CONTENTS

Arrestee, who was "thoroughly uncooperative" and allegedly intoxicated, did not have a "clearly established" Fourth Amendment right not to be tightly handcuffed, since various federal trial and appeals courts disagreed on the issue.

     A motorist in Pennsylvania arrested for driving under the influence of alcohol sued two officers, claiming that they used excessive force by handcuffing him too tightly to the leg of a cot for several hours while he was in a holding cell at the police station.

     A jury found in favor of one of the officers, but imposed liability against the other on the arrestee's federal civil rights claim. The trial court had ruled that, since the arrestee had not yet been charged with a crime when his right to be free from excessive force was allegedly violated, held that the Fourth Amendment's "objective reasonableness" standard applied. After the jury's verdict, the trial court granted the officer judgment as a matter of law, finding that he was entitled to qualified immunity.

     Upholding this result, a federal appeals court stated that the "heart" of the plaintiff's excessive force claim is that the officer applied the handcuffs too tightly when he was double-cuffed to a steel cot in the holding cell.

     While the jury found that the officer's action constituted excessive force under the circumstances, the officer was still entitled to qualified immunity from liability because at the time of the incident, the question of whether tight handcuffing constitutes a violation of the Fourth Amendment was not "established even in a general sense," and therefore, it "clearly was not established in the particularized sense required" to defeat qualified immunity.

     "Quite frankly," the appeals court stated, "if the various circuit courts of appeals and the district courts disagree on the question, we can hardly fault" the officer, especially "since it is apparent that he was dealing with a thoroughly uncooperative person who had been arrested for drunk driving." The appeals court also rejected the argument that the trial court had substituted its version of the facts for the jury's in stating that while the plaintiff "may have been in discomfort, he was only in discomfort because of his persistent refusal to comply with the officer's instructions." The trial court's statement "merely recognizes that the cuffing would not have been necessary if" the arrestee had cooperated.

     Istvanik v. Rogge, #01-3395, 01-3536, 50 Fed. Appx. 533 (3rd Cir. 2002).

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Officers' use of force in subduing fleeing drug suspect who struck one of them and continued to resist arrest was objectively reasonable when it resulted only in "minor injuries."

     Officers arrived at a man's home in Georgia to investigate allegations of drug dealing there. While they had no search or arrest warrant, the suspect peacefully and willfully exited his home and spoke to them while standing on his front lawn. After the officers questioned him for three to five minutes, they allegedly noticed a bulge in his pants, and when asked what it was, he pulled out a large roll of cash. At this point, the suspect and officers differ on what occurred.

     The officers stated that once they saw the large roll of cash, the man fled from them and they pursued him on foot. The man contends, however, that the officers conducted a pat down search of him and that when they became "too physically aggressive," he fled from their "grasp and presence." The suspect also states that, while running, he threw several small bags of drug contraband onto the sidewalk and that the officers saw him do this.

     The officers gave chase on foot and quickly overtook him, and the suspect admits that he struck one of the officers at this time, and later pled guilty to felony and misdemeanor obstruction of justice charges as a result of the incident, as well as to cocaine possession charges. He sued both officers, however, for excessive use of force, claiming that they immediately physically restrained and arrested him for possession of cocaine, and then one of them struck and kicked him with a closed fist, a police flashlight and pepper spray, rendering him unconscious while the other restrained him. The officers argue that they only used force necessary to subdue the arrestee after he struck one of them.

     Medical evidence showed a small cut over the arrestee's right eye and bruising on his left check. The federal trial court found that the officers were entitled to summary judgment, as the force they used was objectively reasonable under the circumstances, given the plaintiff's active attempts to resist and evade arrest, his possession of dangerous contraband drugs, and the fact that he injured one officer and continued to actively resist arrest when another officer reached him.

     Even if the force used were judged to be excessive, the court stated, the officers were entitled to qualified immunity when their use of minimal force which resulted in only "minor injuries" would not have reasonably led them to believe that their actions were unconstitutional.

     Moreland v. Dorsey, 230 F. Supp. 2d 1338 (N.D. Ga. 2002).

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Even if an officer "seized" a tenant in ordering him to vacate his home upon threat of arrest after a landlord told the officer that he wanted the individual removed, the seizure was reasonable under circumstances where the tenant had no written lease and did not pay rent, the house was under construction at the time, and the level of the dispute between the landlord and tenant was serious enough that the tenant had called the police. Even if the officer acted unreasonably, however, he was entitled to qualified immunity.

     A man and his son lived in a home owned by his aunt, along with his mother and brothers, and remained there after the lease expired and the rest of the family moved out. He remained there without paying rent and with no written lease, based on an oral agreement with his aunt that he would perform chores, pay some of the utility bills, and protect the property, and would move out in the near future, because the aunt was planning to remodel the house because of damage from a fire.

     The aunt began the remodeling process, removing the ceiling in one room, knocking out some interior walls, etc., but the tenant did not move out. The aunt one morning told the man that he and his son were no longer welcome to stay. A verbal fight began and the aunt started throwing the tenants' belongings around the house. The tenant called the police department, and the officer who arrived discovered broken lamps and other items scattered around the living room floor along with a shattered fish tank. The landlord and tenant continued to argue and both asked the officer to remove the other from the premises.

     The officer declined a request from the tenant that the officer should talk to his attorney. Instead, he instructed the tenant that the landlord was the owner of the property and that he would be arrested if he did not leave. The tenant took some personal belongings and left the house. He called the city police chief who declined to intervene. The tenant and his son filed a federal civil rights lawsuit claiming a violation of their Fourth Amendment rights. They also asserted state law claims for wrongful eviction and breach of quiet enjoyment.

     The federal trial court dismissed all state law claims against the city, the officer, and the police chief. It ruled that the officer and police chief were entitled to qualified immunity, and ultimately granted summary judgment in favor of all defendants.

     On appeal, the plaintiffs argued that the grant of qualified immunity was improper because it was "well-established" in 1999 that forcing a family out of their home under threat of immediate arrest constituted an unconstitutional seizure under the Fourth Amendment.

     The appeals court noted that the plaintiffs claimed that they were the subjects of an "unreasonable seizure" because the officer and police chief, operating under an "illegal policy" of the county, prevented them from staying in their home under threat of arrest.

"The plaintiffs present an interesting inversion of a theory of Fourth Amendment liability because they were free to leave at any time. [The father] did in fact eventually leave the site of the altercation when he and his son packed up their belongings and left the house. In United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980), the Supreme Court stated the test for a seizure as follows: '[a] person has been 'seized' within the meaning of the fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." [... The father] is not alleging that he was not 'free to leave,' but rather than he was not free to stay."

      The appeals court noted that the tenant was not staying in the house under a written lease. An appropriate test for a seizure, the court found would be "whether a reasonable person would feel free to decline the officer's requests or otherwise terminate the encounter." In this case, the court found, it was unclear whether a seizure occurred, but it found it unnecessary to answer the question because it found that even if the plaintiff's encounter with the officer could be labeled a "seizure," that seizure was reasonable.

In cases such as this, where a traditional analysis of seizure 'yields no answer, the court must evaluate the search or seizure under traditional reasonableness standards by balancing an individual's privacy interests against legitimate governmental interests.'

     In this case, the court found, it was clear that the plaintiff did not suffer an unreasonable seizure as a matter of law. The officer, faced with a disturbance between the landlord and tenant, the fact that the landlord was undisputably the owner of the premises, and that the plaintiff did not pay rent and did not have a written lease "could not have" acted unreasonably in removing the tenant. The officer was acting "when lamps are flying and family members are shouting at each other." And it was not unreasonable to threaten to use arrest to accomplish the goal of getting the tenant to leave.

     Indeed, since the landlord owned the building, the officer might have violated her rights if he required her to leave her own house or face the possibility of arrest.

     In any event, even if it were determined that an unreasonable seizure took place, "which we do not," it was not "clearly established" that the officer's actions on that day constituted a constitutional violation.

Given this uncertainty we could not expect an officer with even a detailed knowledge [of the law] to have a fair warning that White [the tenant] had a right superior to that of his aunt to remain on the premises. He could not have known that asking White to leave under threat of arrest would constitute an unreasonable seizure.

     The city could not be vicariously liable for the acts of its employees, the court noted, and the plaintiff failed to present evidence as to the existence of a policy or custom of evicting tenants at the landlord's request. The reasonableness of the officer's actions in asking the plaintiffs to leave the premises "comes into even clearer focus when the state of the home at the time of the incident is considered," the court noted.

     White v. City of Markham, #01-2034, 310 F.3d 989 (7th Cir. 2002).

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Detectives who had motorist arrested on charges of striking one of them with her vehicle as they attempted to question her were not entitled to summary judgment based on a state court's finding of probable cause for the motorist's arrest at a preliminary hearing. The plaintiff, who was later acquitted of the charges, was not barred from pursuing her claim that the detectives lied about the incident based on the finding of probable cause, when the focus of her claim was that they also lied previously to obtain her arrest.

     A Michigan motorist was pulled over and arrested by a state trooper who had received a radio dispatch indicating that she had assaulted a sheriff's department officer. She was bound over for trial following a preliminary hearing before a state court judge who found probable cause for her arrest on a charge of felonious assault. Following a jury trial, she was acquitted and filed a federal civil rights lawsuit against two county sheriff's department detectives, claiming that they had fabricated the facts to establish probable cause for her arrest.

     The two detectives had sought to question the woman outside an apartment complex while waiting for the arrival of an investigative subpoena that was being prepared for service on her. She entered her car and closed the door and told them that she was not willing to talk to them at that time. The detectives later claimed that she then placed the car in reverse without giving one of them an opportunity to get out of the way of the car, and that the vehicle struck one of them, stopped, and then backed up, striking him again, after which she drove away. The motorist contended, however, that she told the detectives she was leaving and that the officer who claimed she had struck him with her vehicle had stepped aside and was never hit by the car.

     The probable cause determination at the state court preliminary hearing was based solely on the testimony of the two detectives, with no one else taking the stand.

     Reversing summary judgment for the defendant detectives, a federal appeals court ruled that the probable cause finding by the state court at the preliminary hearing did not bar the plaintiff from bringing her federal civil rights claim. While the preliminary hearing concerned the "sufficiency of the evidence" to constitute probable cause, the plaintiff's lawsuit challenged the "integrity" of this evidence, which was a different issue. Accordingly, the doctrine of "collateral estoppel" did not apply, since the state criminal court did not render a decision on the exact same issue.

     If the facts were as the plaintiff alleged them to be, then the detectives did not have probable cause to have her arrested, since they would not have fears of an immediate battery from her car under her version of the incident.

     The appeals court also found that the two defendant officers were not protected by absolute witness immunity. The plaintiff's lawsuit did not concern their testimony at the preliminary hearing, but rather her contention that they lied earlier to the state trooper and to prosecutors in order to establish probable cause to arrest, imprison, and prosecute her.

     Hinchman v. Moore, #00-2457, 01-2446, 312 F.3d 198 (6th Cir. 2002).

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Investigator was not entitled to qualified immunity for submitting affidavit which resulted in plaintiff being arrested as a felon in possession of a firearm when he had information from another state that the plaintiff had been arrested on felony charge, but no information suggesting that he had ever been convicted of the offense.

     An African-American man living in a predominantly white county in Arkansas claimed that a number of law enforcement officials violated his federal constitutional rights by "repeatedly detaining, searching, and arresting him on a variety of false charges," and that they "conspired to do so." 

     The trial court dismissed claims against some defendants and granted summary judgment for others. A federal appeals court upheld most of these results. As to one county investigator, however, the appeals court held that he had not shown that he reasonably believed that probable cause existed for an arrest warrant to issue against the plaintiff.

     The plaintiff alleged that this investigator submitted a false affidavit which caused him to be arrested under a warrant for being a felon in possession of a firearm. The record showed that at the time he prepared his affidavit, the defendant had learned from California authorities that the plaintiff had been arrested in that state, but had no information regarding whether he had been convicted.

     The defendant "is responsible for knowing the difference between arrest and conviction," the court stated. The information that the plaintiff had a felony arrest in the state of California, in the absence of any information that he had ever been convicted of the offense was insufficient as a basis to submit an affidavit calling for the arrest of the plaintiff as a felon in possession of firearms.

     Under the principles set forth in Malley v. Briggs, 475 U.S. 335 (1986), an officer applying for a warrant must exercise reasonable professional judgment, and is not shielded by a magistrate's approval of a warrant, rejecting the argument that applying for a warrant is per se objectively reasonable if the officer believes that all the facts recited in the affidavit are true.

     Kearse v. Moffett, No. 01-2390, 311 F.3d 891 (8th Cir. 2002).

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Jury properly awarded damages to estate of man shot and killed as he held his mother hostage with a knife and threatened to kill her if his ex-girlfriend was not brought to him, D.C. high court rules, but jury's $2.1 million compensatory damages award is reduced to $180,000, and $3.999 million punitive damage award was improper since there was no evidence to support a finding that the officers shot the decedent with an "evil motive" or "actual malice."

     District of Columbia police officers shot a man to death when they responded to reports that he was holding his mother hostage at knifepoint at her home. He had threatened to kill his mother with the knife unless his former girlfriend was brought to see him (the officers received information that he had earlier kidnapped and sexually assaulted her). The officers had repeated conversations with the perpetrator, which continued for more than an hour, during which time the offender gave differing "time lines" as to when he would kill his mother if his demand was not met.

     He sounded "angry, almost irrational" to the officers on the scene, who summoned an Emergency response Team to force entry into the apartment. When this was done, the entering officers ordered the perpetrator several times to drop the knife. When he rubbed the knife across his mother's chest and then raised it as though to stab her there, an officer fired a shot which struck him on his face, although not fatally. A second shot was fired at the offender as he was "spinning down to the ground."

     When the man allegedly jumped back up, three other officers began firing at him, and a total of 21 shots were fired, with 13 bullets striking him--approximately seven in the back. Two shots were "very likely" fatal, and others were possibly so.

     A federal civil rights lawsuit against the officers and District of Columbia claimed excessive use of force. The jury rejected the argument that the decedent had never threatened to kill his mother at all, and that the officers had "fabricated the claim of an immediate threat to her safety or their own." The jury exonerated the officer who fired the first two shots, finding that these two shots were necessary to eliminate the threat the decedent posed to his mother's safety.

     The jury found that three other officers used excessive force in repeatedly shooting and killing the decedent after the first officer had effectively disabled him as a threat to anyone's safety. They "apparently accepted this theory over the testimony of the officers that they began firing and continued to do so--for a period of no more than eight seconds--" because the decedent still held the knife in his hand or was reaching toward it on the ground while trying to regain his footing.

     The jury awarded $2,149,998 in compensatory damages and $3,999,000 in punitive damages, split evenly among the three police officers.

     A highest court for the District of Columbia ruled that the evidence was sufficient to support the jury's finding of liability and that the officers used excessive force. It also upheld the reduction of the compensatory damage award to 180,000, and the complete elimination of the punitive damages award.

     The compensatory damages awarded was "out of proportion" to the decedent's "very brief but real" pain and suffering and the other losses suffered by his surviving family. The punitive damages award was not justified, since nothing showed that the officers acted with "actual malice" or any evil motive in shooting and killing the perpetrator. There was no evidence that they knew him or ever had any prior contact with him and no evidence of malice was shown by the manner of entry the officers used.

     District of Columbia v. Jackson, No. 99-CV-756, 99-CV-972, 810 A.2d 388 (D.C. 2002).

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Arrestee, in characterizing an officer as an "asshole" did not say anything sufficient to place the statement outside the protection of the First Amendment as "fighting words." Additionally, even if the officer had probable cause to make an arrest for violation of the city's civil disturbance ordinance, there would be no justification for the arrest if the officer actually was motivated by retaliation for the arrestee's statements prior to the arrest.

     The plaintiff, a six-foot, 300-pound lawyer--went to the Grand Rapids Police Department to retrieve his automobile after it had been towed from a no-parking zone. He questioned some of the storage charges and an officer explained that "this is the way we do it."

     The plaintiff then told the officer "you're really being [an] asshole, and he took great exception to that." When the officer replied that the plaintiff could not talk like that "in my building," the plaintiff said that the officer was "really stupid," and the officer told him "You're under arrest." He was charged with creating a disturbance, in violation of a city ordinance as well as hindering and opposing a police officer. A jury acquitted him of both charges. The Plaintiff then sued, alleging that he had been subjected to an unreasonable arrest without probable cause and solely in retaliation for exercising his First Amendment right to free speech.

     A federal appeals court rejected the argument that the officer was entitled to qualified immunity.

Did Mr. Greene [the plaintiff] have a constitutionally protected right to call Lt. Barber an 'asshole" and castigate him as "stupid?" The answer we suggest depends on the time, place, and manner in which Mr. Greene so expressed himself. It is clear that the Constitution gave Mr. Greene no license to interrupt the transaction of public business by loud animadversions on Lt. Barber's personality and mental capacity, or any other subject [...] but, standing alone, the fact that Mr. Greene's remarks were unflattering to Lt. Barber clearly gave Barber no license to abridge Greene's freedom to speak as he did.

     Government officials and police officers in particular, "may not exercise their authority for personal motives, particularly in response to real or personal slights to their dignity."

     The court noted that, at one time, "the use of a coarse epithet" would have been thought to lie outside the protection of the First Amendment as "fighting words," but "standards of decorum have changed dramatically," and "indelicacy no longer places speech beyond the protection of the First Amendment." The term "asshole," the court reasoned, is unlikely to incite a breach of the peace by an officer whose sworn duty it was to uphold the law.

     In Houston v. Hill, 482 U.S. 451 (1987), the U.S. Supreme Court recognized that the "fighting words" doctrine may be limited in the case of communications addressed to properly trained police officers because police officers are expected to exercise greater restraint in their response than the average citizen.

     In summary, the court stated, the characterization of the officer as an "asshole" was not egregious enough to trigger application of the "fighting words" doctrine, and even if the officer may have had probable cause to believe that the plaintiff was violating the ordinance prohibiting public disturbance, the existence of probable cause would not justify the arrest if the "officer's true motivation was to punish a slight to his dignity."

     The officer was therefore not entitled to qualified immunity, and must attempt at trial to persuade a jury that the plaintiff would have been arrested for disrupting the transaction of business even if the insults had not been aimed at the officer.

     Greene v. Barber, #01-1247, 310 F.3d 889 (6th Cir. 2002).

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     Editor's note: Referring to the plaintiff's status as a lawyer, the court in a footnote stated that "On the other hand, if we may be forgiven an editorial aside, it is hard to imagine a member of a learned profession that once prided itself on civility addressing this kind of gutter language to an officer of the law--and doing so before 20 or 30 people in a hall of justice of all places."

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Federal appeals court upholds $3.5 million damage award for alleged malicious prosecution of restaurant owner for arson of one of his restaurants. Off-duty police officer who worked for restaurant as security officer and a former restaurant employee who allegedly conspired with him to have the plaintiff arrested, convicted and sentenced are both found liable.

     The owner of number of fast-food restaurants was convicted of arson of one of them and sentenced to imprisonment, largely on the basis of evidence presented by an off-duty police officer who worked for the restaurant as a security officer and another former restaurant employee.  He was sentenced to five years of probation and the conviction caused serious damage to his reputation as a businessman and community leader, as well as economic harm and caused mental distress.

     His conviction was later overturned by the Texas Criminal Court of Appeals which made factual findings that the off-duty officer had attempted to enlist another person as a witness against the restaurant owner and had added the former restaurant employee in altering tape recordings offered into evidence to make it appear that the restaurant owner was admitting to the arson "when in fact he had no knowledge of its commission." The court also made a factual finding that the two persons "collaborated together and without their testimony and the altered tapes, there is insufficient evidence to sustain a finding of guilt." While a new trial was ordered, on remand the prosecutor dismissed the case for "lack of evidence" and the record was expunged.

     The restaurant owner sued the off-duty officer and former restaurant employee for malicious prosecution in violation of his federal civil rights. A jury found that the off-duty officer had acted under color of law and that the other defendant conspired with him to maliciously prosecute the plaintiff. It awarded $3 million in compensatory damages and $500,000 in punitive damages.

     A federal appeals court has upheld this award.

     The appeals court found that the trial court erroneously instructed the jury that the plaintiff should prevail only upon a finding that the defendants violated his "due process" rights rather than his Fourth Amendment rights to be free from unreasonable seizure. It still upheld the award, however, finding that this error did not result in an "incorrect verdict leading to substantial injustice," since the main issue for the jury was not the improper words "due process," but whether or not they believed that the plaintiff was arrested, convicted, and sentenced as a result of the defendants' alleged conspiracy.

     There was ample evidence to support the jury's conclusion that this was the case, including testimony that the audio tape received from the defendants and used as evidence was "fabricated" by them to incriminate the plaintiff and that one of them tried to intimidate a witness into altering his original version of what he saw to the police to further implicate the plaintiff in the arson.

     The appeals court also rejected arguments that either the compensatory or the punitive damages were improper or excessive under the circumstances.

     Castellano v. Fragozo, #00-50591, 311 F.3d 689 (5th Cir. 2002).

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Oregon resident assaulted in front of her house could pursue lawsuit against city under state law for negligence based on police detective's alleged action of instructing a neighbor not to warn other residents about a robber thought to be operating in the area.

     A series of eight robberies sharing certain characteristics occurred in a neighborhood of northeast Portland over a brief period of time. They were called the "mountain bike robberies" and were perpetrated on solitary victims by a man identified as African-American, riding a bicycle between 9 p.m. and midnight. The perpetrator threatened his victims with a gun, or acted as if he had a gun, and took money or possessions, but did not physically harm the victims.

     A resident of the area was crouched on the sidewalk in front of her house one evening, working in her yard when a bicyclist approached and she felt a blow to her head. He rode off, and did not ask for money, threaten her with a gun, or attempt to rob her. She alleges that she suffered serious injuries from the incident. A detective was leading the investigation in the area, and believed that the assailant was the same person as the robber. When the resident warned her own neighbors about this, she learned that one of her neighbors had already been assaulted before this incident, and he told her that the detective had told him "not to tell anyone."

     She sued the city for the detective's alleged negligence in telling her neighbor not to warn others and in interfering with his plans to do so.

     An Oregon intermediate appeals court rejected the city's claim that it was entitled to discretionary immunity. The court found that the city failed to establish essential elements of this defense, namely that the alleged decision by the detective to instruct the neighbor not to warn others was an exercise of judgment or the result of choice involving public policy rather than routine day to day activities. The defense also requires that the public policy choice must be exercised by a body or person that has the responsibility or authority to make it.

     While the city's police department did not have an established policy as to whether or not to inform neighborhood residents about such incidents as the alleged assault, leaving this up to the investigating officers, this supported at best a conclusion that the detective "could have made a judgment call that would have been entitled to discretionary immunity, not that she did make that judgment call."

     As a matter of law, discretionary immunity requires evidence not only that a decision was made but how a decision was made.

     The appeals court also ruled that there was a genuine issue of material fact as to whether the detective's supposed decision to tell the neighbor not to inform others about his assault created a foreseeable risk of harm to the plaintiff, as well as an issue as to who the assailant really was and what his relationship, if any, to the robberies being investigated were.

     The appeals court therefore reversed summary judgment for the city, ordering further proceedings.

     Sande v. City of Portland, 9709-06947, A107724, 59 P.3d 595 (Or. App. 2002).

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Family of former police officer and Vietnam vet with post-traumatic stress disorder, who died in the woods near his home after fleeing there in response to activation of SWAT-like team around his residence after officers saw a "red light" coming from a window in the home, presented sufficient evidence to create a jury question as to whether activation of SWAT team and its tactics created a foreseeable danger to the decedent in a manner shocking to the conscience.

     Several state police officers were familiar with a former police officer and Vietnam veteran who suffered from various medical problems, including Post-Traumatic Stress Disorder and coronary heart disease, largely as a result of ongoing problems between him and his neighbor. Through these contacts, the state police allegedly came to know that he was in fragile physical and mental health, suffered from hypertension, recently had been hospitalized, and was required to be free from stressful situations and to take medications. Some of them were aware of his post-traumatic stress disorder and experiencing of flashbacks.

     One night, in response to a complaint by the man's neighbors, two state troopers went to his residence and repeatedly knocked on his door, but he did not respond. When one of the officers was in the back of the house, he observed a small red light in a window and thought that the man inside might be videotaping the officers. The other officer on the scene testified later that he saw the light on his partner's body and that they believed that the man was directing a laser-sighted firearm at him. The officers retreated and called for backup assistance.

     The state police's Special Emergency Response Team (SERT) was summoned. Several officers began to establish a perimeter around the residence, and a SERT negotiation team and tactical team arrived, with at least 30 SERT members wearing riot gear and camouflage and armed with various weapons. Sharpshooters targeted firearms at the house, a helicopter hovered overhead, and the state police would not allow anyone, even family members, to come and go from the premises without permission.

     Criminal charges of aggravated assault, simple assault, and recklessly endangering a person were filed against the man inside and a warrant was obtained for his arrest, as well as a search warrant. It was subsequently alleged that SERT rejected offers from family, friends, and neighbors to attempt to communicate with the man inside, and rejected the use of a psychologist or recording a message from someone close to the man, despite having the technology to do this.

     SERT then entered and cleared the house and the shed in the backyard using rocks, tear gas, and "flash bang" distraction devices, but found no one inside. They did recover eight weapons, including handguns with scopes, though none had a laser sight.

    They learned that the man had a hunting hideout in the woods, and they searched for him there, but failed to find him. The officers then called off the search, giving up on it and leaving the scene. The criminal complaint against the man was withdrawn, but he did not return home. Several days later, a friend found the man's severely decomposed body in a wooded area 200 yards from the home. It was estimated that he died on the day of the incident and the plaintiffs alleged that, given his medical condition, the stress of the incident probable led to a fatal heart attack.

     The surviving family claimed that the law enforcement officers improperly treated the incident as a barricaded gunman situation.

     A federal appeals court has overturned the trial court's grant of summary judgment on claims that the defendants used excessive force, conducted an unreasonable search, and violated the decedent's due process rights to protection by bringing into being a "state-created" danger to him.

     The appeals court found that there was evidence from which a reasonable jury could have found that the tactics used increased the risk to the decedent, that the harm to the decedent was foreseeable, and that the activation of the SERT team "shocked the conscience" in light of the very slight evidence available to suggest that the man inside the home posed a threat to the officers, the alleged knowledge of his medical condition, and the alleged failure to pursue available avenues to attempt to communicate with him.

     While the officers may have had an objectively reasonable belief that the man might be in the house, ignoring their attempts to communicate with him and bearing a laser-sighted firearm that one of them believed was used to target his partner. This may have provided probable cause to arrest, but that "does not mean that they could use any amount of force in that process," the court commented.

     The appeals court ruled that a jury should be allowed to consider the testimony of the plaintiffs' police practices expert, who had the opinion that the police responded unreasonably to a situation involving a known emotionally disturbed person, and in allegedly alerting the SERT team in violation of its own procedures which provided that it was not to be activated unless a warrant has first been or is in the process of being prepared or if exigent circumstances exist.

    The plaintiffs had presented sufficient evidence to require that the question of the reasonableness of activating the SERT, which is essentially a SWAT team, and of SERT's tactics under the circumstances, be submitted to a jury.

     Estate of Smith v. Marasco, #02-1437, 2003 U.S. App. Lexis 1432 (3rd Cir. 2003).

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City and officer were not liable for gang slaying of informant who had provided information based on which an arrest for an earlier murder was made. Officer's action in failing to stop imprisoned murder suspect's letter, identifying the informant, from being mailed out may have been negligent but it did not violate the informant's constitutional rights. No evidence was present of an improper city policy or custom leading to the informant's killing.

     A Minneapolis resident cooperated with law enforcement authorities, giving them information about unsolved crimes, including a murder committed by members of the "Mickey Cobra" street gang. He was subsequently murdered. His widow, as trustee for his estate, sued a police sergeant and the City of Minneapolis, claiming violations of state and federal law and arguing that the defendants engaged in misconduct which led to her husband's death.

     Her husband was in custody on unrelated robbery charges when he contacted the police and told them he had information about the murder. He also told them that after 25 years as a member of the "Mickey Cobra" gang he wanted to leave the gang lifestyle behind. He later testified at the grand jury, and a suspect was arrested and indicted for the murder. The informant was placed on probation on the armed robbery charge in recognition of his assistance on the murder.

     The suspect arrested for the murder wrote a letter to a fellow gang member which identified the witness as the person who had informed on him. Despite its interception and reading by jail personnel, it was mailed to its intended recipient after being copied, and the police sergeant who is now a defendant in the lawsuit brought by the informant's estate told a jail employee to go ahead and mail the letter, stating that he was "unaware of anything prohibiting the sending of this mail," and did not realize that the sending of this mail" would be detrimental to the safety of the informant.

     The informant was subsequently shot between 13 and 15 times in an alley in Minneapolis. The recipient of the murder suspect's letter admitted telling at least one other gang member about its contents. Two gang members were subsequently convicted of the murder, and a third was killed in an unrelated incident.

     Granting summary judgment for the officer and city, a federal appeals court rejected arguments that the informant's equal protection rights had been violated because the city had taken different security steps to protect him than those it used in another case.

     Further, while the officer's release of the letter may have been negligent, it did not constitute a violation of the plaintiff's substantive due process or equal protection.

     The court found that there was no clearly established right in 1998 that required police or jail guards to embargo and detain threatening prison mail or to protect cooperating informants from retaliatory violence. Additionally, there were other ways, besides the release of the letter, that gang members could have learned of the informant's role in the case.

     The court also rejected arguments that the defendants had either created the danger to the decedent or that his agreement to provide information established a special relationship imposing a duty to protect him.

     The defendant officer was entitled to qualified immunity from liability for authorizing the release of the prisoner's letter, particularly as he only did so after he was unable to reach a prosecutor to determine whether there was any legal problem with the release of the letter, and he took steps to warn the decedent of the danger, as well as helping him take steps to enable him to leave the state in order to protect himself.

     The court noted that the informant was given money to leave the city, but he did not go.

     As to the city, the court found no evidence that it had any policy or custom of discriminatory law enforcement or racially-biased decisions about protection, and therefore could not be held liable for the decedent's murder.

     Gatlin v. Green, 227 F. Supp. 2d 1064 (D. Minn. 2002).

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

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City which provided 911 phone system to respond to emergency calls and dispatched emergency medical technicians to assist one-year-old child choking on a grape was not liable for child's death based on alleged delay in arrival and failure to successfully rescue him. Federal appeals court rules that the city had no constitutional duty to provide competent rescue services. A "shocks the conscience" legal standard applied to the plaintiffs' due process claim, rather than a standard of "deliberate indifference."

     The parents of a one-year-old boy who died from choking on a grape sued the state department of public health, the City of Philadelphia, and two emergency medical technicians for allegedly violating their constitutional rights, or those of their son, based on the alleged delay in arriving at the residence and/or other defects in the rescue services provided.

     The boy was at an aunt's house when he choked on a grape, and the aunt dialed "911" and informed the operator of this. When help did not arrive four minutes later, she again called 911 and was again told that rescue was "on the way." She made a third call to 911 minutes later. The two emergency medical technicians arrived at the residence ten minutes after the initial 911 call had been placed, and transported the infant to a hospital, trying to restore his breathing during the trip. Once at the hospital, the grape was removed from the boy's throat and he was transferred to a children's hospital where he died two days later due to "asphyxia by choking."

     A federal appeals court upheld summary judgment for the defendant city.

     The appeals court noted that the general rule was that there is no constitutional due process right to be protected or rescued by governmental authorities from private injury. Under much of state negligence law, however, once one voluntarily undertakes a rescue, it must not be performed negligently. The court reasoned that this did not mean, however, that there was a violation of constitutional rights based on the negligent performance of a rescue attempt voluntarily undertaken.

     "Although state tort law might provide a remedy for a state's negligent rescue attempt, it neither logically nor legally follows that federal constitutional law must do the same."

     The appeals court also found that any "state-created danger" exception to the general rule that there is no constitutional duty to protect or rescue particular persons did not apply.

     The appeals court found that the "shocks the conscience" standard should apply in all substantive due process cases if the state actor "had to act with urgency." This standard has been applied in police pursuit cases and for social workers when they are acting with urgency to protect a child.

We now hold that the same 'conscience shocking' standard applies to the actions of emergency medical personnel who likewise have little time for reflection, typically making decisions in haste and under pressure.

     In the facts of this case, the appeals court found no violation of the child's constitutional rights. He had no constitutional right to be rescued "or to be provided with competent rescue services," and the exceptions based on the existence of either a "special relationship," such as custody, or an enhanced "state-created" danger did not apply. "Thus, no viable federal claim exists" against the emergency medical technicians.

     The city cannot be liable in such circumstances solely as an employer, since there is no vicarious liability for federal civil rights claims. It is possible for a municipality to be held independently liable for a substantive due process violation even in situations where none of its employees are liable, on the basis of an official policy or custom. "However, for there to be municipal liability, there still must be a violation of the plaintiff's constitutional rights."

     While the plaintiffs claimed that the city had a number of policies involving EMTs which were enacted with deliberate indifference and which caused harm to them and their son, the appeals court ruled that "even if we accept everything" they allege as true, "they will have still failed to establish that the city's policies caused constitutional harm. The city was under no constitutional obligation to provide competent rescue services." The failure of the city and its EMTs to rescue the child from "privately-caused harm was not an infringement" of the plaintiffs' constitutional rights.

     Brown v. Commonwealth of Pennsylvania Department of Health Emergency Medical Services Training Institute, No. 01-3234, 2003 U.S. App. Lexis 953 (3rd Cir. 2003).

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

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Assault and Battery: Handcuffs

     Medical records did not support arrestee's claim that highway patrol officer used excessive force in handcuffing him following arrest for failure to produce driver's license. Arrestee claimed that handcuffs were so tight that his hands turned "blue," but medical records indicated a "pink" color to his hands on the night of the arrest. Andrews v. Elkins, 227 F. Supp. 2d 488 (M.D.N.C. 2002).

     Officer's alleged delay in loosening handcuffs for approximately ten minutes after arrestee complained that they were too tight, even if true, did not violate the arrestee's clearly established rights, so that the officer was entitled to qualified immunity from liability. Kopec v. Tate, 230 F. Supp. 2d 619 (E.D. Pa. 2002).

Assault and Battery: Physical

     Officers did not use excessive force in carrying a 79-year-old woman to their squad car after she refused to walk following her arrest for disorderly conduct, resisting arrest, and battery on an officer. The officers were not required to retreat in the face of her resistance to a lawful arrest. Grauerholz v. Adcock, 02-3083, 51 Fed. Appx. 298 (10th Cir. 2002).

Defamation

     Virginia prison warden could not pursue, in Virginia federal court, defamation claims against Connecticut newspapers for publishing articles, also posted on their Internet sites, concerning Connecticut state policy of housing some prisoners in Virginia correctional facilities. No personal jurisdiction over defendants solely on the basis of the posting of the articles on the Internet when there was no intention to reach Virginia readers. Young v. New Haven Advocate, No. 01-2340, 315 F.3d 256 (4th Cir. 2002). [Editor's Note: For a more detailed discussion of this case, see the full article appearing in this month's issue of the Jail & Prisoner Law Bulletin].

Defenses: Indemnity

     City properly denied defense and indemnification of police officer when evidence showed that the officer acted for personal rather than work related reasons in conduct that resulted in the arrest of two female bar patrons after one of them allegedly rejected the officer's advances. In the Matter of Schenectady Police Benevolent Association v. City of Schenectady, 750 N.Y.S.2d 666 (A.D. 2002).

Defenses: Qualified Immunity

     Police detective was not entitled to qualified immunity when she searched jail records for the name of a suspect in the theft of checks from a retail store and is alleged to have randomly selected one of two suspects with almost identical names as the person sought and testified to that effect before the grand jury. Kentucky v. Young, #01-6219, 51 Fed. Appx. 543 (6th Cir. 2002).

Defenses: Statute of Limitations

     Three year statute of limitations for both Maryland state and federal malicious prosecution claims by inmate wrongfully incarcerated for rape and murder started to run on the date that the criminal proceedings terminated in his favor, but the claims for false arrest and imprisonment accrued as of the date of the original arrest. Gray v. Maryland, 228 F. Supp. 2d 628 (D. Md. 2002).

Disability Discrimination

     Hearing-impaired criminal complainant could pursue disability discrimination claim under the Americans with Disabilities Act (ADA), 42 U.S.C. Sec. 12132 et seq. against city based on allegation that officer acted with deliberate indifference towards her hearing disability in refusing to provide her with a qualified interpreter during a discussion concerning the crime, despite her repeated request to do so. Center v. City of West Carrollton, 227 F. Supp. 2d 863 (S.D. Ohio 2002).

False Arrest/Imprisonment: No Warrant

     Arrestee's wife was not falsely imprisoned under Kansas state law or for purposes of a federal civil rights claim when officers prevented her, for two hours, from reentering her house without an escort while they waited to obtain a search warrant for the home following a valid arrest of her husband for firing a revolver in an alleged aggravated assault. Price v. Cochran, 205 F. Supp. 2d 1241 (D. Kan. 2002).

     Transit police officer had a reasonable suspicion that a rapid transit passenger had failed to pay his fare, justifying an investigatory detention, when he observed him attempt to pass through a station gate twice with the use of an automated farecard and be denied entrance both times, and then saw him follow closely behind another passenger when he finally made it through the turnstile. Martin v. Mendoza, 230 F. Supp. 2d 665 (D. Md. 2002).

     Officer had probable cause to arrest television set renters for retaining the set after the rental period without making added payments, based on Ohio state statute making criminal depriving a person of their property. Hogan v. Rent-A-Center, Inc., 228 F. Supp. 2d 802 (S.D. Ohio 2002).

False Arrest/Imprisonment: Warrant

     Officers who obtained arrest warrant did not make any knowingly false or reckless statements in the affidavit and the inculpatory statements of a witness to the armed robbery established probable cause in a strong enough manner that their alleged failure to also include the supposedly exculpatory statements of two other witnesses did not undermine a finding that there had been probable cause for the arrest. Meyers v. Wolkiewicz, #02-1005, 50 Fed. Appx. 549 (3rd Cir. 2002).

     The alleged placing of an improper arrest warrant into the state computer system was insufficient to support a federal civil rights claim for an unreasonable arrest when the plaintiff arrestee did not dispute that a second outstanding warrant in the system was valid, and either warrant would have been sufficient to form the basis of his arrest following a traffic stop. Yglesias v. City of Dearborn, #01-1887, 51 Fed. Appx. 155 (6th Cir. 2002).

First Amendment

     Officer was not entitled to summary judgment on liability for alleged false arrest when there was a material issue of fact as to whether the arrestee was actually taken into custody solely because he criticized the officer's conduct in arresting and allegedly beating another person, and requested his badge and vehicle identification numbers, which would have been protected speech. Baskin v. Smith, #01-1721, 50 Fed. Appx. 731 (6th Cir. 2002).

Freedom of Information

     Police department records generated during an investigation of an officer were exempt from disclosure under the California Public Records Act, Ann. Cal. Gov. Code Sec. 6250 et seq., even if there was no danger of disclosing an informants' identity or revealing investigative techniques, based on the policy concern of ensuring "candid disclosures" during such investigations. Rackauckas v. Superior Court, No. G030680, 128 Cal. Rptr. 2d 234 (Cal. App. 4th Dist. 2002). [PDF]

     Personal e-mails sent and received by city employees are not "public records" subject to disclosure under Florida's public records law, F.S.A. Sec. 119.021. Times Publishing Company v. City of Clearwater, No. 2D01-3055, 830 So. 2d 844 (Fla. App. 2d Dist. 2002).[PDF]

Governmental Liability: Policy/Custom

     Indian tribe should be treated as a municipality for purposes of a federal civil rights lawsuit by a newspaper reporter claiming that his federal constitutional rights were violated by his arrest and removal from tribal land by tribal police officers. Tribe could not be held liable under 42 U.S.C. Sec. 1983 in the absence of any claim that a tribal policy or custom caused the alleged injuries. Tribal police officer was entitled to qualified immunity for arresting reporter based on his refusal to leave meeting room after a request by the chairman of the tribal executive committee that he do so. Armstrong v. Mille Lacs County Sheriffs Department, 228 F. Supp. 2d 972 (D. Minn. 2002).

Police Plaintiff: Products Liability

     A genuine issue of fact existed as to whether alleged defects in bicycle purchased by police bicycle patrol unit were the cause of the plaintiff officer's impotence. Yarchak v. Trek Bicycle Corporation, 208 F. Supp. 22d 470 (D.N.J. 2002).

Public Protection: Crime Victims

     Nightclub patron shot in its parking lot could pursue his lawsuit alleging that town's negligent inspection and licensing of club was a cause of his injury when there purportedly had been numerous prior police reports of violence and shootings in the parking lot of the building that housed the club, as well as complaints by neighbors about violence, disturbances, and public drinking there. Adams v. Traina, No. 36,306-CA, 830 So. 2d 526 (La. App. 2d Cir. 2002). [PDF]

Pursuits - Law Enforcement

     City, officers, and sheriff's department were entitled to immunity from liability on wrongful death claim brought by estate of motorist killed while he was being pursued in a high-speed chase, when there was evidence that the decedent had committed criminal offenses of aggravated assault, speeding, leaving the scene of an accident, reckless driving, driving under the influence of alcohol, and resisting arrest. There was a causal relationship between his criminal acts and his death, and the trial court did not have to make a factual finding as to whether the officers acted in reckless disregard for the safety of others under a state statute, A.M.C. Sec. 11-46-9(1)(c) requiring that an individual bringing a lawsuit against an officer not be involved in a crime at the time of the alleged injury. Tory v. City of Edwards, No. 2001-Ca-01316-COA, 829 So. 2d 1246 (Miss. App. 2002).

Racial Discrimination

     Issue of fact as to whether doctor experienced racially abusive harassment during his detention and questioning and whether this was motivated by a discriminatory purpose barred summary judgment for defendants on his equal protection claim, despite the fact that he failed to show that others similarly situated did not experience similar conduct. Sundaram v. County of Santa Barbara, #01-55972, 39 Fed. Appx. 533 (9th Cir. 2002).

Search and Seizure: Home/Business

     Officers' actions in entering a home without a warrant with their guns drawn was justified by the emergency aid exception to the Fourth Amendment's warrant requirement, and the officers were therefore entitled to qualified immunity, when they had been told that a woman might be in danger and they reasonably believed that she was inside the house. Martin v. City of Oceanside, 205 F. Supp. 2d 1142 (S.D. Cal. 2002).

Search and Seizure: Vehicle

     Motorist's claim that she did stop at a blinking red light barred summary judgment for officer in her lawsuit claiming that his stop of her vehicle violated her Fourth Amendment rights, since she had a clearly established constitutional right not to be stopped without reasonable suspicion that she had violated a traffic law. Lamarche v. Costain, 225 F. Supp. 2d 83 (D. Me. 2002).

Sex Discrimination

     A female former police officer failed to establish a claim for violation of her equal protection rights when there was no evidence of this other than her "conclusory allegation" that her arrest for disorderly conduct following a fight with her husband, combined with the failure to arrest her husband showed differing treatment due to gender. Additionally, arguable probable cause existed to arrest her and her arrest was carried out under an arrest warrant. Zandhri v. Dortenzio, 228 F. Supp. 2d 167 (D. Conn. 2002).

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

     Article: "Warrantless Interception of Communications," by Richard G. Schott, J.D., Special Instructor, FBI Academy.. Discusses when, where, and why criminal investigators may legally intercept and record subjects' conversations. Vol. 72, No. 1 FBI Law Enforcement Bulletin pgs. 25-32 (January 2003). [PDF]. (Subsequent and prior issues of the FBI Law Enforcement Bulletin are available on-line at: http://www.fbi.gov/publications/leb/leb.htm.)

     Article: Best Practices for Institutionalizing Mentoring into Police Departments by Police Chief Harvey Sprafka and Lt. April Krana. International Association of Chiefs of Police (IACP) 1/23/2003 (PDF format). This document is written to provide chiefs from smaller police departments with a step-by-step method for institutionalizing mentoring within their agency.

     Publication: Toward Improved Criminal Justice Information Sharing: An Information Integration Planning Model by Laura Nichols. International Association of Chiefs of Police (IACP) 196 pgs. [PDF].

     Website: www.regulations.gov/  "Regulations.gov is the U.S. Government web site that makes it easier for you to participate in Federal rulemaking - an essential part of the American democratic process. On this site, you can find, review, and submit comments on Federal documents that are open for comment and published in the Federal Register, the Government's legal newspaper."

     Link: Selected resources in past issues.