CONTENTS

Deputy sheriff's alleged action in handcuffing an arrestee "too tightly" and refusing to loosen the handcuffs after learning that the arrestee had preexisting arm and shoulder injuries would have violated clearly established law.

      A federal appeals court has ruled that a deputy sheriff was not entitled to qualified immunity on an arrestee's claim that he applied handcuffs "too tightly" and refused to loosen them when he was told that the arrestee had preexisting arm and shoulder injuries.

     The plaintiff claimed that he had told the deputy that he had nerve damage in his arm and shoulder, and that the deputy used excessive force in refusing to loosen the cuffs and in refusing to handcuff him in front instead of in back. The arrestee further claimed that he had told the officer that his hands were becoming numb, but this complaint was ignored.

     By the time the cuffs were ultimately removed, both his hands were allegedly "completely numb," and the feeling in his right hand allegedly did not return even after several weeks. A neurologist later indicated that the cuffs had caused "a new neurologic injury to the ulnar nerve" of the arrestee's right wrist, resulting in the loss of function to his right hand.

     The appeals court noted that it had previously held that the right to be free from excessive force is a Fourth Amendment right and that an excessive force claim may be based on handcuffing, citing Walton v. City of Southfield, 995 F.2d 1331 (6th Cir. 1993). The appeals court, viewing the facts in the light most favorable to the plaintiff, found that there was evidence from which it could be found that the officer knew that the arrestee had an injury because he asked about it, and the arrestee described it to him, as well as complaining about the tightness of the handcuffs.

     Further, the arrestee's crime was "not severe," and he posed no threat to the officer's safety, and made no attempt to resist the arrest. Additionally, while the deputy told the arrestee that it was against departmental policy to handcuff arrestees in the front, the county sheriff's policy manual contained an exception: "Where the health and safety of the suspect might be compromised, the suspect may be handcuffed with the hands in front."

     Under these circumstances, if the arrestee's allegations were true, the deputy would have violated clearly established law.

     Turek v. Saluga, #01-3986, 01-4018, 47 Fed. Appx. 746 (6th Cir. 2002).

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•••• EDITOR'S CASE ALERT ••••

Full federal appeals court, overruling three-judge appeals panel, holds that jury award of $500,000 in punitive damages against a municipality for a police officer's alleged excessive use of force against an arrestee was violative of a U.S. Supreme Court decision from 1981, and rejects argument that city "waived" objection to the improper award.

     Two Massachusetts police officers arrested and removed a man from a bar after he became involved in a fight. In the course of the arrest, they allegedly struck him in the face, knocked him to the ground, and kicked him in the face, causing injuries that required fourteen stitches around his right eye, which is permanently damaged, impairing his long-range depth perception and preventing him from earning a living as a crane operator. The injured arrestee filed a federal civil rights lawsuit against the city and the two officers.

     The lawsuit claimed that the one of the officers used excessive force and the other failed to protect the plaintiff. It also claimed that the city improperly hired and retained the officer who struck the plaintiff, who allegedly had an extensive criminal record, including convictions for assault and battery, and who was, at the time he was hired, the subject of an active arrest warrant for failure to appear in court for violating his probation.

     The trial court, after being told by the plaintiff's attorney that it was appropriate, instructed the jury in the case that it could award punitive damages against all defendants, including the city. The city's attorney did not take issue with this.

     The jury awarded $500,000 in punitive damages against the city, $40,000 in punitive damages against the officer who struck the plaintiff, and $210,000 in compensatory damages against both these defendants. The other defendant officer, who allegedly failed to intervene to protect the arrestee, was found not liable.

     Over twenty years ago, the U.S. Supreme Court held in City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981) that a municipality is immune from punitive damage awards under 42 U.S.C. Sec. 1983.

     "Finally awakening to its oversight" of this case, the city filed a motion for a new trial, or, in the alternative, to strike the $500,000 in punitive damages. The trial court denied the motion, ruling that the city's failure to "interpose a timely objection" to the punitive damages instruction "waived its immunity."

     A divided three-judge appeals panel upheld this result, agreeing that the city's objection had been waived.

     The full federal appeals court, acting en banc, has reversed, ruling that the award of punitive damages in violation of the U.S. Supreme Court precedent was an error. And, although a "state might sometimes choose to waive sovereign immunity for policy reasons, hoping to win on the merits, one can hardly imagine a competent lawyer choosing to waive protection against punitive damages."

     Given the uncertainty as to whether the jury's award of compensatory damages was influenced by the large amount of punitive damages it awarded, the appeals court ruled that the plaintiff should have the option on remand whether to have a new trial on actual damages against the city, "a trial in which plaintiff's attorneys' fees will be borne by the city." The punitive damages award against the city was vacated.

     Chestnut v. City of Lowell, #00-1840, 00-1996, 305 F.3d 18 (1st Cir. 2002).

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City and police officials were not liable for officer's action of taking his former wife and others hostage. Officer's actions were not foreseeable and ex-wife's domestic violence complaints against officer were "unspecific" and spread over time. One instance of ignoring a domestic violence complaint, negligently overlooked because of a heavy workload, did not show a policy or practice of ignoring such complaints against police officers.

     A New Jersey police officer shot his way into a home and briefly held hostage his former wife, her current husband, and the couple's son and daughter. The hostages filed a federal civil rights lawsuit against the city and police officials alleging a "state-created danger" and failure to train or supervise the hostage taker and other officers.

     A federal appeals court upheld summary judgment for the defendants. It stated that liability for a "state-created danger" must be based on a showing that the harm caused was foreseeable and "fairly direct" and that the state actor acted in willful disregard for the safety of the plaintiff, as well as a showing of some relationship between the state and the plaintiff and that the "state actors used their authority to create an opportunity that otherwise would not have existed for the third party's crime to occur."

     In this case, while the officer's former wife claimed that she had notified a defendant of some domestic disturbance on several occasions, the court found that these instances were "spread over a period of time and were unspecific." The most specific, as well as the most recent, reported incident "appears to have been negligently overlooked by" one of the defendants, "who was carrying a heavy workload." The court therefore concluded that the defendants were not "sufficiently notified of the danger to the plaintiffs for the hostage taking to be considered foreseeable under the state-created danger theory."

     As for the claim on the failure to train or supervise, the plaintiffs only pointed to the police department's handling of the complaints against this one officer. "This one case fails to show a pattern or practice of ignoring domestic violence complaints against police officers."

     Because the injuries alleged were psychological rather than physical, the court also ruled, the plaintiffs did not suffer compensable injuries under the New Jersey Tort Claims Act, N.J. Stat. Ann. Sec. 59:9-2(d).

     Hansell v. City of Atlantic City, No. 01-2908, 46 Fed. Appx. 665 (3rd Cir. 2002).

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City and officers did not "create" the danger to three children who were murdered by their father by failing to enforce a restraining order against him after he abducted them, and therefore did not violate their substantive due process constitutional rights. Plaintiff mother did, however, assert a valid possible claim for violation of procedural due process based on Colorado state statute requiring reasonable efforts to enforce restraining orders.

     A mother of three children murdered by her estranged husband in Colorado sued a city and several of its officers, claiming that the childrens' federal constitutional due process rights were violated by the failure to enforce a restraining order against the husband after he abducted the children. While the mother was seeking enforcement of the order, he murdered them.

     A federal appeals court upheld dismissal of the plaintiff's substantive due process claims. It found that the officers did not create the danger to the children from their father or render them more vulnerable to a danger than they otherwise would have been. Their alleged mere failure to act, while it did not reduce the danger posed by the childrens' abduction, did not "create or enhance" that danger.

     At the same time, the appeals court found that the mother stated a possible valid claim for procedural due process violations because of a Colorado state statute which provides that peace officers "shall use every reasonable means to enforce a restraining order." C.R.S.A. Sec. 18-6-803.5(3)(a). Further, Sec. 18-6-803.5(3)(b) imposes a duty to arrest when an officer has probable cause to believe that a restrained person has violated the order.

     Because of the mandatory language concerning what peace officers "shall" do contained in these statutes, the mother had a claim for a procedural due process violation when she alleged that the officers used no means, reasonable or otherwise, to attempt to enforce the order, and failed to arrest the father after she showed them the order and told them that he had taken the children in violation of the order.

     Gonzales v. City of Castle Rock, No. 01-1053, 307 F.3d 12258 (10th Cir. 2002).

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•••• EDITOR'S CASE ALERT ••••

Alleged police conduct of giving false and defamatory information about murder suspect to his family members to make them fearful of him, ostracize him, and elicit false accusations against him, if true, violated his clearly established constitutional rights to familial relationships.

     After a man's mother and sister were found murdered in their home in Connecticut, a police detective investigating the crime failed to uncover sufficient evidence to arrest a suspect after two months of work. Frustrated by the lack of progress, the police chief and the detective allegedly focused the investigation on the man himself by "concocting and disseminating false evidence about him."

     In a federal civil rights lawsuit he filed against the police chief and detective, the suspect claimed that their intention was to "create hostility and mistrust among the members of his family towards him with the hope that the resulting animosity would produce accusations against him."

     Among the defendants' alleged actions were the drafting of fake confession letters blaming the plaintiff's cousin for the deaths, and mailing of the letters to two daily newspapers and to the plaintiff's father, falsely claiming that they came from the plaintiff's typewriter. Subsequently, they allegedly drafted and circulated a memo that listed the reasons that police suspected that the plaintiff committed the murders. The detective subsequently is said to have delivered a handwritten letter to, among others, the plaintiff's wife, falsely accusing the plaintiff of the brutal torture and murder of his mother and sister and stating that the plaintiff was "leading a double live," one that his wife would "likely be the last to know about." The letter stated that the wife and her children's lives were in danger.

     The plaintiff alleged that because of these actions, he has been completely ostracized from the majority of his family and friends, and that his siblings and father refuse even to talk to him. He also claims that these actions forced him to leave his former employment and home in Connecticut, and that the defendants acted "dishonestly and recklessly, leading to the complete destruction of his family and community life."

     A federal appeals court upheld the trial court's denial of the defendants' motion for judgment on the pleadings based on qualified immunity.

     The constitutional right of intimate association with the plaintiff's family members that the defendants' conduct allegedly impaired, including the relationships between the plaintiff and his father, siblings, wife, and children, were entitled to the "greatest degree" of protection on a sliding scale for determining the amount of constitutional protection available for a particular association, since they were the "most intimate" of relationships.

     The appeals court found that the alleged conduct, if true, violated clearly established law, and that it was not objectively reasonable for police to engage in an extended "defamatory misinformation campaign" to "destroy a family" in the hopes of producing incriminating leads in a murder investigation.

     Patel v. Searles, #00-9552, 305 F.3d 130 (2nd Cir. 2002).

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Members of motorcycle organization denied entry to portions of county courthouse because of their refusal to remove clothing with "biker" symbols were entitled to a preliminary injunction, based on the likelihood of their success on the claim that the action violated their First Amendment rights.

     A lawsuit was filed by individuals who were denied entrance to a Carson City, Nevada government building after refusing to remove clothing bearing symbols of motorcycle organizations. They claimed that this denial violated their First Amendment constitutional rights, and sought injunctive relief and damages. The building in question has three floors, the first of which contains various offices, including those for marriage licenses, payment of court fines, and the recorder's office, and entry is not barred by a security station. The other two floors are courtrooms and related facilities, and members of the public must pass through a security station and metal detector to gain access.

     In three separate incidents, the plaintiffs were asked by deputy sheriffs and other security personnel to remove jackets and vests bearing the logos of various motorcycle clubs, or else leave the building, after they attempted to pass through the security station. In two of the incidents, the plaintiffs were arrested for trespass when they refused to leave or remove the clothing.

     The exclusions were based on an alleged unwritten policy not permitting persons to proceed to the second or third floor if they were wearing "clothing having symbols, markings or words indicating an affiliation with street gangs, biker or similar organizations which could be disruptive and/or intimidating," and barring the use of "words, pictures, or symbols which are degrading or offensive to any ethnic, racial, social or political group."

     Subsequently, a written list of five "Courthouse Rules of Conduct and Attire" was drawn up, incorporating the language alleged by the plaintiffs.

     A federal appeals court has ruled that the trial court erred in failing to enter a preliminary injunction against the rule as requested by the plaintiffs. The court found that the plaintiffs had a "high probability of success" on the merits of their claim that the rule violated the First Amendment.

     The court reasoned that the rule appeared to be unreasonable since no evidence showed the existence of the risks asserted, the ban failed to be viewpoint neutral since there was no evidence that it was not motivated by the nature of the message conveyed, and the loss of First Amendment freedoms constituted irreparable harm as required for injunctive relief.

     While the building in question was not a "public forum" devoted to assembly and debate, but a place operated for the purpose of conducting the business of the county and of municipal and state courts, the requirements for reasonable restrictions in a nonpublic forum requires more than merely showing a rational relationship to a legitimate governmental objective.

     The First Amendment means that the government has "no power" to restrict expression because of its message or its ideas, so that even when the offered justification for regulating a nonpublic forum is "facially reasonable," it cannot stand if it is, in fact, based on the desire to suppress a "particular point of view." The appeals court found no evidence in the record that the "regulation of biker clothing in hallways and other non-courtroom areas of the Complex can plausibly be justified by the need to protect the courtroom environment itself." The appeals court emphasized that the issue of permissible regulation within the courtrooms, and "with respect to particular cases or circumstances, is not at issue in this case, and that our holding in this case is directed only at the policies and Rules that generally regulate behavior in the non-courtroom areas of the Complex."

     Sammartano v. First Judicial District Court, #01-16685, 303 F.3d 959 (9th Cir. 2002).

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Proper legal standard for police civil rights liability for injuries to third parties resulting from collision with suspect's car during high-speed pursuit was whether officers intended to harm the pursued suspects physically or "worsen their legal plight," rather than deliberate indifference to the risk of harm.

     A Tennessee police officer pursued a motorist after he drove away when the officer attempted to issue him a speeding citation. Officers in an adjacent jurisdiction picked up the pursuit, which proceeded at high speed, with the pursued vehicle avoiding an attempted roadblock by entering the traffic lane designed for oncoming traffic. Another motorist's vehicle was struck in the rear by the pursued vehicle as they attempted to make a left turn into a driveway, which resulted in one occupant of the car being killed and three others being ejected from the vehicle and severely injured.

     A lawsuit was filed against various law enforcement agencies and officers involved in the chase, contending that the defendants violated the dead and injured persons' substantive due process right to be free from "arbitrary government action so outrageous as to shock the conscience."

     Following the U.S. Supreme Court's decision in County of Sacramento v. Lewis, 523 U.S. 833 (1998), however, the defendants moved to dismiss the lawsuit on the basis that the officers' actions complied with that decision. Under Lewis, liability for injuries caused by a high speed pursuit pursuant to the substantive due process doctrine only arises when the officers intend to "harm the suspects physically or to worsen their legal plight," and not merely by "deliberate indifference" to the risk of harm.

     The plaintiffs argued that the Lewis standard did not apply because they "were not suspects" and that the officers acted deliberately in initiating the high-speed pursuit, claiming that the "deliberate indifference" standard should apply.

     A federal appeals court has rejected this argument, upholding and quoting the trial court's decision granting summary judgment to the defendants:

     High-speed pursuits, by their very nature, do not permit the deliberation required to apply the "deliberate indifference" standard. When executive action is the result of unhurried judgment, the chance for repeated reflection, and uncomplicated by the pulls of competing obligations, then deliberate indifference is truly shocking. Categorically, however, the nature of high-speed pursuits--their ever evolving nature, the number of contingencies, the scant information available, the high pressure environment, the absence of hindsight or second chances, and the abbreviated time period in which to make decisions--requires that the court apply the Lewis standard to all high speed pursuit scenarios.

     Epps v. Lauderdale County, Tenn., #00-6737, 45 Fed. Appx. 332 (6th Cir. 2002).

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Michigan intermediate appeals court upholds award of over $2.2 million against city for injuries to motorist and her child resulting from collision with vehicle being pursued by police chase. Appeals court rejects retroactive application of Michigan Supreme Court decision that changed state law governing the motor vehicle exception to governmental immunity in the state.

     A motorist filed suit in Michigan state court on behalf of herself and her four-year-old daughter, seeking damages against a city and its police department for injuries that they suffered when a suspect pursued by police collided with their vehicle. After a number of appeals, the case was tried before a jury and the jury awarded $1,404,786 in damages to the motorist and $864,367 to her daughter.

     While the city's appeal from the award was pending, the Michigan Supreme Court issued its opinion in Robinson v. Detroit, 462 Mich. 439, 613 N.W.2d 307 (2000), which overruled prior case law upon which the plaintiffs relied to state a claim against the defendants in avoidance of governmental immunity under state law. The defendants urged an intermediate state appeals court to retroactively apply the rule to the case, and the appeals court declined to do so.

     The statute at issue is M.C.L. Sec. 691.1405 providing for an exception to governmental immunity for injuries resulting "from the operation" of police vehicles. In Robinson, the Michigan Supreme Court found, overruling prior interpretations, that a plaintiff's injuries did not, as a matter of law, result from the "operation" of the police cars where the police cars "did not hit the fleeing car or physically cause another vehicle or object to hit the vehicle that was being chased or physically force the vehicle off the road or into another vehicle or object." It further found that an officer's decision to pursue does not "constitute the negligent operation of a motor vehicle."

     Noting that the immediate case had been in litigation for a period of over ten years and that the change in the law represented by Robinson came after the jury's verdict, the appeals court held that, under the "law of the case doctrine", the prior interpretation of the law relied on by the trial court should be applied. The failure to apply the new rule retroactively would not "thwart" the state Supreme Court's purpose of correcting what it saw as an error in the interpretation of the motor vehicle exception to governmental immunity.

     Ewing v. City of Detroit, No. 225401, 651 N.W.2d 780 (Mich. App. 2002).

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Arizona Supreme Court upholds $1.4 million malicious prosecution jury award against city and police detective for pawn shop manager after dismissal of charges of theft and trafficking in stolen goods.

     The manager of a Phoenix, Arizona pawn shop was charged with trafficking in stolen property and theft. The trial court dismissed both counts with prejudice after the state determined there was no reasonable likelihood of conviction. The manager then sued the city and a police detective, alleging malicious prosecution. The jury returned a verdict in favor of the plaintiff, awarding $1.4 million. That award has now been upheld by the Supreme Court of Arizona.

     A customer offered to sell a set of golf clubs to the pawn store and was quoted a price of $160, but a store clerk then identified the customer as a person who had previously sold a stolen generator to the store. The store called the police department's pawn detail to report the situation and to determine if the clubs were stolen, and a detective told them that the clubs were not listed as stolen, so that the store could purchase the clubs.

     The transaction was not fully completed, however, as the store policy was to "stall" a "questionable customer" by beginning routine paperwork and obtaining the seller's signature on the ticket. After doing so, the store employee confronted the customer about the stolen generator transaction and told him that the store needed to "sort everything out" before finalizing the purchase. The store manager, the defendant in the subsequent prosecution, placed a ten-day hold on the golf clubs pursuant to a state statute, A.R.S. Sec. 44-1624(F) after the customer left the clubs behind. The customer later attempted to reclaim the clubs, but the store manager refused his request and invited him to call the store owner or the police pawn shop detail to discuss the situation.

     The store later sent the original transaction ticket with the customer's signature on it to the pawn shop detail. The words "stolen property" on the ticket were crossed out, based on the information furnished by the police detail were not listed as stolen. The following week, the police detective went to the shop because a portion of the transaction ticket had been crossed out, and had a discussion with store employees. He later called the store again to ask why the store had purchased the clubs if they suspected they were stolen. The store manager replied that the store had not purchased the clubs, even though the ticket indicated a purchase price of $160. The detective told the manager he was placing a 90-day police hold on the clubs, and then ran a second check on the clubs and discovered that a similar set had been reported stolen the day the customer brought them to the pawn shop.

     The detective later interviewed the customer, who admitted involvement in both the generator and golf club transactions, but denied knowing the items were stolen. The customer also told the detective that the store had indicated that it would "offset the value of the golf clubs against the loss for the stolen generator."

     While the store manager says he subsequently told the detective that he was not present when the generator incident took place and that the store would attempt to sell the clubs only if they were not stolen, the detective told a grand jury that the store manager had essentially admitted that he had "every reason in the world to believe" that the golf clubs were stolen. Based on this, the grand jury returned an indictment, issuing the charges later dismissed.

     The Arizona Supreme Court held that, given the disputed versions of what had actually taken place during the various exchanges between the detective and store manager, the trial court properly submitted the issue to the jury, which, by returning its verdict, "necessarily found the probable cause evidence insufficient to support the underlying criminal charges."

     The evidence in record reflected, the court found, that at the time the plaintiff was indicted, he "may have suspected the goods were stolen," but his actions followed "all protocols set by statute, by the police pawn shop detail, and by the pawn shop." The defendant detective's fellow officer also supported the plaintiff's version that the detective had admitted that he had in fact told the shop manager to sell the clubs.

     Based on this the "jury could reasonably infer from this evidence that while Gonzales may have suspected that the clubs were stolen, he nevertheless did not recklessly traffic or knowingly control stolen goods. In addition, the jury apparently found" the plaintiff's testimony "more credible" than the detective's.

     Gonzales v. City of Phoenix, No. CV-01-0170-PR, 52 P.3d 184 (Ariz. 2002).

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•••• EDITOR'S CASE ALERT ••••

Federal trial court improperly accepted stipulation in a lawsuit that an off-duty police officer was acting under color of state law at the time that his friends allegedly assaulted a patron at a restaurant. Off-duty officers who act for purely personal purposes do not act under color of law, and whether this officer did so was a legal issue that had to be determined by the court.

     An off-duty police officer and his friends allegedly began to harass another group of patrons at a restaurant after supposedly mistaking the group for the people with whom they had fought at a local bowling alley earlier that evening. A fight ensued, during which one of the patrons was seriously injured, allegedly by the officer's friends, suffering a concussion and eye injuries.

     The injured patron sued the off-duty officer, several of his friends, and the city. On his claims against the off-duty officer, the plaintiff asserted that he had deprived him of his substantive due process rights. The officer moved for summary judgment, arguing that he had not deprived the plaintiff of his civil rights, and, in the alternative, that he was entitled to qualified immunity.

     The officer stipulated that he was acting under color of state law at the time of the incident, as would be required for federal civil rights liability. The trial court accepted this stipulation, and denied summary judgment, finding that the plaintiff had presented sufficient facts to raise a genuine issue as to whether the officer infringed his rights and that the officer was not entitled to qualified immunity.

     An appeals court ruled that the trial court erred in accepting the stipulation that the off-duty officer was acting under color of state law at the time of the assault. It further held that there was no indication in the record that the officer was acting under color of  law at the time of the incident, so that the trial court erred in denying the officers' summary judgment motion.

     The question of whether an off-duty officer is acting under color of law is a "legal issue," and "parties may not stipulate to the legal conclusions to be reached by the court." Issues of law are "the province of courts, not of parties to a lawsuit, individuals whose legal conclusions may be tainted by self-interest," the court continued, "Courts, accordingly, 'are not bound to accept as controlling, stipulations as to questions of law.'"

     The trial court should have, instead, engaged in an "independent review" of whether the officer was acting under color of state law. Examining the question, the appeals court found that the record "clearly demonstrates that" the officer was acting "in his private capacity" at the time. He was not in uniform, was not driving in a police car, he did not display a badge, and was not at the restaurant pursuant to his official duties. Instead, he was "out with his personal friends for social reasons." During the incident, there was no indication that he was a police officer. "Given these undisputed facts, one may reasonably conclude that" he was "not acting under color of law during the incident that gives rise to this present case."

     The appeals court ordered further proceedings on the issue, however, since "an independent review" might demonstrate that he was acting under color of law. If, however, this was not demonstrated, then the federal civil rights claim against him could not proceed. If that were the case, the issue of qualified immunity did not need to be addressed.

     Neuens v. City of Columbus, #01-4257, 303 F.3d 667 (6th Cir. 2002).

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Even if city had an intentional policy of not enforcing its speeding laws, that would be insufficient to impose liability on municipality for the death of two children killed by an allegedly speeding motorist as they attempted to cross the street. Childrens' parents also failed to establish liability based on purported inadequate investigation.

     The parents of two children killed by a motorist as the children were crossing the street away from a crosswalk filed a federal civil rights lawsuit against the city. The motorist was passing a vehicle whose driver had stopped to let the children cross the street, and was allegedly traveling 40-45 mph in a 35 mph speed zone. An open beer can was allegedly found in the console of the motorist's vehicle, and officers detected a slight odor of alcohol.

     After field sobriety tests were conducted, officers concluded that the motorist could not be cited for driving under the influence, and the motorist refused to take a breathalyzer test at the police station. He was charged with four misdemeanors, including two counts of vehicular homicide based on excessive speed and impairment, one count of improper passing, and one count of have an open alcohol container in his car. He pled no contest to the open container charge and was acquitted at trial on the other charges. A grand jury had declined to indict him on felony-level vehicular homicide.

     The basis of the parents' claim was that the city, acting through its defendant officers and its chief of police, as well as the mayor, violated the childrens' civil rights by failing, prior to the accident, to enforce the city's speed limits, and after the accident to conduct an adequate investigation into its circumstances. The plaintiffs claimed that the city had a policy of deliberate non-enforcement of its speeding laws, and the inadequacies of the post-accident investigation deprived the children of their right to equal protection of the laws.

     The parents pointed to a deposition of a police officer who said that he was discouraged from citing speeders unless they were more than ten miles over the limit. He said that unless other unsafe conditions were present, citations for less than 15 miles over the limit would be dismissed. The inadequate investigation claim was based on the motorist not being given a breathalyzer examination or blood test or cited for speeding or driving under the influence. At the time of the accident, the city did not have a procedure for obtaining search warrants to have a blood sample withdrawn involuntarily.

     The federal trial court granted summary judgment to the defendants. "The law is well established," it stated, "that a city's alleged failure, even if intentional," to enforce a speed limit does not state a federal civil rights claim against a municipality. The court cited several prior cases, including Hull v. City of Duncanville, 678 F.2d 582 (5th Cir. 1982) and Reed v. Gardner, 986 F.2d 1122 (7th Cir. 1993). "Plaintiffs cannot, therefore, prevail on their claim that the city's failure to enforce its speed laws, even if shown by them to have been an intentional policy, deprived their children of rights, privileges, or immunities secured under the Constitution or laws of the United States."

     The court also rejected the inadequate investigation claim. "Assuming that a failure to investigate can rise to the level of an equal protection violation, the plaintiffs in this case have failed to show that such failure, if it occurred in this case, was based on their race or some other suspect classification, and that others have been treated differently, and more favorably."

     Further, the court noted, the law is also clear that there is "no constitutional, statutory or common law right that a private citizen has to require a public official to investigate or prosecute a crime." This doctrine, the court stated, "is the logical consequence of the Supreme Court's ruling in Deshaney v. Winnebago County Dep't of Social Services, 489 U.S. 189" that "nothing in the language of the due process clause itself requires the state to protect the life, liberty, and property of its citizens against invasion by private actors."

     White v. City of Toledo, 217 F. Supp. 2d 838 (N.D. Ohio 2002).

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Impoundment of motorist's truck after a minor traffic accident, based on the vehicle not being licensed, registered, or insured was not an illegal seizure, since it was based on the state's determination that such vehicles are a threat to public safety. Search of vehicle was justified as a safety precaution because of the motorist's affiliation with a group known to carry weapons and assert that they were not subject to the law.

     A motorist claimed that a Kentucky police officer illegally searched and impounded his truck in violation of his Fourth Amendment rights following a minor traffic accident. The officer, investigating the accident, discovered that the motorist did not possess a license to drive, a vehicle registration, or liability insurance coverage required by state law. Instead, the motorist's "operator's license, vehicle registration, and car tag" stated that they were issued by the fictional "Nation of Washitaw" ("the territory of the United States except the thirteen original colonies and Texas").

     People who recognize the "Nation of Washitaw" are known to call themselves "Freemen" not bound by the laws of the states, and the officer knew that such "Freemen" regularly carried firearms, so as a precaution he asked the motorist if he had any weapons in his possession. The motorist acknowledged that he had a revolver in his vehicle, not concealed, but in plain view. The officer reached inside the vehicle, removed the ammunition cylinder, and retained possession of the gun frame during the course of his investigation, returning it later. The officer then arranged to have the truck impounded until the motorist could obtain a valid registration and proof of insurance.

     A federal appeals court ruled that the search of the vehicle did not violate the motorist's Fourth Amendment rights. In this case, the conduct of the investigating officer was "reasonable given his suspicions and the surrounding circumstances." The motorist's "Nation of Washitaw" affiliation "identified him as scofflaw," the court stated, and the motorist admitted having a loaded pistol in the truck's passenger compartment. "Such circumstances give rise to a justifiable fear for personal safety, and it was perfectly reasonable for the police officer to glance about the vehicle's interior and to secure the pistol during the course of the investigation."

     The appeals court also ruled that the truck was not unlawfully seized. As part of what the Supreme Court has called the "community caretaking functions," and in the interests of public safety, the court noted, police officers frequently assume custody of automobiles. The state of Kentucky has "determined that the safety of the public is better protected if all persons operating motor vehicles in the state maintain liability insurance and register the vehicle in the operator's state of residence." On this basis, the motorist's truck "constituted a threat to public safety" because of its uninsured and unregistered status.

     Bybee v. City of Paducah, #01-6440, 46 Fed. Appx. 735 (6th Cir. 2002).

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

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While city could not be held vicariously liable for police officer's alleged sexual abuse of juvenile participants in police department's Explorer program, it did have a duty to protect the youths against such abuse and there was a genuine issue of fact as to whether that duty had been breached.

     A California city's police department obtained a charter from the Boy Scouts of America (BSA) to operate a Police Explorer Program designed to acquaint 14- to 18-year old young women and men with law enforcement and encourage them to consider a law enforcement career. City police officers trained and supervised the explorers, and the explorers provided the department with volunteer services and assistance. Sometimes the youths were taken on one-on-one ride-alongs with an on-duty officer.

     Two sixteen year old female participants in the program allegedly became "infatuated" with a male officers, and had "consensual sexual encounters" with him, including during frequent ride-alongs late at night. One of them went on 30 to 40 ride-alongs with the officer, and the second went on 15 to 20 ride-alongs. They subsequently filed a lawsuit against the city and police department, as well as the officer, contending that he had engaged in unlawful sexual acts with them while he was on duty. The officer later pled guilty to criminal charges of unlawful sexual conduct with the minors.

     A California intermediate appeals court held that the city could not be held vicariously liable for the officer's alleged sexual abuse of the minors, since the officer was not exercising law enforcement authority over them, but rather acting as their "supervisor" or coworker, and the sexual acts were undertaken for the officer's personal gratification and had no employment connected purpose. The court also noted that imposing vicarious liability in these circumstances might deter police departments from sponsoring such programs.

     The appeals court did rule, however, that the plaintiffs could pursue claims based on the department's own alleged negligence, such as negligent hiring, training, and supervision, since the city and police department did have a duty to protect juvenile participants in its program by "not fostering an environment" that would encourage sexual exploitation of juveniles by an officer.

     Because there were genuine issues of material fact as to whether the defendants breached this duty, summary judgment was inappropriate. The issues were whether the city and its police department knew or should have known that the officer posed an "undue risk" of harm to program participants or that he was engaging in sexual misconduct with them.

     Doe v. City of Murrieta, No. E029190, 126 Cal. Rptr. 2d 213 (Cal. App. 2002).

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

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Administrative Liability: Training

     An arrestee's "bald assertions" that a city's policies for training its officers were inadequate and that the officer who arrested her for disorderly conduct had been involved in one prior instance of alleged misconduct (based on a newspaper report) were not sufficient grounds to impose liability on the city for violating her federal civil rights by inadequate training. Bobbitt v. The Detroit Edison Company, 216 F. Supp. 2d 669 (E.D. Mich. 2002).

Assault and Battery: Chemical

     Estate of aspiring "rap" musician who died when officers' use of pepper spray against him allegedly triggered a fatal asthma attack reaches $2.7 million settlement with city in wrongful death and civil rights lawsuit. Officers mistakenly believed that the decedent, seen riding in a taxi, was involved in the murder of a fellow officer and allegedly kicked and beat him in the course of the arrest, leaving his asthma inhaler at the scene of the arrest after using the pepper spray on him. Estate of Faison v. City of Orange, No. 00-1944 (KSH) U.S. District Court (D.N.J.), June 25, 2002, reported in The National Law Journal, p. B3 (Sept. 30, 2002).

Defenses: Official Immunity

     Motorist's claim that he had been "threatened" and sworn at, as well as "slammed" on the hood of a patrol car in the course of a deputy's investigation of a report of shots being fired was insufficient to show "actual malice" as required to set aside the deputy's official immunity, and any "use" of the deputy's car in connection with the investigation was insufficient to support a waiver of sovereign immunity by the county. Use of profanity by police, in the absence of epithets or words indicating personal bias, does not show "actual malice." Tittle v. Corso, No. A02A0828, 569 S.E.2d 873 (Ga. App. 2002).

     Sheriff's office employees had official immunity from liability for an alleged improper sale of property seized from an art gallery in satisfaction of judgment, since they were performing actions within the scope of their authority in good faith. County was also entitled to sovereign immunity from alleged property owner's claim. Bowles v. Yeganeh, No. 05-01-00937-CV, 84 S.W.2d 252 (Tex. App. 2002).

Disability Discrimination

     Deaf arrestee could not recover damages against "unnamed" or "John Doe" officer defendants for alleged violation of Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. Sec. 12101 et seq., in connection with failure to attempt to communicate with him during his arrest through "auxiliary aids and services." No claims for damages may be brought under Title II against defendants in their individual capacities. Kennington v. Carter, 216 F. Supp. 2d 856 (S.D. Ind. 2002).

Domestic Violence

     Untimely processing of paperwork at prosecutor's office which should have led to the arrest of the complainant's former boyfriend was not a denial of the complainant's due process right of access to the courts and did not violate her rights to equal protection. Court rejects argument that liability could be based on prosecutor's alleged failure to train her staff to give the same priority to domestic violence complaints from unmarried complainants as complaints involving married complainants. No liability for subsequent shooting of woman by former boyfriend. Thomas v. City of Mount Vernon, 215 F. Supp. 2d 329 (S.D.N.Y. 2002).

False Arrest/Imprisonment: No Warrant

     Officers had probable cause to arrest striking phone company workers based on statements by non-striking employees that the strikers had threatened them, along with a videotape viewed by one officer that showed threatening behavior. Arrestees had no claim for false arrest. Moore v. City of New York, 219 F. Supp. 2d 335 (E.D.N.Y. 2002).

     Police dispatcher's report to officer that motorist's vehicle had been reported stolen, even though later determined to be erroneous, was sufficient to give officer probable cause to make a warrantless arrest after stopping car for traffic violations. Miller v. City of Nichols Hills Police, 42 Fed. Appx. 212 (10th Cir. 2002).

False Arrest/Imprisonment: Warrant

     Detective's reliance on statement of witness, without further investigation, in applying for and obtaining a warrant for a suspect's arrest, was reasonable. The fact that statements of the witness may have been false did not alter the result. Villeda v. Prince George's County, Md., 219 F. Supp. 2d 696 (D. Md. 2002).

Firearms Related: Intentional Use

     Police chief's shooting and killing of an intoxicated, disturbed man wielding a sword and verbally threatening bodily harm to officers was objectively reasonable, despite arguments that he failed to "exhaust" all other options available to "contain" the individual and violated a department policy by using deadly force with the hope of only wounding the suspect. Mace v. City of Palestine, Texas, 213 F. Supp. 2d 691 (E.D. Tex. 2002).

Insurance

     City, in purchasing liability insurance for liability of more than $2 million but less than $4 million, waived its statutory immunity under North Carolina law for the negligent conduct of its officers to the extent of the insurance, and could be sued, along with its officer, for detainee's alleged damages in excess of $3 million arising out of a collision of the officer's vehicle with another car while the plaintiff was riding in it while in custody. Defendant officer, in his official capacity, shared both the city's immunity and its waiver of immunity. See N.C.G.S.A. Sec. 160A-485. Clayton v. Branson, No. COA02-65, 570 S.E.2d 253 (N.C. App. 2002).

Loss of Evidence/Preservation of Evidence

     State trooper did not violate the First Amendment right of access to the courts of a vandalism victim by handling evidence with his bare hands and thereby making it useless for fingerprint analysis when there was no indication that he acted maliciously or deliberately. Additionally, trooper was acting in an objectively reasonable manner as the scattered firecrackers and CO2 canisters that he handled had been exposed to weather and were lying in snow and mud, and therefore were of "little value" for fingerprint analysis. Kampfer v. Vonderheide, 216 F. Supp. 2d 4 (N.D.N.Y. 2002).

Malicious Prosecution

     Detective's affidavit, on the basis of which an arrest warrant was obtained to arrest a postal employee for retaliating against a witness, had sufficient facts to support probable cause even though it also contained exculpatory claims of the employee which would have negated probable cause if the judge had decided to believe his version of the incident. Detective was not liable for malicious prosecution. Lewis v. Rock, #01-1329, 48 Fed. Appx. 291 (10th Cir. 2002).

Off-Duty/Color of Law: Firearms Related

     City and police chief were not liable for off-duty officer's alleged shooting and killing of a man during a fight that occurred when he accompanied a friend to assist him in a property dispute with his ex-wife in another jurisdiction. The officer was in plain clothes, had no police authority in that jurisdiction, did not identify himself as a police officer, and was acting for his own private purposes. Officer's alleged misuse of his weapon was not foreseeable and there was no basis for a claim for negligent retention and supervision of him. Phelan v. City of Mount Rainier, No. 98-CV-1096, 805 A.2d 930 (D.C. 2002). (.pdf format).

Police Plaintiff: Firefighters' Rule

     Police officer's claim for damages against restaurant to which he was summoned to break up fight was barred by the firefighter's rule since the injury was inflicted as a result of the same negligent act that required the call for police assistance. Farmer v. B&G Food Enterprises, Inc., No. 2000-CA-00722-SCT, 818 So. 2d 1154 (Miss. 2002).

Police Plaintiff: Vehicle Related

     Intermediate Illinois appeals court overturns summary judgment for cab company in lawsuit by a police officer based on injuries suffered when he was struck by a cab while directing traffic and dragged for several feet. Genuine issues of material fact existed as to whether the cab driver was an independent contractor or an employee/agent of the company and whether he was acting within the scope of his employment/agency when he struck the officer. Davila v. Yellow Cab Company, No. 1-01-4366, 776 N.E.2d 720 (Ill. App. 2002).

Property

     Following the conclusion of criminal proceedings, an arrestee could seek money damages under Florida law for the value of property impounded which could not be returned as it could not be located. Forbes v. State of Florida, 826 So. 2d 421 (Fla. App. 2002). [PDF]

Search and Seizure: Home/Business

     City ordinances regulating pawn shops, under which officers made seizures of jewelry from plaintiff's shop on several different occasions, did not violate his Fourth Amendment or due process rights. The ordinances require either a warrant or consent from the store owner for the seizure of property and provide a mechanism under which a pawn broker may obtain a hearing regarding the seized property. Plaintiff consented to two of the seizures, and a third seizure took place under a valid warrant. Larson v. City of Denver, #01-1301, 41 Fed. Appx. 355 (10th Cir. 2002).

Search and Seizure: Person

     Federal officials could not be held liable for alleged violation of civil rights of accused drug smuggler who underwent emergency surgery to remove leaking balloons of heroin from his abdomen. Plaintiff admitted that he was not aware of any direct involvement "whatsoever" by the named federal defendants, but sued them purely in their supervisory capacity. Nwaokocha v. Hagge, #02-0057, 47 Fed. Appx. 55 (2nd Cir. 2002).

Search and Seizure: Vehicle

     Officer who impounded a motorcycle could reasonably have believed that he had a basis to do so because of a stolen vehicle report from the motorcycle's seller, despite information that the motorcycle was the subject of a private contract dispute, when the alleged purchaser refused to cooperate with the officer's investigation by showing proof of payment, proof he had obtained title, or, indeed, the location of the motorcycle. Officer was entitled to qualified immunity under these circumstances from Fourth Amendment claim. Pickens v. Miller, 216 F. Supp. 2d 1011 (N.D. Cal. 2002).

     Article: "Use of Force Policies & Training, A Reasoned Approach," by Thomas D. Petrowski, FBI Special Agent and Instructor, FBI Academy. Vol. 71, No. 11 FBI Law Enforcement Bulletin pgs. 22-32 (November 2002). [PDF]. (Second part of a two-part article. The first part appeared in the October 2002 issue. Subsequent and prior issues of the FBI Law Enforcement Bulletin are available on-line at: http://www.fbi.gov/publications/leb/leb.htm.)

     Statute: The Homeland Security Act of 2002, law establishing Cabinet-level Department of Homeland Security and addressing related issues. (November 2002). [PDF]. Also see: Department of Homeland Security Reorganization Plan (November 25, 2002, 18 pages, .pdf format, detailing the agencies and units included or excluded in the new Department).