CONTENTS

Inadequate training of police officer in the handling of hostage situations was not the cause of the death of liquor store manager who was taken hostage by a disturbed person.

     The wife of a liquor store manager who was shot and killed by a disturbed man who also killed himself claimed that inadequate training of a police officer who was on the scene was the cause of her husband's death. A federal appeals court has upheld the trial court's rejection of this claim.

     The officer was responding to a report of gunfire at an elementary school when he encountered a multiple-vehicle accident at an intersection near the liquor store. The officer saw the suspect who had just attempted to shoot his estranged wife as she took their children to the school get out of one of the vehicles and run to a nearby store armed with a shotgun.

     The officer decided against shooting because of the number of bystanders present. The armed man went into a liquor store, taking the manager hostage, and telling the officer he would release the hostage only if he was allowed to speak to his estranged wife. The man was allowed to contact his wife, but after an argument with her, he killed both the liquor store manager and himself.

     The store manager's wife claimed that if the town which employed the officer had trained him better with tactical combat and hostage negotiation skills, he would have been more successful in protecting her husband.

     The appeals court found that there was no showing of a failure to train amounting to deliberate indifference to a known risk of harm. The evidence showed that the officer had completed the training offered by the Indiana Law Enforcement Academy and satisfied all statutory training requirements, which was evidence that the town did not have a policy of providing its officers with inadequate training. In summary, the plaintiff failed to show that anything the town did or failed to do caused the death of the plaintiff's husband.

     Ross v. Town of Austin, Ind., No. 02-3830, 2003 U.S. App. Lexis 19151 (7th Cir.).

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Officers did not violate the Fourth Amendment rights of a woman with Down Syndrome or subject her to disability discrimination by making a warrantless entry into her apartment in response to her 911 call, seizing her, and involuntarily taking her to be hospitalized in a psychiatric unit.

     The New York City Police Department received a 911 call originating from an apartment occupied by a woman with Down Syndrome, in which she reported that she was being attacked by a man with a gun and a knife. The dispatcher had difficulty understanding a good deal of what the caller said. Officers responding to the call made a warrantless entry into the apartment, and the woman present inside could not communicate with them very well or explain why a 911 call was made.

     The officers searched the house for information as to how to contact the woman's half-sister and legal guardian after a neighbor informed them of her existence, but were unable to make contact. After discussing the matter with a superior officer, a sergeant, the officers were ordered to seize the woman and transport her by ambulance to a hospital.

     They did so, leaving a note for the guardian. At the hospital, the woman was admitted under a diagnosis of "unspecified psychosis," later altered to Down Syndrome with secondary diagnosis of "unspecified mental retardation" and "unspecified hearing loss." A psychiatric evaluation described her as "fearful, anxious, delusional, and paranoid." The hospital took blood and urine sample to test for drug use and also administered sedatives and anti-psychotic medication. She was discharged the next morning.

     The woman and her sister asserted claims for violation of the Fourth and Fourteenth Amendment and for violation of the Americans with Disabilities Act (ADA), 42 U.S.C. Sec. 12101 et seq. The trial court granted summary judgment for the defendants.

     Upholding this result, a federal appeals court found that exigent circumstances, i.e., the 911 call reporting the possible violent assault, justified the warrantless entry into the apartment, which is where the call originated.

     The woman found inside may have been sitting calmly and quietly (although uncommunicatively), but the officers knew they were responding to a call from a woman who claimed to be at risk of immediate physical injury, requested assistance, and was potentially "emotionally disturbed."

     Further, the court found, the officers were entitled to qualified immunity as they were responding to the order of a superior officer to seize the woman and transport her to the hospital, an order which, combined with the 911 call and all of the surrounding circumstances could have allowed them to reasonably conclude that probable cause existed for the seizure.

     The sergeant's mere exercise of discretion under the circumstances, the court further found, did not render him a policymaker or final decision maker for the city, so municipal liability could not be based on his order.

     The appeals court found no evidence to support an allegation that the city had a deliberate policy of failing to adequately train its officers on how to interact with non-violent disabled individuals. One of the officers expressly stated that the department had a training policy in place to instruct officers on how to interact with "emotionally disturbed persons (EDPs)," and that the policy "distinguished between" EDP emergencies involving someone who was violent and dangerous, and those who were not.

     The appeals court also found no support for the ADA disability discrimination claim. While the officers admitted that they perceived the woman as disabled and that they seized her simply because they thought there was "something wrong with her," with one officer stating that she seemed to "be needing of assistance because she appeared to be slow," this did not suffice to show that "discriminatory intent" against disabled persons was a motivating factor in the decision to order the officers to seize her.

     As for the woman's hospitalization, the court noted that the staff at the hospital found her unresponsive and subsequently delusional and paranoid, giving them reason to believe that she was a danger to herself or others. The blood and urine tests did not violate the Fourth Amendment, the court ruled, as they were not conducted for law enforcement purposes, but rather to facilitate medical diagnosis and treatment. Given the hospital staff's reasonable belief that the woman was a danger to herself or to others, the involuntary hospitalization was constitutional under the Fourth Amendment.

     Anthony v. City of New York, #01-7987(L), 339 F.3d 129 (2nd Cir. 2003).

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Warrantless arrest of resident during execution of valid search warrant for her home did not violate her rights, based on evidence found, which officers believed, at the time, was crack cocaine. Officers earlier violated federal criminal statute by pretending to be census workers, but such conduct cannot be the basis for a federal civil rights claim.

     Officers received a complaint from a resident about criminal activity allegedly going on at the house next door. The complainant said that drug sales were being conducted there at all hours of the day, and that she had seen bags of drugs and heard drug-dealing conversations. After an investigation and a controlled drug buy there, an officer applied for and received a search warrant for the house. In doing surveillance prior to executing the search warrant officers out of uniform questioned a woman sitting outside the home, telling her that they were "census workers," which elicited her response that she lived at the home with her children.

     This same woman was detained as she approached the house while the warrant was being executed. During the search, officers recovered a substance that they suspected was crack cocaine, and arrested the woman for "operating a disorderly house" despite her claim at that time that she did not live there. The substance found was not crack cocaine and the charges were dropped.

     Due to the condition of the house at the time of the search, one of the officers notified the housing inspector, who subsequently cited 26 building violations, including the lack of running water, which resulted in the property being condemned and an order being issued for the occupants to vacate the premises.

     The arrestee filed a federal civil rights lawsuit claiming that her warrantless arrest was unlawful, that the officers violated a federal statute, 18 U.S.C. Sec. 912, in pretending to be federal census workers, and that the police officers "trashed" her home in executing the search warrant, which resulted in the property being condemned.

     Rejecting all these claims, a federal appeals court noted that the officers discovered what they believed at the time was crack cocaine during the execution of a valid search warrant, as well as other evidence associated with drug dealing, such as baggies, cash, and seven cell phones. And while the arrestee, at the time, disavowed living in the house and being responsible for it, there was ample evidence to the contrary, including mail addressed to her there.

     While the officers' false representation of themselves as census workers did violate a federal statute prohibiting impersonating a U.S. officer, there was nothing in the language of the statute providing a private remedy, so the plaintiff could not pursue a civil rights claim for this conduct.

     Finally, the court also found that, whatever damage had been done to the house in the course of the search by the officers, there were ample grounds to condemn the house based on pre-existing conditions, including the admitted lack of running water, unsanitary conditions, an insect infestation, evidence of a rodent infestation, and hazardous electrical wiring.

     Frison v. Zebro, No. 02-2226, 339 F.3d 994 (8th Cir. 2003).

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Officer had probable cause to arrest suspect following discovery of what he believed to be crack cocaine during a lawful investigatory detention. Officer was not liable for alleged deliberate indifference to serious medical needs of arrestee who subsequently died from a drug overdose caused by ingesting cocaine, since the officer did not see the arrestee swallow it, the arrestee denied swallowing drugs, and the officer did summon paramedics when the arrestee became ill.

     A police officer made an investigatory stop of a suspect based on suspicion of invalid vehicle registration, the use of unlawful window tinting on the vehicle, and other vehicle issues. The officer continued the detention for a time even after determining that no vehicle registration laws were being broken, since the suspect was unable to explain his presence at a residence where a burglary had previously taken place, the officer knew the homeowner was not at home, and the suspect had a "nervous demeanor."

     During the investigatory stop, the officer discovered a substance that he believed to be crack cocaine, and the suspect attempted to flee from the scene. At this point, a federal appeals court subsequently ruled, the officer clearly had probable cause for an arrest.

     The arrestee ultimately died while in custody because he had ingested a lethal amount of cocaine, and the lawsuit by his estate, in addition to asserting false arrest claims which the court rejected, further claimed that the arresting officer was deliberately indifferent to the arrestee's serious medical needs, causing the death.

     Rejecting this argument also, the appeals court noted that the officer did not see or otherwise know that the arrestee had swallowed the drugs, and the arrestee explicitly denied swallowing drugs. Further, when the arrestee appeared to become sick, the officer summoned paramedics and attempted to assist him while waiting for the ambulance, performing such tasks as checking on the arrestee's heart rate and breathing. Further, it was the arrestee himself who refused to be taken to a hospital. Under these circumstances, the court found no evidence sufficient to impose liability on the officer.

     Weaver v. Shadoan, No. 01-5656, 340 F.3d 398 (6th Cir. 2003).

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Arrest of motorist during a traffic stop under a warrant quashed by the court, but still in the sheriff's computer system, could not be the basis under Arizona law for a claim for false arrest. Deputy had a privilege to make an arrest under an "invalid warrant fair on its face."

     An Arizona deputy sheriff arrested a motorist during a traffic stop under a warrant that the issuing court had quashed seven months before. The warrant was initially issued after the motorist had failed, through no fault of his own, to appear for a hearing in a paternity case. Under the court's standard procedure, the court clerk sent a duplicate of the issued warrant to the sheriff's office, where it was entered into the computer system and the physical copy was placed in a file.

     When the court quashed the warrant a month later, the court clerk failed to follow a standard procedure of notifying the sheriff's office of this fact. Had this been done, the warrant would have been stamped "quashed" and sent back to the court, as well as removed from the computer system.

     When the deputy stopped the motorist, a call to the sheriff's office showed an active warrant, and the duplicate was manually located to confirm the warrant. The deputy arrested the motorist and took him to jail. The motorist asserted claims for false arrest and violation of federal civil rights against the sheriff and the deputy.

     The state trial court granted summary judgment on both claims. The motorist appealed the judgment on the state law false arrest claim. The appeals court agreed that the warrant, having been quashed, was invalid.

     But rather than appearing to be defective in any way, the court noted, it appeared "fair on its face." There was nothing to make the deputy suspect that there was anything wrong with the warrant.

The law provides no privilege to an officer who arrests a person on an invalid warrant that is not fair on its face.

     Such a warrant, the court stated, would exhibit some problems with what the officer is expected to know -- "at least the superficial characteristics of a valid warrant," so that an officer will be liable if the warrant, by its terms, is "too general," fails to "properly name" the party wanted, or is "returnable at the wrong time or does not charge a crime."

     In this case, however, there was nothing to suggest that the warrant did not appear to be regular in form when the officer made the arrest, or that a reasonable examination of the original warrant would have "disclosed its invalidity." Not only had the sheriff's computer database shown that the warrant remained active, but a sheriff's employee had also found the duplicate in the file.

     The appeals court found that, under these circumstances, the deputy was privileged to arrest the plaintiff on the "facially valid" warrant and that privilege subsequently protects the sheriff and the deputy from liability on the false arrest claim.

     Torrez v. Knowlton, #2 CA-CV 2002-0087, 73 P.3d 1285 (Ariz. App. Div. 2 2003).

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Officers acted in an objectively reasonable manner in shooting at persons who they believed, even if mistakenly, were going to use deadly force against them.

     A federal appeals court has upheld summary judgment on the basis of qualified immunity for police officers who fired first on suspects who they reasonably believed were about to use dead force against them, and had thrown rocks at them as they hid in bushes doing surveillance of a house from which they believed drugs were sold. The officers believed that they heard the sound of the chambering of rounds and that one of the suspects was pointing a gun at an officer.

     The fact that the officers may have been mistaken and that no weapon was found on the suspects did not alter the result.

     The court also held, in the course of reaching those conclusions, that a suspect shot at and actually hit was "seized" for purposes of the Fourth Amendment, even though that did not stop him from fleeing back to his house, as well as that:

     * there was no violation of the substantive due process rights of a suspect who was shot at but not hit, since he suffered no physical injury and the officer used deadly force for the purposes of self-defense and the defense of a fellow officer, rather than maliciously and sadistically to cause harm.

     * the substantive due process analysis, based on conduct which "shocks-the conscience" is appropriate for instances where deadly force is used, but does not result in a "seizure" as required for a Fourth Amendment claim.

     * that the officers had no duty to provide medical care to a suspect who retreated into his house after being shot, since he was not in custody or being taken into custody at the time, and the officers did not even know that he had been hit.

     Carr v. Tatangelo, No. 01-14621, 338 F.3d 1259 (11th Cir. 2003).

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Arrestee's chanting of words in protest of police requirement that persons seeking to attend a protest rally submit to a pat down search, including "two, four, six, eight, fuck the police state," was constitutionally protected speech under the First Amendment for which he could not face arrest for disorderly conduct in the absence of any evidence that his words presented a "clear and present danger" of a violent reaction by the crowd. Arresting officer, however, was entitled to qualified immunity from liability, since he believed that the arrestee was trying to incite the crowd, which had become disorderly the previous day.

     In the fall of 2000, a group of Chief Executives of U.S. and European corporations known as the TransAtlantic Business Dialogue (TABD) met in Cincinnati, Ohio. The meeting attracted many protesters to the city who came to voice their concerns about TABD's policies. The city's police department, anticipating a large number of protesters at the conference, began preparations months in advance. One decision, which had proven successful in other cities in similar situations, was to place police officers with helmets and other protective gear in positions of high visibility where protest activities were scheduled to be held.

     On November 18, 2000, the third day of the conference, a group of protesters who had obtained a permit, held a rally at a square, a large public area located in the downtown business district. The entire rally area was surrounded by barricades with only one controlled entrance and exit point, and police officers were stationed at this point, so that any one seeking entry to the rally had to consent to a pat down and brief search of any items they were carrying. The purpose was to uncover contraband, such as spray paint cans, slingshots, or ball bearings, which were items which had been used by protesters the day before and which caused property damage.

     A young college student attending the protest stood in an area outside of the rally, telling people in the crowd they did not have to consent to be searched before entering the square, and that the searches were unconstitutional. He subsequently started to loudly chant, "this is what a police state looks like," and other people started joining in for approximately a minute. He then yelled, "two, four, six, eight, fuck the police state." At that point a police officer approached the student, asking him whether he wanted to go into the rally or not. "If not, you'll have to move," the officer told him.

     In response, the student walked away, but within moments, he returned and began chanting, "Two, four, six, eight, fuck the police state," and a number of people began to follow him as he began to walk in a circle, all yelling the same chant for about fifteen to sixteen seconds, after which an officer placed the student under arrest for disorderly conduct. Charges against the arrestee were later dismissed at the close of the prosecution's case due to insufficient evidence.

     The arrestee sued the arresting officer, claiming that the arrest violated his First Amendment constitutional rights. Following a bench trial, a federal magistrate judge agreed, holding that the arrestee's chanting of the words in question were constitutionally protected free speech. The judge found that there was no evidence that the speech in question presented a "clear and present danger" of any violent reaction by the crowd.

     The court noted that the arrestee did not address his chant toward any particular individual, "nor is there any evidence of anyone within earshot of him showing any signs of anger or violent reaction."

It is well settled that the First Amendment protects verbal criticism, challenges, and profanity directed at police officers unless the speech is "shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest."

     At the same time, the court also found that the arresting officer was entitled to qualified immunity from liability. It ruled that a reasonable officer, under the circumstances, could fail to realize that the plaintiff's First Amendment rights were violated by the arrest. On the day in question, the area was crowded with protesters and police officers, and the defendant officer was aware that TABD conferences in other cities had been met with large protesting groups which had, in some cases, "involved much violence and damage," and that some disruption and property damage caused by protesters had taken place in Cincinnati the previous day.

     The court found that the officer believed that the plaintiff was trying to incite the crowd, and that the plaintiff had just previously been warned by the defendant's superior officer, to enter the rally or move on, but shortly after that, the plaintiff returned and began his chant. While the court believed that at the time the plaintiff was arrested, "he had not stirred up the crowd past the point of the First Amendment's protection of his speech, a reasonable police officer, based upon the total circumstances confronted," could have reached a different conclusion. In cases where an officer reasonably but mistakenly concludes that probable cause is present, the court noted, they should not be held personally liable.

     Spier v. Elaesser, 267 F. Supp. 2d 806 (S.D. Ohio 2003).

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Man arrested by mistake during investigation of theft of water from a city fire hydrant failed to show that his arrest was caused by any city policy or custom. Federal appeals court overturns jury award of $1 in nominal damages and in excess of $90,000 in attorneys' fees and costs.

     Police officers in an Oklahoma City responded to the scene of an alleged theft of water from a city fire hydrant. They encountered several employees of a parking lot maintenance company, some of whom spoke no English at all and one of whom spoke some English. An officer asked them who had given them permission to take water from the hydrant, and the one employee speaking some English responded by saying either "boss" or "supervisor," after saying "memo," which was allegedly a nickname for their immediate supervisor at the company.

     When they questioned this supervisor, he stated that he had merely told the employees to fill a water tank and bring it to the job site, but denied telling them to take water from a fire hydrant. An officer wanted this man transported to the police station so that he could give a voluntary statement, and had not intended to have him taken into custody. However, because of mistakes made at the scene and a breakdown in communication among the responding officers, it was later learned, an unidentified officer handcuffed this supervisor and placed him under arrest, transporting him to jail where he was placed in a processing room and searched.

     After being informed that this was a mistake, the arrestee was removed from the jail and taken to a police station so he could be interviewed by a detective. The supervisor was never charged with a crime. He filed a federal civil rights lawsuit against the city for false arrest and unlawful search. A jury awarded him no actual damages and nominal damages of $1. The trial court awarded him $89,350.25 in attorneys' fees and $2,786.19 in costs.

     Reversing, a federal appeals court found that the arrestee had failed to show that he had been unlawfully arrested without probable cause as a result of a municipal policy or custom or as the result of inadequate training of officers. The court noted that all the evidence indicated, in fact, that the arrest was nothing other than a mistake, and was the first mistake of its kind.

     Additionally, while the officers investigating the incident at the fire hydrant may have violated applicable procedures for interrogating non-English speaking persons by proceeding without an interpreter, there was nothing to show that they acted pursuant to any official policy or custom.

     The appeals court overturned both the finding of liability and the award of attorneys' fees.

     Zuniga v. City of Midwest City, No. 02-6076, 68 Fed. Appx. 160 (10th Cir. 2003).

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Officers could not have reasonably believed that suspect voluntarily consented to being detained, transported to the police station, and interrogated for over five hours, after being approached at his home by officers with guns drawn.

     New Mexico police officers investigating the robbery of a sandwich shop went to a suspect's home after his vehicle license plates were identified from a videotape as matching those on a car which the robber used to get away.

     The suspect later stated that he was inside his trailer listening to Christmas music when the officers pounded on his door. When he opened it, they allegedly grabbed him by the wrists and pulled him down to the ground. The officers said that the man stepped quickly out of the trailer, appearing "agitated," and that they drew guns on him and told him to place his hands on his head, and placed him in handcuffs, patting him down for weapons.

     They impounded his car and took him to the police station for questioning. The officers later stated that the suspect voluntarily "seemed to agree" and consented to going to the station for questioning. The suspect, however, subsequently stated that the officers told him he was under arrest, that they were going to take him to the station, and that when he asked questions, he was told to "shut up."

     At the station, he signed a waiver of Miranda rights and was then interrogated for five hours, asking if he could go home at least four times, and either having that question ignored or answered no.

     He was also not allowed to use the bathroom unescorted and told again to "shut up," according to his version of the incident. He was never charged in connection with the store robbery.

     In a federal civil rights lawsuit against the officers, he claimed that they violated his Fourth Amendment rights by detaining him without reasonable suspicion and then arresting him without probable cause.

     A federal appeals court has upheld the rejection of the officers' qualified immunity defense, agreeing that the situation at the police station was not one in which an officer could have "reasonably but mistakenly believed that" the plaintiff's alleged consent was voluntary.

     The appeals court rejected the officers' reliance on their subjective view that the suspect "seemed to fully agree" to being transported to the station for interrogation, since he was confronted, as soon as he opened his door by several officers with guns drawn who allegedly grabbed his wrists, pulled him out, and placed him in handcuffs. Under these circumstances, the court found, the alleged statement "I'll cooperate" was "patently insufficient to establish consent in the view of a reasonable officer."

     The signing of the Miranda waiver, the court found, was "similarly unpersuasive." While the waiver form recited the Miranda rights:

It does not mention the right to be free from an arrest without probable cause or the right to terminate a consensual encounter. There is no statement in the waiver form informing Mr. Hatheway [the suspect] that he had the right that he would have had if the encounter was truly consensual: the right to terminate the interrogation and walk out of the police station at anytime.

     Most importantly, the court pointed out, the officers' argument ignored the fact that the suspect repeatedly asked to go home and one of them expressly declined to honor that request. "In light of" these requests, the court concluded, "no reasonable officer would have" found that the suspect "consented to remaining" at the station.

     Hatheway v. Thies, 335 F.3d 1199 (10th Cir. 2003).

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FBI agent and United States government were not liable for the death of a man allegedly killed on the orders of reputed organized crime leaders who were allegedly government informants. Alleged conspiracy by FBI agents did not cause victim's death and was not aimed at causing his death, but rather to preserve the organized crime leaders in question as informants.

     The estate of a man allegedly murdered at the behest of two purported organized crime leaders, who the estate also contends were government informants, filed a lawsuit that includes federal civil rights claims against a FBI agent for allegedly engaging in a conspiracy that the plaintiff contends contributed to the decedent's death.

     Granting a motion by a defendant FBI agent to dismiss, a federal trial court found that the supposed conspiracy involving FBI agents was not the cause of the decedent's suffering or death. The purpose of any alleged conspiracy engaged in, the court found, was to preserve the purported crime leaders in question as informants, not to cause anyone's death.

     The court also found insufficient the plaintiff's claims that the actions of FBI agents prevented the estate of the decedent from learning the identities of all those involved in his death, thereby resulting in the loss of possible damages from civil claims against such persons. The court found that the complaint was not specific enough about the remedies sought or the causes of action lost, and therefore failed to state a claim for interference with the right of access to the courts.

     Estate of Halloran v. United States, 268 F. Supp. 2d 91 (D. Mass. 2003).

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Officers who picked up an intoxicated man at night on a road and gave him a ride to a convenience store, leaving him there, were not liable for his subsequent death by being struck by a vehicle as he lay in the middle of the road. Officers did not create the danger posed by him walking in an intoxicated condition, nor did they put him in a more dangerous position than he was before they picked him up.

     Michigan officers riding in their squad car to a convenience store for a prisoner pickup encountered a man around midnight walking on the "foggy, unlit shoulder of the road." They stopped, determined which direction he was going, and offered him a ride, which he accepted. They noticed that he smelled of alcohol, but did not notice other signs of intoxication, such as bloodshot eyes or slurred speech.

     Once at the store, the officers took custody of their prisoner and the man they had given a ride to declined an offer of a further ride, not wanting to be subjected to a pat-down search the officers informed him they would have to do if he was to ride in the back with their prisoner. They left him at the store, therefore, and drove away.

     The man entered the store once for a soda, and later returned to try to buy a beer, which the store clerk declined to sell him because he "looked haggard and confused, and slurred his speech." He stayed there for a while, drinking coffee and then walked off.

     An hour later, at 2:25 a.m., he was run over by a truck and killed as he lay in the middle of a road 2 miles from the store. An autopsy determined that his blood alcohol level was .27 percent and would have allegedly been in excess of .30 at 12:15 a.m., the time of his arrival at the store with the officers. At that level, it was subsequently claimed, his speech would have been slurred, his eyes would have been red, and he would have had trouble standing.

     The decedent's estate sued the city and the two officers, claiming they violated his substantive due process rights. The plaintiff contended that the officers should have taken the decedent into custody and that there was either a special relationship imposing a duty because the decedent was essentially "in custody" in a sense once the officers gave him a ride, or else that their affirmative acts created an increased risk of harm to him when they left him at the store.

     A federal appeals court rejected both arguments. The officers did not render the decedent unable to care for himself. His inebriation was not "imposed or created" by their actions. They did not suspect him of wrongdoing, and he was never "in custody." Rather, the officers "merely offered to give him a ride," and they parted company when he refused to consent to a pat-down search required for safety reasons if he was to ride in back of their vehicle with their prisoner.

     The appeals court also found that even if the officers violated the provisions of a Michigan state statute requiring them to take into protective custody a person "who appears to be incapacitated in a public place," this would not constitute a violation of the decedent's constitutional rights. "A violation of a state statute does not create a liberty interest or property interest under the due process clause."

     The appeals court also rejected the plaintiff's argument for the application of the "state-created danger" exception to the general rule that officers have no duty to protect particular persons from harm by third parties.

The facts of this case indicate, at most, a failure to act; they do not rise to the level of affirmative acts which created or increased the risk that the plaintiff would be exposed to an act of violence by a third party. Defendant officers took plaintiff from a place of great danger: the shoulder of a dark, foggy, two-lane highway. They placed him in a place of lesser danger: the parking lot of an open convenience store, where telephones, restrooms, and food and drink were available to him.

Plaintiff argues that the convenience store was a place of greater danger, because she alleges, there was more traffic near the store. No reasonable jury could find that the parking lot was more dangerous than the shoulder of 25 Mile Road. Plaintiff also argues that the police invited Cartwright [the decedent] to a safe place, the back seat of the patrol car and then released him at a more dangerous place, the convenience store parking lot. This is not the proper comparison. The question is not whether the victim was safer during the state action, but whether he was safer before the state action than he was after it.

     The officers were therefore entitled to qualified immunity. The court also noted that had the officers attempted to take the decedent into protective custody as urged, they may have faced a false imprisonment lawsuit from him on the grounds that he was not really incapacitated. Public intoxication, the court pointed out, is not a civil or criminal offense in Michigan, so the officers had no alternative basis to take the decedent into custody, other than being incapacitated.

     The court found that the officers were not aware of facts suggesting that substantial risk of serious harm existed at the time they let the decedent stay at the store. Further, the court reasoned, if these officers were denied qualified immunity, "it would discourage police officers from trying to aid citizens in need." An officer's decision to "stop and pick up a citizen walking along a dark highway should not result in liability, unless an exception to the doctrine of qualified immunity applies."

     Cartwright v. City of Marine City, No. 02-1728, 336 F.3d 487 (6th Cir. 2003).

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Deputy was entitled to qualified immunity for stop, search, and brief detention of motorist based on a witnesses report that she had seen persons carrying "guns or squirt guns" getting into a van similar to the one he was driving.

     A deputy sheriff in California received information that an identified citizen had reported that she had seen three Asian teenagers carrying "guns or squirt guns" enter an older model blue Ford van in the area where he was patrolling. He followed and attempted to stop a van meeting this description, which had a broken taillight and a license plate that was not clearly visible, and the van did not yield when he turned on his flashing red lights. He believed he saw the driver lean to the right as if to obtain or conceal something.

     The deputy eventually got the van to stop, and asked the driver to step out of the van. The deputy did a search of the motorist for weapons, and the motorist refused to spread his feet for the frisk, began yelling at the deputy, and kept turning his head to speak to the deputy. Unknown to the deputy, the motorist is deaf in one ear, but the deputy believed that this head turning was designed to distract him. He handcuffed the motorist and completed a search for weapons in the van's passenger area, questioning the three female passengers. Finding no weapons, he let the motorist go with a warning about the broken taillight and the failure to promptly yield to police lights and sirens.

     The incident lasted between 25 and 35 minutes, with the motorist handcuffed for 16 to 20 minutes. He filed a federal civil rights lawsuit for unreasonable seizure, detention and search.

     A federal appeals court upheld summary judgment for the defendants. Under the circumstances, the deputy had reasonable suspicion to stop the motorist based on the information he had. Under the circumstances, which included the motorist's failure to initially stop, and failure to cooperate with the frisk, the deputy's subsequent actions were also reasonable, including the handcuffing, and the search of the passenger compartment of the van and questioning of the passengers. The brief restraint of the motorist, including handcuffing him, was not an arrest.

     The appeals court also found that the deputy was entitled to qualified immunity from liability, based on the evidence presented.

     Haynie v. County of Los Angeles, No. 01-55731, 339 F.3d 1071 (9th Cir. 2003).

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

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Administrative Liability: Supervision

     Arrestee's civil rights complaint, in restating the legal standard for supervisory liability and then alleging that the supervisor failed to train and supervise officers, was insufficient to state a claim for supervisory liability for officers' alleged false arrest and malicious prosecution of plaintiff, when there were no facts alleged to show that the defendant police superintendent had notice of the officers' purported misconduct or to connect his conduct to their actions. Also, as a matter of federal law, the fact that the year that the plaintiff's claim accrued was a leap year, with 366 rather than 365 days did not entitle him to an extra day to file his complaint to comply with a one-year statute of limitations, when the incident occurred past the month of February. Rodriguez Esteras v. Solivan Diaz, 266 F. Supp. 2d 270 (D. Puerto Rico 2003).

Attorneys' Fees: For Plaintiff

     Trial court did not abuse its discretion in enhancing an award of attorneys' fees by a 1.5 multiplier when the prevailing plaintiff's federal civil rights lawsuit was "particularly undesirable" for an attorney, as shown by the plaintiff's difficulty in obtaining legal representation and the consequent need for the trial court to appoint a lawyer. Oberfelder v. Bertoll, #01-17302, 67 Fed. Appx. 408 (9th Cir. 2003).

     Two arrestees who obtained $8,000 settlement from officer and city after prevailing at trial on their excessive force claims are awarded a total of $25,071.64 in attorneys' fees and expenses, rather than the $77,935.74 they requested. Trial court reduces the number of compensable hours for each of the plaintiffs' attorneys by 50% due to their failure to provide "sufficiently detailed contemporaneous time records, and court also reduces appropriate hourly rates for chief counsel from $350 to $225, for a junior associate attorney from $200 to $120, and for law students from $90 to $60. Martinez v. Hodgson, 265 F. Supp. 2d 135 (D. Mass. 2003).

Defamation

     City and county were not liable for defamation based upon mistaken depiction of plaintiff's photograph from his pistol permit application as being a suspected murderer with the same name. The defendants had a constitutional privilege against liability for defamation under New York state law in the absence of any evidence that they acted in a "grossly irresponsible manner." The plaintiff also could not recover against the defendants under a theory of negligence in supplying the photograph to a television network. Colon v. City of Rochester, 762 N.Y.S.2d 749 (A.D. 4th Dept. 2003). [PDF]

Defenses: Collateral Estoppel

     Decision of state court in criminal proceeding declining to find that arrestee's Fourth Amendment rights were violated by officers arresting and searching him in undercover drug operation barred him for relitigating the issue again in a federal civil rights lawsuit against undercover and arresting officers, so that lawsuit was barred by the defense of collateral estoppel. The arrestee had an adequate opportunity to call witnesses on the issue and to cross-examine prosecution witnesses at his criminal trial, where it was determined that his arrest was lawful. Mitchell v. Hartnett, 262 F. Supp. 2d 153 (S.D.N.Y. 2003).

     Decision of federal court dismissing an arrestee's civil rights claim did not have a collateral estoppel effect barring her claim for false arrest in state court, when the federal court did not decide the issue of whether the arrest, made pursuant to a warrant, was supported by probable cause. A remaining genuine issue of whether the warrant was obtained by officers acting in "reckless disregard for the truth" by refusing to consider exculpatory evidence made available by the arrestee's spouse made summary judgment on the lawsuit improper. Martinetti v. Town of New Hartford Police, 763 N.Y.S.2d 189 (A.D. 4th Dept. 2003). [PDF]

Defenses: Qualified Immunity

     Police officer was entitled to qualified immunity against arrestee's claim that taking him into custody for a misdemeanor purportedly committed outside of the officer's presence was a violation of his Fourth Amendment rights. As a matter of federal constitutional law, the U.S. Supreme Court has left the issue open in Atwater v. Lago Vista, 532 U.S. 318 (2001), the trial court found, and the U.S. Court of Appeals for the Fourth Circuit in Street v. Surdyka, 492 F.2d 368 (4th Cir. 1974) expressly ruled that warrantless arrests for misdemeanors committed outside of their presence, even if a violation of Maryland state law, do not violate the Fourth Amendment so long as the arrest is supported by probable cause. Shultz v. Smith, 264 F. Supp. 2d 278 (D. Md. 2003).

     Deputy was entitled to qualified immunity for arresting a man for violating the terms of an injunction prohibiting him from having any contact with or threatening another individual when he was told, in responding to a 911 call placed from a restaurant, that the arrestee had been there and raised his fist toward the protected man, and then confirming the validity of the injunction. The disputed facts as to whether the deputy "did not like" the arrestee or whether the arrestee had been served with the injunction did not alter the result. Riebsame v. Prince, 267 F. Supp. 2d 1225 (M.D. Fla. 2003).

Defenses: Statute of Limitations

     Vehicle owner's claim for alleged unreasonable seizure of her vehicle accrued, for purposes of a three year statute of limitations on the date that she realized that her vehicle had been seized, rather than a later date when she obtained clear title to the vehicle. Lawsuit was therefore time-barred. Jonker v. Kelley, 268 F. Supp. 2d 81 (D. Mass. 2003).

     New Jersey's two-year statute of limitations on the filing of a federal civil rights lawsuit began to run on the day that a police officer took his neighbor's son into custody and to the police station for throwing rocks and dirt into the officer's swimming pool, even if the plaintiffs did not then know their "legal rights," since they did know that the incident took place. Simone v. Narducci, 262 F. Supp. 2d 381 (D.N.J. 2003).

Domestic Violence

     Officers had probable cause to arrest husband for harassing his wife, even though both husband and wife told the officers that a scratch on the wife was caused "unintentionally." Evidence that he had taken something from his wife's hands in a manner that caused injury was enough for the officers to make an inference that he had an intent to harass or scare her, and officers, knowing that the husband had been making threats, did not believe the wife's statements. Shortz v. City of Montgomery, 267 F. Supp. 2d 1124 (M.D. Ala. 2003).

     Deputy's observation of woman's injuries and receipt of her sworn statement accusing her boyfriend of assault were sufficient to provide probable cause for an arrest of her boyfriend, despite any factual dispute about the woman's credibility. Probable cause for the arrest precluded claims for both false arrest and malicious prosecution. Thomas v. County of Putnam, 262 F. Supp. 2d 241 (S.D.N.Y. 2003).

False Arrest/Imprisonment: No Warrant

     Assuming, without deciding, that an officer's issuance of citations for "enticement" to a motorist was a Fourth Amendment seizure, it was reasonable, based on statements by two young boys that a man resembling the motorist had asked them if they wanted a ride home and by one of the boys giving the license plate number of the motorist's truck, along with the motorist's admission to having spoken to the boys. Appeals court also rejects plaintiff's claim that he was subject to racial discrimination as black person by the issuance of the citation. "Generic evidence that 44% of the people arrested in his county are black," although they constitute only 11% of the population, standing alone, "does not indicate a discriminatory effect in arrests generally, and it certainly does not indicate a discriminatory effect with respect to the specific ordinance at issue in this case." Jefferson v. City of Omaha Police Department, No. 02-3085, 335 F.3d 804 (8th Cir. 2003). [PDF]

     Dentist was not unlawfully "seized" by officers who refused to leave his office until he made himself available for service of process in a civil lawsuit concerning his tenancy, since the mere acquisition of jurisdiction by a court over a person in this manner is not a Fourth Amendment "seizure." The argument that the method of service did not comply with Missouri state law would not alter the result. Williams v. Lu, No. 02-3475, 335 Fed. 3d 807 (8th Cir. 2003). [PDF]

Firearms Related: Intentional Use

     Firing at a car with the intent to stop a suspect, when the officer did not succeed in doing so, was not a "seizure" for purposes of a Fourth Amendment claim for excessive use of force. The officer did not physically impair the suspect's ability to leave the scene, since he missed hitting him, so no constitutional violation was shown. Adams v. City of Auburn Hills, No. 02-1379, 336 F.3d 515 (6th Cir. 2003).

     Officers did not use excessive force by using non-lethal bean-bag gun and pepper spray to subdue a suspect who had assaulted two neighbors and his wife, threatened the occupants of a next door apartment with knives, and then barricaded himself in his apartment, threatening to "kill" officers if they attempted to enter, and continued to resist them after they did so. Disputed facts about whether the arrestee was then nude or still holding his knife at the time did not change the outcome. Peoples v. Kimmey, No. 02-1109, 67 Fed. Appx. 506 (10th Cir. 2003).

Freedom of Information

     State police department records concerning alleged sexual misconduct of state trooper with female minor who filed federal civil rights lawsuit were of "great public importance" as they involved alleged "misdeeds by public officials," so that newspaper was entitled to release of records, but information identifying the alleged victims, confidential informants, and officers cleared of wrongdoing would be removed first, since the release of such information might have a "chilling effect" on future investigations of sexual misconduct. Haber v. Evans, 268 F. Supp. 2d 507 (E.D. Pa. 2003).

Insurance

     Nebraska county's purchase of liability insurance with limits in excess of $1 million liability cap in state Tort Claims Act did not waive the county's protection under that cap. Nebraska Supreme Court upholds trial court decision limiting total recovery of motorist injured in auto accident with police patrol car to $1 million. Motorist was entitled, in addition to $1 million damage award, to $5,822.67 in expenses incurred in proving that his medical expenses were fair and reasonable. Salazar v. Scotts Bluff County, No. S-02-656, 665 N.W.2d 659 (Neb. 2003). [PDF]

     City's purchase of liability insurance did not constitute a waiver of governmental immunity under Georgia state law for claims against the city by an arrestee seeking damages for the actions of an officer on the basis of purported false arrest and imprisonment, and malicious prosecution, and the city's own alleged negligent hiring and retention of the officer. Reese v. City of Atlanta, No. A03A0896, 583 S.E.2d 584 (Ga. App. 2003).

Negligence: Vehicle Related

     Sheriff's department was 55% at fault in case where a pedestrian was hit by a drunk driver while helping to direct traffic around an accident scene. The injured pedestrian sued both the drunk driver and the sheriff, claiming sheriff's deputies negligently failed to stop at the first accident scene. Award against sheriff was limited to proceeds of $1 million insurance policy, from which attorneys' fees for defense were deductible, but the cost of an appellate bond was not. Edwards v. Daugherty, No. 02-354, 848 So. 2d 787 (La. App. 3d Cir. 2003).

Police Plaintiff: Defamation

     Ohio police officer could not obtain damages for defamation based on civil rights organization's actions in distributing a letter which accused the police department of "killing, raping, planting false evidence," and himself of using a "marine-style chokehold" to kill an unarmed suspect. Statements in the letter were opinions protected under the free speech provisions of the Ohio state constitution. An average reader, the court holds, "would be unlikely to infer that the statements were meant to be factual," since the entire letter "was a call to action and meant to cause outrage in the reader," and the particular statements were "clearly hyperbole, the opinion of the writer, and were offered to persuade the reader that an immediate crisis was occurring in the city." The court also noted that the letter did include reference to the outcome of a trial in which the officer was found not guilty on an assault charge and a mistrial was declared on an involuntary manslaughter charge. Jorg v. Cincinnati Black United Front, No. C-030032, 792 N.E.2d 781 (Ohio App. 1st Dist. 2003). [Microsoft Word .Doc format].

Procedural: Discovery

     Sheriff was entitled to a judicial order quashing a portion of a discovery order compelling the production of the home addresses and photographs of ten active law enforcement officers in a civil lawsuit alleging false imprisonment, malicious prosecution and battery. Such information was exempt from disclosure under state public records statute, and the plaintiff failed to show exceptional necessity or unusual circumstances justifying the production of the documents. Henderson v. Perez, 833 So. 2d 390 (Fla. App. 2d Dist. 2003). [PDF]

Search and Seizure: Persons

     Officers were not entitled to qualified immunity on the claim that they violated the rights of spectators at a basketball tournament by conducting a "wholesale, invasive search" of a large number of people present without individualized suspicion that they possessed weapons, since the need for individualized suspicion before a search for weapons was clearly established. Williams v. Brown, 269 F. Supp. 2d 987 (N.D. Ill. 2003).

Search and Seizure: Vehicle

     Officer did not detain a stopped motorist for an unreasonable length of time. His decision, while writing a citation for a lane violation, to seek assistance from his supervisor and wait for the supervisor to arrive, made after the driver demanded the names and badge numbers of the officers involved in the stop, was reasonably related to the circumstances that caused the stop in the first place. Wilson v. Trumbull County, Ohio, No. 02-3134, 69 Fed. Appx. 282 (6th Cir. 2003).

     Placing parking tickets on illegally parked cars was sufficient to provide due process notice to vehicle owner of the claimed parking violations and of the fact that accumulating three unpaid and unappealed such tickets could result in the placing of an immobilizing "wheel boot" on the auto. Plaintiff showed, however, that the city failed to provide a "meaningful opportunity" to be heard before or after the placement of such a "boot" on his car, since the tickets did not explain how to contest the validity of the placement or explain how and when the "boot" could be removed. Individual defendants, however, including the city's mayor, a police officer, and a parking monitor, were entitled to qualified immunity from liability because the law in the area of "wheel booting" was not clearly established. Gross v. Carter, 265 F. Supp. 2d 995 (W.D. Ark. 2003). [Editor's Note: Such wheel boots are often popularly referred to as a "Denver boot," purportedly because Denver, Colorado was the first city to adopt the use of such a disabling device to enforce the payment of parking tickets].

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

     Article: "Munchausen Syndrome by Proxy" by Deborah Chiczewski and Michael Kelly, 72 FBI Law Enforcement Bulletin No. 8, page 20-24 (August 2003). "Law enforcement officers can help protect children by learning to identify behavioral artifacts of MSBP." (Sergeant Chiczewski is an investigator in the Chicago Children’s Advocacy Center, an affiliation of the Chicago, Illinois, Police Department, while Deputy Chief Kelly serves with the Hinsdale, Illinois, Fire Department.)

     Article: "Spousal Privileges in the Federal Law," by Robert Kardell, M.B.A., J.D., FBI Special Agent, Chicago, Illinois. 72 FBI Law Enforcement Bulletin No. 8, page. 26-32 (August 2003). "Investigators must keep the rules and limitations of spousal privileges in mind when considering the consequences of using privileged information."

     Publication: "What You Need to Know About Drug Testing in Schools" offers perspectives on testing children for illegal drugs in school. This booklet, presented by the Office of National Drug Control Policy (ONDCP), provides those considering drug-testing programs in their communities with an understanding of the issue and solid information on which to base a decision. It answers questions about the process and explains what drug testing is, who pays for it, who does the testing, and what it tells and cannot tell about an individual’s drug use. It also describes what services should be in place to effectively deal with students who test positive for drug use and offers case histories of how schools have used drug-testing to address their drug issues. This booklet can be ordered by contacting the National Criminal Justice Reference Service (NCJRS) at 800-851- 3420; it can be accessed electronically at http://www.whitehousedrugpolicy.gov/pdf/drug_testing.pdf.

     Publication: "Problem-Solving Tips: A Guide to Reducing Crime and Disorder Through Problem-Solving Partnerships" (PDF) serves as a reference for those implementing a problem-solving approach to reduce crime and disorder through partnerships. A proactive, problem-solving approach, such as community policing, attempts to determine the root cause of a problem to prevent it from happening again. This guide, presented by the Office of Community Oriented Policing Services (COPS), contains insights into every stage of the process, most of which draw from the experiences of law enforcement officers. This guide can be accessed electronically at http://www.cops.usdoj.gov; the U.S. Department of Justice Response Center provides availability and ordering information at 800-421-6770.

     Reference:

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

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