included the officer's alleged misuse of a police dog in releasing it on a 16-year-old African-American boy who was sleeping in a hammock in a neighbor's backyard. The officer was tracking a possible suspect who had run from police after committing a commercial burglary. The boy was bit on his leg by the dog, and was never charged with any crime. The appeals court found that evidence of the officer's release of her police dog on the boy was "probative of willfulness because it suggested that, on at least one other occasion," she had used her police dog in a way that "recklessly disregarded the risk that her actions would violate a citizen's right to be free from the use of excessive force."

     Rejecting the officer's argument that this evidence, even if relevant, reliable, and necessary, should have been suppressed because it unfairly prejudiced her by "painting" her as a "racist" white police officer, releasing her "attack dog" on a "defenseless African-American child," the appeals court stated that "Actually, we believe that the potency of this evidence lay in its graphic demonstration that [the officer] unreasonably released her police dog on an innocent, clearly unresisting young person -- regardless of the race or sex of that person." A second incident, in which the officer allegedly threatened to release her police dog on a woman if she lied about the whereabouts of her fugitive brother, was also found to be properly admissible on the same basis.

    The appeals court also found that the admission of expert witness testimony by the government's rebuttal expert was proper in response to a defense expert witness who had earlier provided basic training to the defendant officer. The defense expert recounted what he had taught the officer about the "use of force continuum and reasonable force and police safety," explaining that the use of a K-9 would be considered "less lethal force" and "would fall in the same area" as "an intermediate weapon," such as a baton.

     The government's rebuttal expert witness also placed a K-9 on the use of force continuum, but he put a K-9 "just below deadly force" and above an impact weapon. But he also stated the opinion that, based on the officer's trial testimony, her release of the K-9 "was not in accord with prevailing police practices in 1995." His opinion was based on "taking into account the totality of the circumstances and the idea that police should use no more force than is necessary, reasonably necessary, in the totality of the circumstances." He concluded that "the use of the dog on such a quick movement was inappropriate because there were less drastic ways of apprehending these folks . . . who had given no indication that they were armed in any way." He further explained: "Where you're facing a potential foot race between the dog and a human being, you have plenty of time to give the warning because the dog is certainly going to outrun the human being and apprehend him. So I don't think this was a split-second decision. . . . There's no reason why you can't give a [K-9] warning like that and still have plenty of time for the dog to apprehend the individual."

     The appeals court found that admission of this testimony was proper. The defense's expert and the officer testified extensively as to her training, their view of the K-9 and use of force, and the reasonableness of the officer's release of her dog in light of the arrest factors. "Given this testimony, the district court did not abuse its discretion in permitting the government to offer" expert rebuttal testimony.

     U.S.A. v. Mohr, #01-5002, 318 F.3d 613 (4th Cir. 2003).

    »Click here to read the decision on the Internet. 

     Editor's Note: While the above case unfolded in the context of a criminal prosecution of the officer, the ruling is that the officer's actions violated the individuals' civil rights, and the same legal standards could be used for the imposition of civil liability.

     •Return to the Contents menu.

Federal appeals court upholds $1.75 million award to man arrested on serial rape charges following impermissibly suggestive photo arrays and inconclusive police-canine identification which only led officers to arrestee's building without singling out his apartment or him.

     A California man was arrested and charged with a series of highly publicized rapes and related crimes that occurred over an eighteen-month period in the City of Long Beach. After forensic evidence found at several crime scenes failed to match his DNA, the prosecutor dropped all charges and released the arrestee from jail, where he had been incarcerated for over three months awaiting trial. He sued the city, the police department, and two officers who had been involved in the investigation for false arrest and false imprisonment in violation of his constitutional rights.

     The trial court bifurcated the trial, separating the arrestee's claims against the individual officers from his claim against the city and police department. The trial against the officers proceeded first and ended with a jury award of $1.75 million in compensatory and punitive damages against them.

     A federal appeals court rejected the officers' arguments on appeal on three issues they raised: the issue of probable cause for the arrest, the issue of entitlement to qualified immunity, and the exclusion of certain evidence.

     The appeals court found that the issue of whether probable cause existed for the arrest was properly submitted to the jury.

     The officers had used a police bloodhound to attempt to track the assailant from the scene of one of the rapes. The dog eventually led the officers to a twenty unit apartment building two miles away, going directly to the second floor of the building, attempting to track the scent for ten more minutes, and then giving up after failing to identify any particular unit or individual. At the time, the arrestee lived in a unit on the first floor, but the dog did not show any interest in that unit, or in the first floor at any point.

     The officers nevertheless became suspicious about the arrestee when no one answered the door there when they knocked, despite the lights being on inside. Deciding that the occupant was a possible suspect, they obtained a copy of his photograph from the Department of Motor Vehicles and placed it in a six-person photo array for possible identification by two earlier victims.

     Of the nine victims identified at that point, only two felt confident enough to make a positive identification from the photo spread. One of them had also identified another suspect as her assailant during an earlier photo array, and the officers never followed up by having her choose between the two photos she had picked out in the two arrays. The second victim tentatively selected the arrestee as her assailant, stating that she was "pretty sure," but would be more positive with a live identification.

     That same day, the officers arrested the plaintiff without a warrant for all nine of the rapes being investigated, and related felonies.

     Under these circumstances, the appeals court found, there was sufficient evidence from which the jury could find that the officers did not have probable cause for the arrest.

     The canine "identification" certainly did not provide it, as the dog showed signs of confusion and could not identify any particular apartment or individual, and did not show any interest in the arrestee's apartment or any other apartment on that floor. The dog was "young for a police dog, with only 150 opportunities to track during both training and active duties," and the officers did not provide any evidence regarding the dog's accuracy rate to bolster her reliability. Under these circumstances, the jury had good reason to question the reliability of the dog's "identification."

     As for the photo array, the court noted that the officers placed the Caucasian arrestees photo in an array with five Hispanic males, and at trial failed to provide a legitimate reason why a more equitable distribution of race was not used. Further, the arrestee's features "bear little resemblance to the others in the array." The arrestee's face "appears long and narrow, whereas four of the other five individuals have rounder, fuller faces." Additionally, the arrestee's skin tone "appears significantly lighter than four of the five other individuals in the array." That five victims identified their assailant as either Hispanic with light-toned skin or Caucasian with olive-toned skin "renders this difference even more salient." Finally, there were a number of other facts about the particulars of the identifications from the photo array which further indicated the possibility that they were unreliable, including both victims' prior identification of other suspects.

     The officers' only remaining argument for "probable cause" for the arrest was the weakest, the court found, his supposed resemblance to general physical descriptions provided by earlier victims. "Mere resemblance to a general description is not enough to establish probable cause," especially since the descriptions provided in this case were "vague," and "often conflicting or incomplete." Even with the "pressing need to catch the serial rapist," the court noted, the officers "could have taken the time to call the victim that described her assailant as 5'7" and Hispanic" and ask whether the arrestee, a 6' 2" Caucasian, "could still fit her description."

     The appeals court rejected the argument that the officers were entitled to qualified immunity as a matter of law. Given the weakness of the arguments for probable cause, there was a genuine issue of fact as to whether reasonable officers would not have acted as the defendant officers did in arresting the plaintiff. The trial court therefore properly submitted the issue of qualified immunity to the jury and entered judgment upon its verdict.

     On the evidentiary matters, the court rejected the argument that the trial court committed a prejudicial error in preventing two of the rape victims from making in-court identifications. It pointed out that the issue was whether the officers had enough information at the time of the arrest to satisfy probable cause--not whether the plaintiff was the assailant of the two victims who identified him.

     Grant v. City of Long Beach, #01-56046, 315 F.3d 1081 (9th Cir. 2002).

     »Click here to read the decision on the Internet. [PDF]

     •Return to the Contents menu.

Participants in state authorized "needle exchange" program could not be targeted for arrest for possession of controlled substances based on drug residue remaining in a used needle or syringe. Police officers also did not have probable cause to arrest an intravenous drug user for criminally possessing a hypodermic instrument when it was clear that he was a participant in the program.

     Under New York state statutes, the Commissioner of Public Health is empowered to issue regulations creating needle exchange programs under which intravenous drug users return used needles in exchange for clean ones, thereby removing dirty needles contaminated with HIV and other diseases from circulation. Such regulations are contained in 10 N.Y.C.R.R. Sec. 80.135.

     In two recent cases, federal trial courts in New York have ruled on the issue of warrantless arrests of participants in the state-authorized needle exchange program.

    In Roe, (full citation below), the court ruled, in a class action lawsuit brought by participants in the needle exchange program, that there is no criminal liability for the possession of controlled substances which may be based upon the drug residue remaining in used needles or syringes possessed by such members. The court issued a declaratory judgment to that effect, and other issues in the case, including possible liability for damages for having made such arrests of program members, have not yet been decided. The lawsuit contended that the city and police department had improperly "targeted" members of the program for arrest.

     In L.B., (full citation below), the court ruled, in a lawsuit for false arrest brought by an intravenous drug user participating in the needle exchange program, that officers did not have probable cause to arrest him, since no probable cause could exist for the arrest of a member of the needle exchange program for criminal possession of a hypodermic instrument. It was undisputed that he was a member of the exchange program and made himself known as such to the officers prior to his arrest. Police officers did not have qualified immunity from liability for arresting him, but their employing town was not vicariously liable for their actions.

     Roe v. City of New York, 232 F. Supp. 2d 240 (S.D.N.Y. 2002). (impermissible targeting of members of needle exchange program for arrests)

     L.B. v. Town of Chester, 232 F. Supp. 2d 227 (S.D.N.Y. 2002). (lack of probable cause for arrest of member of needle exchange program for criminal possession of a hypodermic instrument).

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

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

     •Return to the Contents menu

Officer acted in good faith in keeping his gun drawn while assisting another officer handcuff an arrestee following a high-speed chase, entitling him to official immunity under Texas state law for injuries arrestee suffered when the gun accidentally discharged.

     Two Texas police officers on patrol observed a motorist commit traffic violations, including failure to properly signal a turn. They activated their sirens in an effort to pull him over, but he refused to stop, accelerating instead. A high-speed pursuit ensued until the motorist finally stopped at his home, beeping his horn, apparently to attract the attention of those inside.

     Both officers drew their guns and ordered the motorist to step outside of his truck. While one officer kept his gun drawn, the other officer holstered his weapon, grabbed the motorist's upper right arm, and placed him face-down on the ground. The first officer approached from behind to help the second officer handcuff the suspect, who appeared to be struggling. With his gun still drawn, the first officer cuffed the suspect's left hand. He then attempted to bring the suspect's hands together when his gun accidentally discharged and a bullet ricocheted off the other officer's hand and grazed the suspect's back. Although the suspect turned out to be unarmed, the officer testified that during the seconds before his gun discharged, he was unable to determine with certainty whether the suspect was concealing a weapon.

     The injured man sued the officer and the city for his back injury, claiming that the officer was negligent in handling his gun and that the city was vicariously liable. Claims against the city were dropped, and the trial court granted the officer summary judgment on the basis of official immunity.

     An intermediate Texas appeals court found that the officer's evidence failed to conclusively establish his good faith so that he was not entitled to summary judgment on his official immunity defense.

     The Supreme Court of Texas disagreed, reinstating official immunity for the defendant officer.

Official immunity is an affirmative defense that shields governmental employees from personal liability so that they are encouraged to vigorously perform their official duties. A governmental employee is entitled to official immunity for (1) the performance of discretionary duties (2) that are within the scope of the employee's authority, (3) provided that the employee acts in good faith. To obtain summary judgment on the basis of official immunity, a governmental employee must conclusively establish each of these elements. In deciding whether an employee's summary judgment proof conclusively establishes the official-immunity defense, we must determine whether there are disputed facts material to its elements. In this case, the parties do not dispute that at the time of the incident Officer Telthorster was performing a discretionary duty within the scope of his employment. But they do dispute whether he was acting in good faith.

      The court held that when a suspect sues for injuries sustained during an arrest the officer-defendant, to establish his good faith for official-immunity purposes, must show that "a reasonably prudent officer, under the same or similar circumstances, could have believed that his conduct was justified based on the information he possessed when the conduct occurred" To "controvert the defendant's good-faith evidence, the nonmovant must show more than that the defendant was negligent or that reasonably competent officers could disagree on the issue; instead, the nonmovant must show that no reasonably prudent officer could have believed that the defendant's conduct was justified under the circumstances presented."

     The Texas Supreme Court rejected prior state case law which required that a "particularized need/risk assessment" be conducted by a court in determining whether an officer was entitled to official immunity when sued over an arrest which results in injury to a suspect. Such an assessment was not compelled, the court stated, in "light of official immunity's overriding purpose to reduce the threat that civil liability may deter arresting officers from acting with the 'decisiveness and the judgment required by the public good.'"

     In this case, the court found, the officer's summary judgment evidence "conclusively established," and the plaintiff "failed to controvert," that he acted in good faith. The court therefore reversed the intermediate appeals court's judgment and ruled that the plaintiff should "take nothing." There was no evidence showing that no reasonable officer could have believed, under the circumstances, that it was reasonable for the officer to assist in handcuffing the plaintiff, or that the officer did not act in good faith in keeping his gun drawn, given that he could not be certain, at that point, that the suspect was not armed.

     Telthorster v. Tennell, #01-0074, 92 S.W.3d 457 (Tex. 2002).

     »Click here to read the decision on the Internet.

     •Return to the Contents menu.

No reasonable jury could find that a police officer acted objectively unreasonably in shooting an armed suspect who fired the first shot, steadily advanced on the officer, and refused to obey the officer's orders. Firing officer reasonably believed that he was in jeopardy and that a fellow officer was under attack. Plaintiff's admission, in his criminal case, that he acted recklessly was "damning" in his civil rights claim. No claim against municipality could be pursued under the circumstances.

     New Hampshire police officers responding to a 911 call from a residence "patiently attempted" to take an armed man into custody. Gunfire erupted and the suspect was seriously wounded by a shot fired by a sergeant. The injured man brought a federal civil rights claim against both the officer and the town, claiming that excessive force was used against him and that the town had instituted a "series of wrong-headed customs, policies, and practices" and had inadequately trained the town's officers.

     Rejecting each of these claims, a federal appeals court stated that "there is no need to tarry."

     First, as a result of the plaintiff's actions during the incident at issue, he pled guilty to a criminal charge of reckless conduct, i.e., to "recklessly engaging in conduct which placed another in danger of serious bodily injury." Under the circumstances of the case, the court found, that "admission was damning" to the plaintiff's civil claims.

     Additionally, there was no question here that the plaintiff, known to the officer to be a former Army Ranger, "steadily advanced" on him, that he was armed, that he refused to obey the officer's order, that the officer retreated, that the plaintiff fired the first shot, and that another officer returned fire. Only then did the sergeant, believing that a fellow officer was under attack and that he himself was in danger, discharge his weapon, wounding the plaintiff.

     "Given the compressed time frame, the highly charged environment, and the kaleidoscopic sequence of events, a rational jury could not find" that the officer's return of fire was objectively unreasonable.

     Since no claims were supportable against the shooting officer, the court stated, this "dooms" the plaintiff's attempt to impose liability on the town. Without an underlying constitutional violation, "a claim of municipal liability necessarily fails."

     Jaques v. Town of Londonderry, #02-1872, 54 Fed. Appx. 14 (1st Cir. 2002).

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

     •Return to the Contents menu.

New York statute prohibiting the wearing of masks in public demonstrations, with the sole exception of "masquerade parties" or "entertainment" purposes, violated the First Amendment rights of Klan group. Federal trial court finds that wearing masks is protected by the right to anonymous speech, as well as the right to symbolic speech, and that the exception provided constituted an impermissible content-based restriction. Statute was also improperly "selectively" enforced.

     A white supremacist group identifying itself with the history of the Ku Klux Klan sought a permit to march in a public demonstration on the steps of a New York county courthouse in full Klan regalia, including hooded masks. The permit to do so, however, was denied on the basis that the wearing of the masks would violate New York Penal Law Sec. 240.35(4) prohibiting congregating in a public place with other persons while masked or disguised, except in connection with a "masquerade party or like entertainment."

     The demonstration was subsequently carried out without the masks. The trial court has now granted summary judgment for the plaintiff organization, finding, on a variety of grounds, that the New York statute, on its face and as applied, violated the First Amendment rights to free speech of it and its members.

     The court found that the statute violates the right to anonymous speech under the First Amendment, by preventing the members of the plaintiff group from concealing their identities while engaged in a political demonstration. The right to anonymous political speech has long been recognized by the U.S. Supreme Court, particularly in circumstances where the controversial nature of the issues or the views expressed could subject those engaging in the expression to persecution by private or public authorities.

     The court cited Talley v. California, 362 U.S. 60 (1960) (ordinance prohibiting the distribution of anonymous handbills without a person's name and address was facially invalid since "persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all"), McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) (striking down an Ohio statute prohibiting the distribution of anonymous election campaign literature), NAACP v. Alabama, 357 U.S. 449 (1958) (protecting membership list of civil rights organization against being revealed to the state's Attorney General), and Buckley v. Valeo, 424 U.S. 1 (1976) (protecting donors to minor political parties against public disclosure of their identity if revealing them would result in a risk of reprisal by others).

     In the immediate case, the court found that there was ample evidence that disclosure of the identity of the members of the plaintiff organization in the past had led to various negative consequences for these individuals, including physical threats or assaults against the individuals or their family members, harassment, or loss of jobs.

     The court found that the statute was unconstitutional in violation of the right of the plaintiffs to engaged in protected symbolic speech. The plaintiffs had argued that the wearing of the hooded mask itself was part of conveying a particular message. The court agreed that the masks constituted expressive conduct, as the regalia was readily identifiable and "is intended to and does convey a message that most people are likely to understand," being an "integral part of the message that links the American Knights to the KKK and its horrific ideology."

     The court found that the statute failed to further an important or substantial government interest or to be narrowly tailored to be "no greater than is essential to the furtherance of that interest." The court noted that the statute "paints with a broad brush, prohibiting all demonstrators, peaceful and unlawful alike" from wearing masks. In this instance, the police department, in denying the permit, did not argue that it had any reason to believe that the members of the group would engage in unlawful behavior, and indeed, when the demonstration--without the wearing of masks-- was carried out, "they did not."

     While the state has a substantial interest in maintaining law and order, the court noted that the exception for "entertainment" events allows everything from masked "trick or treaters" to the masked participants in an annual Gay Pride Parade held in the city, and that the defendants did not suggest that one masked event "is less likely to lead to criminal behavior than another."

     The court found that the statute was facially invalid, because it engaged in content-based restrictions rather than being a content-neutral time, place, and manner restriction on speech. Such a restriction may not be based on either the "content or subject matter of speech," the court noted, citing Con. Edison Co. of New York v. Public Serv. Comm. of New York, 447 U.S. 530 (1980) (state regulation prohibiting a public utility from using bill inserts to discuss political matters, such as its opinion on nuclear power, violated the company's First Amendment rights). In the immediate case, by providing an exception for the "entertainment" use of masks, the statute's prohibitions come down only on the "non-entertainment" use, such as the use of masks in political expression.

     Finally, the court found that the defendants had engaged in selective enforcement of the statute. The plaintiff had pointed to a number of high-profile "non-entertainment" gatherings in which the police department allowed the participants to cover their faces by wearing a mask or the equivalent. These included Iranian students protesting the Shah in 1977, protesters rallying after the funeral of Amadou Diallo (a New York man shot and killed by city police officers) in 1999, protesters opposing the rally held by the plaintiff itself in the immediate lawsuit on October 23, 1999 who wore rubber face masks satirizing Mayor Giuliani, and pro-Palestinian protesters who wore "kefiyahs" or head scarves on two occasions in 2000 when they gathered at Times Square and at the Israeli Consulate in New York City.

     Church of Amer. Knights of Ku Klux Klan v. Kerik, 232 F. Supp. 2d 205 (S.D.N.Y. 2002).

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

     •Return to the Contents menu.

Federal appeals court overturns injunction requiring that police notify cooperating witnesses being interrogated that a lawyer, purporting to represent them, has arrived at the station. Court rejects ruling which was purportedly based on the First Amendment rights of the lawyer to associate with his client.

     Under Moran v. Burbine, 475 U.S. 412, 89 L. Ed. 2d 410, 106 S. Ct. 1135 (1986), a suspect in police custody does not have a constitutional right to be notified that his attorney is at the stationhouse. The U.S. Constitution permits the suspect to request counsel and stop the interrogation but does not require notice about the lawyer's whereabouts. The city of Chicago applied to cooperating witnesses the same approach sustained in Moran for custodial interrogation: Witnesses are not notified of attorneys' presence and undergo interrogation without legal advice unless they request access to counsel.

     In a lawsuit brought by a legal aid organization, a federal trial court found that this approach was improper, and issued an injunction against it. (Click here to read the trial court opinion).

     The district judge found, after a trial, that "when a spontaneous request is made by a witness, the police attempt to discourage the contact, telling the witness either that he does not need a lawyer or that it is better if fewer people know he is at the station, or both. Only if the witness nonetheless 'insists' on counsel [he] will he be permitted to communicate with an attorney." The court held that this practice is unconstitutional and issued a permanent injunction requiring the city (and the State's Attorney for Cook County) to notify a witness as soon as an attorney arrives purporting to represent him; the injunction also compelled the police to admit the attorney so that the notice must be given in his presence, and he may confer in confidence with the witness. This holding was not based on a theory that the city's practice violates the witness' rights; instead, the district court found, the practice violates the attorney's right under the first amendment (applied to the states through the fourteenth) to associate with his client.

     A federal appeals court reversed this ruling.

     "The interior of a police station is not a public forum," the court noted. "The Constitution does not create either a right of access to the inside of governmental buildings, or an obligation to offer a message-delivery service for the benefit of those who arrive at the door. "

     The plaintiff First Defense, a legal-aid bureau that offers free assistance to persons associated with crime (either as suspects or as witnesses), conceded that there is no general right of access argued that it possesses special rights of association with its clients. The idea appeared to be that if the witness cannot come out, then the lawyer must be let in. The court, in analyzing this argument, said:

What is more, the district court's injunction extends beyond the attorney-client relationship to require the police to admit attorneys who have not yet been engaged as counsel. This is why we referred to attorneys "purporting to" represent a witness; the injunction does not permit the police to determine whether a given attorney actually represents a given witness. The district court found that First Defense generally enters the picture at the request of witnesses' family or friends. The judge stated without elaboration that "those requests suffice to create an attorney-client relationship between the FDLA attorney and the person being held." It is hard to see how this can be so; an attorney is an agent, and there can be no agency without the knowledge and consent of a principal. It takes two to associate; a one-sided desire to counsel a witness does not create a protected "right of association."

Sometimes a family member may act as next friend on behalf of a person unable to protect his own interests, but "friends" (the district court's opinion supplies no details about who these may be) differs from "next friends." [...] Friends may be particularly poor champions of witnesses, for professed "friends" could be the very persons under investigation. Police and witnesses alike know that criminal organizations often retaliate against those who assist law enforcement. A legal rule entitling "friends" to send lawyers to police stations, and compelling the police to admit them, could help these criminals determine who within the organization has switched sides, with potentially fatal results--for attorneys acting in the best of faith may enable the "friend" to learn that a particular person has provided information to the police. Worse: although the district judge found that First Defense is above board, not all attorneys are honest. Some set out to assist criminal organizations, and the police thus may be right to counsel witnesses that the fewer people who know of their presence at the stationhouse, the better for their safety.

     The Plaintiff therefore, the appeals court concluded, "has neither a personal right, nor one derived from its clients, to have the police notify witnesses that a lawyer is at the front desk, let alone a right to be escorted inside immediately and to engage in confidential consultations within the police station. Any violations of suspects' rights to be free of trickery, wrongful imprisonment, and compulsory self-incrimination must be redressed after the fact (by damages or exclusion of evidence) rather than by a regulatory injunction issued in a case to which no witness is a party." The injunction issued by the trial court was therefore reversed.

     First Defense Legal Aid v. City of Chicago, #02-3376, 319 F. 3d. 967 (7th Cir. 2003).

     »Click here to read the decision on the Internet. [PDF]

     •Return to the Contents menu.

Off-duty police officer acted under color of law in allegedly falsely arresting at gunpoint and maliciously prosecuting trucker who claimed he was merely attempting to use a telephone on an emergency basis to provide notification of a highway hazard posed by his broken down vehicle. Defect in jury instructions, however, required new trial, setting aside $622,000 award in favor of plaintiff.

     When a New York trucker's engine failed on an expressway, he attempted to drive the truck onto the shoulder to avoid blocking traffic. When the truck came to a stop, approximately four feet of the trailer still projected into the right-hand eastbound lane of the road. The trucker was unable to restart the truck, so he placed three emergency reflective triangles at hundred-foot intervals behind the truck, as required by state regulations. He noticed that a hill obstructed motorists' view of the truck, forcing them to swerve to avoid it.

     He therefore ran approximately three-quarters of a mile to a gas station and convenience store where the clerk, with "limited" English skills, refused to let him use the store phone. On the only pay phone outside, an off-duty New York City police officer was making a call, using the phone's long cord, designed to be used from a vehicle, while sitting in his van. The trucker asserted that he explained the situation and his need to use the phone on an emergency basis to report the hazard, but that the officer refused to allow him to use the phone, threw the receiver at him when he disconnected the officer's call, and pulled his pistol out, threatening to "blow" his brains out. The trucker then says he threw the phone handset back at the officer, who only then identified himself as an officer and placed him under arrest. A uniformed officer later arrived and took the trucker into custody on the basis of the off-duty officer's version of the incident, which varied from the trucker's.

     The off-duty officer contended that the trucker demanded to use the phone, without mentioning any emergency, disconnected his phone call, and then swung the handset on its cable, striking him on the arm and in the face. Only then, the officer claimed, did he draw his gun, display his shield, and place the trucker under arrest. The trucker ultimately made 28 court appearances over the following year, culminating in a not-guilty verdict on charges of felony assault and criminal possession of a weapon. He sued the off-duty officer for false arrest and malicious prosecution in violation of his federal civil rights, as well as under state law.

     A jury found in favor of the trucker, awarding damages of $300,000 for false arrest and $322,000 for malicious prosecution.

     A federal appeals court held that the trial judge properly refused to grant the off-duty officer judgment as a matter of law. Whether the off-duty officer threatened the plaintiff with the pistol before or after identifying himself as a police officer, he clearly did identify himself as such by the time he restrained the trucker. "We have no doubt that when an officer identifies himself as a police officer and uses his service pistol, he acts under color of law."

     The appeals court found, however, that the off-duty officer was entitled to a new trial, setting aside the jury's award of damages. The jury instructions allowed it to find for the plaintiff either on the basis that he acted in self-defense by throwing the phone receiver back at the off-duty officer after the officer first threw it at him and threatened him with the pistol, or because his action constituted "emergency measures" necessary to avoid an imminent public or private injury, i.e., he acted because it was important to be able to use the phone to report the highway hazard.

     If the jury believed that the trucker acted in self-defense only, and that the officer knew that the actions were only in response to threats he made with his weapon before identifying himself as an officer, then the award of damages was proper, since this would negate the existence of probable cause for the arrest and prosecution.

     If the jury based its award, however, only on the assertion that the trucker acted out of an emergency necessity, however, this would not eliminate the existence of probable cause for the arrest and prosecution. Even if the trucker asserted to the officer that he needed to use the phone on an emergency basis, the officer did not have personal knowledge that this was true, and was not required to believe this assertion at face value or to investigate it further. He observed the trucker throwing the phone receiver at him, conduct that amounted to an assault in the absence of the self-defense claim, and would therefore, in the absence of self-defense, be entitled to make the arrest.

     It could not be determined from the jury's award which of these two rationales they based their award on, requiring a new trial on liability.

     Jocks v. Tavernier, #00-7735, 316 F.3d 128 (2nd Cir. 2003).

     »Click here to read the decision on the Internet.

     •Return to the Contents menu.

Nebraska Supreme Court rejects argument by mother of cross-dressing woman that $98,223 in damages for failure of county sheriff to protect her daughter against murder by two men she accused of rape was inadequate. Court notes that mother's relationship with her daughter was "strained."

     A 21-year-old woman who had been sexually abused as a child suffered from a gender identity disorder, and attempted to pass as a man by cross-dressing and cutting her hair. She obtained a driver's license identifying herself as a male, and even dated a woman who believed her to be male. After she was arrested on forgery charges for forging checks, she was placed in a female area of the jail. A male friend later bailed her out, but he and a buddy of his then became suspicious about her sexual identity.

     The two male "friends" attacked her, hitting her in the head, kicking her in the ribs, and stepping on her back. They then drove her to a remote location where they both sexually assaulted her, following which they beat her again and threatened to kill her if she reported the rape. She reported the rape and the threats to law enforcement. The county sheriff interviewed her, and asked a number of questions about her gender identity disorder and prior sexual experiences. In conversations with witnesses, the sheriff later referred to the victim as an "it."

     No arrests were made for the rape. The two assailants instead, a number of days later, murdered the rape victim and two witnesses. They were later convicted of the three murders. The rape victim's mother filed a lawsuit against the county and the sheriff, seeking damages for failure to protect her.

     The trial court found that the county and sheriff were in fact negligent in failing to protect the decedent, and set economic damages at $6,223.20 and noneconomic damages at $80,000 for predeath pain and suffering. It also, however, ruled that the decedent herself was 1% contributorily negligent for her death, and that the damages should also be reduced by 85% for the intentional wrongdoing of the murderers, with the judgment against the county totaling $17,360.97.

     The trial court denied recovery on an intentional infliction of emotional distress claim, finding that the sheriff's conduct was not "extreme and outrageous" and that there was a failure to prove that the decedent suffered as a result of it. Finally, the trial court awarded only "nominal damages" for the mother's loss of society, comfort and companionship.

    In an earlier strongly worded opinion, Brandon v. County of Richardson, #S-00-022, 624 N.W. 2nd 604 (Neb. 2001), the Supreme Court of Nebraska, while agreeing with the trial court's determination that the county had a duty to protect the decedent under the circumstances, found that there was no evidence supporting the finding that the decedent was herself negligent in any way. It also found that it was improper, under the state's comparative negligence laws, to reduce the damages awarded by 85% for the intentional wrongdoing by the murderers.

It further held that, as a matter of law, the sheriff's conduct was "extreme and outrageous, beyond all possible bounds of decency, and is to be regarded as atrocious and utterly intolerable in a civilized society." Statements he made to the decedent during his interview with her used "crude and dehumanizing language," implied that she "willingly participated" in the sexual acts, and focused on things like her gender identity disorder (such as whether she "kissed other girls") which had nothing to do with the crime under investigation. His tone was "demeaning, accusatory, and intimidating. The interview in question was tape recorded. The court therefore ordered further proceedings as to whether the decedent suffered severe emotional distress caused by the sheriff's conduct, and if so, what damages should be awarded.

Finally, it ruled that the failure to award money damages on the mother's loss of society, comfort, and companionship claim was "inadequate as a matter of law." On remand, therefore, the court ruled, the plaintiff must be awarded the full $80,000 in damages for pain and suffering, as well as any damages determined to be awarded on the emotional distress and loss of companionship claims, unreduced by any amount for the actions of the decedent herself or her killers.

     On remand, the trial court awarded $7,000 on the claim for intentional infliction of emotional distress and $5,000 in damages for the mother's loss of society. It added these awards to the damages awarded at the previous trial and entered judgment in the amount of $98,223.20. In a further appeal, the mother argued that the awards for emotional distress and loss of society were inadequate.

     The Nebraska Supreme Court has rejected her arguments.

Because the parent-child relationship has intrinsic value, once a parent-child relationship is proved to exist, destruction of that relationship through the wrongful death of the child entitles the parent, who is the surviving next-of-kin, to damages. Evidence regarding the quality and extent of the parent-child relationship may then be utilized in determining the amount of these damages.

     It was on this basis, the court noted, that it had previously ruled that an award of $0 to the mother for the loss of her daughter's society, comfort, and companionship "shocks the conscience" and "bears no reasonable relationship to the evidence. Nevertheless, there was evidence that the relationship between the daughter and mother, as well as other members of her family had "become strained and distrustful," and that the daughter had "isolated herself from her family." Indeed, even though the daughter had been raped on Christmas Eve, she did not go to her family on Christmas Day, nor did any members of her family go to her. Under these circumstances, the award to the mother for loss of society was not inadequate.

     The court also upheld the $7,000 award for emotional distress suffered by the daughter because of the sheriff's actions. The court noted that there was evidence that the interaction with the sheriff caused the daughter to be "upset," the majority of her emotional distress and fear was caused by her assailants, who had raped her and threatened to kill her. The sheriff's conduct, considered separately by the trial court, "was not found to have caused substantial emotional distress."

     Brandon v. County of Richardson, #S-01-1158, 653 N.W.2d 829 (Neb. 2002).

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

     EDITOR'S NOTE: The case reported above was the basis for the movie "Boys Don't Cry," for which Hilary Swank was awarded a Best Actress Oscar for her portrayal of the crime victim.

     •Return to the Contents menu.

Police officers were not individually liable and were entitled to qualified immunity for allegedly increasing a shooting victim's risk of death by transporting him to a hospital in a police vehicle rather than waiting for an ambulance. Officers did not create the danger to the shooting victim or act with deliberate indifference for his safety. City was also not responsible, in the absence of a showing that it had failed to properly train the officers or had a policy which deprived the shooting victim of his rights.

     Philadelphia police officers responded to 911 calls reporting a person with a gun at a particular street corner, and then a possible shooting. When they arrived there, they found a man who had lost consciousness after being shot. Because a fire rescue vehicle allegedly summoned by a dispatcher had not yet arrived, the officers called for an emergency police wagon, which arrived and transported the shooting victim to the hospital.

     Shortly after arrival at the hospital, the shooting victim was pronounced dead. The decedent's estate sued the city and its officers, claiming that the victim's due process rights had been violated because the officers transported him to the hospital in a police vehicle instead of waiting for an ambulance.

     A federal trial court granted motions by both the officers and the city for summary judgment.

     The court ruled that the officers did not create the dangerous condition that led to the shooting victim's death or increase the danger to him. Further, death was not a foreseeable result of the officers' actions, as there was not any evidence that an ambulance crew might have actually done a better job of saving the life of the unresponsive victim than the staff at the hospital. The officers reached the hospital approximately two minutes after leaving the scene of the accident, so it was difficult to see what difference waiting for the ambulance to arrive would have made.

     As for the city, there was nothing to show that the decedent's death was caused by official policy or that the city had failed to properly train the officers.

     Hansberry v. City of Philadelphia, 232 F. Supp. 2d 404 (E.D. Pa. 2002).

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

     •Return to the Contents menu.

Officers were properly granted summary judgment in lawsuit brought by suicidal man armed with knives who threatened his wife and officers and then was subdued by shooting him with "beanbag" rounds. Officers' use of force was objectively reasonable under the circumstances, and appeals court expresses agreement with trial judge that plaintiff should have "thanked" rather than sued the officers.

     A man with a history of arrests for domestic violence, unlawful use of weapons, obstruction of justice and drunk driving threatened his wife while armed with knives, and she called the police for protection. When an officer arrived, the couple had made up and asked to be left alone. Forty minutes later, however, officers were called back to the scene by a neighbor who told them that the wife had been "knocking on doors in search of safety." The wife told an officer that the man had "torn up" the couple's home.

     At the residence, the suspect refused to admit an officer or come out for a discussion. His wife told officers that he had attempted suicide, and through a window, it could be observed that he was holding several knives and a meat cleaver. He told a police chief that he would kill any officer who entered and then kill himself, insisting that he had nothing left to live for, did not care about anyone else's life either, and would come out only "feet first." He also threw several knives outside the house in the direction of the officers.

     Local police then called for help from the state police, which dispatched a lieutenant and a sergeant. Negotiations seemed to go nowhere, despite help from the suspect's father, who arrived on the scene. The lieutenant authorized the sergeant to disable the suspect by firing beanbag rounds from a shotgun if that proved to be necessary. Bean-bag rounds are designed to stun and inflict blunt trauma, knocking a person down but not penetrating the skin or damaging internal organs more severely than a kick or punch would. They are "less lethal than bullets or buckshot."

     The suspect opened the door and allegedly threatened to blow up his home using propane and kerosene in tanks immediately outside. The sergeant saw him lean toward a tank with what appeared to be a cigarette lighter, in response to which he fired at the suspect's arm and torso. The first three rounds staggered, but did not stop him, while a fourth brought him down. He was a "moving target, and one round hit him in the head." He was taken to the hospital, where he arrived unconscious and was treated for injuries to the head and upper left arm.

     He sued the officers for violation of his civil rights, alleging excessive force and claiming that he experienced a memory loss as a result of the beanbag impacts. His wife also sought compensation for loss of consortium.

     Finding that the officers used objectively reasonable force, based on the suspect's threats to the officers, the trial court granted the defendants summary judgment. A federal court upheld this result.

[The plaintiff] acknowledges that he was armed with knives, drove [his wife] out of their home, refused to emerge or admit police for discussion, held a knife to his throat while threatening suicide, and made a move toward the propane tank. He denies making explicit threats to kill the officers or ignite the propane--but he concedes that the combination of drink and concussion has dimmed his memory of what occurred that evening. The district judge thought that, even resolving all factual disputes in plaintiffs' favor, what remains is enough to show that it was reasonable to use force to end the confrontation and avoid any risk that [he] would injure himself or others. Like the district judge, we think that [the plaintiff] should have thanked rather than sued the officers. True, he suffered injury at their hands, but in his depressed and irrational state, aggravated by liquor, he might have done himself or others greater injury had they not intervened.

     The appeals court noted that it was "easy in retrospect to say that officers should have waited, or should have used some other maneuver," but that the law on use of force does not require second-guessing "if a reasonable officer making decisions under uncertainty and the press of time would have perceived a need to act." The risks of intervention, "unfortunately realized when one round hit" the plaintiff in the head, "still seem less than the risks of doing nothing."

     To send this case to the jury would present them with a case where they would have nothing to do "except second-guess the officers," the court said, which is improper under the law. Reasonableness "is analyzed objectively, and as a matter of law. Judges rather than juries determine what limits the Constitution places on official conduct."

     Bell v. Irwin, #02-2262, 321 F.3d 637, 2003 U.S. App. Lexis 3415 (7th Cir.).

   »Click here to read the decision on the Internet. [PDF]

     •Return to the Contents menu.

California officers' initial stop and investigation of vehicle without license plates was reasonable, but there was a jury question as to whether they acted improperly in engaging in a prolonged two hour detention of the driver and her passenger, and whether they improperly engaged in a warrantless search of the two occupants' home during that time when all that was consented to may have been an officer accompanying the driver into the home to retrieve the passenger's California identification card. Intermediate appeals court reinstates lawsuit by vehicle occupants.

     California police officers had been informed that a suspect had been involved in switching vehicle identification numbers (VINs) on stolen cars and fraudulently getting titles for them at a local Department of Motor Vehicles office. They were at a staging area about a block from the suspect's residence, preparing to execute a search warrant, when a car with no license plates drove by, with a passenger who appeared to some of the officers to look like the suspect.

     The vehicle was followed to a gas station and officers questioned the driver and passenger. The passenger turned out to be the suspect's brother, and had no driver's license or other identification, and he was handcuffed after engaging in a verbal argument with one of the officers. The vehicle was searched for its VIN. The passenger told one of the officers that he had just bought the car, that it was a salvaged vehicle, and that he had been told that they had to go to the California Highway Patrol to have a VIN issued. Only a partial VIN was found, on the car's engine, along with documents indicative of a recent sale.

     After learning that the car had no public VIN, the officers decided to impound it to determine if it was stolen. While the partial VIN on the engine matched the VIN as stated on an odometer disclosure statement, one officer viewed this as inconclusive as to whether the car had been stolen, because the engine and transmission could have been replaced. The passenger was subsequently arrested for a violation of the California Vehicle Code, having a misdemeanor committed in his presence, i.e., the possession of a vehicle from which the VIN has been removed, defaced or altered, as well as for violating his probation for drug dealing. The driver was detained for two hours, but was not charged.

     The following day, a partial dismantlement of the car uncovered a confidential full VIN on the vehicle which matched the VIN as stated in the sales documents found in the glove box. One of the officers then directed that the arrested passenger be released from custody, but his release only took place two days later.

     Both the driver and the passenger sued for unreasonable search and seizure. Summary judgment for the defendants was granted by the trial court on state law claims along with dismissal of federal claims.

     An intermediate California appellate court has reversed.

     While the initial investigation of the vehicle and the questioning of the driver and passenger were clearly proper, it was a question for the jury whether the two-hour detention was reasonable under the circumstances.

     "The evidence is sufficient to raise a jury question as to whether the detention of both [passenger and driver] was unlawfully prolonged and intrusive and not properly within the scope of activities permitted by the traffic stop." The evidence was further sufficient to raise a jury question regarding at what point the conduct of the officers "evolved from a stop" into an arrest of the passenger and whether their conduct constituted an arrest of the driver.

     During the prolonged detention, officers also conducted a warrantless search of their home. There were disputed issues as to the alleged scope of consent given, and evidence which could also have allowed a jury to infer that there was no voluntary and valid consent to search the home and that the two plaintiffs consented only to have an officer accompany the driver into the home for her to retrieve her husband's identification.

     Additionally, while the passenger was on probation, and consent to home searches was a condition of his probation, the dismissal of federal claims related to the search could not be upheld on this basis, since it was undisputed that the officers were unaware of the probation until they had initiated the search of the home. The defendants

fail to cite any pertinent authority to establish that the legal principles which apply in a criminal prosecution, which principles may permit the admission of evidence obtained as a result of an otherwise illegal search involving a probationer subject to a search condition, would apply to a civil action for damages for unconstitutional police conduct.

     There was sufficient evidence, the appellate court found, to create a jury question as to whether the officers took advantage of the passenger's failure to possess his California identification card in order to search his home without probable cause and without reasonable suspicion of any criminal activity "or evidence therein, but simply because he happened to be the brother" of a suspect who was the subject of another investigation. A jury could therefore have inferred arbitrary or capricious conduct on the part of the officers, so it was improper to terminate the case without such a determination.

     Venegas v. County of Los Angeles, #B148398, 128 Cal. Rptr. 2d 627 (Cal. App. 2 Dist. 2002).

     »Click here to read the decision on the Internet. [PDF] (also available in .DOC format]

     •Return to the Contents menu.

Assault and Battery: Physical

     Jury instructions on issue of officers' alleged use of excessive force against motorist were adequate when the jury was told that they should find for the defendants unless they found from all facts and circumstances as they appeared to the officers at the scene that no reasonable officer would have done what those officers did. These instructions properly told the jury to evaluate the use of force from the perspective of a reasonable officer on the scene and from an objective standard. The phrase "unless no reasonable officer" used in the instructions was merely the "double negative equivalent" of "a reasonable officer." Miller v. City of Nichols Hills Police Dept., No. 01-6128, 42 Fed. Appx. 212 (10th Cir. 2002).

Attorneys' Fees: For Plaintiff

     Federal government was liable for attorneys' fees of journalist requesting FBI documents relating to deceased civil rights activist when the government sought a protective order, failing to first consult with the requester and make a good faith attempt to resolve the discovery dispute before seeking intervention by the court. Campbell v. U.S. Dept. of Justice, 231 F. Supp. 2d 1 (D.D.C. 2002).

Defenses: Absolute Immunity

     State prosecutor was entitled to absolute immunity for allegedly telling an officer to delete exculpatory material from an arrest warrant application and resubmit it to the court, after the first attempt to obtain the arrest warrant was rejected. Sheehan v. Colangelo, #02-7736, 53 Fed. Appx. 584 (2nd Cir. 2002).

Defenses: Bifurcation of Claims

     Trial court did not abuse its discretion in bifurcating the trial of state law claims from federal civil rights claims. Landsman v. Village of Hancock, 745 N.Y.S.2d 258 (A.D. 2002).

Defenses: Qualified Immunity

     Federal appeals court did not have jurisdiction to consider an appeal of the trial court's denial of qualified immunity to a defendant arresting officer when there were disputed issues of material fact concerning the officer's actions in seeking a warrant for the plaintiff's arrest for obstruction of justice. Appellate review, before final judgment, of a denial of qualified immunity is only proper when the denial is based on a question of law, rather than of fact. Additionally, officer did not make an unqualified concession of the plaintiff's version of the facts for the purposes of the appeal. Ray v. Wolters, #00-2345, 30 Fed. Appx. 550 (6th Cir. 2002).

     Defendant police officer could not challenge, on appeal of an initial denial of qualified immunity, the trial court's determination that sufficient evidence existed from which a finder of fact could conclude that the plaintiff arrestee was fleeing and no longer posed a threat when the officer shot him. This was an attempt to challenge the "genuineness" of the factual disputes in the case, rather than their "materiality." A proper challenge on appeal would be one to their "materiality," i.e., contending that no violation of a clearly established federal right would be shown even if all of the plaintiff's factual allegations were true. Reyes v. City of Richmond, Tex., #01-20398, 287 F.3d 347 (5th Cir. 2002).

Emotional Distress

     Under District of Columbia law, a claim for intentional infliction of emotional distress could be based on officers' alleged unlawful entry into and search of arrestee's home without justification, killing of his pet dog inside the residence, and failure to secure the premises after his arrest, resulting in the loss of property alleged to have a value in excess of $6,000. Amons v. District of Columbia, 231 F. Supp. 2d 109 (D.D.C. 2002).

False Arrest/Imprisonment: No Warrant

     No liability for arresting and prosecuting man for housing code violation involving a badly fire damaged house "wide open to trespassers" when arrestee held himself out as the property owner when questioned, and did not even dispute the issue of ownership at his trial. Plaintiff was released only after being convicted and serving eleven days of his jail sentence, when it was finally determined that he was not the actual property owner. Gorcaj v. Medulla, #01-1288, 51 Fed. Appx. 158 (6th Cir. 2002).

      Arresting officer was not entitled to qualified immunity for arresting man for possession of stolen motorcycle or for depriving owner of use of motorcycle when the owner had not reported the motorcycle stolen and offered to show the officer papers proving ownership prior to the arrest. Daley v. Harbor, 234 F. Supp. 2d 27 (D. Mass. 2002).

Firearms Related: Intentional Use

     Disputed issues of fact as to whether or not the police officers reasonably believed that they saw a motorist point or fire a gun at them following a traffic stop precluded summary judgment of the basis of qualified immunity for the officers in a lawsuit over their shooting and killing of the motorist. Lee v. Hanna, #01-55403, 32 Fed. Appx. 937 (9th Cir. 2002).

First Amendment

     Municipal ordinance requiring a permit before distributing literature or making speeches in public parks was facially invalid under the First Amendment. It would curtail spontaneous speech and was not "narrowly tailored" to achieve a significant government interest. Diener v. Reed, 232 F. Supp. 2d 362 (M.D. Pa. 2002).

Freedom of Information

     Police department records which primarily consisted of statistical information concerning the history of law enforcement efforts at certain nightclubs in a number of precincts in the city over a number of months two years previously, were not exempt from disclosure under the New York Freedom Of Information Law, McKinney's Public Officers' Law Sec. 84 et seq These documents were not, for the most part, relevant to any "current or future investigation or prosecution of one of the named nightclubs, other than to provide historical context." Court does hold that any references in the documents to "prospective police activity" should be removed. Council of Regulated Adult Liquor Licenses v. City of N.Y. Police Dept., 751 N.Y.S.2d 438 (A.D. 1st Dist. 2002).

     Proposed Department of Justice settlement agreement with city concerning investigation of its police department was subject to disclosure under Ohio State Public Records Act, R.C. Sec. 149.43 and was not exempt as a "trial preparation record," or a "confidential law enforcement investigatory record." The document was also not protected against disclosure under any exemption of the federal FOIA, 5 U.S.C. Sec. 551(1), 552(f), since the Freedom of Information Act does not apply to non-federal agencies or officers, and therefore did not apply to public records of the proposed settlement kept by the city. Since there was no reasonable basis for the claimed exemptions, the requesting newspaper was entitled to an award of attorneys' fees. State ex rel. Cincinnati Enquirer v. Dupuis, #2002-1038, 781 N.E.2d 163 (Ohio 2002). (The ultimate settlement in the underlying case can be found at: Memorandum of Agreement Between the United States Department of Justice and the City of Cincinnati, Ohio and Cincinnati Police Department (4/12/02) See also: Summary of Memorandum of Agreement and the Technical Assistance Letter.)

Malicious Prosecution

     Department of Motor Vehicles investigator was entitled to qualified immunity in federal civil rights malicious prosecution claim since the investigator informed the prosecutor in a timely fashion that the arrestee was innocent of the charge of possessing a "forged instrument" when he tried to exchange a valid U.S. Virgin Islands driver's license for a New York license. Record of Virgin Islands license's issuance could not be found at the time of the arrest, but showed up later, so there was probable cause for the arrest. Kinzer v. Jackson, #01-0157, 316 F.3d 139 (2nd Cir. 2003). [PDF]

     A reasonable officer could have believed that there was probable cause to prosecute an attorney for concealing evidence when he advised a client being investigated for involvement in a hit and run accident that he could move his vehicle as long as evidence was preserved. Officers were entitled to qualified immunity from attorney's malicious prosecution claims. Tittle v. Raines, 231 F. Supp. 2d 537 (N.D. Tex. 2002).

Miscellaneous: Towing

     Federal appeals court upholds denial of permit to operate tow truck under a municipal regulation making persons with convictions of specified criminal offenses, documented mental illnesses or unsafe driving records ineligible for a permit. Cole v. City of Dallas, #01-10194, 314 F.3d 730 (5th Cir. 2002).

Off-Duty/Color of Law

     An assistant police chief did not act "under color of state law" for purposes of a federal civil rights lawsuit when he filled out a form requesting an arrest warrant for the purchasers of his boat, asserting that they had committed embezzlement by failing to make required monthly payments. In doing so he acted in a purely personal matter, and his actions were the "functional equivalent" of a private citizen making a call for police assistance. Sanchez v. Crump, 184 F. Supp. 2d 649 (E.D. Mich. 2002).

Police Plaintiffs: Defamation

     A newspaper article which was a satire or parody that, if believed, conveyed a false or defamatory impression was not protected under the First Amendment as merely an opinion or rhetorical hyperbole, but could be the basis for a defamation claim if a reasonable reader could have believed that it was making statements of fact. District Attorney and judge could pursue claim against newspaper for publishing an article with a made up story suggesting that they might prosecute and try a first grader for writing a book report about a children's story since it contained an "implication of violence." New Times, Inc. v. Isaacks, No. 02-01-023-CV, 91 S.W.3d 844 (Tex. App. Ft. Worth, 2002).

Police Plaintiffs: Premises Liability

     Building owner was not liable to deputy sheriff for dog bite suffered while attempting to serve process on a tenant in an eviction case. Landlord was not reasonably on notice of the presence of the dog on the building premises simply because of dog droppings in the yard. Landlord was also entitled to protection under the one-bite rule even if they knew of the dog's presence, when they had no knowledge of this dog's dangerous propensities. Montier v. Silver Lake I, L.P., #2001-514, 813 A.2d 978 (RI 2003). [PDF]

    City was not entitled to summary judgment in lawsuit for personal injuries brought by police officer who was injured in a slip and fall in a building it owned. There were genuine issues of fact as to whether the city had notice of the alleged defective condition in the building which caused the fall. Malanga v. City of New York, 752 N.Y.S.2d 391 (A.D. 2002).

Procedural: Evidence

     Admission into evidence of a videotape showing the plaintiff conducting her daily activities during a trial of her claim that she had suffered serious injuries from the excessive use of force by a police officer was not improper and did not constitute "unfair surprise" when the plaintiff's attorney was furnished with a copy and given a chance to view it prior to its admission. Meiselman v. Byrom, 207 F. Supp. 2d 40 (E.D.N.Y. 2002).

     Admission into evidence of an audiotape of an arrestee's conversation with a police dispatcher was not an abuse of discretion in a federal civil rights case in which the arrestee claimed that she had been improperly arrested for public intoxication. The audiotape's reproduction of the arrestee's "hysterical conversation" with the dispatcher was "no more prejudicial" than the arresting officer's account of "her drunken behavior," so that the court could not say that its admission was so prejudicial that it violated the plaintiff's "substantial rights." Diamond v. Howd, #00-6323, 288 F.3d 932 (6th Cir. 2002).

Property

     Federal civil rights claims against Secret Service agent for destruction of property (residence doors) during execution of a federal search warrant were properly dismissed when there were post deprivation remedies available which the plaintiff had not shown were inadequate. Stiger v. O'Nell, #02-5774, 53 Fed. Appx. 738 (6th Cir. 2002).

Racial/National Origin Discrimination

     State park visitors of Hispanic origin stated a viable claim that park officials enforced the regulations prohibiting swimming after hours against them on the basis of race, precluding summary judgment for officials in the lawsuit. Visitor was not precluded from pursuing her claim on the basis that she had pled guilty and paid a fine for swimming after hours. Carrasca v. Pomeroy, #02-1127, 313 F.3d 828 (3rd Cir. 2002). [PDF]

Search and Seizure: Vehicles

     Washington State Patrol exceeded the authority granted in a state statute, RCWA 46.55.113, in adopting a regulation that requires the impoundment of every vehicle driven by a driver arrested for having a suspended or revoked license. Statute only authorized impounding of vehicles at the discretion of the officer. In Re Impoundment of Chevrolet Truck, #71848-2, 60 P.2d 53 (Wash. 2002).

       AELE's list of recently-noted civil liability law resources.

     Article: "The Police Officer's Dilemma: Using Ethnicity to Disambiguate Potentially Threatening Individuals," by Joshua Correll, Bernadette Park, and Charles W. Judd, University of Colorado at Boulder and Bernd Wittenbrink, University of Chicago, Journal of Personality and Social Psychology, http://www.apa.org/journals/psp.html, Vol. 83, No. 6, 1314-1329 (Dec. 2002). American Psychological Association. Using a videogame, three studies were conducted on the effect of ethnicity on shoot/don't shoot decisions. Participants were more likely to conclude mistakenly that African-American men appearing in the game were armed and to shoot them when required to make split-second decisions about whether black or white male figures appearing in the game were holding guns.

     Article: "Consent Once Removed," by Edward M. Hendrie. FBI Law Enforcement Bulletin, Volume 72, Number 2 (February 2003) pgs. 24-30. [PDF] "It is possible to make a warrantless entry to arrest a suspect based on consent to enter given previously to an undercover officer or informant."

    Standard: NIJ Standard, Walk-Through Metal Detectors for Use in Concealed Weapon and Contraband Detection: NIJ Standard–0601.02, January 2003. This NIJ Standard describes performance requirements and testing methods for active walk-through metal detectors used to find metal weapons and metal concealed contraband carried on a person and/or concealed by a nonmetal object. The report can be used by purchasing agents and procurement officials in determining whether an owned or prospective product meets the requirements of the standard and can serve as the basis for tests conducted by qualified testing laboratories and as a reference in procurement documents. It also contains definitions to help readers use and understand the information and provides field testing procedures for and mechanical drawings of several potentially dangerous test objects. This Standard supersedes NIJ Standard–0601.01 published in 2000. (.pdf format)

     Videos: Police Response to People with Disabilities. Produced by: Law Enforcement Resource Center, 1523 Nicollet Ave., Minneapolis, MN 55403, 800-279-8284 Website: http://www.lerc.com/ Mental Illness: Police Response. Produced by NAMI (National Alliance for the Mentally Ill) in cooperation with the Police Executive Research Forum, 508-875-1544. NAMI website: http://www.nami.org/ PERF website: http://www.policeforum.org/

     Websites: Disabilities: 1). Commonly Asked Questions About the ADA and Law Enforcement http://www.usdoj.gov/crt/ada/q&a_law.htm 2). US Dept of Justice ADA homepage http://www.usdoj.gov/crt/ada/adahom1.htm  3). Commonly Asked Questions About Title II of the ADA for state and local govts - http://www.usdoj.gov/crt/ada/pubs/t2qa.txt

     Link: Selected resources in past issues.