CONTENTS

Female motorist allegedly physically assaulted without justification by state police officer following a routine traffic stop adequately stated a claim for violation of her civil rights by supervisory personnel based on officer's alleged history of past misconduct and their failure to take corrective action.

     The plaintiff, a female motorist, claimed that she was the victim of an unprovoked physical assault by an officer with the Arizona Department of Public Safety following a routine traffic stop, leading to substantial injuries. Her complaint named a number of supervisors in the department as defendants, alleging that they should be held liable on the basis of their alleged knowledge of the officer's past misconduct and failure to take adequate corrective steps of supervision and training.

     A federal trial court has rejected these defendants' motion to dismiss.

     The court found that the plaintiff adequately alleged facts pointing to each of these defendants' personal involvement in her deprivation of constitutional rights. The complaint pointed to specific instances of prior misconduct involving the officer during his employment with the U.S. Marines, the Colorado State Patrol, and the Arizona Department of Public Safety. It also cited an Internal Affairs investigation that resulted in the officer receiving counseling.

     The complaint goes on to allege by name that each of the supervisory defendants knew of these prior instances of misconduct, yet "failed to take sufficient action in terms of training, hiring, retaining and supervision to prevent" the officer from using excessive force against the plaintiff.

     Next, the complaint provides details of the investigation conducted on the defendants' direction into the alleged assault on the plaintiff, and states that the defendants were "deliberately indifferent, reckless, knew about and acquiesced, gave tacit authorization and/or ratified or condoned the violations."

     These statements adequately stated a claim against the defendants, and the court also found that they were not entitled to qualified immunity under the circumstances.

     McGrath v. Scott, No. CIV.02-1605PHXROS, 250 F. Supp. 2d 1218 (D. Ariz. 2003).

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City's policy of providing training on the most likely situations and problems that could arise in the use of police dogs against arrestees was adequate, and not a basis for imposing liability on the city for injuries arrestee suffered from being bitten by dog.

     Michigan police officers in possession of several valid outstanding warrants for a man's arrest, including one for a felony domestic violence incident, went to a residence where they were tipped that the suspect was present. One of the officers, a canine specialist, was accompanied by his trained police dog, "Billy."

     Upon arriving, this officer entered the dwelling's foyer and announced to the suspect, "Kalamazoo Police Canine. You're under arrest. Call out now or I'll release my dog." He caused the dog to bark several times as a warning, and repeated the procedure three times. The suspect fled through a basement window and started running.

     The officers and the dog gave pursuit. The canine specialist lost hold of the dog's leash when he fell. The suspect contends that he began to voluntarily lower himself to the ground, but that he was not fast enough for the officers, and at least two of them grabbed him and started to lower him, while the officers claim that the suspect did not comply with their repeated commands to go to the ground, so they grabbed him.

     In any event, the dog began biting the suspect on his rib cage and left arm. The suspect claims that he was handcuffed at this point, which the officers dispute. The canine specialist called the dog off shortly thereafter, when he caught up to the group, after a time which lasted either only a few seconds or else 30 seconds (the suspect's estimate). The officer believed that the dog bit the suspect because he believed that he was fighting with the officers as he was being lowered to the ground.

    The suspect sustained minor injuries, none of which required stitches. He sued the city, claiming that the city was deliberately indifferent in failing to adequately train its officers in the use of dogs.

     The trial court found that the city provided basic police dog training to all of its officers. It did not, however, train its officers as to what they were to do or not do if the handler of the police dog becomes disabled or incapacitated in an apprehension situation.

The Court knows of no law that requires a municipality to train its officers for every possible contingency--foreseen and unforeseen, and it appears that the KDPS [Kalamazoo Department of Public Safety] officers were adequately trained for ordinary uses of police dogs. It is unnecessary for the Court to determine whether an adequate training program requires training for when the dog's handler becomes disabled for one reason or another because the Court finds that the City was not deliberately indifferent.

     The circumstances which occurred here, the canine handler being incapacitated and not present at the scene of a canine apprehension, is "a very unlikely scenario." The police department is only required to adequately train its officers to "respond properly to the usual and recurring situations which they deal," not every remotely-possible situation "the imagination can conjure."

     In this case, the training program was adequate to train the officers to deal with "routine apprehensions involving police dogs and their handlers." Even though the adequately trained officers "may have made a mistake" during the apprehension of the plaintiff, this failed to show that any mistake was due to their training.

     Additionally, the plaintiff failed to show that any prior similar incidents occurred. Since the department's canine program began until January 17, 2001, the court noted, the city's officers responded to over 12,700 calls for service with their police dogs and made over 1,800 arrests. "Dog bites occurred in only 0.002% of the service calls," and there was no evidence that an incident similar to the one that the plaintiff complained of had "ever occurred" in the history of the program.

     Accordingly, the city was entitled to summary judgment on the plaintiff's claim that the city's training policy on the use of canines was inadequate and a result of deliberate indifference.

     Holiday v. City of Kalamazoo, No. 4:01-CV-161, 255 F. Supp. 2d 732 (W.D. Mich. 2003).

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Officer's conduct in allowing a dog to continue to bite an arrestee until the suspect raised his hands as the officer ordered did not constitute excessive force, despite the fact that the suspect was in his underwear. Suspect's conduct in running away "inexplicably" from a minor traffic stop gave the officer reasons to be concerned for his and other officers' safety. Officers were entitled to qualified immunity on failure to give a verbal warning prior to using the dog, but appeals court does hold that they should have given such a warning, and that claims against the city could be pursued for failure to require such warnings.

     After a motorist fled from a routine traffic stop in the early morning hours, a motorist was tracked to a grassy field by two police officers and a police dog. The dog, which was trained to bite and hold until commanded to release, bit the motorist near his groin, severing his femoral artery.

     The motorist sued the city and officers, alleging excessive use of force. He complained about the officers' failure to give a verbal warning prior to using the dog. He also claimed that the city had an unconstitutional policy which did not mandate the giving of such warnings.

     The trial court granted summary judgment to the defendants, finding no constitutional violation, finding, in the alternative, that the officers had qualified immunity for their actions, and that the plaintiff could not show that the violation was caused by inadequate training or a custom, practice or policy of the city.

     A federal court reversed in part and affirmed in part. While an officer's action in failing to order the dog to release the suspect until he raised his hands as ordered by the officer was found not to be excessive force, the appeals court found that the officers should have given a verbal warning before using the dog, and that claims against the city for an alleged policy authorizing use without verbal warnings could be pursued. The individual officers, however, were entitled to qualified immunity, since there was no prior clearly established law on the subject.

     The appeals court rejected the plaintiff's claim that the use of a properly trained police dog is deadly force. It found, however, that a jury could properly find it objectively unreasonable to use a police dog trained in the bite and hold method without first giving the suspect a warning and opportunity for peaceful surrender. While there "may be exceptional cases where a warning is not feasible," the court stated, "we see no reason why, in this case, the officers would not have placed themselves out of harm's way," and given "a loud verbal warning that a police dog was present and trained to seize by force."

     The appeals court quickly rejected, however, the argument that the use of a police dog trained only in the bite and hold method was objectively unreasonable, or that it was objectively unreasonable for one of the officers to require the plaintiff to release his hold on the dog and raise his hands, as the officer was ordering, prior to calling off the dog.

     The court found that "police dogs serve important law enforcement functions," and that there are "innumerable situations where the use of a properly trained and utilized police dog, even one trained only in the bite and hold technique, will not result in physical interaction with the suspect, most obviously because the dog remains on a leash until his handler releases him."

     The court refused to presume that officers "will abuse their discretion" in regards to using only that amount of force necessary to effect a seizure. "In sum, the mere use of a police dog trained to bite and hold does not rise to the level of a constitutional violation."

     Additionally, while the suspect was "nearly naked" during the time the dog was biting him, wearing only underwear, the officer had reason to fear for his safety and the safety of other officers present. The suspect had engaged in "inexplicable flight from a minor traffic stop" and had chosen to swim through a swamp rather than encounter a police officer. While no gun was seen in the brief moments before the suspect fled, "given the totality of the circumstances," it was reasonable to be "wary" of what might be encountered when the officers found the suspect.

     The court found that the individual officers were entitled to qualified immunity on their failure to provide a verbal warning prior to releasing the dog, on the basis that the law on the subject was not previously clearly established. In light of testimony from the city's police chief, however, that everything done in the case was in accordance with the Department's policy, a jury could reasonably conclude that the city's policy on police dogs--"which authorizes the use of dogs trained only to bite and hold, and which did not mandate a verbal warning in this scenario--caused the constitutional violation." Claims against the city, therefore, could continue to be pursued.

     Kuha v. City of Minnetonka, No. 02-1081, 328 F.3d 427 (8th Cir. 2003).

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Sheriff's deputy had probable cause to arrest father for alleged rape of his teenage daughter despite her history of drug abuse and the discovery of a "to do" list she wrote which listed framing her father for "abuse (sexual or physical?)" as one of her "tasks." The daughter had reported the alleged rape within 24 hours of the incident, and medical evidence was consistent with a rape occurring within the reported time frame.

     A New York sheriff's deputy met with a 16-year-old girl who claimed that her father had come into her room at night and had forced himself on her sexually, penetrating her and then leaving. She stated that she did not believe that he ejaculated. She further stated that she then left the house, put a note with the word "rapist" on her pillow, and slept in a park the next two nights, making a phone call to report that she had been raped, and then going to stay at her mother's house.

     The girl admitted to the deputy that she had a history of using drugs, but claimed that she had not used any "for so many weeks or a month or something." The deputy did not believe she was then under the influence of drugs or alcohol. The deputy obtained medical records from a hospital where the girl had gone a day after the alleged rape, which contained reports of an examination finding evidence consistent with a recent sexual assault.

     The deputy subsequently questioned the father, who told him about his daughter's legal problems, such as a pending petty larceny charge, and also presented him with the "rapist" note and a so-called "to-do list" that he had found in his home three days before the alleged rape. This handwritten note, which was in the daughter's handwriting, stated a "to do list" which included:

Destroy "M" Files

Cause dad's computer to crash

Frame dad for Abuse (sexual or physical?)

     The deputy subsequently questioned the girl further. She admitted writing the "to do" list, but stated that she had written it "weeks prior" at a time when she "was upset with" her father. She acknowledged that her father had confronted her with the list when he found it, several days before the alleged rape. She also began to cry, stating that she was afraid that because of the note, "she would not be believed" about the rape.

     The deputy believed that it wouldn't make sense for the girl to go through making up a story that she had been raped, knowing that her father had the list in his possession, which he could use to discredit her allegations, stated that the father might have "felt that he could basically" rape the girl at that point and then say, "What do you mean? She's framing me. She said she was going to frame me," and then produce the note.

     He discussed with a prosecutor the question of whether it would be "advisable to seek" a "little bit of an impartial decision" from a grand jury. The prosecutor recommended instead that the father be arrested then. The deputy made the arrest when the father showed up at his daughter's next court appearance. The charges were later dropped after the daughter, then in a substance abuse program, admitted to a counselor that she had fabricated the entire story about being raped by her father.

     The father sued the deputy and the prosecutor for violation of his civil rights by false arrest and malicious prosecution. The trial court granted summary judgment to both defendants.

     The court found that the deputy had probable cause to arrest the father for rape on the basis of the daughter's accusation and the report from the hospital demonstrating that there was evidence of a sexual assault within the time period at issue. Once there is probable cause, the court noted, an officer is not required to explore and eliminate every "theoretically plausible" claim of innocence before making an arrest.

     In the alternative, the court found that the defendants were entitled to qualified immunity if it were found that probable cause did not exist, as they could have reasonably believed that it did under the circumstances, despite questions about the daughter's veracity based on her drug use and the "to do" list.

     The court also found that neither the deputy nor the prosecutor acted with actual malice as needed for a malicious prosecution claim under New York law, and noted that the prosecutor was no longer involved in the case at the time that the daughter recanted her accusation.

     Donovan v. Briggs, No. 01-CV-62071, 250 F. Supp. 2d 242 (W.D.N.. 2003).

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Attorney's arrest for accepting cocaine drugs from undercover officer in purported exchange for legal services did not violate his Fourth Amendment or due process rights. Prosecutor and officers were entitled to qualified immunity from liability for their arrangement of "sting" operation.

     An Iowa narcotics officer posed as a drug dealer and befriended an individual he was investigating for drug offenses. This individual suggested that the officer hire a particular attorney, who represented him, because the attorney accepted drugs as a payment for legal services, and had accepted such payments from him before. The undercover officer and a deputy sheriff later arrested this individual for a number of drug offenses, and together with a county prosecutor sought his cooperation in arranging an undercover sting operation against the attorney.

     The arrestee introduced the undercover officer to the attorney by telephone, stating that the officer had been charged with a crime in another county and needed the attorneys' legal services. The arrestee implied that the officer was affiliated with another man who had committed a notorious murder in a nearby county a month earlier.

     The undercover officer later called the attorney again, on the pretext of discussing the fake charge against him. He told the attorney that he owed the arrestee a big favor, and to settle it, wanted to pay his legal bills. He told the attorney he could come to his office and bring "half a Z" (slang for one half-ounce of cocaine) with him. He also asked the attorney if he knew what that meant and the attorney allegedly replied that he did.

     The undercover officer, dressed in leather and long hair, looking like a motorcycle gang member, went to the attorney's office with the cocaine and recorded the conversation. When the attorney told him how much the arrestee owed for legal fees, the undercover officer placed a bag of cocaine on the desk, and the attorney, after picking it up, untying it, and smelling it, told the undercover officer that it was worth six or seven hundred dollars off of the arrestee's total bill of $1360. They then discussed the future delivery of drugs to settle the rest of the bill, and the attorney kept the drugs when the officer left his office. Two officers then entered the office and arrested the attorney, who had the cocaine in his coat pocket.

     The attorney was charged with solicitation of a felony, and he was convicted. His conviction was reversed on appeal on the basis that there was insufficient evidence of "solicitation" because the attorney had merely responded to the officer's "invitation to accept drugs." Iowa v. Anderson, 618 N.W.2d 369 (Iowa 2000). In a footnote, the Iowa Supreme Court said,

[w]e do not mean to imply that the defendant committed no crime, only that, whatever offense he committed, it was not solicitation of a felony

     The attorney sued the prosecutor and officers, claiming that their actions amounted to false arrest in violation of his Fourth Amendment rights, and violation of his Fourteenth Amendment due process rights.

     A federal appeals court has upheld summary judgment for the prosecutor and officers on all these claims.

     It found that the prosecutor might not be entitled to absolute immunity for giving legal advice to the officers in the course of helping direct their actions, since that was more an investigative function than a prosecutorial function.

     The court found that there had been probable cause for the arrest. The fact that the conviction for the crime charged was later reversed did not negate that. It was uncontested that the arrestee had told the defendants that he had paid the attorney for legal services with drugs, and that it was his practice to accept drugs. This provided probable cause to believe that the attorney had committed a drug crime and would again.

     Under the circumstances, the defendants' initiation of an investigation was not a violation of substantive due process, and the arrest was not a violation of the Fourth Amendment, even if the prosecutor "chose the wrong charge to pursue."

     The appeals court also rejected the argument that the defendants' use of the arrestee, the attorneys' client, was improper or interfered with their attorney-client relationship. "The purpose of the attorney-client relationship is not to protect an attorney committing crimes."

     Anderson v. Larson, #02-2071, 327 F.3d 762 (8th Cir. 2003).

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Neither city nor officers were liable for arrest of father under a warrant intended for his son, who had the same name, for an incident that happened at the father's house. Son had refused, during questioning by officer, to provide his birthdate, address, or even name, so that subsequent issuance of warrant for the father at that address, while resulting in the arrest of the wrong person, was not caused by unreasonable conduct of the officer or any failure of the city to take particular precautions.

     A police officer went to a residence to investigate a stolen vehicle and drunken driving incident. On the night he went there, the son of the homeowner, James F. Noone Jr., who was named James F. Noone III, was present, holding a party there. He allegedly refused to provide information including his name, date of birth, and address. The officer issued a summons charging the son, "James Noone," with obstruction of justice. The son did not respond to the summons, so a municipal court issued a warrant for "James Noone" at the father's address.

     When the warrant was entered into a police department computer system, the computer identified the father, rather than the son, and two officers took the warrant and went to the house to arrest the father. The father allegedly told the officers that he was not even in town on the night of the complained of incident, and had never received a copy of the summons and complaint, so that the warrant was a mistake. Additionally, because he was expecting 150 guests in the next half hour, he requested that the matter be resolved "at a later date." The officers refused his request and placed him under arrest. He was detained for one hour before posting bail in the amount of $175.

     The following year, when the father held his annual "Night in Venice" party, officers entered the premises without a warrant when they allegedly witnessed underage drinking and received reports of noise ordinance violations. The father was neither arrested nor issued a summons or citation, but later in the evening, persons associated with the party were arrested for underage drinking.

     The father filed a federal civil rights lawsuit over both incidents, asserting claims for false arrest under the warrant and violation of his Fourth Amendment rights in the warrantless entry into his home the following year.

     Upholding summary judgment for the defendants, a federal appeals court found that the arrest did violate the father's Fourth Amendment rights because it was made under an erroneously issued warrant. At the same time, the individual officer defendants were entitled to qualified immunity since it was reasonable, under the circumstances, for them to assume that the father was the person named in the warrant. They had no reason to know that the person sought was actually the son, in light of the two individuals having the same name, although different birth dates, and the incident at issue having occurred at the father's residence.

     Additionally, as to the police sergeant who attempted to question the son at the house, his failure to do more to attempt to ascertain the correct birthdate for the suspect to be charged was, at most, negligence, so he could not be held liable for the issuance of the warrant in the manner which occurred. The court noted that the son was "totally uncooperative" and gave him no address or birthdate information.

     The court also found no liability on the part of the city. "No reasonable safeguards have been identified" that the city could have "instituted to protect against the type of error that occurred here." The form of summons provided for a defendant's name, address, social security number, and date of birth. The city did not "employ a design" where a slip of the finger could result in wrongful arrest and imprisonment.

     The court also found that exigent circumstances justified the warrantless entry onto the plaintiff's property after underage drinking and violation of a noise ordinance were believed to have been observed.

     Noone v. City of Ocean City, No. 01-4072, 60 Fed. Appx. 904 (3rd Cir. 2003).

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California county's ordinance banning the possession of firearms on county property did not violate the First Amendment rights of gun show promoters or improperly regulate commercial speech. State gun regulations did not preempt county's ability to regulate gun shows, and federal appeals court declines to address Second Amendment argument, finding that it involves a collective right to bear arms only assertable by the states, and not by individuals.

     The plaintiffs have been operating a business promoting gun shows at the Alameda County, California fairgrounds (among other places) since 1991. The fairgrounds are located on unincorporated county land. The exhibitors at the show include sellers of antique (pre-1898) firearms, modern firearms, ammunition, Old West memorabilia, and outdoor clothing. In addition, the show hosts educational workshops, issue groups, and political organizations.

     In August 1999, the county passed an ordinance making the possession of firearms, whether loaded or unloaded, illegal on county property. As a practical matter, this made it unlikely that a "gun show" could profitably be held there. The plaintiffs filed a lawsuit seeking injunctive relief, claiming that the ordinance was preempted by state gun regulations and that it violated the First Amendment's free speech guarantee.

     The federal trial court found it unlikely that the plaintiffs would prevail, and therefore denied a preliminary injunction. A federal appeals court certified the state law "preemption" issue to the California Supreme Court, which rejected the preemption argument in Nordyke v. King, 44 P.3d 133 (2002), at least as to the ability of counties in that state to regulate gun shows.

     Addressing the remaining federal law claims in the case, a federal appeals court found that the ordinance did not violate the First Amendment, and did not impermissibly infringe on First Amendment protected "commercial" speech. The appeals court also found that it did not have jurisdiction to hear a Second Amendment challenge that the plaintiffs attempted to assert against ordinance in question.

     While the court acknowledged that there had been occasions in which several rifles that were to be for sale at the gun shows in question were "decorated" with political messages, the vast majority of guns sold there did not bear any message whatsoever. Possession of firearms, by itself, is not commonly associated with expression. And most importantly, the ordinance was not directed specifically at either expression or conduct commonly associated with expression.

     Additionally, the county ordinance did not infringe on First Amendment protected commercial speech. While the inability to possess firearms on the fairgrounds may make the sale of guns there "more difficult" and even sometimes impossible, the act of exchanging money for guns was not "commercial speech." The ban on possession of guns on the fairgrounds, at most, interfered with the sales themselves, which were not commercial speech. The ordinance in question does not prohibit sales or offers to sell, only possession. (The plaintiffs would be free, therefore, to present material about the guns, or even to enter into actual otherwise legal sales, but could not have the guns there).

     The plaintiffs also attempted to challenge the ordinance on Second Amendment grounds. The Second Amendment provides, in its entirety:

A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

     The appeals court ruled that it did not have jurisdiction to hear the Second Amendment challenge because the plaintiffs lacked standing to sue for a Second Amendment violation. The court reasoned that the Second Amendment guarantees a collective, not an individual right, so that it is a right that only the states may assert.

     Nordyke v. King, #99-17551, 319 F.3d 1186 (9th Cir. 2003).

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

     Editor's note: Another federal appeals court has disagreed with the Ninth Circuit's "collective rights" approach, holding that the Second Amendment "protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms." United States v. Emerson, 2270 F.3d 203 (5th Cir. 2001).

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U.S. Supreme Court reverses federal appeals court decision that wounded suspect subjected to custodial treatment while being treated in a hospital for life threatening injuries, but who was never charged with any crime, could pursue damage claims for violation of his Fifth Amendment right against self-incrimination even though no statements he made were ever used against him in court. On remand, further consideration will occur of whether plaintiff may pursue a claim of liability for a substantive due process violation.

     A man blinded and paralyzed after an officer shot him in the eye and spine during a scuffle was being treated in a hospital emergency room and an officer present on the scene persistently attempted to interview him, despite pleas from both the injured man and his doctors to leave him alone. The injured man, in excruciating pain, reportedly begged the interrogating officer to stop questioning him, but the officer refused to leave and kept up the questioning for at least 45 minutes. The injured man admitted that he used heroin and had taken an officer's gun during the incident. He subsequently sued the officer for violating his federal civil rights, despite never having been charged with any crime.

     Rejecting the defendant officer's motion for summary judgment on the basis of qualified immunity, a federal appeals court stated that the question to be determined was whether "a police officer who conducts a coercive, custodial interrogation of a suspect who is being treated for life-threatening, police-inflicted gunshot wounds may invoke qualified immunity in a civil suit for damages under 42 U.S.C. Sec. 1983. Under the circumstances of this case, we hold he may not." The appeals court rejected the argument by the city that the officer did nothing wrong because the plaintiff never asked for an attorney.

     "In light of the extreme circumstances in this case," the appeals court stated, "a reasonable police officer" could "not have believed that the interrogation of suspect Martinez comported with the Fifth and Fourteenth Amendments. Accordingly, the district court did not err by holding that on these facts qualified immunity was not available to Chavez to insulate him from Martinez's civil rights suit for damages."

     The appeals court ruled that the police officer's conduct "actively compelled and coerced" a plaintiff to utter statements that he "could reasonably believe might be used in a criminal prosecution or lead to evidence that might be so used." The appeals court found that even though, in this case, the statements were not used against the suspect in a criminal proceeding, the "coercive questioning" violated his Fifth Amendment rights. "Likewise, a police officer violates the Fourteenth Amendment when he obtains a confession by coercive conduct, regardless of whether the confession is subsequently used at trial." And the due process violation is "complete with the coercive behavior itself." Martinez v. City of Oxnard, No. 00-56520, 270 F.3d 852 (9th Cir. 2001). [PDF]

     The U.S. Supreme Court has now reversed, with a majority of the Justices rejecting the plaintiff's claim that he could pursue a claim for damages for a violation of his Fifth Amendment rights against compelled self-incrimination even when his statements were never used in a criminal prosecution against him. A different majority of Justices ruled that the issue of whether the plaintiff may pursue a claim of liability for a substantive due process violation (i.e., whether the officer's conduct "shocks the conscience") should be further addressed on remand.

    Four Justices, Justice Thomas, Rehnquist, O'Connor, and Scalia, found that the officer did not deprive the plaintiff of his Fifth Amendment rights because "mere compulsive questioning" could not do so without the initiation of legal proceedings. These Justices pointed out that the government may compel witnesses to testify at trial, or before a grand jury, on pain of contempt, so long as they are not a target of the criminal case in which they testify, and that witnesses granted immunity may also be compelled to testify.

     Justice Souter, joined by Justice Breyer, indicated that he believed it was possible that the plaintiff's claim that his questioning alone was a violation of the Fifth and Fourteenth Amendments subject to remedy by an award of damages could be recognized if the failure to do so would place the "core guarantee" of the Fifth Amendment "or the judicial capacity to protect it" at risk. These Justices pointed to decisions of the Court citing the Fifth Amendment in barring compulsion to give testimonial evidence in a civil proceeding or a number of other circumstances. They also stated that, in this case, they did not believe that the plaintiff could make the "powerful showing" needed to "expand protection of the privilege against self-incrimination to the point of the civil liability he asks us to recognize here."

     These Justices stated that if obtaining the plaintiff's statement was to be treated as a "stand-alone violation of the privilege subject to compensation," it could be argued that the same would be true "whenever the police obtain any involuntary self-incriminating statement, or whenever the government so much as threatens a penalty in derogation of the right to immunity, or whenever the police fail to honor Miranda." The plaintiff, they commented, "offers no limiting principle or reason to foresee a stopping place short of liability in all such cases."

    Such a broad expansion of liability for purported Fifth Amendment violations, they reasoned, is not needed, and instead suggested that in cases such as the plaintiff's, it was perhaps more appropriate to examine whether police conduct was outrageous enough to shock the conscience and therefore violate the due process clause of the Fourteenth Amendment. Justices Stevens, Kennedy, and Ginsburg joined them in approving the idea of examining the due process claim in the case more closely on remand.

     Chavez v. Martinez, 123 S. Ct. 1994 (2003).

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Sheriff's office was not entitled to the dismissal, with prejudice, of a pedestrian's claim for injuries arising out of being struck by the side mirror of a patrol car based on a videotape showing her performing tasks that she denied, in a deposition, being able to do because of her injuries.

     A woman claimed that, while a pedestrian, she was struck in the arm by the side-view mirror of a patrol car driven by a deputy sheriff. At trial, she presented evidence that she sustained a severely fractured right arm, resulting in nerve damage, continuing partial loss of function, and pain in the arm and hand caused by Reflex Sympathetic Dystrophy.

     At trial, the jury evaluated her damages to be $235,000 and assessed fault at 53% to the pedestrian and 47% to the sheriff. The trial court granted a new trial which was requested by both parties.

     Before the new trial, the sheriff arranged for surveillance videos to be made of the plaintiff. He then scheduled her deposition, at which she was asked about her ability to perform certain tasks that the sheriff knew were performed on the videos. She denied being able to do a number of them. The trial court viewed the videotape and reviewed the deposition testimony and found the discrepancies "constituted fraud on the court" and ordered the case dismissed with prejudice.

     The trial court found most telling her denial of the ability to close a car door with her right hand and to sweep her driveway, which the videotape displayed her doing.

     An intermediate Florida appeals court ruled that the dismissal with prejudice was an abuse of discretion.

     Viewing the facts before the court, the opinion states that the plaintiff "either knowingly perpetrated a fraud, exaggerated her injuries, or unknowingly provided video evidence that her injuries are far less severe than she may believe." Only the first of these three possibilities, the court found, would support the dismissal of all her claims with prejudice.

Trials result from factual disputes. In these disputes, the facts on one side are, at best, less true and, at worst, false or fraudulent. In nearly every intersection collision, there is only one person with the right of way. Is the fact that both drivers believe they had the right of way the result of fraud? If there are ten eyewitnesses to the collision and all agree driver A had the right of way, does that make driver B's claim fraudulent and subject to dismissal?

     In the immediate case, the appeals court found, there was no "clear and convincing evidence" that the plaintiff had purposefully put into play a "scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party's claim or defense."

     The appeals court found that this was not a case in which the plaintiff "suffered no injury." Instead, the question was the "severity of her injury." The existence of video evidence that she is capable of performing tasks which she has denied being able to do "lessens her credibility and the damages to which she may be entitled," but the jury "should evaluate this evidence." The power to resolve disputes over the truth or falsity of claims "belongs to a jury."

     Jacob v. Henderson, #2D01-5718, 840 So. 2d 1167 (Fla. App. 2003).

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

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In case where elderly couple challenged the validity of search warrant for their home, defendants could be required to either produce a confidential informant for an "in chambers" deposition, to reveal his identity, or to convince the court that, for reasons of safety, his identity need not be revealed. In the alternative, the defendants could be barred from presenting any evidence at trial based on the alleged existence of the informant.

     An elderly husband and wife sought damages for false arrest, false imprisonment, assault and battery, and violation of their civil rights after a drug raid on the home. The raid was based on a search warrant based in part on information purportedly obtained from a confidential informant. In connection with their claims, the federal magistrate ordered the city to produce the informant for an "in-camera" (in chambers) deposition with only lawyers present, without disclosing the identity of the informant, for the purpose of questioning him solely as to what house he went into for the alleged drug buy and what he told the officers about that location.

     The city produced the informant in court, but before the beginning of his deposition, the parties reached a proposed settlement agreement and the deposition was not conducted. The settlement later failed, and the plaintiffs again sought to depose the informant, either by having him produced for an in-camera deposition again, or else by having the defendants provide his full name, social security number, previous and last known addresses, and locations of recent hospitalizations, in order to locate and depose him.

     The court has again ordered that the informant be produced.

     "In the present case, a determination that the CI [confidential informant] did not exist would have significant ramifications for plaintiffs' claim." The plaintiffs claimed that the search warrant was executed on the wrong house and was obtained through the "subterfuge of falsely claiming that the CI existed" on the part of a defendant police officer. Accordingly, the existence and credibility of the CI "goes directly to the issue of the integrity of the efforts used to obtain the search warrant."

     Any privilege about the identity of the informant "crumbles" if the governmental entity cannot prove that the CI is living. In this case, the defendants have stated that after extensive efforts, they are now unable to locate him. "If this be the case," the court commented, then "the defendants cannot invoke the informer's privilege," but instead must produce the formerly privileged information.

     The court did further state that, under circumstances where the safety of the informant is in question, there may also be an "in-camera" hearing to determine whether the informant's identity must be disclosed.

     In the absence of presenting the informant, revealing his identity, or successfully convincing the court that his identity need not be disclosed, however, the defendants might, as a sanction, be barred from presenting any evidence at trial based on, or arising from, the alleged existence of the informant.

     Smith v. City of Detroit, No. 01-70740, 212 F.R.D. 507 (E.D. Mich. 2003).

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Police officers' failure to arrest minor intoxicated motorist results in $1.14 million award against officers and municipality for the subsequent death of his passenger in a vehicle accident. Intermediate Illinois appeals court rules that officers, once they had grounds to believe minor was violating state "zero tolerance" law, had no discretion but to enforce the law, preventing him from driving after having consumed alcohol. Their "willful and wanton" failure to do so placed the case outside of the immunity normally granted from liability for failure to make an arrest.

     An Illinois state court jury awarded $1.14 million against officers and the municipality which employs them for the death of a 16-year-old passenger riding in a vehicle driven by a 19-year-old intoxicated motorist. The officers stopped the vehicle and issued traffic citations to the driver. The passenger's estate contended that the officers knew or should have known that the driver, a minor, was intoxicated, but allowed him to retake control of the vehicle and drive on. Approximately seventeen minutes later, the driver lost control of the vehicle and struck a tree, causing slight injuries to himself and fatal injuries to the passenger

     The passenger's estate sought damages for wrongful death, for the passenger's pain and suffering prior to death, and for his medical and funeral expenses. The lawsuit initially also named the 19-year-old driver as a defendant, but he was dismissed from the case, over the objection of the other defendants, in exchange for a settlement for the limits of his $20,000 insurance policy. The jury's verdict of $1.8 million in favor of the estate was reduced by 35% due to the passenger's own negligence, so that a $1.14 million award was entered by the trial court.

     An intermediate Illinois appeals court upheld this result, rejecting the defendant's argument that they were immune from liability under the Illinois Local Government and Governmental Employees Tort Immunity Act, 745 ILCS 10/4-102 and 10/4-107. These statutes provide that "a public employee is not liable for his act or omission in the execution or enforcement of any law unless such act constitutes willful and wanton conduct," and that "neither a local public entity nor a public employee is liable for an injury caused by the failure to make an arrest."

     The appeals court agreed that the evidence presented was sufficient to support a finding that the officers had acted in a willful and wanton manner in allowing the minor driver to drive on if they knew or should have known that he was intoxicated.

     The driver of the vehicle was shown to have had a strong smell of alcohol coming from his breath and pores when he was brought to an emergency room after the accident, and had a blood alcohol concentration of .204. There was testimony that a person with more than .2 blood alcohol concentration "could not mask the signs of intoxication," and that the driver's intoxication would have been noticeable to a casual observer.

     Once the officers had sufficient probable cause to conduct the field sobriety tests on the driver, the court noted, "they had no discretion" whether to enforce a zero tolerance law, 625 ILCS 5/11-501.8, which prohibits a minor under 21 from consuming alcohol and driving. Under that statute, if an officer stops an under-21-year-old driver and detects that the driver had consumed even one drop of alcohol, he is not supposed to allow him to continue driving, but instead, he has a duty to take the driver to the station for a breathalyzer test or to the hospital for a blood or urine test. After such a test, the person cannot be allowed to drive home, and instead may be turned over to a "reasonable sober" party to be taken home, or else taken into custody if appropriate. The zero tolerance provisions of the law provide for the summary suspension of the driving privileges of a driver under the age of 21 years who has a blood alcohol concentration of more than .00 but less than .10. Accordingly, even if the minor driver passed field sobriety tests, but there was reason to believe that he had consumed some alcohol, the officers were still supposed to prevent him from driving further and process him for summary suspension of his driving privileges.

     The court found that the officers acted in a willful and wanton manner, defeating the normal immunity for failure to make an arrest, and in violation of the duties imposed by the zero tolerance law.

     The court also rejected the argument that the officers and municipality were entitled to have the jury apportion fault to the dismissed defendant, the intoxicated driver. It found that the plain language of a state statute on the subject allowed the jury to apportion fault "among the parties who remained in the action."

     Ozik v. Gramins, #01-00-3280, ___ N.E.2d __, 2003 Ill. App. Lexis 846.

    »Click here to read the decision on the Internet. (.html format). Also available in Microsoft Word format.

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     Training Memo: We are please to be able to make available to our readers a training memo on this important case, "Strict Liability" for Failure to Arrest under the Zero Tolerance Law, prepared by AELE Director Richard N. Williams. Mr. Williams is Corporation Counsel of Hoffman Estates IL and former associate counsel, N.U. Traffic Institute. This memo, drafted for the use of the Hoffman Estates Police Department, may be reproduced and distributed, but not for commercial gain.

Allegedly coercing a woman facing cocaine charges into performing oral sex for money with another police officer as part of a sting operation to arrest the officer on soliciting for prostitution charges may have been a battery and violated the woman's due process rights. Federal appeals court holds, however, that officer who allegedly fraudulently threatened woman with 40 years sentence if she did not cooperate was entitled to qualified immunity, since it would not have been obvious to a reasonable officer that this violated her constitutional rights. Sting operation against officer did not violate his rights.

     A police officer was suspected of involvement in a number of criminal frauds. A woman who had had a sexual relationship with him, which ended a month before, was being investigated for participation in a cocaine offense. Officers allegedly decided that they should use the woman in a "sting" operation to arrest the officer.

     They allegedly told her that she was facing 40 years in prison on the cocaine charge unless she agreed to help them "nail" the officer. They discouraged her from consulting with a lawyer, and asked her whether she had ever received money from the officer after having sex with him. She stated that she had, once, received money from him after sex to get her nails done. The officers allegedly requested that she have oral sex with the officer for money, so that they could charge him with soliciting a prostitute.

     She agreed, and they wired her for the encounter, and also gave her a napkin, instructing her to spit the officer's semen into it to provide physical evidence of the sex act. She performed oral sex on the officer in his patrol car and asked for and received $17 to do her nails. She also preserved the semen as she had been instructed. The officer was arrested and charged with soliciting a prostitute, and other charges, but these charges were subsequently dropped, apparently because the state's witnesses, including the woman, refused to cooperate further. The police department, however, did fire him.

     The woman was not charged with any offense, either prostitution or sale of cocaine.

     The former officer and the woman both sued the principal officer who organized the sting operation, claiming that their constitutional rights were violated. The federal trial court granted summary judgment in favor of the defendant officer.

     A federal appeals court has upheld this result.

     It ruled that it could "deal quickly" with the former officer's claims. "Stings are not illegal or even disreputable," and there was reason to believe that the former officer had paid the woman for sex in the past. Based on the evidence collected, including the recording of the encounter and the semen in the napkin, there was probable cause to arrest him.

     The appeals court found the fact that the woman had asked him "for money for her nails" was irrelevant. "Prostitutes, like other people, seek income in order to purchase goods and services. It is not a defense to prostitution for the prostitute to say, 'my fee is $100 and I plan to use it to buy milk for my children.'"

     The appeals court acknowledged that there was "some evidence of hostility" to the former officer on the part of other officers because he is black but has had white girlfriends, but the evidence was clear that the "reason the department was out to get him was a well-founded suspicion that he had engaged in a variety of illegal acts, most of them more serious than paying for oral sex." He "would not have had sex" with the informant had he known she was trying to "set him up for an arrest, but the fact that he was tricked into having sex is not a defense."

Nothing is more common in the investigation of victimless crimes such as prostitution than to pose a police officer (or, as here, a cooperating witness) as a prostitute. Such trickery does not violate any constitutional right of criminals.

     On the other hand, the appeals court found that coercing the woman to have sex with the former officer, "if that is the proper characterization of what happened here, is a more serious matter. But even if that violated her rights, it would not help him; he cannot complain about an infringement of the constitutional rights of another person."

     As to the female plaintiff's claims that the defendant officer's actions violated her due process rights, the appeals court noted that "sex procured by threats that the threatener has no legal right to make is a common form of rape," and that "this is a permissible characterization of the facts of this case as they are disclosed by the record to date, though a trial might cast them in a different light."

     The female plaintiff's claim was that she was induced by the defendant officer and his fellow officers to perform oral sex on the former officer by their threat to put her away for 40 years if she refused to cooperate. Given that she had no prior criminal record, and was never prosecuted for the cocaine offense even after she refused to cooperate further with the prosecution of the former officer, the court noted, "the threat may have been fraudulent."

     The suggestion that she was facing a possible sentence of 40 years was "extravagant," since the "small quantity" of cocaine she was alleged to have sold, the absence of conspiracy or aggravating circumstances, and her lack of criminal record could have rendered her guilty only of a class B felony for which the sentence is 10 years under Indiana law, with a possible reduction to 6 years if there are mitigating circumstances "as there were here."

     Accordingly, officers may have obtained her consent to sex by fraud, and if so that "was a battery." A false threat of lengthy imprisonment is a form of "coercion that can vitiate consent to sex and turn the sex into battery."

That [the defendant officer] did not intend to have sex with [her], that she had a prior sexual relationship with [the former officer], that she may think oral sex no big deal (some young people nowadays do not consider it "real sex" at all), that she did not consult a lawyer in order to obtain a realistic assessment of her exposure to criminal punishment, and that she did not express indignation (compare Isabella in Measure for Measure) at being asked to engage in sex for an ulterior purpose, are circumstances that neither singly nor in combination constitute a defense to battery, though they may be relevant to damages--as may, on the other side, be the fact that [her] agreeing to act as a prostitute "got out" and received media attention.

     While trickery and deceit is the "essence of the sting," and while "the sting is an indispensable method for detecting certain types of crime, such as public corruption," the court stated, "there are limits to the principle that condones deceit in law enforcement just as there are limits to most other legal principles."

     If the female plaintiff's evidence were believed, the court found, the elements of a serious battery committed by means of a fraud are present, and "this distinguishes the present case from one of permissible police trickery." The court stated that "inducing a confidential informant to engage in sex as part of a sting operation does not always give rise" to a federal civil rights claim, but in this case the allegation was that the informant, rather than willingly agreeing to engage in risky behavior in exchange for leniency, was "intentionally and indeed grossly deceived about the benefits and costs of the distasteful act in which she was asked to engage."

     Still, in the final analysis, the appeals court found that the defendant officer was entitled to qualified immunity from liability because of the lack of clearly established law.

The police did not rape [the female plaintiff] in the ordinary sense of the term "rape," or for that matter cause [the former officer] to rape her in the ordinary sense in which one would speak of A having caused B to rape C--nor have we found any "third party" rape cases. Characterization of the [defendant officer's] action as rape and hence battery required us to engage in a close and perhaps not entirely intuitive analysis leading to a conclusion likely to startle many police officers. Indeed, the plaintiff's lawyer himself barely hinted at the theory that we have adopted.

     The court found that it could not say that it would have been "obvious" to the average officer that the deceit employed in the case rose to the level of a constitutional violation, entitling the defendant officer to qualified immunity.

     Alexander v. Deangelo, #02-3124, 329 F.3d 912 (7th Cir. 2003).

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

     • Click here to read an article about the disciplinary aspects of this case in the Fire and Police Personnel Reporter.

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Administrative Liability: Supervision

     Man who spent fourteen years in prison following his conviction for sexually molesting his daughter before he was released based on the non-disclosure of certain items of evidence failed to show that sheriff and sergeant were aware or should have been aware of deputy's alleged creation of false testimony. Modahl v. County of Kern, #01-15669, 61 Fed. Appx. 394 (9th Cir. 2003).

Damages: Nominal

     Even though plaintiff was acquitted of murder charges, he could seek to recover nominal damages for alleged violations of his right to a fair trial resulting from police officers' and sheriff's investigators' alleged misconduct in concealing exculpatory evidence which should have been disclosed to the defense. Carroccia v. Anderson, #02C-3916, 249 F. Supp. 2d 1016 (N.D. Ill. 2003).

Defamation

     Police chief's statements calling a resident a "gang banger" were not "slander per se" because they did not accuse him of any specific criminal activity and could either refer to an actual member of a street gang or a "wannabe," which adds up to "nothing more than innuendo." Anderson v. City of Troy, #01-761, 68 P.3d 805 (Mont. 2003).

Defenses: Absolute Immunity

     Connecticut State Police officer was entitled to absolute judicial immunity from a lawsuit seeking damages under 42 U.S.C. Sec. 1983 for actions related to his performing a bail setting function assigned, under state law, to police officers. Government officials acting in a "judicial capacity" are entitled to absolute immunity, and the important question was the nature of the function being performed, not the identity of the person performing it. In setting $500,000 cash only bail for the plaintiff, who was arrested on a narcotics offense, the officer acted in a judicial capacity. Sanchez v. Doyle, No. 3:02CV0351 (JBA), 254 F. Supp. 2d 266 (D. Conn. 2003).

Defenses: Indemnification

     Illinois Supreme Court rules that counties are required to pay judgments entered against a sheriff's office in an official capacity whether the case was settled or litigated. Under Illinois law, a sheriff has the authority to settle and compromise claims against the sheriff's office. The court acted to answer a certified question of law submitted by the U.S. Court of Appeals for the Seventh Circuit in a case where the county attempted to contest an attempt to make it pay a $500,000 settlement entered into by a sheriff in a federal civil rights lawsuit after claims against the county were dismissed. Carver v. Condie, #97-2731, 169 F.3d 469 (7th Cir. 1999). Carver v. Sheriff of LaSalle County, No. 91108, 787 N.E.2d 127 (Ill. 2003).

Defenses: Qualified Immunity

     Officers were not entitled to immediate appeal from trial court's denial of their motion for qualified immunity when the denial was based on a finding that there were disputed material facts which concerned whether the officers had probable cause to arrest the plaintiff. Appeals court would not exercise jurisdiction over appeal when officers were not willing to concede the arrestee's version of the facts at issue. Jones v. City of Dayton, Ohio, No. 01-4165, 61 Fed. Appx. 183 (6th Cir. 2003).

Defenses: Statute of Limitations

     Arrestee's federal civil rights claims for an alleged unconstitutional stop, arrest, and use of force accrued on the date they occurred, so that his claims were time barred by a two year New Jersey statute of limitations. Wilson v. Healy, No. 02-1862, 63 Fed. Appx. 613 (3rd Cir. 2003). [PDF]

False Arrest/Imprisonment: No Warrant

     Man arrested under warrant based on confidential informant's information failed to show that the insertion of allegedly omitted details or the elimination of doubtful assertions would have "materially affected" the existence of probable cause for the arrest. Defendant city and officers were therefore entitled to summary judgment. Wychunas v. O'Toole, #Civ.A 301-0557, 252 F. Supp. 2d 135 (M.D. Pa. 2003).

     Police officers had probable cause to arrest man for murder after grand jury indicted him for the crime. A facially valid indictment from a properly constituted grand jury is "conclusive" on the question of probable cause for an arrest. Norman v. City of Bedford Heights, Ohio, #01-3870, 61 Fed. Appx. 129 (6th Cir. 2003).

Family Relationships

     Father could pursue federal civil rights lawsuit seeking damages for city's alleged failure to notify him of a hearing at which his parental rights were terminated. Claim was not barred by "domestic relations" exception to federal court jurisdiction, since he was not seeking the restoration of his parental rights or any other domestic relations award. King v. Commissioner and New York City Police Department, No. 00-9234, 60 Fed. Appx. 873 (2nd Cir. 2003). [PDF]

Federal Tort Claims Act

     U.S. government was not responsible, under Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 2680(a) for the alleged intentional misconduct of informants in a case where the indictment against the plaintiff for conspiring to transfer human organs from executed Chinese prisoners for human transplantation was dismissed. Such liability under the statute was not possible when the informants were not employees acting within the scope of their employment and were not investigative or law enforcement officials. Plaintiff also failed to show that the conduct of federal agents involved in the case fell outside the scope of the "operative discretionary function exception" to liability under the statute for law enforcement actions involving an element of discretion. Wang v. U.S., No. 02-6123, 61 Fed. Appx. 757 (2nd Cir. 2003). [PDF]

Firearms Related: Intentional Use

     County and officer could be sued under Florida law for injuries that bystander suffered when he slipped and fell when officer startled him by pointed a gun at him and yelling a him to freeze while conducting a prostitution "sting" operation. Officer's actions created a "foreseeable zone of risk" to the bystander and county was not immune from suit because his injuries were allegedly caused by the manner in which the police implemented their operation. Brown v. Miami-Dade County, No. 3D00-3540, 837 So. 2d 414 (Fla. App. 2001), order denying rehearing en banc (2003). [PDF]

Freedom of Information

     Civil liberties organization was entitled, under New Hampshire state "Right-to-Know" law, to disclosure of consensual photographs of people taken by police after they were stopped by officers but not arrested. Disclosure of photos did not violate individuals' privacy or create any inference about their involvement in crime and no personal or identifying information would be disclosed. Photos would be used for statistical purposes to seek to demonstrate any race or gender-based patterns in police decisions about whom to stop. New Hampshire Civil Liberties Union v. City of Manchester, #2002-177, 821 A.2d 1014 (N.H. 2003).

     Data collected by police department concerning police officers' traffic stops, conducted as a study to determined whether "racial profiling" was going on, was private personnel data not subject to disclosure under Minnesota statute, since it was collected to evaluate the performance of individual officers and determine whether to possibly reassign, retrain, or counsel them. Star Tribune v. City of St. Paul, No. C5-02-1931, 660 N.W.2d 821 (Minn. App. 2003).

Malicious Prosecution

     Dismissal without prejudice of loitering charge against defendant on the basis that the charging document was based on hearsay from an unidentified source was not a "favorable termination" of the charges sufficient to allow the pursuit of a malicious prosecution claim under New York law against the arresting officer. Neal v. Fitzpatrick, No. CV-6209-NG-WDW, 250 F. Supp. 2d 153 (E.D.N.Y. 2003).

     Plaintiff adequately alleged factual issues of whether county police officer knowingly presented false information in an affidavit of probable cause that resulted in a criminal complaint against him in retaliation for his opposition to the county's alleged discrimination against disabled persons. Douris v. Schweiker, No. 02-1749, 229 F. Supp. 2d 391 (E.D. Pa. 2002).

Medical Care

     Evidence was insufficient to support jury's award in favor of motorist claiming that officer was deliberately indifferent to his serious medical needs following a vehicle accident, as it did not support the conclusion that the motorist suffered from a cerebral edema. Trial court properly set aside jury's award of $50,000 in compensatory damages and $250,000 in punitive damages to the plaintiff. Best v. Town of Clarkstown, No. 02-7664, 61 Fed. Appx. 760 (2nd Cir. 2003). [PDF]

Negligence: Vehicle Related

     Woman who gave birth to a brain-damaged boy after a 1997 car accident with a police vehicle receives an $8.1 million settlement from municipality employing officer. Her lawsuit alleged that the officer was responsible for the accident. Lara v. Village of Barrington Hills, No. 98L4793, Circuit Court of Cook County, Ill., reported in Chicago Daily Law Bulletin, p. 3 (June 10, 2003).

Police Plaintiff: Privacy

     Police officers stated a claim against an arrestee for violating a Massachusetts state statute prohibiting unconsented to interception of wire and oral communications in alleging that he surreptitiously made a tape recording of his arrest, transportation, and booking. Gouin v. Gouin, No. CIV. A.2001-10890-RBC, 249 F. Supp. 2d 62 (D. Mass. 2003).

Procedural: Class Action

     In a class action lawsuit against a city and two of its officers, claiming racially discriminatory law enforcement practices, African-American advocacy organization would be permitted to withdraw as class representative when a civil liberties organization would continue to adequately represent the class. In Re: Cincinnati Policing, No. C-1-99-3170, 214 F.R.D. 221 (S.D. Ohio 2003).

Procedural: Police Records/Reports

     Newspaper was entitled to inspect police records relating to alleged police misconduct, including records relating to internal investigation, except for disciplinary letter issued by police chief to officer detailing findings of investigation. Letter was a "personnel record" exempt from disclosure under Massachusetts state public records law, but other documents relating to citizen's allegations of police brutality, including police reports, witness interview summaries, and internal affairs report were not "personnel records" protected from disclosure. Worchester Telegram & Gazette Corporation v. Chief of Police of Worcester, No. 02-P-1632, 787 N.E.2d 682 (Mass. App. 2003).

Property

     Federal appeals court rules that plaintiff could not pursue his federal civil rights claim seeking damages for the alleged taking of gems and money by law enforcement officers during the search of his home without first successfully setting aside his federal narcotics conviction that grew out of the search. The plaintiff was, in effect, challenging his conviction, claiming that he had tried to sell gems to the officers, rather than heroin, as they claimed, and that they stole the gems and framed him for the drugs. Under Heck v. Humphrey, 512 U.S. 477 (1994), a convicted criminal may not bringing a civil suit questioning the validity of his conviction until he has gotten the conviction set aside. Okoro v. Callaghan, No. 02-2033, 324 F.3d 488 (7th Cir. 2003). [PDF]

Search and Seizure: Home/Business

     Fire chief was entitled to qualified immunity that he issued a citation against the owner of rental properties for refusal to consent to a warrantless inspection of tenants' apartments. The alleged right of the owner, under the Fourth Amendment, to refuse to consent to the warrantless inspection intended to protect the tenants' safety, was not clearly established, so that a reasonable building or fire code enforcement official could have believed that the landlord had no right to refuse entry, so that he could be cited for obstructing access. Grimm v. Sweeney, #01-431, 249 F. Supp. 2d 571 (E.D. Pa. 2003).

Search and Seizure: Search Warrants

     Search warrant for search of home was valid, even if it did not have the magistrate's signature on it. The Fourth Amendment also did not require that the warrant name the person from whom the things sought would be seized, when it did name the place to be searched and what was being searched for. Sadlowski v. Benoit, No. 02-1365, 62 Fed. Appx. 3 (1st Cir. 2003).

     Federal agents did not violate the Fourth Amendment by conducting a search of a warehouse for machineguns under a warrant in which the description of the guns to be found and seized was contained in an affidavit which the court had ordered sealed. Agents left the warehouse owner a copy of the warrant, but not the affidavit, but did furnish a list of the guns seized, and the guns seized did not go beyond the scope of the description in the affidavit. Additionally, even if this action were found to violate the Fourth Amendment, the agents were entitled to qualified immunity under the circumstances because they could reasonably believe that the warrant, issued by the magistrate who ordered the affidavit sealed, was valid. Baranski v. Fifteen Unknown Agents of ATF, No. 3:01CV-398-H, 252 F. Supp. 2d 401 (W.D. Ky. 2003). [Editor's Note: The court also found that the plaintiffs could not assert a claim that their Fourth Amendment rights were violated because the agents allegedly violated portions of the provisions of 18 U.S.C. Sec. 924(d), which imposes certain restrictions on the seizure and forfeiture of firearms, since a federal statute cannot "create more restrictive constitutional rights upon official behavior than the constitutional amendments themselves." The court noted that the plaintiffs had not attempted to make a direct claim for violation of the statute, so it did not decide whether they could pursue a private right of action under the statute itself.]

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

     Annual Report: FBI Laboratory 2002 Annual Report (2003). [PDF]

     Article: A Four-Domain Model for Detecting Deception, An Alternative Paradigm for Interviewing," by Joe Navarro, M.A., 72 FBI Law Enforcement Bulletin, No. 6, pgs. 19-24 (June 2003). "Investigators can focus on four domains to help them detect deception during interviews." [PDF] Also available in .html format.

     Article: "Foreign Intelligence Surveillance Act, Before and After the USA PATRIOT Act," by Michael J. Bulzomi, J.D., Legal Instructor, FBI Academy, 72 FBI Law Enforcement Bulletin, No. 6, pgs. 25-33 (June 2003)."The FISA and USA PATRIOT Act provide oversight to law enforcement officers investigating terrorist and intelligence cases. Also available in .html format.

    Publication: How Police Supervisory Styles Influence Patrol Officer Behavior. National Criminal Justice Reference Service (6/2003), NCJ 194078. PDF File ASCII Text File

     Publication: Hiring and Retention Issues in Police Agencies: Readings on the Determinants of Police Strength, Hiring and Retention of Officers, and the Federal COPS Program. National Criminal Justice Reference Service (7/2003), NCJ 193428. PDF File

     Publication: Understanding Wireless Communications in Public Safety A Guidebook to Technology, Issues, Planning, and Management 2nd Ed. January 2003 The intention of this National Law Enforcement and Corrections Technology Center (NLECTC) guidebook is to help unravel the confusing issues, terms, and options surrounding wireless communications, particularly as it involves commercially available communications services. Originally published in 2000, the guidebook was updated in 2003 and is now available in electronic format. [PDF].

     Statistics: Preliminary Uniform Crime Report, 2002. FBI Uniform Crime Reporting Program. Released June 16, 2003.

     Reference:

• Abbreviations of Law Reports, laws and agencies used in our publications.
• AELE's list of recently-noted civil liability law resources.