CONTENTS

Former U.S. Attorney General Janet Reno and two other high-level federal officials entitled to qualified immunity from liability for alleged excessive use of force by armed federal agents who executed search and arrest warrants to extract 6 year-old Cuban refugee from a relative's house.

     A 6 year-old Cuban boy was rescued from the Atlantic Ocean off the Florida coast in November of 1999 after his mother and others died trying to reach the U.S. by boat from Cuba. Once in the U.S., he was in the custody of his great-uncle, who already resided here. The boy, Elian Gonzalez, had a father, a Cuban citizen living in that country, who wanted his son returned.

     The U.S. Immigration and Naturalization Service (INS) determined that it would not consider the youth's asylum request, and the U.S. Attorney General at the time, Janet Reno, and a Florida federal trial judge upheld this determination.

     The boy's relatives entered into negotiations with federal officials concerning the boy's custody, but the INS ultimately issued an administrative warrant for the boy's arrest and obtained a search warrant for the house to look for the boy, and on April 22, 2000, five months after he was rescued, a pre-dawn raid was carried out executing the warrant at the great-uncle's house. In a widely publicized event, armed federal agents allegedly sprayed tear gas into the home, broke down a front door, and extracted the boy, pointing guns at occupants. The occupants also claimed that obscenities were shouted, furniture and a religious artifact were broken, etc. An INS agent took the boy out of the house, and he was placed in the custody of his father, who had come to the U.S., and they returned to Cuba.

     Several members of the household subsequently filed a federal civil rights lawsuit against various individuals involved in the raid. The lawsuit further named as individual defendants former Attorney General Reno, former Deputy Attorney General Eric Holder, and former INS Commissioner Doris Meissner. It was claimed that the defendants violated the occupants' rights under the First, Fourth, and Fifth Amendments, in that excessive force was allegedly used and the search and seizure was carried out in an unreasonable manner.

     These three high-level defendants argued that they were entitled to qualified immunity from liability. Reversing a trial court denial, a federal appeals court agreed with their argument.

     The appeals court found that the complaint attempted to impose liability on the defendant officials on the basis of their supervisory capacity. Even if it assumed, without deciding, that the manner in which the raid was carried out constituted unreasonable use of force and an unreasonable search and seizure, it concluded, there was nothing other than vague, conclusory allegations that the defendants had anything to do with the manner in which the execution of the arrest and search warrants was carried out.

      Supervisory liability cannot be based simply on vicarious liability--it must be based either on personal participation in the incident, which was not alleged here, or a claim that the supervisor directed the subordinates to act unlawfully or knew that they would do so, but failed to stop them.

     The court noted that the plaintiffs attempted to "appeal to emotions" by characterizing the incident as a "paramilitary" raid, but did not show that the defendant officials did anything other than personally direct and cause the execution of legal arrest and search warrants. There were no facts suggesting that the defendants directed the agents conducting the raid to make use of tear gas, break down the door, or point guns at the home's occupants.

     "In sum," the court concluded, "plaintiffs allege that the agents on the scene used excessive force in violation of their Fourth Amendment rights, but they fail to allege any facts which, if true, would establish that the supervisory defendants caused that violation." Accordingly, these defendants were entitled to qualified immunity.

     Gonzalez v. Reno, No. 01-14475, 2003 U.S. App. Lexis 5762 (11th Cir).

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Police officer was entitled to qualified immunity for using dog to "bite and hold" suspect who had fled from the scene of a minor traffic accident in 1994, as was police chief who allegedly promulgated a "bite and hold" policy for the use of police dogs. There was no clearly established law at the time indicating that such use of dogs was an excessive use of force.

     A federal appeals court has ruled that a police officer who, on December 16, 1994, released his police dog to apprehend a suspect who had fled from the scene of a minor traffic accident by biting and holding his leg was entitled to qualified immunity from liability from the motorist's federal civil rights lawsuit alleging excessive use of force.

     Additionally, the court ruled that a police chief defendant in the lawsuit, accused of promulgating a "bite and hold" policy for the use of police dogs in this manner to apprehend suspects, was similarly entitled to qualified immunity.

     At the time of the incident in question, the court found, it was not clearly established that use of dogs in this manner was an excessive use of force. Indeed, even subsequent cases have held that the use of police dogs does not constitute deadly force, the court commented, citing Vera Cruz v. City of Escondido, 139 F.3d 659 (9th Cir. 1998), and there is no case to date clearly establishing that a "bite and hold" policy is unconstitutional.

     The court also noted, in the particulars of the case, that the fleeing suspect had also been a suspect in a prior armed robbery, and that his fleeing from "a seemingly inconsequential accident" could seem to be a "suspicious reaction," and the officer had no way of knowing whether the suspect was armed or not. Indeed, given these particulars, it could be found that releasing the dog was objectively reasonable. In any event, the officer was entitled to qualified immunity.

     Jarrett v. Town of Yarmouth, #00-2498, 309 F.3d 54 (1st Cir. 2002).

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Upholding jury verdict in favor of officer on false imprisonment claim by motorist and passenger detained on suspicion of drug offenses, Nebraska Supreme Court finds jury instructions adequate on when an officer may arrest without a warrant.

     An off-duty Nebraska police officer observed two individuals exiting from an apartment complex which had been under surveillance for illegal drug activity, and later observed them in a car speeding and driving "erratically." She observed their car weaving in its lane, swerving across the centerline and onto the shoulder. She called a State Patrol dispatcher to report her observations, as well as the circumstances surrounding the apartment from which they had left.

     She subsequently observed another car following the first one at a distance of less than one car length, and made a second call to the dispatcher to report her observations that the two vehicles were speeding and driving erratically, and the dispatcher again relayed the information to a State Patrol trooper.

     The two vehicles were subsequently stopped by several State Patrol troopers, who, with guns drawn, ordered the two occupants out of the first car and the driver out of the second. All three men were handcuffed and detained for approximately 2 hours at the side of the highway. No drugs or weapons were found during the ensuing search, and it was determined that none of the three were under the influence of drugs or alcohol. The two drivers were cited for reckless driving, but these citations were later dismissed.

     The three men sued the officer for false imprisonment. A jury returned a verdict in favor of the officer.

     The Supreme Court of Nebraska upheld this result. It also upheld as proper the instructions given to the jury which stated:

In Nebraska a peace officer may arrest a person without a warrant if the officer has probable cause to believe that such person has committed:

(1) a felony; or

(2) a misdemeanor, and the officer has probable cause to believe that such person either

(a) will not be apprehended unless immediately arrested,

(b) may cause injury to himself or herself or others or damage to property unless immediately arrested

(c) may destroy or conceal evidence of the commission of such misdemeanor, or

(d) has committed a misdemeanor in the presence of the officer.

     The court noted that the fact that the officer was off-duty did not alter the result. She still retained her status as a police officer, and the nature of her activities that day, while off duty, was connected to her official duties. Probable cause may be evaluated by the collective information of the police engaged in a common investigation, although a reasonably founded suspicion to stop a vehicle cannot be based solely on the receipt by the stopping officer of a radio dispatch to stop the described vehicle without any proof of the factual foundation for the relayed message.

     While the officers who stopped the plaintiffs' cars had no firsthand knowledge of any facts constituting probable cause, probable cause was established "by the collective knowledge of the police involved" in the stop, the court held.

     Nauenburg v. Lewis, No. S-01-576, 655 N.W.2d 19 (Neb. 2003).

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Probable cause did not exist to arrest television news cameraman filming demonstration in support of 6-year-old Cuban refugee boy. Arrestee, at the time he was seized, was in the process of complying with police orders to get out of a street then blocked to traffic, and force used appeared to be disproportionate to need.

     Demonstrators gathered in downtown Miami to voice displeasure over the U.S. government's decision to return Elian Gonzalez, a 6 year-old Cuban refugee, to Cuba. He had been removed from his relative's house during a government raid earlier that morning. Because of the demonstrations, a street in downtown Miami was shut off to vehicular traffic and surrounded by barricades, and officers were in the process of moving the protesters from the street to the sidewalk. Having largely accomplished this, they arrested a cameraman in the area.

     A television news cameraman on the scene who was filming the demonstration on freelance assignment stepped into the street in an attempt to film the arrest of the cameraman. As he approached, the officer who was in the process of making the arrest instructed him to return to the sidewalk. He allegedly immediately began to comply, walking backwards to the sidewalk. But after he began to do so, the officer who had told him to get out of the street rushed towards him and arrested him, while another officer approached him from behind.

     The officers grabbed him, forced him to his stomach and allegedly kneeled on his back, pulling his arms behind him and securing his wrists. He subsequently sued the city and the two officers for false arrest and excessive use of force in violation of his constitutional rights.

     Rejecting an arresting officer's motion for summary judgment on the basis of qualified immunity, the federal trial court ruled that, on the facts alleged by the plaintiff, it appeared that there was no probable cause for the arrest of the plaintiff, who was in the act of complying with the officer's instructions at the time he was arrested. Further, it also appeared that the amount of force used was disproportionate to the need for it.

     A videotape of the incident, the court ruled, indicating that the arrestee had "clearly complied with the instruction of the police officer to some extent" as he was returning to the sidewalk when arrested. The court did not find reasonable the argument that his slow movement in doing so and continued filming could have given rise to the impression that he was resisting, obstructing or opposing the officer. Further, while there were traffic statutes prohibiting pedestrians from standing in the street, these were for the purposes of preventing pedestrians from walking into vehicular traffic, and the street was closed to such traffic at the time of the arrest.

     Durruthy v. City of Miami, 235 F. Supp. 2d 1291 (S.D. Fla. 2002).

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Whether or not the decedent was the bank robber sought or not did not impact the issue of whether the officers were justified in shooting him since he did threaten them with a gun. Plaintiff in excessive force lawsuit against city and officers failed to show that the first shots fired against the suspect incapacitated him, or that he did not point his weapon at the officer after these shots, justifying the shots which killed him.

     A downtown Chicago armed bank robbery was reported in which the robber obtained $20,000 in cash. Officers summoned to the area saw a man fitting the radioed description of the suspect walking towards their vehicle. They decided to stop him and question him about the robbery. When they identified themselves and ordered him to stop, he pointed a gun at one of the officers, who ducked behind his car door.

     The second officer fired two shots at the suspect, hitting him, and causing him to fall to the ground. He again identified himself as a police officer, and the suspect allegedly then aimed his gun at him. The officer fired two more shots which struck and killed the suspect. Neither the suspect nor the first officer fired any shots.

     The decedent's father sued the city and the two officers for excessive force under the Fourth Amendment and for wrongful death under state law.

     Upholding summary judgment for the defendants, a federal court ruled that it was irrelevant whether the suspect was actually the bank robber or not. It was undisputed that the decedent threatened the officers with a gun subsequent to the time that the officers knew that an armed robbery had been completed, which "makes the identity of the individual who robbed the bank irrelevant in assessing whether" the officer was justified in shooting the suspect.

     The appeals court also rejected the argument made by the plaintiff that the second round of shots fired by the officer were excessive. The plaintiff failed to establish, the court found, either that the first shots had incapacitated the suspect or that he did not further point his gun at the officers after the first round of shots.

     While the plaintiff argued that summary judgment was inappropriate because a jury could "disbelieve" the shooting officer's version of the incident, the appeals court ruled that, to prevent summary judgment, the plaintiff needed to provide specific evidence attacking the officer's credibility, such as contradictory eyewitness accounts, which he had not.

     Muhammed v. City of Chicago, #01-4187, 316 F.3d 680 (7th Cir. 2002).

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Family of youth shot and killed inside his parent's house when he brandished a rifle at an officer can pursue its claim for wrongful death against township and officer under New Jersey state law based on the possibility that the officer engaged in "willful misconduct" in allegedly violating a standing order concerning "establishing a perimeter" in hostage, barricade, or sniper situations.

     New Jersey officers were summoned to a residence where there was an ongoing domestic dispute between parents and their son. The parents did not want the son to leave the house and drive the car, as they believed that he was intoxicated. One of the officers knew that the son had a prior psychological history. After the officers left the house following discussions with everyone, they heard a gun shot.

     They noticed the son beginning to break through the screen of the ground-level bedroom window with the butt of a rifle, so one of the officers re-entered the house and removed the parents. Another officer in the house positioned himself inside the house at the top of the stairway inside the front door and turned off the lights, intending to contain the son in the downstairs portion of the home. The son came out of his bedroom and pointed a rifle at the officer, who shot at him, whereupon the son went back to the bedroom.

     The son yelled that someone was "going to die tonight" and that he was going to "kill some cops." Another officer also entered the home. Both officers instructed the son to drop his gun when he again left the bedroom and opened the bolt on his rifle as if to reload it.

     The son refused to obey these commands, and walked up the stairs with his rifle pointed towards an officer. The other officer then shot his weapon several times, killing him. The youth's parents sued the township and the officers for wrongful death under New Jersey state law.

     The trial court granted summary judgment for the defendants, finding that they were entitled to immunity under state law, N.J.S.A. 59:3-3, as they acted in good faith.

     Overturning this decision and remanding for further proceedings, an intermediate New Jersey appellate court noted that there was a standing General Order pertaining to actions to be taken by police upon arrival at a scene involving hostage, barricade, or sniper situations. In part, it called for establishing and reinforcing a perimeter containment area, and attempting to avoid confrontation when possible in favor of controlling and containing the situation until the arrival of trained Tactical and/or Critical Incident Negotiation Personnel. It also calls for not initiating tactical actions other than those necessary to protect the lives and safety of the officers or others.

     An expert witness for the plaintiff argued that the shooting officer should be criticized for entering the premises to "establish a perimeter inside the house," and gave the opinion that his conduct contradicted SWAT fire discipline and personnel threat management.

     The appeals court found that there was evidence that a standing order existed to establish a perimeter, to contain the situation, and to avoid confrontation. The officer knew that a tactical team had been called and were on their way to the scene, but despite this knowledge elected to establish a perimeter inside the house, "with the likelihood of confrontation, rather than avoid it by establishing the perimeter outside the house."

     The court found that it was a jury question whether the officer "willfully violated a known standing order and then engaged in conduct he knew was not appropriate," constituting willful misconduct barring immunity.

     Clarke v. Township of Mount Laurel, 815 A.2d 502 (N.J. Super. A.D. 2003).

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Police officer acted objectively reasonable in shooting and killing a 6 foot tall 180 lb 18 year-old armed with a knife who had self-inflicted cuts on himself, refused to relinquish his knife, and began to charge at the officer with it, so that the officer feared for his life. No evidence of inadequate training was produced against municipality.

     Wisconsin police officers went to look for an evidently disturbed 6 foot tall 180 lb 18 year-old boy who was intoxicated, filled with "rage," and had left his home spattered with blood from self-inflicted cuts and armed with a knife.

     When officers closed in on him, he refused to relinquish the knife, or otherwise cooperate with police orders and he allegedly began to charge at one of the officers with the knife. The officer, fearing for his life at that point, shot and killed him.

     The administrator of the decedent's estate brought a federal civil rights lawsuit against the officers and the cities which employed them, alleging excessive use of force and failure to adequately train.

     The trial court swiftly disposed of the failure to train claim, finding no evidence of any deficiencies after the municipalities submitted evidence of the training they did on the use of force.

     The court also found that the force used by the officer in shooting and killing the decedent was objectively reasonable. While the plaintiff argued that other officers could have intervened or that the shooting officer could have used chemical spray or his baton rather than shooting the decedent, the court found reasonable the officer's explanation that he did not use any other lesser force because of the "immediate threat to his life."

     Easley v. Kirmsee, 235 F. Supp. 2d 945 (E.D.Wis. 2002).

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Federal appeals court upholds New York City's decision to bar an anti-war march through the streets near the United Nations, while allowing a stationary protest rally. Court finds that, under the circumstances of a proposed march of uncertain size, called on short notice, with unclear provisions for march organizers to attempt to control the crowd, the city's decision was a reasonable time, place, and manner regulation not violative of the First Amendment.

     An organization opposed to the then pending war against Iraq sought an injunction requiring the City of New York to issue a permit for a protest march past the United Nations headquarters on First Avenue to take place on February 15, 2003. The city had denied the permit for a march through the streets past the UN, while allowing a stationary protest rally at a fixed location. The federal trial court denied that injunction.

     A panel of the U.S. Court of Appeals for the Second Circuit upheld that decision in a ruling issued three days before the proposed march. It found that the trial court, under the circumstances, did not abuse its discretion in denying the injunction, and rejected the argument that the permit denial violated the plaintiff's First Amendment rights. It also noted:

In the course of the proceedings below, the parties’ attention turned also to the question of whether the City of New York might have been required to issue a permit for a marching protest elsewhere in the City. We note that only one route was submitted for approval and the complaint’s request for injunctive relief asked only that the district court enjoin defendants from preventing the plaintiff from conducting a peaceful march on First Avenue past the United Nations as part of its February 15, 2003, anti-war event, subject to reasonable restrictions. The testimony and affidavits of the event organizers focused as well on the symbolic importance of proximity to the U.N.

     The court agreed that "it is undisputed that peaceful and orderly marching in a public street in conjunction with political protest, 'falls well within the sphere of conduct protected by the First Amendment.'" But the right to "use public forums such as streets for speech and assembly is not absolute." Government can impose reasonable restrictions on the time, place, or manner of protected speech, "provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for the communication of the information."

     The appeals court rejected the plaintiff's argument that the city's decision not to offer an alternative route for the proposed march was "content-based because the city regularly has permitted "cultural parades" with over 100,000 participants, such as the Saint Patrick’s Day Parade and the Puerto Rican Day Parade, or that the city's decision was not "narrowly-tailored" because it could have offered an alternative location in mid-town Manhattan for the march.

The District Court held that this was not a content-based distinction, finding that the cultural parades differ in “manner” from the proposed march because they are regular, annual events with which the NYPD has substantial experience, and for which it has been provided with a significant amount of time to plan and prepare. Ms. Leslie Cagan, a principal organizer of the proposed march, concedes that she could not provide the police department with specific information about the probable number of participants and that she has not yet provided the police with the names of volunteers who would serve as peacekeepers and marshals for the event. Accordingly, the District Court found that the City has had insufficient time to prepare security volunteers or group leaders of the prospective marchers. It also determined that a large crowd could lead to dangerous surges as participants vie to march up front, creating a continuing risk of injury to participants and especially to children. We find no error in the District Court’s factual findings on this matter.

     Indeed, the appeals court agreed that the difference between the New York Police Department's policy with respect to cultural parades and its policy with respect to the proposed anti-war march was a "legitimate, content-neutral restriction based on time, place, and manner." It also agreed with the trial court's conclusion that “the City’s decision to ban the march but permit a stationary rally is narrowly tailored to address the risks as assessed and goes no further than necessary to that end.”

     The trial court ruled that a stationary rally would allow the plaintiff group to communicate its message at a desirable location in close proximity to the United Nations, and noted that the rally permit did not limit the number of participants who could attend, and would not prevent the group's ability to convey its message. While time, place and manner restrictions must be "narrowly-tailored," they "need not be the least restrictive or least intrusive means" of regulating speech.

We agree with the District Court that nothing in the record compels the NYPD to allow UPJ to march elsewhere in the City absent specific information regarding the logistics and organization of any such march, and in light of the narrow time frame between the application and the projected march. We have held in the recent past, in a case raising some of the issues presented here, that it would be appropriate for a district court to craft restrictions on such marches “to limit both the number of blocks involved and the duration of the event.” Million Youth March, Inc. v. Safir, 155 F.3d 124, 127 (2d Cir. 1998). Similarly, it was appropriate in this case for the NYPD to limit its permit to a particular area of Manhattan (namely, the area of Dag Hammarskjold Plaza and First Avenue), thereby accommodating the stated interest of the march organizers in vigorously demonstrating their views in close proximity to the UN.

     United for Peace and Justice v. City of New York, #03-7130, 2003 U.S. App. Lexis 4526 (2nd Cir.).

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A police officer, even though responding to an emergency, acted in "reckless disregard" of the safety of others by turning his vehicle in front of another motorist's car while attempting to cut off suspected auto thieves. Mississippi Supreme Court rules that city and officer were therefore not entitled to immunity from lawsuit for damages, especially in light of officer's failure to turn on his sirens, blue lights, or headlights.

     A Mississippi motorist was injured when his car was struck by another vehicle operated by a police officer. The officer was responding, at the time, to an emergency call regarding an auto burglary in progress. The officer had learned that the suspects were seen running through a nearby shopping center, and turned his vehicle left in order to go cut them off. It was then that the collision occurred. The officer subsequently admitted to speeding prior to turning in front of the plaintiff and the evidence showed that the officer had six prior accidents and was "chargeable" for at least two of those accidents.

     The Mississippi Supreme Court, in the motorist's lawsuit for damages against the city and the officer, found that the officer acted in reckless disregard of the safety of others through his actions. Despite the fact that he was responding to an emergency call, he did not turn on his sirens, bluelights, or headlights, hoping to not draw attention of the pursued thieves to his vehicle.

     Under these circumstances, the court found, neither the officer nor the city was entitled to governmental immunity under the Mississippi Tort Claims Act, Miss. Code. Ann. Sec. 11-46-9, because of the officer's "reckless" conduct.

    The officer's actions were not discretionary, the court found, as state law requires him to warn other drivers by using his siren when he responds to an emergency call.

     The court rejected the argument that the damages awarded were excessive. The plaintiff was awarded $7,057.09 for medical expenses, lost wages and damages to his vehicle, along with $25,000 for past physical pain and suffering and mental anguish.

     City of Jackson v. Lipsey, No. 2001-CA-01271-SCT, 834 So. 2d 687 (Miss. 2003).

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Update: federal appeals court reverses ruling that off-duty sheriff's deputies, in making a "mass purchase" of copies of a weekly community newspaper which published an article critical of the sheriff on the night before the vote on his re-election, did not act "under color of state law" for purposes of a federal civil rights lawsuit claiming violation of First, Fourth and Fourteenth Amendment rights. Appeals court also holds that sheriff's contribution of money towards the mass purchase and expression of his approval of the action was an act under color of state law.

     The publisher of a weekly community newspaper in Maryland had published a number of articles that were highly critical of public officials, including the local sheriff and his deputies. This included articles referring to one deputy as a "drunk," another as a "child abuser" and a "lazy" officer, and a third as a "shoeshine boy." November 3, 1998 was election day in the county and the sheriff was running for re-election, as was the State's Attorney, who had also been criticized by the paper.

     About a week before the election, some of the deputies in the sheriff's department began to construct a plan to buy up a large number of copies of the newspaper on the night before the election when the papers were scheduled to be delivered to stores and newsboxes. The sheriff, while he did not participate in the mass purchase, stated that he knew about the plan and had communicated his support for the idea.

     Off-duty deputies, wearing plain clothes and driving private vehicles made purchases at stores and newsboxes throughout the evening and into the night until 7 a.m. the next morning. The publisher contends that they purchased 1,379 newspapers. Those participating in the purchases obtained receipts from the stores for their purchases and videotaped their purchases from newsboxes. Some of them also wore stickers depicting a copy of the community newspaper going into a trashcan, and handed these stickers out.

     The deputies prediction that the election day edition of the paper would run negative stories about the sheriff and states' attorney were "realized," with a large headline stating that "Fritz Guilty of Rape," referring to a 1965 guilty plea entered by the states' attorney to carnal knowledge of a minor. Another headline in the paper was entitled "Woman Supervisor Ordered Him to Have Sex, Says Cop," criticizing the sheriff's handling of an alleged sexual harassment complaint.

     The newspaper publisher filed a federal civil rights lawsuit claiming that the mass purchase of the newspaper violated its First, Fourth, and Fourteenth Amendment rights. The complaint also asserted claims for violations of the corresponding rights under the Maryland state constitution, and common law claims for tortious interference with business relations and civil conspiracy.

The federal trial court granted summary judgment to the defendants on all federal claims and declined to exercise jurisdiction over the remaining state law claims. It ruled that the off-duty deputies did not act under color of state law, and that the sheriff's alleged contribution of money to help them make the purchases was also not state action which could be the basis for a federal civil rights lawsuit. Rossignol v. Voorhaar, 199 F. Supp. 2d 279 (D. Md. 2002).

     A federal appeals court has reversed the trial court's ruling and remanded for further proceedings. It ruled that the mass purchases of the newspaper, if carried out under color of state law, clearly violated the newspaper's First Amendment rights, targeting the newspaper "for suppression and retaliation" because the defendants disagreed with its viewpoint "and intended to prevent its message from being disseminated."

     The court emphasized that the speech allegedly suppressed was right at the core of the type of expression intended to be protected by the First Amendment--political expression. "In suppressing criticism of their official conduct and fitness for office on the very day that voters were headed to the polls, defendants did more than compromise some attenuated or penumbral First Amendment right; they struck at its heart," the court state.

     The appeals court also strongly stated that it had "no doubt" that the seizure in this case "was perpetrated under color of state law."

The requisite nexus between defendants' public office and their actions during the seizure arose initially out of their censorial motivation. Defendants executed a systematic carefully-organized plan to suppress the distribution of St. Mary's Today. And they did so to retaliate against those who questioned their fitness for public office and who challenged many of them in the conduct of their official duties. The defendants' scheme was thus a classic example of the kind of suppression of political criticism which the First Amendment was intended to prohibit. The fact that these law enforcement officers acted after hours and after they had taken off their badges cannot immunize their efforts to shield themselves from adverse comment and to stifle public scrutiny of their performance.

     The court found that the actions alleged "arose out of public, not personal, circumstances," and that when the sole intention of a public official is to "suppress speech critical of his conduct of official duties or fitness for public office, his actions are more fairly attributable to the state."

     The appeals court also found that the sheriff, as well as his deputies, acted under color of law. His position as sheriff, the appeals court found, gave him the ability to help shield his co-workers from the "consequences of their crime." The court noted that under Maryland law, the Newspaper Theft Act prohibits "knowingly or willfully obtain[ing] or exert[ing] control that is unauthorized over newspapers with the intent to prevent another from reading the newspapers. Md. Code, Criminal Law Sec. 7-106(b). The sheriff could prevent or lessen the possibility of prosecution of his deputies for violation of this statute through both formal direction of his department's investigation "and informal ties to other law enforcement agencies." And his personal contribution of $500 made him "part of the conspiracy and served as a bond of solidarity with the other deputies involved in the seizure."

     The court also noted that the deputies' identities as officers "played a role at several points during the seizure itself," since they were recognized as officers by store employees throughout the county, and were carrying their state-issued firearms, which were visible on some of them during the evening. Additionally, one of them was wearing a "Fraternal Order of the Police" sweatshirt.

     "It is no surprise, then," the court commented, "that at least one clerk was intimidated into selling his entire run of newspapers by the deputies' authority as state officials."

     The appeals court concluded that both the First Amendment and federal civil rights liability statutes exist "in significant part to deter the kind of misdeeds perpetrated by defendants on election day." It stated that "we would thus lose sight of the entire purpose" of the federal civil rights statute "if we held that defendants were not acting under color of state law. [...] Sheriffs who removed their uniforms and acted as members of the Klan were not immune from Sec. 1983; the conduct here, while different, also cannot be absolved by the simple expedient of removing the badge."

     Rossignol v. Voorhaar, #02-1326, 316 F.3d 516 (4th Cir. 2003).

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Federal statute protecting the privacy of driver's license records creates a private cause of action imposing vicarious liability on municipalities if employees or agents violate it with "apparent authority," federal trial court rules. Possible plaintiffs include not only the driver, but also other family members sharing the same address who might be subjected to stalking or harassment.

      A federal trial court has held that a federal statute designed to protect the privacy of driver's license records for the purpose of deterring "stalking" and harassment creates a private cause of action for damages, and that, further, a municipality may be held vicariously liable if an employee or agent, acting with at least "apparent authority" violates the provisions of the statute. No showing is required of an official municipal policy or custom.

     The statute involved is the Driver's Privacy Protection Act of 1994 ("DPPA"), 18 U.S.C. § 2721, which provides, in pertinent part:

A State department of motor vehicles, and any officer, employee, or contractor thereof, shall not knowingly disclose or otherwise make available to any person or entity:

(1) personal information, as defined in 18 U.S.C. 2725(3), about any individual obtained by the department in connection with a motor vehicle record, except as provided in subsection (b) of this section; or

(2) highly restricted personal information, as defined in 18 U.S.C. 2725(4), about any individual obtained by the department in connection with a motor vehicle record, without the express consent of the person to whom such information applies, except uses permitted in subsections (b)(1), (b)(4), (b)(6), and (b)(9):

     The statute was enacted in a response to a 1989 murder of an actress, Rebecca Schaefer. In that case, an obsessed fan allegedly hired a private investigator to obtain the actresses license plate number which the investigator subsequently used to get the actresses' home address, which he provided to his client, who allegedly then killed her.

     In the immediate case, investigators for a supermarket began watching an employee who was suspected of faking injuries for purposes of a workers' compensation claim. The employee and a friend obtained the motor vehicle license plate numbers of the investigators and then asked a police officer employed by a local municipality to obtain information about the investigators and about a supermarket employee assigned to administer the compensation claim. The employee or their friend allegedly used that information to harass or threaten the individuals whose home addresses were obtained, videotaping the family of one of the individuals, including her children, delivering the videotape together with a threatening note, and engaging in other threatening behavior and/or acts of vandalism.

     Both the employee and their friend subsequently pled guilty to criminal conspiracy to commit extortion charges in connection with the harassment.

     The victims of the harassment filed a federal lawsuit asserting claims against the officer and the city under the statute. The municipality moved to dismiss, arguing that there was no showing of an official municipal policy or custom, and that it could not simply be held vicariously liable for the alleged actions of its officer. It also asserted that the provisions of the statute and particularly those of 18 U.S.C. Sec. 2724, creating a private cause of action for damages, applied only to the persons whose driver's license records were disclosed, and not to their spouses or children because these are the only plaintiffs whose personal information may have been improperly obtained from motor vehicle records. The plaintiffs argued that the wording of the statute is broad enough to include all persons whose information may have been disclosed as a result of an improper use of motor vehicle records:

(a) Cause of Action. - A person who knowingly obtains, discloses or uses personal information, from a motor vehicle record, for a purpose not permitted under this chapter shall be liable to the individual to whom the information pertains, who may bring a civil action in a United States district court.

(b) Remedies. - The court may award -

(1) actual damages, but not less than liquidated damages in the amount of $2,500;

(2) punitive damages upon proof of willful or reckless disregard of the law;

(3) reasonable attorneys' fees and other litigation costs reasonably incurred; and

(4) such other preliminary and equitable relief as the court determines to be appropriate

     The court rejected all these arguments. It noted that information in a motor vehicle record "may pertain to more than just the motor vehicle operator. For example, the title to a motor vehicle that is jointly owned by two or more people (e.g. a husband and wife or three friends) will contain information (such as names) pertaining to all those people. Similarly, the registration of a motor vehicle registered to one spouse ordinarily will contain information (such as address and telephone number) regarding the other spouse." But additionally, the purpose of the legislation was to protect not only drivers, but other persons who might suffer harm as a result of the release of the information, including children. While the statute does place restrictions on the commercial sale of driver's license information, this was not the main focus of the intent of Congress in enacting the provision--rather it was to fight particular types of crime, such as stalking and harassment.

     In the instance of one of the families involved in the case, they could not maintain a claim under the statute, however, as it appeared that their home address was obtained through other means than motor vehicle records.

     The federal court also ruled that no showing was required of an official municipal policy or custom, and that a municipality can be held vicariously liable for the actions of its employees or agents acting with at least "apparent authority." Such vicarious liability, the court reasoned, would impose an incentive on an employer to take steps to adopt "appropriate policies and procedures to prevent the misuse of motor vehicle records, thereby furthering the DPPA's goals of protecting individuals' personal information found in motor vehicle records."

Because there is nothing in the DPPA suggesting that it was not intended to impose vicarious liability and "application of the apparent authority doctrine advances the [DPPA's] goals and produces no inconsistencies with other [DPPA] provisions, ... a theory of [vicarious] liability is an appropriately operative theory of liability under the statute."

     The court acknowledged that "Arguably, there would be an inconsistency in imposing vicarious liability upon states and state agencies because they are exempted from civil liability under 18 U.S.C. § 2724. That issue, however, need not be addressed in this case. There are no inconsistencies with imposing vicarious liability upon municipalities. "A state department of motor vehicles may, however, be subject to a civil penalty imposed by the Attorney General if it has "a policy or practice of substantial noncompliance with this chapter." 18 U.S.C. § 2723(b). This differential treatment of states and state departments of motor vehicles provides no basis upon which to conclude that Congress intended to treat municipalities different than other "persons," the court reasoned.

     Margan v. Niles, 2003 U.S. Dist. Lexis 3971 (N.D.N.Y.).

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Trial court properly dismissed arrestee's claims concerning supposedly false statements in search warrants for her home and business when the officer preparing the affidavit for the warrants clearly indicated that the statements in question came from a confidential informant previously shown to be reliable, and the officer had no reason to believe that these statements were false.

     While an arrestee was in custody, search warrants were obtained to search both her home and business. She had been arrested on the basis of information from a previously reliable confidential informant, corroborated by other evidence gathered through independent investigation. The charges of bribing a witness were based on the informant's statements that the arrestee had offered him $10,000 to falsely tell members of a "citizen's group" that the police had set up her son on a previous arrest.

     In her federal civil rights lawsuit, among other claims, the plaintiff claimed that the defendant officers violated her Fourth Amendment rights by including false statements in the search warrant affidavit and by allegedly failing to disclose in the affidavit supposedly exculpatory information.

     Rejecting these claims, a federal appeals court noted that there was no evidence presented by the plaintiff that the officer preparing the affidavit "deliberately or recklessly misstated the evidence or omitted any material fact which would negate a finding of probable cause." The alleged fabrications which the plaintiff complained of came directly from the confidential informant's written statement to the police and identify "the confidential informant" as the source of the information.

     The officer accurately portrayed the information the police obtained from the informant, and there was nothing to indicate that he knew this information was inaccurate. The mere inclusion of the plaintiff's own exculpatory statement would not have negated a finding of probable cause, so the trial court properly granted summary judgment on the illegal search and seizure claims.

     Dahl v. Holley, #01-15089, 312 F.3d 1228 (11th Cir. 2002).

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Administrative Liability: Training

     Brain-damaged motorist who claimed that a police officer used excessive force against him in arresting him on suspicion of driving while intoxicated failed to establish a pattern of the use of excessive force against disabled suspects or inadequate training sufficient to support a claim against the municipality. Officers were trained on how to deal with persons with physical and mental disabilities and an explicit policy prohibited the excessive use of force. Pahle v. Colebrookdale Township, 227 F. Supp. 2ed 361 (E.D.Pa. 2002).

Assault and Battery: Handcuffs

     Officers were not entitled to qualified immunity on a claim that they kept two apartment occupants handcuffed for two hours while their apartment was being searched under a warrant. The complaint alleged that they were kept handcuffed long after the officers had reason to believe that they were not connected with persons sought in connection with a shooting. Seaman v. Karr, #27935-5-II, 59 P.3d 701 (Wash. App. 2002).

Defamation

     Former FBI associate director could not pursue, in federal court in Texas, a defamation claim against a New York university professor on the basis of his article, published on the Internet on the university's website, claiming that he was involved in a "conspiracy" to "cover up" advance warning allegedly received by the U.S. government of the terrorist bombing of a flight over Lockerbee, Scotland in 1988. Publication on the website was not sufficient to give personal jurisdiction over the defendant to a court in Texas. Revell v. Lidov, #01-10521, 317 F.3d 467 (5th Cir. 2002). [PDF]

Defenses: Absolute Immunity

     Prosecutor was entitled to absolute immunity from liability for a decision to prosecute, even if it was purportedly based on an inadequate police investigation. Prosecutor was only entitled, however, to qualified immunity for making statements to the media, but did not violate any clearly established constitutional rights when all that was communicated was the fact of the arrest, even if that caused the arrestee to be held up to ridicule and scorn. Joseph v. Yocum, #01-4142, 53 Fed. Appx. 1 (10th Cir. 2002).

Defenses: Qualified Immunity

     Officer was not entitled to qualified immunity on a claim concerning the arrest of a social visitor to an apartment after a search warrant had been executed there. The need for probable cause to seize the visitor was "clearly established." Gregory v. Oliver, 226 F. Supp. 2d 943 (N.D. Ill. 2002).

False Arrest/Imprisonment: No Warrant

     Police detectives reasonably believed they had probable cause to arrest a father for the 20-year-old murder of his daughter's childhood friend because of the daughter's statements about her purported eyewitness remembrance of the crime and statements from two other daughters indicating that he was a violent pedophile. Franklin v. Fox, #01-15052, 312 F.3d 423 (9th Cir. 2002). [PDF]

     Probable cause existed for the plaintiff's arrest when he failed to disperse and challenged police authority to take others into custody as part of an eight-person crowd in a parking lot, but there were factual issues as to whether the plaintiff resisted arrest and whether the officer's use of force in making the arrest was excessive. Burbank v. Davis, 227 F. Supp. 2d 176 (D. Me. 2002).

     Police officers had probable cause to arrest a motorist for disorderly conduct after she failed to obey their order that she move her car, which was blocking traffic after being involved in an accident on a busy downtown street during a holiday festival. While motorist claimed that she did not hear their request, she admitted to standing very close to the requesting officer, and indeed had even claimed that he had "violated her personal space." Brown v. Gilmore, #01-1749, 278 F.3d 362 (4th Cir. 2002).

False Arrest/Imprisonment: Warrant

     Man arrested and held for 12 days on arrest warrants intended for his twin brother sufficiently alleged that city warrant procedures constituted a "policy" for purposes of a federal civil rights due process claim against the municipality. Evidence in the case included testimony by the police chief that he was the chief policymaker for the city and was aware that the arrest of the wrong person under a warrant was "not uncommon" and was "particularly acute" for twins, yet he had not established any internal procedures to attempt to remedy this problem. Fairley v. Luman, #99-56483, 281 F.3d 913 (9th Cir. 2002). [PDF]

False Arrest/Imprisonment: Wrongful Detention

     County sheriff was not liable for false imprisonment for taking plaintiff into custody and continuing to hold him when court sentencing order and release order were ambiguous concerning when and how he should be released from custody on contempt charge for failing to appear at court proceeding. Emory v. Pendergraph, No. COA01-1591, 571 S.E.2d 845 (N.C. App. 2002).

Federal Tort Claims Act

     A factual issue existed as to whether a federal employee was acting within the scope of his employment when his vehicle struck a motorist's car when he was driving his own car at the time and made no effort to attend purported work-related meeting after the collision despite the drivable condition of his vehicle. Plaintiff could therefore challenge U.S. government's attempts to substitute itself as the proper defendant and have the case dismissed for the plaintiff's alleged failure to pursue administrative remedies under the Federal Tort Claims Act, 28 U.S.C. Sec. 2401(b) within two years of the accident. Ware v. Doane, 227 F. Supp. 2d 169 (D. Me. 2002).

Firearms Related: Accidental Use

     Trial court erred in ruling that officer's accidental shooting of auto passenger was reasonable and that he was entitled to qualified immunity. There was a genuine issue of material fact as to whether the officer's manner of approaching the car with his gun drawn and pulling the passenger out of the vehicle was reasonable, based on expert testimony and the claim that the passenger put his hands up and was cooperating. Heyward v. Christmas, #3562, 573 S.E.2d 845 (S.C. App. 2002).

First Amendment

     City ordinance which prohibited the sale of alcohol on premises which presented "adult entertainment" such as nude dancing did not violate the First Amendment, since it was a reasonable effort to combat undesirable "secondary" effects that could result from the combination of that form of entertainment and the consumption of alcohol. Ben's Bar, Inc. v. Village of Somerset, #01-4351, 316 F.3d 702 (7th Cir. 2003). [PDF]

Freedom of Information

     Law firm representing persons before a federal grand jury tax investigation and before the IRS was not entitled under the Freedom of Information Act, 5 U.S.C. Sec. 552, to access to a memo prepared by a federal prosecutor and sent to an IRS-created public commission. Documents prepared to help an agency decisionmaker in arriving at their decision are exempt from disclosure as part of a deliberative process under 5 U.S.C. Sec. 552(b)(5). Additionally, the disclosure of the limited factual material in the memorandum was not required, since it was "too inter-twined" with "evaluative decisions." Tigue v. United States Department of Justice, #01-6243, 312 F.3d 70 (2nd Cir. 2002).

     Motorists are allowed to obtain operator's manuals for radar devices used by police departments under New York Freedom of Information law. "We are not persuaded," the court stated, "that speeding motorists could use the information contained in these manuals, primarily technical specifications, operational instructions and legal advice on how best to ensure successful prosecution of speeders, to evade detection by police officers using radar equipment." Capruso v. New York State Police, 751 N.Y.S.2d 179 (A.D. 1 Dept. 2002).

Police Plaintiffs

     Police officer's work conditions were "abnormal" for purpose of a benefits recovery for psychic injury when credible gang death threats were received by both the officer and his child. City of Pittsburgh v. Logan, 810 A.2d 1185 (Pa. 2002). [PDF]

Police Plaintiffs: Premises Liability

     Officer who was injured while pursuing intruders at construction site after being summoned there by private security personnel could pursue his claim for damages against general contractor and owner of site. There were genuine issues as to whether the defendants had notice of the loose construction strut that allegedly caused the officer to fall on an unlit stairway. Sanchirico v. Nickerson Terrace Redevelopment Associates, L.P., 751 N.Y.S.2d 187 (A.D. 1st Dept. 2002).

Police Plaintiffs: Vehicle Related

     Actions by driver of stolen vehicle in trying to intentionally hit an officer are ruled to be an "accident" by the New Jersey Supreme Court for purposes of an officer's claim for uninsured motorist benefits against his own vehicle insurer. Shaw v. City of Jersey City, 811 A. 2d 404 (N.J. 2002).

Procedural: Discovery

     Police commissioner should not be required to give a deposition in a lawsuit claiming that county police officers engaged in sexual abuse when he had no personal knowledge of the incident involved, and there were other, lower ranking officials who could provide evidence on the county's policies and procedures for addressing alleged sexual abuse by officers. Murray v. County of Suffolk, 212 F.R.D. 108 (E.D.N.Y. 2002).

Public Protection: Motoring Public

     Jurors could reasonably find that actions by state police in failing to send assistance to truck driver in backing an 18-wheeler truck loaded with overhanging poles out onto the highway did not render them liable for the deaths of two occupants of a car which collided with the truck as it backed out after sunset without a police escort. Officers believed that driver would not make such an attempt after sunset, when the driver indicated that he knew it would be illegal for him to be on the road at that time. Trial judge properly found sheriffs' office, however, 20% at fault for failing to respond to request for assistance. General damages of $400,000 to each of ten adult children of two parents killed ordered, increasing prior award of $200,000 each, based on children's close relationship with parents, and fact that the parents were killed on Mother's Day, after celebrating that day with their children. Davis v. Witt, #01-894, 831 So. 2d 1075 (La. App. 2002).

Public Protection: 911

     City liable to man who injured his back while providing requested assistance to emergency medical technicians in lifting 300-lb. neighbor from his house to an ambulance responding to a 911 call. Governmental immunity did not apply, and plaintiff was properly awarded $345,000 in damages, along with $5,000 to his wife for loss of consortium. Caillouet v. City of New Orleans, No. 2002-CA-0475, 834 So. 2d 521 (La. App. 4th Cir. 2002).

Search and Seizure: Home/Business

     Following execution of search warrant on home, officers acted properly in obtaining a second search warrant to seize video camera and answering machine in residence which may have contained evidence of the evening's events, which subsequently gave rise to a federal civil rights lawsuit over the execution of the first search warrant. Estate of Smith v. Marosco, 227 F. Supp. 2d 322 (E.D. Pa. 2002).

Search and Seizure: Vehicle

     Officer did not use excessive force in positioning his truck directly in front of motorist's truck, drawing his gun, and physically removing motorist from vehicle after motorist had allegedly been involved in two hit-and-run accidents and had failed to stop after a roadblock with marked police vehicles, three stop stick attempts, or after all his tires had deflated. Harrell v. Purcell, 236 F. Supp. 2d 526 (M.D.N.C. 2002).

     N.C. intermediate appeals court upholds dismissal of motorist's constitutional due process challenge to program under which he was issued a traffic citation for running a red light after an automatic camera allegedly photographed his vehicle doing so. Structural Components Int. Inc. v. City of Charlotte, No. COA02-200, 573 S.E.2d 166 (N.C. App. 2002).

Wiretapping

     Police officer who recorded a call made by another officer from a cordless phone allegedly concerning drug trafficking was not liable under the Fourth Amendment and the federal Wiretap Act, 18 U.S.C. Sec. 2510  et seq. when the law concerning recording of cordless phone conversations was not clearly established. Officer was entitled to qualified immunity because he could reasonably believe he was not violating any laws, based on his compliance with a state wiretapping statute and the existence of a state court judge's authorizing of his actions. Frierson v. Goetz, 227 F. Supp. 2d 889 (M.D. Tenn. 2002).

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

     Article: "The Impact of Video Monitoring Technology on Police Field Operations," by Lieutenant Gus Arroyo, Fremont Police Department, November 2002.

     Article: "Improving Our View of the World: Police and Augmented Reality Technology," By: Captain Thomas J. Cowper, New York State Police Dr. Michael E. Buerger, Bowling Green State University. Futures Working Group (a collaboration of the FBI and Society of Police Futurists). The purpose of this research paper is to provide the policing profession an introductory source document and overview of Augmented Reality (AR). Fundamental principles and components of the technology are examined, along with research developments occurring today that have the potential to directly enhance individual human performance through the augmentation of reality. The implications of AR and some potential applications for its future use as a law enforcement tool are offered. As a source document for police officers it does not present new scientific research or highly technical data. It is intended to provide a starting point for the development of practical and beneficial policing applications through the use of AR. Complete article (PDF) 68 pages

     Article: "Obtaining Written Consent to Search," by Jayme Walker Holcomb, J.D. 72 FBI Law Enforcement Bulletin No. 3, pgs. 26-32 (March 2003). [PDF format]. The FBI Law Enforcement Bulletin, beginning with the June 2001 issues, is also available online in .html format, as well as PDF.

     Guidelines: "Crowd Management and Civil Disobedience Guidelines," California Commission on Peace Officer Standards and Training. (35 pgs. March 2003). (A revision of guidelines first published in December of 1998).

     Report: "Intimate Partner Violence, 1993-2001". [PDF]. Reports on trends in intimate partner violence of persons age 12 or older in the United States using data from the National Crime Victimization Survey (NCVS) and the FBI's Supplementary Homicide Reports. Murder and nonfatal violent crimes -- such as aggravated assault, simple assault, robbery, and rape/sexual assault -- are examined for male and female victims. This Crime Data Brief updates some of the data in Intimate Partner Violence, a more detailed report on this subject published in 2000. Highlights include the following: The number of violent crimes by intimate partners against females declined from 1993 to 2001. Intimate partner violence made up 20% of all nonfatal violent crime experienced by women in 2001. 1,247 women and 440 men were killed by an intimate partner in 2000. 02/03 NCJ 197838

     Report: "Pepper Spray's Effects on a Suspect's Ability to Breath," a NIJ Research in Brief (CJF 188069) presents the result of a study on the combined effects of pepper spray exposure and positional restraint on respiratory functions conducted by the National Institute of Justice (NIJ) and the Office of Community Oriented Policing Services (COPS). The findings suggest that inhalation of pepper spray does not pose a significant risk to subjects in terms of respiratory and pulmonary functions, even when it occurs with positional restraint. However, pepper spray exposure did result in a small but statistically significant increase in blood pressure, the origins and implications of which remain unclear. The report can be ordered from the National Criminal Justice Reference Service at 800-851-3420 or accessed online.

     Report: "Risk Management: An Essential Guide to Protecting Critical Assets," by the National Infrastructure Protection Center (11 pgs, November 2002). [PDF]. "As organizations increase security measures and attempt to identify vulnerabilities in critical assets, many are looking for a mechanism to ensure an efficient investment of resources to counter physical and cyber threats. One method is a risk management model that not only assesses assets, threats, and vulnerabilities, but also incorporates a continuous assessment feature. [...] Security managers and decision-makers that operate in any sector of the national infrastructure must have a sound methodology to manage both physical and cyber risks to their organization."

     Website: National POST Portal. Presents links to connect to the Peace Officer Standards and Training Agency or Central Academy of all but three states.

     Website: The Society of Police Futurists International (PFI) is an organization of law enforcement practitioners, educators, researchers, private security specialists, technology experts and other professionals dedicated to improving criminal and social justice through the professionalization of policing. Futures Research (long-range planning and forecasting) is the pivotal discipline that constitutes the philosophical underpinnings of PFI. The tools and techniques of this field are applied in order to more accurately anticipate and prepare for the evolution of law enforcement ten, twenty, and even fifty years into the future. Futures Research offers both philosophical and methodological tools to analyze, forecast, and plan in ways rarely seen in policing in the past. Publishes The Police Futurist newsletter, of which current and back issues are available for download in PDF format.

     Reference:

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