CONTENTS

Family of mentally disturbed man who allegedly committed "suicide by cop" could not pursue California state law negligence lawsuit for wrongful death against city and officers following summary judgment for the defendants in their prior federal civil rights lawsuit. Appeals court also finds no violation of California state constitutional rights.

     A federal civil rights lawsuit against a California city and its police department officials argued that officers used excessive force in violation of the Fourth Amendment when they fired tear gas into a man's car, allegedly provoking "a confrontation with a mentally disturbed man that they should have known would lead to his inevitable death." A confrontation following the use of the tear gas did, indeed, result in his fatal shooting. Upholding summary judgment in favor of the defendants, a federal appeals court found the officers' actions to be a reasonable use of non-lethal force under the circumstances.  Bayer v. City of Simi Valley, No. 01-55736, 43 Fed. Appx. 36 (9th Cir. 2002), reported in the December 2002 issue of Liability Reporter.

     The decedent led the officers on a three-hour chase, disobeyed orders to desist, and shot at the officers, and was threatening to do so again at the time the tear gas was used. "It is reasonable for police, following four hours of armed standoff and failed negotiations, to use non-lethal force to extricate a subject who has shot at police and refuses to surrender."

     The surviving family then filed a state law negligence wrongful death complaint in California state court. They argued that the officers basically allowed the decedent to commit "suicide by cop," putting himself in a position that led to his death.

     A California intermediate appeals court has now held that the determination by the federal court, as a factual matter, that the officers acted in an objectively reasonable manner, barred the plaintiffs from pursuing their state law negligence claim for wrongful death.

     The appeals court also found that there is no available claim for damages to remedy an alleged violation of the due process clause of the California state constitution, Art. 1, Sec. 7(a). Given that the federal court previously found that the officers' refusal to allow family members to speak with the decedent was not a violation of their federal constitutional rights, and that the state appeals court found no viable claim for violation of the state constitution, it also concluded that there could be no recovery under a California statute providing for damages when constitutional rights are violated. Cal. Civ. Code Sec. 52.1.

     City of Simi Valley v. Superior Court (Bayer), No. B166917, 4 Cal. Rptr. 3d 468 (Cal App. 2003).

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Deputy sheriff's use of force in removing arrestee from his automobile, which allegedly caused injuries resulting in paraplegia, is found to be objectively reasonable when arrestee may well have been trying to retrieve a weapon or attempt to flee, and he did not outwardly exhibit "typical signs" of serious pain.

     A deputy sheriff stopped a vehicle suspected of containing two individuals who had committed an armed bank robbery, and engaged in an hour-long chase at speeds of up to one hundred miles per hour. The car eventually went out of control and crashed.

     At the scene of the crash, a deputy observed the driver attempting to escape from the vehicle. The second alleged robber was observed in the back seat of the vehicle, and the deputy observed him moving his hands around as though he was concealing an object, and feared that it might be a gun.

     The driver was arrested and subdued, and was not injured. A deputy entered the back of the vehicle to attempt to remove the second suspect and allegedly yanked, pulled, jerked and twisted his body "with a lot of force" to try to free him from the car. This suspect complained that he was stuck under a reclined seat and that the deputy was hurting him, but the deputy did not believe the pain to be severe, as the arrestee was not exhibiting any "typical signs" of serious pain. After about forty seconds, the deputy succeeded in removing the arrestee, but the arrestee was allegedly seriously injured. At some point during the course of the crash and arrest, this arrestee had been rendered a paraplegic.

     He sued the county and the deputy, claiming that the deputy used excessive force which resulted in his injuries.

     A federal appeals court found that the deputy acted in a manner which was objectively reasonable under the circumstances. The arrestee had allegedly been involved in an armed robbery, and was observed moving his hands as though concealing something. Even though he was not "actively" resisting arrest at the time, he had also demonstrated his willingness to put other lives at risk through participating in the high speed flight from the officers, and it could reasonably be believed that he was armed, and he "may very well have been trying" to get the deputy to back off so that he could retrieve a weapon or attempt to flee.

     Under these circumstances, the deputy's use of force was not excessive.

     Johnson v. County of Los Angeles, No. 02-55881, 340 F.3d 787 (9th Cir. 2003).

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Trial court properly awarded $44,044 in attorneys' fees to defendants in "frivolous, unreasonable, and groundless" lawsuit filed by woman prosecuted on misdemeanor charges after refusing to obey police officer's orders to leave city council meeting when he told her the chamber was filled to capacity. Plaintiff, who was released on her own recognizance after charges were made against her, was not seized, and no motive to punish her for expressing her opinions about a proposed airport expansion was shown. Attorneys' fee award served to help deter frivolous lawsuits.

     A woman in California regularly attended city council meetings to express her opposition to the expansion of an airport. At one meeting, a police officer told her she would have to leave because the chamber was filled to capacity. She did not leave however, and later addressed the council. The officer submitted a police report of the incident, an investigation followed, and a misdemeanor complaint was eventually filed, charging her with delaying or obstructing a police officer and trespassing. These charges were later dismissed in court.

     She then filed a federal civil rights lawsuit claiming that she had been prosecuted in retaliation for her exercise of her First Amendment rights. The trial court found this claim to be frivolous, and ruled that the plaintiff had not been "seized" by the officer's actions. It also entered an award of attorneys' fees in favor of the defendants in the amount of $44,044.

     A federal appeals court has upheld this result. It noted that the officer did not take her into custody during the city council meeting, but merely filed his report. She later appeared at the court and signed an own-recognizance release agreement. The appeals court rejected the plaintiff's argument that conditions imposed on her own-recognizance release pending trial on the resulting misdemeanor charge, such as a prohibition on her leaving the state without court permission and requiring her to make court appearances were sufficient to constitute a "seizure."

     Additionally, there was no evidence that the individual defendants had any retaliatory motive for the plaintiff's prosecution, or that her prosecution was instigated under any custom, policy or practice attributable to the city or any policy-making person associated with the city.

     Given the plaintiff's assertion of "frivolous, unreasonable and groundless" claims which she pursued "after this became clear," the appeals court also found that the award of attorneys' fees to the defendants was proper as a deterrent to frivolous lawsuits. The appeals court also noted that the award of $44,044 was substantially less than the $171,000 requested by the defendants "and supported by their filings." It accordingly found that the trial court did not abuse its discretion in determining the amount of attorneys' fees to award.

     Karam v. City of Burbank, No. 02-55954, 340 F.3d 884 (9th Cir. 2003).

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Deputy's use of a police dog to "bite and hold" an arrestee's arm for approximately one minute did not constitute the use of deadly force and it was not excessive force when suspect was wanted for a felony offense of fleeing from police by driving a car in "willful disregard" for the lives of others.

     A Washington state sheriff's deputy on patrol encountered a vehicle on the road which had a license plate registered to a different vehicle. Believing that this might indicate that the vehicle was stolen, he turned on his emergency lights and siren and signaled the driver to pull over, an order which was refused. The deputy followed the vehicle to a driveway, where a passenger was let out, and the deputy called for backup.

     Another deputy with a police dog arrived, and the deputies learned that the suspect lived in the house with his parents and was wanted for the felony of attempting to flee from police by driving a car with a "wanton or willful disregard for the lives of others." The deputy with the dog tracked the suspect across his parents' large rural property to some dense dark, wooded terrain.

     The deputy yelled that the suspect had five seconds to make himself known, or the dog would be sent to find him. When there was no response, the deputy released the dog and gave a command that directed the dog to search for the suspect and detain him by biting his arm or leg. The dog did so and the deputy heard the suspect scream, and he went into the woods in the direction of the scream, taking about 60 seconds to arrive where he could see the suspect. The dog was biting the suspect's upper arm, and the suspect appeared to be unarmed, so the deputy ordered the dog to release the suspect.

     The suspect was arrested and taken to the hospital with a severe injury, including a torn muscle and an injury that went as "deep as the bone." The arrestee sued the deputy and county, claiming that the use of the dog in these circumstances was an impermissible use of deadly force and constituted excessive force.

     Upholding judgment in favor of the defendants, a federal appeals court found that the use of the dog in this manner was not the use of deadly force, since it did not pose more than a "remote possibility of death" to the arrestee.

     The appeals court also found that allowing the dog to bite the suspect for approximately one minute, until the deputy could arrive where he was and determine that he was not armed and a threat to others, was not an excessive use of force under the circumstances, based on the felony offense for which the arrestee was wanted, the possibility that he posed an immediate threat to the deputies' safety, and the fact that the arrestee was actively resisting arrest or attempting to avoid arrest altogether by fleeing.

     Miller v. Clark County, No. 02-35558, 340 F.3d 959 (9th Cir. 2003).

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U. S. Supreme Court to review whether it violates the Fourth Amendment for a state law to require that a person identify himself to a police officer or else face arrest.

     The U.S. Supreme Court has agreed to review a case to decide whether it violates the Fourth Amendment or Fifth Amendment for a state law to force an individual stopped by a police officer under reasonable suspicion for investigation to identify himself or face arrest. The question presented is:

Do Fourth and Fifth Amendments bar state from compelling people to identify themselves during police investigation when someone has been seized upon less than probable cause?

     The case to be reviewed is a decision of the Nevada Supreme Court. A sheriff's deputy drove to the scene where a concerned citizen had observed someone striking a female passenger inside a truck. There, he spoke to the concerned citizen and was directed to a parked truck. When he approached the truck, he noticed skid marks in the gravel, suggesting the truck had been parked in a sudden and aggressive manner. He saw Larry D. Hiibel standing outside the truck and thought he was intoxicated based on his eyes, mannerisms, speech, and odor. Hiibel's minor daughter was in the passenger side of the truck. When the deputy asked Hiibel to identify himself, Hiibel refused. Instead, Hiibel placed his hands behind his back and challenged the officer to take him to jail.

     Hiibel allegedly refused the request that he provide identification or verbally provide his name no less than eleven times. The deputy placed him under arrest and he was later convicted of resisting an officer.

     The Nevada Supreme Court upheld the constitutionality of Nev. Rev. Stat. 171.123(3), which requires a person stopped under reasonable suspicion by a police officer to identify himself or herself. It concluded that the statute did not violate the arrestee's rights, because it does not violate the Fourth Amendment because it strikes a balance between constitutional protections of privacy and the need to protect police officers and the public. The court noted:

Judicial notice is taken that in the year 2000, fifty-one officers were murdered in the line of duty. These homicides occurred as follows: thirteen during traffic stops/pursuits, twelve during arrest situations, ten during ambushes, eight during responses to disturbance calls, six during investigations of suspicious persons, and two during prisoner transport. Of the suspects who committed these killings, twenty had been previously arrested for crimes of violence, nine had previously assaulted a police officer, and twelve were on probation or parole. Moreover, 15,915 officers were assaulted that year. If the officers referenced in these statistics had known the identity and history of their attackers prior to being assaulted or killed, perhaps some of these incidents could have been prevented.

Knowing the identity of a suspect allows officers to more accurately evaluate and predict potential dangers that may arise during an investigative stop. It follows that an officer "making a reasonable investigatory stop should not be denied the opportunity to protect himself from attack by a hostile suspect." For example, the suspect may be a former felon or wanted for an outstanding arrest warrant. Such persons pose a heightened risk of danger to officers and the public during investigatory encounters.

Additionally, if suspects are not legally required to identify themselves, what could an officer do if a suspicious person were loitering outside a daycare center or school? Perhaps that person is a sex offender. How are officers to enforce restraining orders? Or, how are officers to enforce curfew laws for minors without a requirement to produce identification? In these situations, it is the observable conduct that creates a reasonable suspicion, but it is the requirement to produce identification that enables an officer to determine whether the suspect is breaking the law.

     The Nevada Supreme Court also pointed to the current war against terrorism, and the fact that terrorists strive to hide their identities. "To deny officers the ability to request identification from suspicious persons creates a situation where an officer could approach a wanted terrorist or sniper but be unable to identify him or her if the person's behavior does not rise to the level of probable cause necessary for an arrest."

     The U.S. Supreme Court's decision in this case will be reported on in a future issue of this publication.

     Hiibel v. Dist. Court., No. No. 38876, 59 P.3d 1201 (Nev. 2002), cert. granted, Hiibel v. Sixth Judicial Dist. Ct., No. 03-5554, 2003 U.S. Lexis 7710 (Oct. 20, 2003).

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Failure to provide a woman with a judicial hearing on probable cause until 72 hours following her warrantless arrest on drug charges violated her clearly established Fourth Amendment rights, so that defendants were not entitled to qualified immunity, and the arrestee's alleged involvement in an ongoing drug investigation was not an extraordinary circumstance that could justify the delay. But officers' conduct in transporting and detaining the arrestee's two-year old daughter along with the arrestee while she cooperated with attempting to make a controlled drug purchase was not a clearly established civil rights violation.

     An undercover police narcotics investigator was instructed to arrest certain individuals on drug charges on the basis of past investigation, to seek their cooperation in additional drug purchases, and to take these individuals to a motel rather than the police department or county jail, in order to avoid tipping off potential targets of this "buy-bust" operation. One woman was arrested after being found in possession of crack which she was smoking. The officer told her to pack a bag and he then drove her and her two-year-old daughter to a motel.

     She remained at the motel with her daughter for the next twenty-four hours, during which time she cooperated with the authorities by arranging a drug purchase. She was later taken to the police department for processing, and her daughter was then released to a friend. Over forty-eight hours later, the woman was arraigned on drug trafficking charges, and she later pled guilty to two counts of trafficking in cocaine.

     The arrestee and her minor daughter brought a federal civil rights lawsuit claiming that this chain of events violated their constitutional rights. The trial court granted the defendants' motion for summary judgment and dismissed all of the plaintiffs' claims.

     Reversing in part, a federal appeals court found that the defendant law enforcement officials were not entitled to qualified immunity on claims that they violated the arrestee's rights by failing to provide her with a judicial determination of probable cause on her arrest until 72 hours after her arrest. The court rejected the argument that her participation at that time in the ongoing narcotics investigation, in helping police arrest additional persons by arranging another drug purchase, constituted "extraordinary circumstances" justifying the delay.

     While a delay of over 48 hours in providing a judicial determination of probable cause after a warrantless arrest is not per se unconstitutional under County of Riverside v. McLaughlin, 500 U.S. 44 (1991), after that time period, the government bears the burden of demonstrating "the existence of a bona fide emergency or other extraordinary circumstance" that led to the delayed probable cause determination.

     In this case, even from the time that the arrestee was taken from the motel and placed in jail, she was made to wait more than 48 hours for her hearing at which a magistrate found probable cause. At this point, there was no way in which her participation in the ongoing investigation prevented the defendants from complying with the 48-hour rule in County of Riverside.

     The court ordered further proceedings to determine what responsibility, if any, the undercover investigator and the police chief had for the delay, and to determine whether there were grounds for asserting that the city's inadequate training was a cause of the delay.

     At the same time, the appeals court found that the conduct of officers in detaining and transporting the arrestee's two-year-old daughter with her to the motel was not in violation of "clearly established law" in circumstances when the officers believed that it was "inappropriate" to separate the child from her mother. Even if this action were ultimately determined to violate the Fourth Amendment or substantive due process rights, as the plaintiffs argued, the law did not clearly prohibit what the officers did, so they were entitled to qualified immunity on claims arising from the daughter's detention and transportation.

     Cherrington ex rel. Cherrington v. Skeeter, No. 01-3637, 344 F.3d 631 (6th Cir. 2003).

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Police officers were not entitled to qualified immunity for allegedly arresting and using excessive force against civil rights activists who attempted to make video and audio tape records of their traffic stops in retaliation for their criticism of police. Plaintiffs had a clearly established First Amendment right to criticize and journalistically record traffic stops.

     Two Kansas men claimed that the city, a number of its police officers, and a state prosecutor violated their First, Fourth, Fifth and Fourteenth Amendment rights during and after their arrests in July of 2002 and at various other times. The two men, who are civil rights activists, verbally protested and/or recorded police activity in Lawrence, Kansas, specifically traffic stops, on numerous occasions. One plaintiff did so on approximately fifty occasions, and claimed that on at least twenty of those occasions, police officers retaliated against his verbal challenges and protests by threatening arrest.

     On July 13, 2002, the two men witnessed a traffic stop initiated by one of the defendant officers, and began protesting the stop and recording it with a camcorder from the parking lot of a McDonald's restaurant. One officer responded by directing two spotlights at them, attempting to thwart efforts to videotape the traffic stop. One of the Plaintiffs repeatedly changed his position to avoid having his camcorder "blinded" by the spotlights, but the officer each time redirected the spotlights at him.

     The two men then moved to a public sidewalk twenty feet from the traffic stop and were allegedly threatened with arrest if they "interfered." When one of them asked whether that was "a threat to arrest me?," one of the officers allegedly placed him under arrest. Two officers then allegedly physically seized the plaintiffs and used excessive force against them, placing them under arrest for obstruction of legal duty.

     The officers took possession of a camcorder and an audio recorder and later searched the devices and their tapes without consent, a warrant, exigent circumstances or probable cause to believe that the devices were contraband or evidence of a crime, the plaintiffs argued.

     A federal trial court rejected the argument that the defendant officers were entitled to qualified immunity from liability on claims that they violated the plaintiff's First Amendment right to free speech, arrested the plaintiffs without probable cause, or used excessive force against them. It found that the plaintiffs had a clearly established right to criticize and journalistically record traffic stops, and that if the officers took the alleged action in retaliation for the plaintiffs' exercise of these rights or in order to chill their exercise of them, it would be a violation of clear constitutional rights.

     The court also found that the pleaded facts suggested that the plaintiffs were not "interfering" with the traffic stop when an officer allegedly threatened to arrest them and then did so, but rather simply engaging in their protected right to criticize police conduct, and that an officer used force in a manner which was "rude, aggressive, and violent," in a manner maliciously and deliberately inflicting "excruciating pain," such as driving his knee into a plaintiff's back repeatedly while the activist was face-down, handcuffed, and helpless on the ground, and that other officers watched but did not intervene.

     At the same time, the court also ruled that the plaintiffs had no reasonable expectation of privacy in their camcorder, videotape, micro-cassette recorder and micro-cassette tape searched by the officers, since they were publicly protesting police activity in a public forum. The officers were therefore entitled to qualified immunity on claims arising from the searches of the tapes.

     The court also allowed the claims against the city to proceed, finding that the plaintiffs had adequately alleged that the city had a pattern or practice of engaging in retaliatory actions against critics of police activity.

     McCormick v. City of Lawrence, 271 F. Supp. 2d 1292 (D. Kan. 2003).

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Officer's failure to give Miranda rights warnings to an arrestee before questioning him about whether he had a license for the gun that was discovered in plain view in his parked automobile did not violate the arrestee's Fifth Amendment rights and could not form the grounds for a federal civil rights lawsuit. Seizure of weapon from the passenger area of the auto for the purpose of ensuring the officer's safety also upheld as proper, and arrestee could not pursue a false arrest claim in the absence of any evidence that his conviction on charges of possession of a firearm by a convicted felon had been overturned.

     A Pennsylvania police officer observed a man sitting in a parked car. He asked the individual for his license and registration, and when neither could be produced, the officer and his partner told the man to get out of his car. One of the officers then grabbed the man, pulled him out of his vehicle, patted him down, handcuffed him, and placed him in the back of the patrol car. The other officer found a gun in plain view on the passenger side of the suspect's auto.

     This officer seized the gun, and asked the suspect if he had a permit for the gun, to which he replied that he did not. The suspect was given citations for failure to have a driver's license, registration or insurance on his car and was charged with possession of a firearm by a convicted felon.

     While the arrestee's statement that he did not have a permit for the gun was later suppressed on the grounds that he had not been Mirandized, the weapon itself was not, since it was in plain view. The arrestee was ultimately convicted of the firearm possession charge. He then filed a federal civil rights lawsuit claiming that excessive force was used to arrest him and that his car was unlawfully searched without his consent. He also claimed that his Fifth Amendment rights were violated by the officer asking him whether he had a gun permit without first advising him of his Miranda rights.

     Granting summary judgment to the defendant arresting officer, a federal trial court found that the officer's failure to read Miranda warnings to the arrestee before questioning him about whether he had a license for the gun that was discovered in the car was not a Fifth Amendment violation, and therefore could not be the basis for a federal civil rights claim for damages. The court noted that since the arrestee's statements were suppressed at his trial, he was therefore not compelled to be a "witness against himself" in a criminal proceeding, in violation of his right against self-incrimination.

     The court also found that the officer, in seizing the gun from the passenger area of the car was "appropriate and lawful" under the Fourth Amendment, both as seizure of contraband within plan view, and as a search incident to a roadside stop conducted for the "sole purpose" of ensuring the officer's safety, and therefore also could not be the basis for civil rights liability.

     The court found no evidence of excessive use of force and also noted that, as there was also no evidence that the plaintiff's conviction for unlawful possession of the firearms had been set aside, he could not pursue his claim for false arrest.

     Mosley v. Yaletsko, 275 F. Supp. 2d 608 (E.D. Pa. 2003).

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Children of African-American woman shot and killed in drive-by shooting during 1960's period of racial unrest could not recover damages based on alleged obstruction by sheriff's office of efforts to investigate the shooting. Alleged interference, while "inexcusable" if true, was insufficient to constitute a claim for a violation of the right of access to the courts, since it would not have prevented the plaintiffs from filing a wrongful death lawsuit within the applicable statute of limitations.

     An African-American woman, the mother of the now-adult plaintiffs, was shot and killed on March 23, 1964 by four white men in Jacksonville, Florida during a drive-by shooting in a period of racial unrest. Two detectives in the sheriff's office later inadvertently obtained a confession, as well as the murder weapon, from one of the four men while investigating another crime, according to the plaintiffs. They allegedly brought the matter to the attention of the sheriff at the time, who assured them he would look into it, but shortly thereafter, he removed them from the investigation of the murder and they were reassigned.

     Four men were later indicted for the murder. One was tried separately and convicted of manslaughter, and the charges against the other three men were dropped, with the state citing insufficient evidence for trial. Years later, in March of 1996, one of the former detectives informed members of the decedent's family for the first time about the alleged interference by the sheriff's office in the investigation. The decedent's children filed a lawsuit in 2000 against the former and current sheriffs of the county, and the four men arrested in connection with their mother's death, alleging deprivation of their civil rights solely because of their race.

     The lawsuit claimed that the sheriff's office had obstructed legitimate efforts to investigate the death and conspired with the four criminal defendants to misplace and tamper with evidence, thereby depriving them of, among other things, their right of access to the courts to assert a wrongful death claim.

     They claimed that in addition to the removal of the two detectives from the investigation, just as they were close to solving the case, the sheriff's office failed to perform ballistics tests on the weapon recovered by the detectives, and failed to enter the murder weapon into evidence at the trial of the one man convicted. They also claimed that the alleged conspiracy was ongoing, based in part on the fact that neither the county sheriff or the county prosecutor has a file on the case and that no transcripts of the proceedings have been preserved.

     A federal appeals court upheld the dismissal of claims for denial of the right of access to the courts. It pointed out that the plaintiffs knew the identity of the four criminal defendants in the case in 1964, and that no actions of the sheriff's office interfered with their ability to bring a wrongful death claim against those four men at that time, within the applicable statute of limitations.

     The appeals court acknowledged that the right of access to the courts is a constitutional right, and that "interference with the right of court access by state agents who intentionally conceal the true facts about a crime may be actionable as a deprivation" of federal civil rights.

     There was no such denial here, however, the court concluded. The plaintiffs knew that their mother had been murdered, who the alleged perpetrators were, and that one of them had been convicted of manslaughter before the statute of limitations for a wrongful death suit expired.

Although access to the concealed evidence might have strengthened their case, the Chappell children do not allege that they were or would have been prevented from filing a wrongful death suit within the statute of limitations period, nor that the defendants' actions would have made such a suit inadequate, ineffective, or not meaningful.

     The case was therefore different from Ryland v. Shapiro, 708 F.2d 967 (5th Cir. 1983), the court stated, in which a decedent's parents allegedly did not know that a crime had been committed because the police had allegedly concealed their daughter's murder as a suicide, or a case like Bell v. Milwaukee, 746 F.2d 1205 (7th Cir. 1984), in which a family's attempt to seek redress for an individual's death was allegedly thwarted by the false representation by police that the shooting was in self-defense.

     In this case, the court commented, the death of the plaintiff's mother was "tragic," and the alleged conduct of the defendants, if true, was "inexcusable," and "sad reminders of the damage done to the integrity of our justice system and to our society by racial hatred and strife." But the facts alleged were insufficient to constitute a violation of the right of access to the courts, under applicable law.

     Chappell v. Rich, No. 02-10200, 340 F.3d 1279 (11th Cir. 2003).

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Officers' alleged actions of pressing their weight onto the neck and torso of a mentally ill detainee as he lay handcuffed on the ground and begged for air, if true, constituted an excessive use of force for which the officers were not entitled to qualified immunity.

     Police officers in California determined that a man who was unarmed and mentally ill should be taken to a medical facility for his own safety, but the manner in which they allegedly attempted to subdue and restrain him resulted in his falling into a coma from which "he has never recovered." A lawsuit on his behalf by his guardian claimed that the officers used excessive force.

     A federal appeals court, overturning summary judgment for the defendant officers, held that the force allegedly used would be excessive under the circumstances, and that the defendant officers were not entitled to qualified immunity.

     The man's fiancee called the police and informed them that he had a history of mental illness (bipolar disorder and schizophrenia), had run out of medication, and was hallucinating and paranoid. She asked the officers to help her take him to the hospital to receive medical assistance.

     Officers who responded to the call allegedly refused to take him into custody as they determined that he was not a danger to himself or others. The next night, officers returned, after a neighbor called them because he was afraid that the man was going to hurt himself by darting into traffic. The officers called for an ambulance to transport him, as he was hallucinating and in an agitated state, although unarmed.

     They then allegedly knocked him to the ground, and cuffed his arms behind his back as he lay on his stomach. Although the detainee offered no resistance, it was claimed, one officer put his knees into the detainee's back and placed the weight of his body on him. Another officer also put the weight of his body on him, except that he had one knee on the detainee's neck. One of the officers weighed approximately 225 pounds at the time.

     With the two officers leaning on his neck and upper torso, the detainee soon fell into respiratory distress. Two eyewitnesses later stated that the detainee repeatedly told the officers that he could not breathe and that they were choking him, but the officers continued to put their weight upon his back and neck. The officers were alleged to be laughing during these events, although they were "obviously causing" the detainee "to have trouble breathing."

     After approximately twenty minutes, the officers obtained a "hobble restraint," which they used to bind the detainee's ankles. One minute after the restraint was applied, he went limp, and the officers realized that he had lost consciousness. They then removed the handcuffs and hobble restraint and turned him over onto his back, attempting to perform CPR. While he was revived approximately seven minutes after losing consciousness, he sustained brain damage and fell into a coma, and is now in a "permanent vegetative state."

     The plaintiff's medical expert stated that the detainee "suffered a cardiopulmonary arrest caused by lack of oxygen to his heart," caused by his inability to breathe "caused by mechanical compression of his chest wall such that he could not inhale and exhale in a normal manner."

     Overturning summary judgment for the defendants, a federal appeals court found that the alleged actions of the police, if true, constituted excessive force under the circumstances. The detainee was unarmed, and was seized for purposes of transporting him to a medical facility, and there was no crime he was accused of. The detainee was likely to pose only a "minimal threat" to anyone after he was handcuffed, and he did not resist the officers after he was on the ground.

     The degree of force used was "severe," the court found, since it posed a risk of "compression asphyxia" which could cause serious injury or death.

     The appeals court also rejected the argument that the officers were entitled to qualified immunity for the alleged actions of continuing to press their weight onto the detainee's neck and torso as he lay handcuffed on the ground and "begged for air." A reasonable officer, the court found, should have known that such force was excessive. The court pointed to recent local newspaper articles concerning compression asphyxia in arrest, prior court cases which described the dangers of pressure on a prone, agitated, bound detainee, and training conducted by the officers' own department which warned of the danger of such tactics, including a training bulletin the police department issued to warn officers of the danger of "kneeling on a detainee's neck or back" almost one year before the incident that sent the detainee into a coma

     Drummond v. City of Anaheim, No. 02-55320, 343 F. 3d 1052 (9th Cir. 2003).

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Federal trial court declines to dismiss lawsuit against owners and those responsible for security for the World Trade Center (and airlines) for damages arising out of September 11, 2001 terrorist attack. Defendants had a duty to take reasonable security precautions in screening airline passengers, and in planning and implementing appropriate fire and security plans for World Trade Center. Failure to plan for foreseeable risks of harm, including terrorist attack, can be a basis of liability.

     Approximately 70 injured persons or family members of persons who died in the September 11, 2001 terrorist attacks sued a number of airlines, airport operators and security companies, and the owners and operators of the World Trade Center, seeking damages. Among the defendants is the New York Port Authority, which had responsibility for security of the World Trade Center.

     A federal trial court has rejected the defendants' motions to dismiss, finding that each of them owed some kind of duty of reasonable care to the injured or deceased plaintiffs, and to entities which suffered property damage during the attack.

     These duties included a duty to carefully screen passengers and items carried aboard airlines. The court found that the risk of airplanes crashing into the World Trade Center was within the foreseeable risks from failing to perform such screening. Additionally, those responsible for the World Trade Center itself had duties to reasonably plan for hazards such as fire in the building, even a fire which was caused by a terrorist attack. The court only granted a motion of an airplane manufacturer to dismiss products liability claims, and denied all other motions to dismiss.

     The court noted that airplane crashes are "not unknown" in residential areas, and also noted that the World Trade Center itself had even been the location of a previous terrorist bombing attack in 1993.

     As to the owners and agencies responsible for the security of the World Trade Center, the Plaintiffs asserted claims that they should be held liable because they:

1) failed to design and construct the World Trade Center buildings according to safe engineering practices and to provide for safe escape routes and adequate sprinkler systems and fireproofing; 2) failed to inspect, discover, and repair unsafe and dangerous conditions, and to maintain fireproofing materials; 3) failed to develop adequate and safe evacuation and emergency management plans; 4) failed to apply, interpret and/or enforce applicable building and fire safety codes, regulations and practices; and 5) instructed Tower Two occupants to return to their offices and remain in the building even while the upper floors of Tower One were being consumed by uncontrolled fires following the airplane crash into Tower One.

     In Re: September 11 Litigation, 21 MC 97 (AKH), 2003 U.S. Dist. Lexis 15522 (S.D.N.Y.).

     » Click here to read the text of the opinion on the Internet. [PDF]

     Editor's Note: For other information about this litigation, including prior rulings, see the court's September 11 litigation website at: http://www.nysd.uscourts.gov/Sept11Litigation.htm

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County's action in videotaping county correctional officer when he was escorted to a car to be transported to a police station for booking in a "perp walk" manner was a "seizure" under the Fourth Amendment, but his privacy interest in not having the videotape broadcast to the public is found to be outweighed by a legitimate governmental purpose in informing the public about efforts to stop abuse of disability benefits by its employees and to deter others from attempting similar crimes.

     In a previous case, a federal appeals court held that "perp walks"--parading arrestees for the sole purpose of having them photographed--violate the Fourth Amendment. Lauro v. Charles, #99-7239, 219 F.3d 202 (2nd Cir. 2000). In a more recent case, a panel of the same federal appeals court has ruled that the privacy interest an arrestee has in avoiding such publicity may be outweighed by legitimate governmental purposes in specific instances.

     The case involves a former county corrections officer who was arrested on charges of grand larceny for allegedly making an abusive claim for disability benefit. In making the arrest of this officer and others, the county allegedly videotaped them post-arrest, choreographed their arrests to facilitate videotaping, distributed the videotape to the media, and advised the media of their impending "perp walks" to the courthouse for arraignment.

    The arrestee contended that this violated his right to privacy, but the trial court held that this conduct did not violate his constitutional rights.

     A federal appeals court upheld this result. It acknowledged that the act of videotaping the arrestee while he was being escorted to a car in which he would be transported to the police station for booking was a Fourth Amendment "seizure," and that the creation and distribution of the videotape "implicated" the arrestee's privacy interests.

     But it also concluded that whatever privacy interests the arrestee had were outweighed by a number of legitimate government purposes for the dissemination of the videotape, including the informing of the public about the county's ongoing efforts to stop the alleged abuse of disability benefits by county employees, "enhancing the transparency of the criminal justice system," attempting to deter others from committing similar crimes, and informing the public about the arrest so that they could come forward with additional relevant information that could assist the law enforcement investigation. Summary judgment for the county and county officials was therefore upheld.

     Caldarola v. County of Westchester, No. 01-7457, No. 01-7457, 343 F.3d 570 (2nd Cir. 2003).

     » Click here to read the text of the opinion on the Internet. [PDF]

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Administrative Liability: Training

     City could not be held liable for alleged use of excessive force against arrestee on a theory of failure to provide adequate training when the alleged evidence of deliberate indifference was largely jury verdicts or settlements in a small number of excessive force cases after the incident in question. Even though the incidents which were the subject of these cases occurred before the plaintiff's arrest, there was no evidence that city policymakers knew or should have known, before her arrest, that officers were using excessive force to the point that additional training was required. Forbis v. City of Portland, 270 F. Supp. 2d 57 (D. Me. 2003).

Assault and Battery: Physical

     Disputed issues of fact as to whether plaintiff physically resisted arrest and whether officers "slammed" her into a car and kicked her in the ankle made summary judgment on her excessive force claims inappropriate. Minchella v. Bauman, #02-1454, 73 Fed. Appx. 405 (6th Cir. 2003).

Damages: Compensatory

     In lawsuit claiming that police officers failed to provide adequate medical care to arrestee, resulting in his death, jury engaged in improper speculation in awarding $3 million to decedent's children without evidence to support a finding that the economic value of the loss of his services, advice, and counsel was worth that amount, and therefore was set aside by trial judge. Separate award of $2.5 million to decedent's estate for his pain and suffering was not disturbed. Rosario v. City of Union City Police Department, 263 F. Supp. 2d 874 (D.N.J. 2003).

Defenses: Notice of Claim

     Arrestee who was mentally incapacitated was entitled to permission to file a late notice of claim in his false arrest, malicious prosecution, and unlawful imprisonment lawsuit against the city. The police department had all the essential facts about the case in its possession and the late notice would not result in any prejudice to the city in defending the case. Nunez v. City of New York, 762 N.Y.S.2d 384 (A.D. 1st Dept. 2003).

Defenses: Release Agreements

     Arrestee's agreement to release the city and police officers of civil liability in exchange for the dismissal of pending domestic violence charges against her was voluntary and enforceable, and there was no evidence of overreaching or prosecutorial misconduct in obtaining the release. Penn v. City of Montgomery, 273 F. Supp. 2d 1229 (M.D. Ala. 2003).

     Arrestee's release of "all" claims against town's chief of police could reasonably be interpreted as releasing claims against the police chief in his individual capacity. When a release does not specify the capacity in which a person is being released, it is reasonable to interpret it as including both their official and individual capacity. Taylor v. Windsor Locks Police Dept., No. 02-0100, 71 Fed. Appx. 877 (2nd Cir. 2003). [PDF]

Defenses: Sovereign Immunity

     Provisions of Administrative Procedure Act (APA), 5 U.S.C. Sec. 702, waived the federal government's sovereign immunity for purposes of a claim by a former Israeli citizen against the FBI director claiming that a purported 15-year pattern of constant surveillance and harassment violated his civil rights. The statute expressly waives sovereign immunity for any non-monetary relief sought against the government. The plaintiff claimed that the constant surveillance, allegedly because of his expression of "unpopular political opinions" about the Israeli-Arab conflict, resulted in rumors in the area that he was a "spy," individuals breaking into his home, hog-tying him, and severely beating him, and interfered with his ability to re-marry and procreate because the ongoing surveillance "scares away potential dates," as well as making it "nearly impossible to find employment." Raz v. Lee, No. 03-1420, 343 F.3d 937 (8th Cir. 2003). [PDF]

Defenses: Statute of Limitations

     Arrestee's malicious prosecution claim was barred by a one-year statute of limitations for claims against a municipality. The cause of action against the city accrued, and one-year time period began to run when the charges against the arrestee were first "stricken with leave to reinstate," not when the 160-day time period for reinstating the charges expired. Ferguson v. City of Chicago, #1-02-2463, 795 N.E.2d 984 (Ill. App. 1st Dist. 2003).

     Father's claim that he was falsely imprisoned in his hotel room by police who surrounded it and demanded, without justification, that he release his children, was barred by one-year statute of limitations when he failed to file lawsuit until two years and seven months had elapsed from the incident. Southern v. Jones, No. 2002-CP-01027-COA, 851 So. 2d 395 (Miss. App. 2003). [PDF]

Dogs

     Family could not recover damages for loss of consortium or intentional infliction of emotional distress based on county dog warden's shooting of their pet dog. Loss of "love and affection" from death of dog was not the kind of damages family could obtain under Kentucky state law, the shooting did not take place in front of the family, and there was no evidence that defendant intended, by his actions, to inflict emotional harm. Court also refuses to find a practice of destroying impounded dogs by shooting them inhumane, leaving such issues to be decided by the legislature. Ammon v. Welty, No. 1999-CA-001759-MR, 113 S.W.3d 185 (Ky. App. 2003).

False Arrest/Imprisonment: Warrant

     Officers had probable cause to arrest suspect under fugitive warrant even though his height was 7 inches taller than the description in the warrant, when the warrant appeared to be valid and exactly matched the arrestee's address, date of birth, and name. Johnson v. Kings County District Attorney's Office, 763 N.Y.S.2d 635 (A.D. 2nd Dept. 2003).

     State trooper had no duty to investigate arrestee's claim of innocence after she was arrested under a warrant for another person with the same last name and a similar birthdate, since his only job was to transport arrestee from one facility to another. Cleveland v. City of Detroit, 275 F. Supp. 2d 832 (E.D. Mich. 2003).

     Undercover narcotics investigator acted reasonably in arresting allegedly mentally incompetent child after he was identified as the person on a videotape selling cocaine to the officer. Arrest was made pursuant to a warrant issued after the suspect on the videotape was identified from a high school yearbook and school I.D., as well as by a high school assistant principal. Wilson v. Vickery, 267 F. Supp. 2d 587 (E.D. Tex. 2002).

First Amendment

     Motorist could not recover damages on her claim that state trooper wrote a citation against her to retaliate for her husband's accusations that he was mishandling an accident investigation. Court finds that husband's free speech was not "chilled" by the allegedly retaliatory issuance of the traffic citation, since the husband continued his argument with the trooper after the citation was issued, and also later complained about the incident to the trooper's superior. Persaud v. McSorley, 275 F. Supp. 2d 490 (S.D.N.Y. 2003).

Forfeiture

     Car owner whose vehicle was seized and subject to forfeiture proceedings after another person driving it was arrested for attempting to purchase marijuana could not pursue federal civil rights lawsuit asserting that the forfeiture was a violation of due process while the state forfeiture proceeding's direct appeal process was not yet complete. Loch v. Watkins, No. 01-1598, 337 F.3d 574 (6th Cir. 2003).

Governmental Liability: Policy/Custom

     Plaintiff in lawsuit alleging physical assault by unnamed sheriff's deputies failed to allege any facts sufficient to show a "pattern or practice" of such action by deputies sufficient to impose municipal liability. No other instances of such actions were alleged. Yates v. Unidentified Parties, No. 02-31224, 73 Fed. Appx. 19 (5th Cir. 2003). [PDF]

Malicious Prosecution

     Probable cause existed to arrest and prosecute plaintiff for harassment in allegedly faxing pictures with faces of a famous couple superimposed on the bodies of nude models based on many complaints made against him for allegedly faxing such photos, and his previous history of harassment of the famous couple [Marla Maples Trump and Donald J. Trump]. His federal civil rights claims were therefore properly dismissed. Jones v. Trump, #02-7650, 71 Fed. Appx. 873 (2nd Cir. 2003). [PDF]

Negligence: Vehicle Related

     Police officer was 100% at fault for collision with motorist's vehicle at intersection when, despite speeding to respond to a report of a sexual assault, he failed to activate his siren, making it impossible for the motorist to avoid the collision by the time she observed the officer's car during her left turn. Pope v. Prunty, No. 37,395-CA, 852 So. 2d 1213 (La. App. 2nd Cir. 2003). [PDF]

Police Plaintiff: Firearms Related

     Arresting officer's statement to booking officer that the arrestee's handgun had been confiscated at the arrest site, which turned out to be incorrect, was not a due process violation making him liable to the estate of a fellow officer shot and killed by the arrestee during the booking process with the handgun he had managed to retain during his arrest. Wouters v. City of Warren, No. 01-2642, 73 Fed. Appx. 87 (6th Cir. 2003).

Procedural: Discovery

     Officers who arrested a man after a 911 call reported shots fired are not required to submit voice exemplars on the basis of arrestee's claim that the officers made the call themselves to furnish an excuse to stop his vehicle and conduct a search, in the absence of any "substantial and credible evidence of wrongdoing by the police tending to exculpate the defendant." The court expressed its belief that "compelling the police to submit to procedures which inherently question their integrity should not be undertaken lightly and to do so based upon mere bald allegations or suppositions would undermine the public trust in the police and seriously undermine police morale." The case is evidently one of first impression (not previously decided) by a New York court as to whether voice exemplars are discoverable under these circumstances. The context of the decision is discovery in a criminal prosecution, not a civil lawsuit. People v. Blankymsee, 764 N.Y.S.2d 331 (Sup. 2003).

Public Protection: Arrestees

     Police officer was not liable for arrestee's drowning in nearby retention pond after he escaped from custody, since failing to handcuff or search the arrestee prior to escorting him to the car was no violation of his rights, and the officer had no intention of causing harm in allowing the arrestee to escape custody. Officer's alleged failure to rescue him from the pond was also no basis for liability, since there is no Fourth Amendment "right to be seized." Purvis v. City of Orlando, 273 F. Supp. 2d 1321 (M.D. Fla. 2003).

Public Protection: Crime Victims

     Nebraska Supreme Court overturns $300,000 award to woman assaulted in her home by a former boyfriend while he was on probation. No special relationship existed between crime victim and the state which gave rise to any specific duty to protect her from her former boyfriend. Bartunek v. State, No. S-02-710, 666 N.W.2d 435 (Neb. 2003).

Public Protection: Intoxicated Persons

     Police officers were entitled to qualified immunity on a claim that they violated the due process rights of a motorcyclist by ordering him to ride his bike away from a restaurant premises despite his allegedly intoxicated condition at the time. The officers exercised their discretion in good faith in making a determination as to the degree of his impairment at the time, and therefore were not liable for his subsequent death. Morris v. Johnson, No. A03A0111, 585 S.E.2d 375 (Ga. App. 2003).

Pursuits: Law Enforcement

     Further proceedings ordered on wrongful death lawsuit brought by estate of woman struck and killed by vehicle pursued by police in high-speed chase. Court finds genuine issues of material fact as to whether officer acted in a willful and wanton manner in chasing the suspect's car at high speed through commercial and residential suburban streets, knowing that the pursued vehicle was running stop signs and red lights, and whether it was reasonably foreseeable, under these circumstances, that a third party would be injured. Suwanski v. Village of Lombard, #2-02-0905, 794 N.E.2d 1016 (Ill. App. 2nd Dist. 2003).

Search and Seizure: Home/Business

     Seizure of old truck from residential property without a warrant or any exigent circumstances under the authority of an abandoned property ordinance, if true, would violate landowner's clearly established Fourth Amendment rights, so defendant city officials were not entitled to qualified immunity. Gould v. Symons, 275 F. Supp. 2d 843 (E.D. Mich. 2003).

     •Return to the Contents menu.

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

     Crime Victim Services: "Learning About Victims of Crime: A Training Model for Victim Service Providers and Allied Professionals" (September 2003) This bulletin summarizes training initiatives at the Denver Victim Services 2000 project site, including training programs for allied professionals in faith communities, law enforcement settings, and judicial and other legal settings. For the full document in .PDF format, click here.

     Crime Victim Services:  A new online Directory of Crime Victim Services is searchable by location, type of victimization, agency type, or available services.

     Disabilities: "First Response to Victims of Crime Who Have a Disability", presented by the Office for Victims of Crime (OVC), provides information to help law enforcement personnel respond in a sensitive and effective manner to victims of crime who have mental or sensory disabilities. It offers guidelines and tips for first responders called to serve such victims and includes a section for each disability. It also addresses two federal laws that prohibit discrimination against individuals with disabilities: the Americans with Disabilities Act of 1990 and Section 504 of the Rehabilitation Act of 1973. This handbook is available from the National Criminal Justice Reference Service (NCJRS) at 800-851-3420 and can be accessed electronically at http://www.ojp.usdoj.gov/ovc/publications/infores/firstrep/2002/welcome.html.

     Interrogation: "Civil Liability for Violations of Miranda," by Special Agent Kimberly A. Crawford, Legal Instructor, FBI Academy, 72 FBI Law Enforcement Bulletin No. 9, pgs. 28-32 (September 2003). [PDF] (Also available in .html format). "Law enforcement officers who conduct interrogations must maintain a full understanding of the complexities of Miranda law." 

     Juvenile Justice Resources: "Latest Resources From OJJDP Agency": Office of Juvenile Justice and Delinquency Prevention (56 pages, 2003). [PDF] [.HTML] Provides a comprehensive, easy-to-use guide to information available from OJJDP. Includes an overview of the kinds of publications and other information products OJJDP makes available, an annotated listing (arranged by topic) of all publications issued during 2001 and 2002, and a list of all titles published to date in OJJDP's many special bulletin series. Also presents other types of information available from OJJDP, including the JUVJUST listserv and the bimonthly newsletter OJJDP News @ a Glance.

     School Crisis Response: "School Crisis Response Initiative," (September 2003). This Office for Victims of Crime bulletin describes how trained school personnel and community members can provide students with triage, counseling, and referral to community services after traumatic events. For the full document in .PDF format, click here.

     Statistics: Crime in the United States, 2002, FBI Uniform Crime Reporting Program Annual Report (October 27, 2003). Summary Press Release.

     Statistics: Indicators of School Crime and Safety: 2003 Presents data on crime at school from the perspectives of students, teachers, principals, and the general population. A joint effort by the Bureau of Justice Statistics and National Center for Education Statistics, the report examines crime occurring in school as well as on the way to and from school. It provides the most current detailed statistical information to inform on the nature of crime in schools. (October 2003) NCJ 201257. Press release | Full report (Acrobat file 987K)

     Training: "Eyewitness Evidence: A Trainer's Manual For Law Enforcement" National Institute of Justice. This NIJ Special Report assists law enforcement trainers with creating and instructing courses on eyewitness evidence, particularly interviewing witnesses and conducting lineups. It provides instructors with sample lesson plans, explanations grounded in research, and multimedia presentations that supplement key points in the training curriculum. NCJ 188678 (2003, 62 pages). [PDF format] [Html format]

     Training: "Conflict Resolution for School Personnel: An Interactive School Safety Training Tool" (October 2002). This interactive CD–ROM (NCJ 194198) from NIJ contains five modules (anger, threats, attacks with weapons, suicide, and weapons on campus) that are intended to aid school personnel in their responses to such potentially violent situations. The modules, which can be viewed in any order, are broken down into 12 didactic tutorials (e.g., de-escalating student conflicts, assessing a suicide threat, suspected gunshots) and 14 interactive scenarios (e.g., fight in library, Internet hit list, gun in cafeteria). Free, but shipping may apply. To obtain a copy of this CD–ROM, call or write to NCJRS at— NCJRS P.O. Box 6000 Rockville, Maryland 20859–6000 Phone: 800–851–3420 Fax: 301–519–5212 TTY service for the hearing impaired: 1–877–712–9279 (toll free) or 301–947–8374 (local).

     Reference:

     • Abbreviations of Law Reports, laws and agencies used in our publications.

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