CONTENTS

Officers were not entitled to qualified immunity for arresting a woman for either possession of stolen property or "obstruction" merely on the basis that she had a diamond ring and wanted to walk away to call her husband when they told her they thought it was stolen. Officers had no information other than an unsubstantiated statement from a "local felon" admittedly involved in the theft who had also admittedly lied to them earlier in the investigation.

     In what a federal appeals court felt compelled to call a "bizarre little case" in which "several things don't quite add up," it was undisputed that a woman sold two diamond rings at a county flea market to a purchaser named Chuck Berry. The court felt it unusual that such items would be sold at a "flea market," or that the seller would accept two personal checks from the purchaser for over $10,000 despite not knowing him. "Yet, that is what everyone seems to agree happened." (The court noted, in passing, that it would not assume that the purchaser was "The legendary 'Chuck Berry' who rode classics like 'Maybellene,' 'Sweet Little Sixteen,' and 'Johnny B. Goode' into the Rock 'n Roll Hall of Fame.").

     Soon after that, the court noted, "the checks--surprise, surprise--bounced," and the seller complained to the county sheriff's department, which put two deputies on the case. When they interviewed Berry at a correctional facility where he was then in custody on unrelated charges, he admitted writing two bad checks totaling $10,475 for the diamond rings, and said that two other men who were with him at the flea market now had the rings.

     The other two men, both "local felons," admitted to being at the flea market, but denied ever possessing the rings, with each accusing the other of having them and perhaps having given them to a girlfriend. One of them, however, subsequently admitting having one of the rings, and said that the other one was now in the possession of a 50 year old woman who had purportedly received it from her husband who had received it in exchange for a car. The deputies visited the woman at her grocery store workplace, without conducting any other investigation, and observed that she was wearing a diamond ring on each hand.

     The officers told her they believed that she was in possession of a stolen diamond. She told the officers that she wanted to call her husband, and started to walk away, when the officers placed her in handcuffs. She was later released when her husband appeared and signed a property receipt for the rings. Neither ring turned out to be the ones sold at the flea market.

     The arrestee sued the officers for violation of her constitutional rights, and the trial court granted the officers qualified immunity from liability.

     A federal appeals court reversed, finding that the officers could not have reasonably believed, under the circumstances, that they had probable cause to arrest. Although the plaintiff was initially told she was not under arrest when she went with the officers to a waiting area in the store to be questioned, she was "clearly arrested when the officers blocked her from leaving, cuffed her, and questioned her."

     The officers lacked probable cause, however, for arresting the plaintiff for either possession of stolen property or "obstruction" when she attempted to leave to call her husband.

What the officers had was simply this: the statement, 5 months after the 'crime,' by a convicted felon who admittedly lied to them earlier in their investigation. Without even a modicum of additional investigation, we think a reasonable officer would not have believed he had probable cause to place [the plaintiff] under arrest based on what [the felon] said in his second statement. Add to this what the officers didn't have--knowledge about diamonds--and we have more fuel to add to the fire of unreasonableness.

     The obstruction theory also failed, the court commented, since "to hold otherwise would be to say that anyone who decides to terminate a voluntary conversation with a police officer commits a crime. It would not be reasonable -- or consistent with the Fourth Amendment--for a police officer to hold this view." Nor was the cuffing and detention justified for other purposes, as the officers made no attempt to say that they thought their actions were necessary for their own protection.

     The court concluded that the officers "seem to have decided on their course of action" before they even entered the store. If the woman had a diamond, and refused to give it up, she would be arrested. "Without probable cause or a valid charge of obstruction, their actions cannot be protected by qualified immunity."

     Thompson v. Wagner, No. 02-1918, 319 F.3d 931 (7th Cir. 2003).

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Police officers had exigent circumstances justifying a warrantless entry into the home of a 911 caller and her fiance when the dispatcher labeled the call as involving a "cutting or stabbing," and the fiance answered the door with blood on his legs and boxer shorts, and the caller was not then visible. Alleged handcuffing of caller for one minute while officers inspected her bruises was not proven, and plaintiff could not identify which officer purportedly did so. Probable cause existed for arrest of fiance for domestic violence based on bruises on woman caller.

     An Ohio woman and her live-in fiance went out drinking and came home in a "probably intoxicated" condition. The fiance continued to drink, and dropped a beer bottle, falling on the broken bottle and cutting his wrist. Upon discovering that he had been cut and had blood on his hands, legs, and boxer shorts, the woman called 911 and reported that the man's wrist was cut, but didn't clearly explain how it had happened. The dispatcher sent police, telling them that there had been a "cutting or stabbing" at the residence, and using a code which indicated that the injured person might be the victim of a crime.

     When two officers arrived at the residence, both occupants responded to their knocking on the door. When the door was opened, the officers could see that there was broken glass on the floor and an indentation in one wall with a liquid stain beneath it. The man's hand was bleeding profusely and he had blood on his legs and boxer shorts and was intoxicated and immediately belligerent, using profanity in speaking to the officers. He also told them that he had called for the paramedics, not the police. Paramedics had also been dispatched, having been told that there might be a suicide in progress, and they arrived and were invited in. The police officers were not.

     The officers concluded that the man was not a reliable source of information and entered the apartment to investigate a possible crime. They could not, from outside the residence, see the woman who had called, although they had heard her voice. They wanted to see if anyone else was injured and also whether it was safe for the paramedics to enter.

     They signaled for the paramedics to enter, and the paramedics began treating the injured man. During this treatment, one of the officers noticed that the woman had a bruise on her right upper arm and mentioned it to the other officer and the paramedics. The other officer and the paramedics then noticed the bruising, which was on the woman's legs as well, and appeared to be recent or fresh. The woman first told them she had received the bruises when she fell out of bed, but the bed was only a mattress on the floor, and she then said she tripped over the bed and fell into a dresser, subsequently switching stories again to say that she had fallen on the front steps to the apartment.

     Ultimately, she admitted that her fiance had struck her a week earlier and caused the bruises. The woman willingly accompanied one officer to the paramedics' van where he questioned her further and she stated that she had "deserved" being hit and kicked. The officers arrested the man for domestic violence, although he denied hitting the woman. The officers photographed the woman's bruises, and she later claimed that she was handcuffed for one minute while they did so, which they subsequently denied, along with denying her claim that they yelled and cursed at her and threatened her with arrest if she did not cooperate.

     Charges against the fiance were later dismissed after the woman refused to cooperate with the investigation. Both the woman and her fiance filed a federal civil rights lawsuit against the city, the officers, and the paramedics, asserting that the officers had violated the Fourth Amendment in entering the residence, that the arrest of the fiance was unlawful, and that the woman had been unlawfully seized and handcuffed.

     A federal appeals court upheld summary judgment for the defendants. It found that the officers had exigent circumstances sufficient to justify their entry into the apartment. They did not know then how the fiance had been injured, or whether there was anyone else injured inside, and the fiance was not being helpful in furnishing information, nor could they see the woman inside, who was the 911 caller, and whether or not she needed assistance.

     The court also found that the officers had probable cause to believe that the fiance had committed domestic violence against his fiance, based on the presence of severe bruises on her body, the fiance's attempts to interrupt her answers to their questions, her three different initial responses to their questions about the bruises, and her ultimate statement to one officer that her fiance had hit her.

     The court also found that the female plaintiff had failed to establish that she was unconstitutionally detained in violation of the Fourth Amendment when she was allegedly handcuffed for one minute for the officers to inspect and photograph the bruises they discovered on her body. She had not identified which officer had allegedly handcuffed her and the officers denied doing so at all. Even assuming that a jury could believe the woman's testimony that she had been handcuffed over the testimony of the officers and paramedics that she was not, she "would still be unable to prove which defendant had violated her rights."

     The issue of whether the officers threatened her with arrest if she did not cooperate, and "yelled" at her was found, by the court, to be "immaterial because threats alone cannot support a constitutional claim.

     Thacker v. City of Columbus, No. 01-4097, 328 F.3d 244 (6th Cir. 2003).

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Officer acted in an objectively unreasonable manner in placing a man under arrest merely for being present at a drug raid on the basis of unsubstantiated evidence that he had arrived there by riding in a truck owned by someone else in which drug paraphernalia had been found. He was therefore not entitled to qualified immunity, although supervising officer on drug raid was, since his alleged approval of the arrest was not based on anything other than a brief conversation with the arresting officer.

     Having previously executed search and arrest warrants on a home and recovered a large number of weapons and methamphetamine materials, as well as arresting two residents for drug possession, members of a multi-jurisdictional narcotics task force executed a second search and arrest warrant for the same home, based on probable cause that the residents were continuing to manufacture and sell drugs. At the time of the raid, there were 14 non-law enforcement persons present at the home, including a number of relatives of the two residents previously arrested and various friends of the residents or their relatives.

     The same two residents arrested in the first raid were arrested again, but an officer also arrested the common law husband of the granddaughter of one of the residents. There was no warrant for the arrest of this third person, and ultimately no charges were filed against him.

     This arrestee filed a federal civil rights lawsuit against the arresting officer and against another officer alleged to have acted in a supervisory capacity, contending that there was no probable cause for his arrest.

     Rejecting a claim by the arresting officer for summary judgment on the basis of qualified immunity, a federal appeals court agreed. It noted that the arresting officer relied on a "feeling" that the plaintiff was involved in drug trafficking or knew about it, based in part on unsubstantiated evidence that he had arrived at the house by riding in a truck belonging to a third party, a vehicle in which drug paraphernalia was found.

     Any reasonable officer, the court found, would not have believed that, without further investigation, he had probable cause to arrest a person merely present at a drug raid. Indeed, had he investigated further, he would have learned that the owner of the truck denied that the arrestee had been in it, that the officer who questioned the truck owner believed her, and that the hypodermic needle found was inside a closed makeup bag in the truck.

     The court also noted that this was not a case in which the officer was forced to make a "split-second decision" to arrest the plaintiff. Rather, the raid lasted over an hour, giving the officer "plenty of time" to investigate further before making the arrest.

     The appeals court found that the defendant supervisory officer, however, was entitled to qualified immunity. There was no evidence that he acted with "deliberate indifference" to the constitutional rights of the plaintiff, who another officer had decided to arrest on less than probable cause. It would "not have been practicable," the appeals court ruled, to require the supervisor of the raid to personally "seek out" all available information from all participating officers before approving an arrest. His conversation with the arresting officer was "not detailed and, in fact, very brief."

     As a supervisor, he could not be held liable for "unintentional oversights," particularly when the evidence indicated that the supervisor could not have consciously believed, based on the information made available to him, that his actions would lead to a violation of the plaintiff's rights.

     Evett v. Detntff, No. 02-40686, 330 F.3d 681 (5th Cir. 2003).

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Officers had probable cause to arrest wife of police chief based on statements of witnesses that she had intentionally accelerated her car towards them and that they believed she had tried to run them down. The fact that the complainants had been involved in employment litigation with the police department, her husband, or the arrestee did not alter the result, nor did the failure of the investigating officer to interview the arrestee or the police chief, a passenger in the vehicle during one of the two incidents.

     A New Jersey woman, married to the then chief of police, sued a city, its police department, and a number of city employees. She claimed that her civil rights were infringed when she was forced to face criminal charges in connection with two incidents in which she was charged with using her car to intimidate members of the police department. She argued that she and her husband were "at odds with" certain other members of the police department, and that this led to an incomplete investigation of the facts surrounding the incidents, and an illegal arrest.

     In the first incident, a police department clerk told an investigating officer that the police chief's wife had accelerated her car towards her and the six-year-old daughter of a court clerk/translator as they were walking across a Wal-Mart parking lot, and that she did this to place them in fear of bodily injury. This complainant had recently filed a sexual discrimination and sexual harassment complaint against the police chief and the city, and had also named the police chief's wife in the lawsuit, claiming that she had pushed her and made "pig noises" at her during a retirement dinner.

     In the second incident, alleged to have taken place days later, the police chief's wife supposedly first drove her vehicle through an intersection without incident and then returned ten minutes later and made a left turn, almost striking a female police officer who was directing traffic, after the officer had motioned for her to stop. This officer had recently been paid $85,000 to settle a sexual discrimination lawsuit against the city in which she had named the police chief as a defendant.

     The plaintiff was arrested and charged with two counts of vehicular aggravated assault, two counts of harassment, and reckless driving, as well as attempting to purposely or recklessly cause bodily injury to a law enforcement officer while in the performance of her duties. Aggravated assault was later dropped to simple assault. The cases were tried together in front of a judge who dismissed most charges after hearing testimony, but found the plaintiff guilty of a reduced charge of careless driving in connection with the second incident and fined her $150 plus costs.

     The subsequent lawsuit against the city, police department, police officers, and other city employees asserted claims for false arrest, false imprisonment, negligence, negligent training and supervision by the city and the police department, and intentional or negligent infliction of emotional distress.

     A federal appeals court upheld summary judgment for the defendants, finding that probable cause for the arrest existed, and was a complete defense to each and every claim made by the plaintiff.

     The court found that a "prudent officer" could believe that the plaintiff had attempted to cause injuries or cause fear of harm in both incidents, based on the statements of the complaining witnesses.

     The appeals court rejected the argument that there was no probable cause for the arrest because the investigating officer failed to interview her and her husband, the police chief, who was in the passenger seat during the first incident, before filing charges. While the plaintiff contended that the statements of the witnesses were not "reasonably trustworthy" because the parties had a "history of animosity," the court noted that such a history "cuts both ways: it may also make the statements more trustworthy, because it suggests" that the arrestee had a reason to harass the persons she allegedly attempted to strike with her vehicle or put in fear of harm.

At all events, probable cause does not require the officer to investigate every lead or that the officer obtain proof beyond a reasonable doubt. The investigating officer is not in the business of weighing facts and credibility; that is the domain of the court. The officer must simply have information that is 'reasonably trustworthy' to allow a prudent officer to believe that a crime has taken place.

     Additionally, the fact that the case was referred to the county prosecutor's office, which determined that there was probable cause and sufficient proof to go to trial, "suggests that charges were not filed simply because of hostility between" the plaintiff and the police department.

     The appeals court expressed its agreement with the trial judge that "no reasonable jury could find that there was not probable cause" for the arrest.

     Herman v. City of Millville, #02-2040, 66 Fed. Appx. 363 (3rd Cir. 2003).

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Officer was not entitled to qualified immunity from liability for alleged false arrest when it appeared that several statements made in connection with an application for an arrest warrant were deliberately or recklessly false, including that the drugs were found in a room where the apartment tenant's girlfriend slept, when they were actually found in a room used in an office.

     Police officers investigating a 911 call about a disturbance in an apartment entered when the man who lived there appeared to consent to their entry. They also found his girlfriend present in the apartment, and questioned both occupants about what had occurred, which turned out to be a personal argument.

     In the course of the questioning, when the man opened a drawer in a desk in a room to retrieve his identification to show to the officers, the officers observed a clear plastic bag containing a white powdery substance that they presumed was cocaine. Confiscating that bag, they also saw a yellow manila envelope, which they opened and found to contain marijuana.

     Officers subsequently obtained a warrant for the arrest of both the man and his girlfriend. The girlfriend had told the officers that she did not live there, but was merely visiting. The application for the warrant stated, incorrectly, that the drugs had been found in the bedroom where she was sleeping with the apartment's tenant, and that she had been uncooperative in answering the officers' questions.

     Charges against the woman were subsequently dismissed when her boyfriend's attorney stipulated that the places where the drugs were located belonged solely to him. However, when these stipulations were later withdrawn, she was rearrested and indicted on the same charges.

     She sued the county and the officers, claiming that the county had a widespread practice of inadequately training its officers on assessing probable cause for searches and arrests, that the entry into the apartment had been unlawful, and that there was no probable cause for her arrest.

     The trial court granted summary judgment to the defendants on all claims.

     A federal appeals court agreed that there was no evidence of any improper widespread practice of inadequate training of officers by the county, and that the officers reasonably believed that they had consent from the tenant, the plaintiff's boyfriend, for entry into the apartment to investigate the reported disturbance.

     But it disagreed on the grant of summary judgment on the question of the plaintiff's arrest.

     The facts, viewed from the perspective most favorable to the plaintiff, supported a conclusion that the application for the warrant included "deliberately false statements" about the incidents leading to the plaintiff's arrest. The information that the officer obtained in the course of the investigation, including the plaintiff's identification, indicated that she did not reside in the apartment. He also knew that neither person arrested slept in the office/bedroom where the drugs were found, and that neither he nor his fellow officer observed loose marijuana seeds on the desk, as was stated. Additionally, no officer testified that the plaintiff had been "evasive," but to the contrary stated that she had fully answered their questions, while the officer's oral statements to the magistrate included the claim that the plaintiff had been "evasive" as to the presence of others, that she and the boyfriend both slept in the bedroom with the drugs, and that the custody of the apartment was joint.

     Mere presence in the apartment as a visitor was not necessarily enough to show constructive possession of the drugs, and it was clearly established that it violates the Constitution to knowingly make false statements in an arrest affidavit about the probable cause for arrest. The appeals court accordingly ordered further proceedings on the plaintiff's claims concerning her arrest.

     Holmes v. Kucynda, No. 02-11408, 321 F.3d 1069 (11th Cir. 2003).

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Jury's verdict for defendant police officer in case accusing him of excessive force in shooting fleeing suspect in the back was inconsistent in finding that the officer used excessive force, but was nevertheless entitled to qualified immunity. Appeals court finds that jury was allowed to decide issue of qualified immunity without being given adequate instructions on how to do so.

     A New York police officer shot a man in the back during the course of an arrest. Six officers, armed with an arrest warrant based on an indictment for murder in the second degree and weapons possession, were in the area of a housing project looking for the suspect after they received a call from a security officer at the housing project where the suspect's family lived, reporting that he had been the area with a gun "in his belt, in his waistline."

     When the officers spotted the suspect talking to a young woman, he began to run away, and three officers gave chase while three officers pursued in a van. When the suspect ran into a nearby park and scaled a 10-foot high chain link fence separating the park from a basketball court, one officer fired a shot through an opening in the fence, and the bullet entered the suspect's back, lodging in his spine and leaving him with permanent partial paralysis and loss of his bladder and sexual functions.

     The suspect argued that he had not been armed and that the officer's use of force was therefore excessive. The shooting officer testified that, while he had not seen a gun when first approaching the suspect, he found it suspicious that he was wearing a jacket on a not night, and believed that he saw a "shiny silver object" in the suspect's hand that he believed was a gun after the suspect stopped running after landing on the other side of the fence and turned back towards him. The officer claimed that he shot because he believed deadly force was about to be used against him.

     Officers contended that the object seen turned out to be an eight and a half inch steak knife, while the plaintiff argued that the knife had been "planted" by the officers involved in the chase. The knife, while entered into evidence, had allegedly not been properly safeguarded, was not tested for fingerprints, and was not photographed by crime scene analysts who arrived on the scene. Further, an expert witness testified that the police records indicating that officers called to the scene were available for assignment soon after the shooting contradicted the defense's claim that irregularities in the handling of the knife were due, in large part, to "crowd control problems."

     After a seven-day trial, a jury found that the officer had used excessive force against the plaintiff, but also that he was entitled to qualified immunity.

     A federal appeals court ruled that these decisions by the jury, in the context in which the case had been submitted to them, were inconsistent, requiring the granting of a new trial.

     The trial judge submitted both the issue of excessive use of force and the issue of qualified immunity to the jury, but the appeals court found that there was no basis by which the jury could have properly assessed the question of qualified immunity in relationship to the officer's use of force.

The jury was not presented with any evidence or instructions or even arguments about possible ambiguities in this case or about [the officer's] state of knowledge about the law, presumably because the parties believed that the court would submit special interrogatories and decide qualified immunity itself as it had indicate that it would.

     The jury was repeatedly told that the excessive force instruction presented to them represented "clearly established law" On excessive force, the jury was instructed that the use of deadly force to effect an arrest was unlawful unless an officer had probable cause to believe, in light of all the facts known by and confronting him, that the "suspect posed a serious physical threat to him or to others and sufficient warnings were given." The jury then returned a verdict of liability on excessive force, apparently crediting the arrestee's version that he was not given adequate warnings and was unarmed and fleeing when he was shot, and rejecting the officer's testimony that he believed the defendant was armed and that his own life was in danger. "Yet under the same 'clearly established law,' the jury nevertheless" also found that the officer was entitled to qualified immunity.

     The appeals court reasoned that the jury was essentially told to "decide twice" what an objectively reasonable police officer would do in the circumstances presented. The trial judge also failed to submit detailed factual interrogatories to the jury that would have made clear the jury's findings on various disputed issues of fact.

     If there is a retrial, the appeals court stated, and if the officer again asserts a qualified immunity defense that depends on disputed factual issues, it will be helpful to focus the jury's attention in jury instructions and by the use of "a few pointed interrogatories" on the key factual disputes, such as whether the officer gave the suspect warnings, whether the suspect was armed, and whether the officer actually believed that the suspect was armed.

     The appeals court vacated the trial jury's verdict and ordered further proceedings.

     Stephenson v. Doe, #00-93, 332 F.3d 68 (2nd Cir. 2003).

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Federal appeals court grants judgment as a matter of law to African-American high school basketball coach arrested by police officer solely for calling him a "son of a bitch." Arrestee's statement did not constitute "fighting words," and were therefore protected by the First Amendment. Officer also did not, prior to the arrest, have reasonable suspicion sufficient to detain the coach for an investigatory stop on the basis of motel clerk's report of his "suspicious" behavior of appearing nervous while drinking coffee and looking at newspapers in motel office.

     A Delaware man, an African-American high school basketball coach, was stopped by police after they received a complaint about a "suspicious person" being in the area, and then arrested for disorderly conduct after he swore at the investigating police officer, calling him a "son of a bitch." He was later released without charges. He brought a federal civil rights claim asserting that the officer had violated his constitutional rights by detaining him and arresting him without cause and because of his race.

     A jury returned a verdict in favor of the defendant police officer, finding no liability. A federal appeals court took the very rare step of not only overturning the jury's verdict, but also granting the plaintiff judgment as a matter of law, remanding the case to the lower court for a trial limited to the issue of damages.

     The plaintiff, a forty-four year old African-American who coaches a high school basketball team was staying at a motel along with team members in order to participate in a tournament. When they returned to the motel at night, the coach went to the small motel office, which had a corner with free newspapers and coffee.

     The night clerk, who had previously been a fourteen-year veteran of the police force, said hello to him, and he "mumbled back" that he was staying there, and responded in a "very clipped manner," but spoke politely in answering additional questions from him as to whether it was cold outside. He then started flipping through newspapers, and a few minutes later reported started acting "agitated, pacing back and forth, looking out the window, rubbing his head, and glancing up at the television."

     This conduct allegedly made the clerk nervous, partly because she had been robbed five months earlier by two young black males, one of whom had previously been a guest at the motel. The coach, after finishing his coffee, took a newspaper and left the office. The clerk, who was on the phone with her husband, asked him to call police to come check on her welfare. When two officers arrived, the clerk described the coach and his behavior to them.

     One of the officers subsequently saw the coach reading a paper in the driver's seat of a van, with another man seated beside him. He later stated that while he did not believe that the coach had committed any crime, he did believe that he matched the described of the man who had made the motel clerk nervous. He asked the coach to roll down the van window, and told him that he was being "detained."

     The coach allegedly initially refused to roll down the window or provide identification, questioning what he had done. He did eventually roll down the window, but he continued to give the officer a "hard time," questioning his motives for interrogating him. The officer explained that he was investigating a "suspicious person" complaint. Team members emerged from the motel rooms and watched events in the parking lot and the van passenger also exited the vehicle and asked the officer what the problem was.

     The officer then heard the coach mutter "son of a bitch," and placed him under arrest for disorderly conduct, for his "use of profane language in public." He was released approximately an hour later without being charged.

     The appeals court found that there was not sufficient basis for even an investigatory stop. While the officer was certainly free to attempt to engage in consensual questioning of the coach, when he insisted on the coach responding to him and told the coach that he was being detained, it became a stop.

     The court rejected the argument that the stop here was justified by the motel clerk's account of the coach's "nervous, agitated behavior, lack of apparent purpose for being in the office, pacing, head rubbing, and clipped answers to her questions," or by the officer's belief that there was something "inherently suspicious" about two men sitting in a motel parking lot for no apparent reason, along with the coach's initial hostile response to the request to roll down his window.

     The complaint about a "suspicious" person, even when combined with the officer's observations, was nothing more than "unparticularized hunches," an "insufficient basis" for the coach's detention. There was no articulable suspicion that the coach was engaged in any criminal activity. Drinking coffee, flipping through or reading a newspaper, or sitting in a van with another man are not a basis for suspicion of being about to commit a crime. These are, instead, the court commented, activities that "a citizen must be allowed to do unhindered by the police."

     The court found that "no reasonable jury" could find that the officer had a reasonable articulable suspicion that the coach was engaged in wrongdoing.

     The appeals court also found that there was no probable cause for the arrest for "disorderly conduct" based on the coach's utterance of the words "son of a bitch." The court ruled that this statement did not constitute prohibitable "fighting words"--"those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." The First Amendment, the court noted, provides "broad protection for speech, be it unpleasant, disputatious, or downright offensive." To be punishable, words must do "more than bother the listener; they must be nothing less than 'an invitation to exchange fisticuffs.'"

     The court found that this is "equally true when the words are spoken in the presence of police officers." The court found that the evidence showed that the coach was arrested "solely for the words he spoke," with the arresting officer himself saying that the arrest was based on "using profane language in public." Additionally, none of the coach's other behavior amounted to "threatening or tumultuous behavior," the court found, he merely demanded to know why he had been stopped and questioned the officer's motives.

     The appeals court pointed to two other appeals court decisions ruling that the mere utterance of "swear words" to a police officer do not provide probable cause for an arrest for disorderly conduct, because they do not constitute fighting words. Buffkins v. City of Omaha, 922 F.2d 465 (8th Cir. 1990) (statement to officer, "I will have a nice day, asshole" was not an incitement to imminent lawless action, and did not provide probable cause for an arrest); and Duran v. City of Douglas, 904 F.2d 1372 (9th Cir. 1989) (police officer was not entitled to qualified immunity against a claim that he had wrongfully stopped and arrested the plaintiff for disorderly conduct after the plaintiff made "obscene gestures toward him and yelled profanities in Spanish while traveling along a rural Arizona highway." While "disgraceful," "boorish, crass, and ... unjustified," the court stated, the behavior was not "illegal; criticism of the police is not a crime." Because the conduct took place late at night on a deserted road, it additionally could not have disturbed the peace or incited a riot).

     Johnson v. Campbell, No. 02-3580, 332 F.3d 199 (3rd Cir. 2003).

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Arrestee's lawsuit against police officer for malicious prosecution was properly dismissed after discovery revealed that he was proceeding under a false name, under federal rule governing sanctions for discovery violations and the court's "inherent authority" to punish "flagrant contempt" of court.

     A Chicago police officer arrested a man for attempted first-degree murder for allegedly discharging a firearm at him. The arrestee identified himself as "Shaunte Dotson." He was convicted of aggravated discharge of a firearm at a police officer. A new trial was granted following the discovery of exculpatory evidence not revealed prior to the first trial, and the arrestee was again convicted, this time of aggravated discharge of a firearm, Yet more evidence was later uncovered, and a third trial was granted, which resulted in the arrestee being acquitted.

     All three of the arrestee's trials, and his incarceration for a time, took place under the assumption that his name was "Shaunte Dotson." Following his acquittal, he filed a federal civil rights lawsuit against the arresting officer and the city alleging malicious prosecution and other claims. The City sought discovery from third parties for records on "Shaunte Dotson," but soon found that none existed. The City also sent interrogatories to the plaintiff requesting information about each of his arrests.

     Before he could respond, he was arrested two other times, for assault and battery, and for felony weapons possession. He now gave police his real name of "DeMarco Shaunte Sheppard," under which he had a prior arrest for threatening a security guard. He then answered the interrogatories, but failed to disclose his real name or the fact that he had recently been arrested three times under the name DeMarco Sheppard. After the defendant officer asked the court to compel the plaintiff to provide answers under oath to these interrogatories, the plaintiff finally disclosed his real name, but even then did not reveal his three recent arrests nor correct his date of birth, improperly indicated in earlier documents.

     The trial court dismissed the lawsuit with prejudice upon learning of this. A federal appeals court upheld this result.

     "There are species of misconduct that place too high a burden for a court to allow a case to continue," the court commented. The case was properly dismissed under a federal rule (Federal Rule of Civil Procedure 37(b)(2)(C)) providing for sanctions for discovery violations and under the court's "inherent authority" to impose sanctions for "flagrant contempt" of court. Further, the plaintiff's failure to state his real name in the complaint violated the requirement that every pleading filed in court include the names of all parties, stated in Federal Rule of Civil Procedure 10(a).

     Dotson v. Bravo, #01-3494, 321 F.3d 663 (7th Cir. 2003).

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

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Civilian Review Board's "narrative report" on police shooting based on internal affairs reports and shooting review board reports was a confidential "personnel record" that could not be released to the public under California law.

     Police officers and a police officers' association filed a petition seeking to prevent a California city and city manager from publicly releasing a copy of a Citizens' Review Board's "narrative report" on a police shooting which resulted in the death of a suspect. Investigations both by the police department and prosecutor's officer determined that the shooting was lawful.

     The Citizens' Review Board's report was provided to the city and city manager. A trial court granted the petition, and barred them from releasing it to the public, and also awarded $10,620 to the petitioners for attorneys' fees.

     An intermediate California appeals court has upheld this result. It found that the report was based on Police Department internal affairs reports and shooting review board's reports, and therefore constituted a confidential personnel record that could not be released to the public, even though the reports were not maintained in files under the names of the officers. A confidential personnel record under state law includes any report naming an individual officer and concerning a complaint about that officer's involvement in an incident, no matter how the report was filed.

     The court rejected claims by the city and city manager that they had discretion to voluntarily release the report because it would "improve police-community relations," or that it was only confidential in civil or criminal court proceedings. The court found that such reports are confidential no matter what the context was in which they were sought.

     Davis v. City of San Diego, No. D039093, 131 Cal. Rptr. 2d 266 (Cal. App. 4th Dist. 2003).

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

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Police and other city employees did not "create" the danger to storeowner in a high-crime area of being shot when compelled to stay late at the store because of the insistence of the defendants on conducting an inspecting after normal store hours. No liability for refusal to provide an escort of storeowner and employees to their cars after inspection ended, or for subsequent shooting and killing of storeowner and shooting of store employee by unknown persons.

     A man owned a grocery store in a high-crime area in the City of Camden, New Jersey, and two of his brothers worked as employees of the business. All three men would normally open the business around 7 a.m. and close between 9 and 9:30 p.m. One evening, around 9:30 p.m., when the three brothers were in the process of closing the store, a group of city officials from the licensing, health, fire and police departments arrived at the store and announced that they were going to conduct an inspection.

     The storeowner, concerned about the increased danger to himself and his brothers from staying late at the store, requested that the inspectors all return the next morning to conduct their inspection during normal business hours, but this request was rejected, and the inspectors insisted on performing the inspection immediately. The inspection lasted approximately one and a half hours, and ended with one of the inspectors issuing the storeowner a summons for operating without a license. The inspectors refused to delay their departure to comply with a request from the storeowner that they wait until the brothers closed the store down so that they could all leave together under the protection of the armed members of the inspection team.

     Five minutes later, with the inspectors all gone, the occupants of the store heard the sound of the alarm in the storeowner's car. Someone had evidently side-swiped the vehicle, and when the storeowner and one of his brothers went outside to inspect the damage, they were both shot. The storeowner died, and his brother, although he survived, was injured. The person who fired the shots was never identified or apprehended.

     The storeowner's estate and the injured store employee filed a federal civil rights lawsuit in state court, which also attempted to assert state law claims. The plaintiffs argued that the inspectors, in insisting on the late-night inspection, and in failing to provide the requested escort at the closing of the store, had created and enhanced the danger to those shot.

     The state trial court granted summary judgment to the defendants, which included the City and a number of the employees who participated in the inspection. It ruled that the evidence presented did not show a "state-created" danger or create an opportunity that otherwise would not have existed for the commission of a crime, nor that the shootings were the "direct result" of the defendant's actions.

     An intermediate state appeals court agreed, upholding this result. In doing so, it accepted the test for determining liability for a state-created danger violating the right to due process as set forth by the U.S. Court of Appeals for the Third Circuit in Kneipp v. Tedder, 95 F.3d 1199 (3d Cir. 1996):

(1) the harm ultimately caused was foreseeable and fairly direct; (2) the state actor acted in willful disregard for the safety of the plaintiff; (3) there existed some relationship between the state and the plaintiff; (4) the state actors used their authority to create an opportunity that otherwise would not have existed for the third party's crime to occur.

     In this case, the court found, the plaintiffs could not prove two elements of a claim under this test, that the members of the inspection team "used their authority to create an opportunity that otherwise would not have existed for the third party's crime to occur," and that they "acted in willful disregard for the safety" of the plaintiffs.

     Instead, the "underlying dangerous circumstance" that created the opportunity for the shootings to take place was the placement of the store in a high-crime area. The court noted that it was ordinarily dark outside when the store was normally closed between 9:00 and 9:30 p.m., and that the two persons shot would have had to walk to the storeowner's car parked outside, or to their homes located a few blocks away. The only difference the night of the inspection was that they left approximately an hour-and-a-half later.

     While the court assumed that there was "some incremental increase" to the dangers encountered by pedestrians in a high-crime neighborhood based on the time of night, the plaintiffs failed to present any evidence from which there could be a finding of the "magnitude of that increased danger." Additionally, the only evidence they presented of any higher violent crime rate at night related to times after midnight.

     The court also noted that the three brothers could have walked the short distance to the storeowner's car or their homes together. The inspection team's actions in leaving and failing to escort the three brothers did not create a situation of "isolation and vulnerability."

     The court expressed its view that the failure of the inspection team to agree to the request for an escort could possibly constitute negligence, but negligence is not enough to support a federal civil rights claim, and there was no evidence from which a "willful disregard" for the safety of the plaintiffs could be shown.

     The appeals court rejected the argument that, if it rejected the federal civil rights claim, it should recognize a state constitutional claim that would provide a broader remedy for failure to provide protection. "Although a state court is free to require greater protections under its own constitution than are mandated by the United States Constitution," the court commented, "the standards established in Kneipp for determining whether official conduct violates the due process clause sufficiently protect personal security interests." 

     Gonzales v. City of Camden, 815 A.2d 489 (N.J. Super. A.D. 2003).

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

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     Editor's Note: For more discussion of the "state-created danger" doctrine, see Joseph M. Pellicciotta, "'State-Created Danger,' or Similar Theory, Basis for Civil Rights Action under 42 U.S.C.A. §1983," 159 A.L.R. Fed. 37, 50-55 (2000), David Pruessner, "The Forgotten Foundation of State-Created Danger Claims," 20 Rev. Litig. 357, 365-74 (2001), and Jeremy Daniel Kernodle, Note, "Policing the Police: Clarifying the Test for Holding the Government Liable under 42 U.S.C. §1983 and the State-Created Danger Theory," 54 Vand. L. Rev. 165, 166-87 (2001).

Update: appeals court upholds ruling that officer's failure to immediately report his reasonable suspicion that a female middle school teacher was sexually abusing one of her female students did not subject him or the city to liability for violation of the student's due process rights.

     An Indiana police officer was informed by fellow officers that they had overheard, via a phone scanner, sexually explicit cell phone conversations between two females, including an unknown adult female and a younger female, known in the conversations by her first name only. After receiving this information, the officer intercepted cell phone conversations four or five times over the next two months, and the contents of the conversations caused him to believe that the adult female was a middle school teacher and that the younger female was a student.

     The officer became concerned that the younger girl might be the victim of molestation and discussed the matter with other officers and a lieutenant during shift line-up. During the discussion, another officer recognized the younger girl's first name because it was an uncommon name, and indicated that he knew a middle school male teacher who had a fourteen or fifteen year old daughter matching the first name.

     The officer, through further investigation, including interception of another cell phone conversation, during which he called the home phone of the male teacher, and heard that phone ring on the intercepted call, believed that this teacher's child was the young person who had been part of the overheard conversations. The officer conducted further investigation at the school the girl attended, which ultimately resulted in a female teacher there admitting to molesting the girl. A written report was filed and the teacher was ultimately prosecuted for child molestation and served jail time.

     The young victim of the molestation sued the officer individually and in his official capacity, as well as the city, claiming that the Defendants violated her right to substantive due process under the Fourteenth Amendment by failing to intervene sooner to stop the ongoing molestation. The complaint also asserted that the city had failed to properly train its officers on how to investigate child abuse crimes.

     The federal trial court granted summary judgment to the defendants. Doe v. City of Marion, 196 F. Supp. 2d 750 (N.D. Ind. 2002), reported in 2002 Liability Reporter Aug.

     A federal appeals court has now upheld that result.

     The court noted that the officer did nothing to "create" the danger, and that nothing that the officer did made the situation any worse than the danger that the student allegedly already faced. The appeals court also rejected claims of municipal liability, since the student had not suffered any violation of her constitutional rights by the officer, so the issue of the adequacy of the city's training of its officers was not at issue.

     Windle v. City of Marion, Indiana, 321 F.3d 658 (7th Cir. 2003).

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

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Boat owner was properly awarded $100,000 in damages for unfruitful search of his boat for drugs; affidavit for search warrant failed to provide probable cause since it did not show the basis for a belief in the reliability and veracity of the informant, or the basis of his purported knowledge, nor did the agent submitting the affidavit attempt to independently investigate the information.

     An agent of the New Jersey County Narcotics Task Force obtained a search warrant for a boat that was moored at a local dock, based on a tip from an unnamed informant that a large shipment of narcotics was aboard the boat, which had just arrived from Florida, and that the crew was heavily armed.

     Based on this warrant, a large contingent of police officers, including State troopers, raided and searched the Imperial on October 2, 1991. After a forty-minute search, during which the owner and captain was detained and frisked, nothing was found. The boat owner brought a federal civil rights lawsuit against the state troopers, sheriff, and agents of the county narcotics task force to recover damages for illegal search of his boat.

     A jury subsequently awarded the boat owner $100,000 in damages, along with $25,000 to the estate of his late wife, and $143,745.74 in legal fees and costs.

     On appeals, an intermediate state appellate court found that the defendants lacked probable cause for the search. The affidavit under which the search warrant was issued did not establish probable cause. It failed to supply any facts to support either the reliability and veracity of the informant, or the basis of his purported knowledge of the information he was reporting. The agent submitting the affidavit, the court found, also failed to independently verify the informant's information or to verify the boat owner's background or reputation.

     Accordingly, the award of damages was proper and the defendants were not entitled to qualified immunity.

     The appeals court ordered further proceedings, however, to determine whether a discretionary award of pre-judgment interest was warranted under federal law. The trial court erroneously relied on state law in denying such an award. Despite the fact that the proceeding was in state court, federal law governed the issue of pre-judgment interest on the federal civil rights claims.

     The court also found that the wife's estate had been improperly awarded additional damages, since she did not claim that she had suffered any independent or additional injuries.

     The court also ruled that it would uphold the decision not to award punitive damages, since there was no showing of reckless or "callous" indifference to the boat owner's rights, or malice or bad faith in obtaining the search warrant and carrying out the search.

     The court also ordered a re-determination, upon remand, of the proper amount of attorneys' fees to be awarded, since the trial judge had given no stated reasons for denying half of the requested attorneys' fees and expenses of the boat owner's attorney.

     Maudsley v. State of New Jersey, 816 A.2d 189 (N.J. Super. A.D. 2003).

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

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Administrative Liability: Training

     County could not be held liable for officer's alleged improper use of neck restraint which broke arrestee's neck, based on "fairly particularized" training provided on the use of neck restraints and other defense tactics. Evidence was insufficient to show that the county disregarded a known risk of harm or failed to provide adequate training on this subject. Fultz v. Whittaker, 261 F. Supp. 2d 767 (W.D. Ky. 2003).

Defenses: Collateral Estoppel

     A finding at an arrestee's parole revocation hearing that he had struck a police officer did not have a "collateral estoppel" effect barring his lawsuit against the officer for excessive use of force, since the officer still could possibly be found to have used excessive force whether or not the arrestee struck him. Curry v. City of Syracuse, No. 01-9211, 316 F.3d 324 (2nd Cir. 2003). [Editor's Note: The doctrine of collateral estoppel attempts to prevent a party in a lawsuit relitigating an issue previously decided against that party in an earlier lawsuit or proceeding. It can successfully be asserted to preclude the raising of an issue which is identical to an issue already decided in a previous proceeding in which that party had a "full and fair opportunity" to litigate. In the case reported, the appeals court essentially determined that the issue being raised was not identical to the one decided against the plaintiff in the parole revocation hearing.].

Dogs

     Officers who themselves exercised no authority over police dog who was alleged to have repeatedly bitten unarmed suspect wearing only shorts could not be held liable, despite being present, allegedly observing dog biting suspect, and taking no action to restrain the dog. Further proceedings will occur concerning excessive force claims against the officer who allegedly unleashed the dog to subdue the plaintiff. Hinds v. Mohr, No. 02-6320, 56 Fed. Appx. 591 (4th Cir. 2003).

False Arrest/Imprisonment: No Warrant

     Officers could have reasonably believed that they had probable cause to arrest a golfer for a rape that took place in the area despite the fact that the victim's relatively "generic" description of her attacker did not identify all of his "distinctive" facial features. They were therefore entitled to qualified immunity from liability. Wrubel v. Bouchard, #02-1730, 65 Fed. Appx. 933 (6th Cir. 2003). [Editor's Note: for a more detailed discussion of the facts of this case, see the decision of the trial court, Wrubel v. Bouchard, 173 F. Supp. 2d 716 (E.D. Mich. 2001), and our article in the March 2002 Liability Reporter].

     Wildlife officers did not initially have probable cause to arrest farmer during their investigation of the alleged illegal killing of a deer out of season on his land, nor were they entitled to qualified immunity for doing so. They knew that they had no right to simply enter onto private property and demand access, they had no search warrant to look for any parts of the deer, and the reported crime they were investigating had been completed so that no immediate action was required. Johnson v. Wolgemuth, 257 F. Supp. 2d 1013 (S.D. Ohio 2003).

     Deputies did not have probable cause to arrest motorist for either disorderly conduct or failure to identify himself. They were not entitled to qualified immunity from liability, as no reasonable officer could believe that motorist's actions in simply asking "what for?" as he reached for his driver's license in responding to their request gave the officers grounds for an arrest. Earles v. Perkins, No. 49A02-0206-CV-484, 788 N.E.2d 1260 (Ind. App. 2003).

False Arrest/Imprisonment: Warrant

     There was no evidence to show that an officer deliberately omitted from an application for an arrest warrant the purported fact that the narcotics seized during a prior search of the suspect's home had been destroyed, that the drugs actually had already been destroyed at the time that the warrant was applied for, or, if they had, that the officer knew this. Defelice v. Ingrassia, #02-7758, 66 Fed. Appx. 240 (2nd Cir. 2003). [PDF]

     Officers acted in an objectively reasonable manner by seeking and obtaining an arrest warrant for a teacher on charges of assaulting elementary school students, based on statements obtained from seven different students which corroborated each other's stories concerning the alleged physical assaults, as well as a school nurse's report documenting student physical injuries. Given these statements, a magistrate would have issued an arrest warrant even if other, allegedly exculpatory information excluded had been recited. Crone v. Connelly, No. 22156, 813 A.2d 1084 (Conn. App. 2003). [PDF].

Family Relationships

     State social workers and other employees violated the Fourth Amendment in removing a 12 year-old child from his parents' home without a warrant and the plaintiffs adequately stated a Fourteenth Amendment due process claim for deprivation of a constitutionally protected liberty interest in their family relationship. Warrantless entry into home to investigate the possibility that the child was a victim of Munchausen Syndrome by Proxy (MSBP), however, did not violate clearly established law because the defendants could have believed that exigent circumstances existed justifying the entry, based on the possibility of harm to the child. Further proceedings were ordered to determine if Utah state statutes providing only post-deprivation remedies in child removals entitled the defendants to qualified immunity for removing the child. Roska Ex Rel. Roska v. Peterson, #01-4057, 328 F.3d 1230 (10th Cir. 2003). [Editor's Note: Munchausen Syndrome by Proxy ("MSBP") is a disorder where an individual inflicts physical harm upon his or her children in order to gain the sympathy and attention of medical personnel. See E. Selene Steelman, Note, "A Question of Revenge: Munchausen Syndrome by Proxy and a Proposed Diminished Capacity Defense for Homicidal Mothers," 8 Cardozo Women's L.J. 261, 262-63 (2002). The disorder is controversial, with some contending that the disorder either does not exist or else is frequently falsely asserted by doctors or other professionals seeking to evade medical malpractice lawsuits or by opposing parents in child custody lawsuits. See the website of Mothers Against Munchausen Syndrome by Proxy Allegations for this point of view. Munchausen Syndrome by Proxy was first diagnosed in 1977. It is a variation of Munchausen Syndrome, a disorder named after Karl Fredrich von Munchausen, a German nobleman with a penchant for telling lies about his adventures in life. See: Melissa A. Prentice, Note, "Prosecuting Mothers Who Maim and Kill: The Profile of Munchausen Syndrome by Proxy Litigation in the Late 1990s," 28 Am. J. Crim. L. 373, 376 (2001); see also The Adventures of Baron von Munchausen (Columbia Pictures 1988) for a humorous portrayal of von Munchausen himself. While patients with traditional Munchausen Syndrome induce or exaggerate their own illnesses in order to gain the attention of medical professionals, MSBP patients allegedly cause such illness in others.].

Firearms: Licenses and Regulations

     Law enforcement officials' alleged failure to return firearms that were seized at the time of an arrest following the dismissal of criminal charges did not state a federal civil rights claim for violation of the Second Amendment. This amendment only protects weapon possession "reasonably related to the "preservation or efficiency of a well-regulated militia," and "does not confer an absolute and unfettered right on the plaintiff to bear arms." Blackburn v. Jansen, 241 F. Supp. 2d 1047 (D. Neb. 2003). [Editor's Note: for detailed discussion of the controversy over the group rights versus individual rights theories of the right to bear arms mentioned in the Second Amendment, see "Symposium on the Second Amendment: Fresh Looks," 76 Chicago-Kent Law Review No. 1 (2000). On-line .pdf files of all articles in this symposium are available at the link, including "The History and Politics of Second Amendment Scholarship: A Primer" by Carl T. Bogus; "To Hold and Bear Arms: The English Perspective" by Lois G. Schwoerer; "The Second Amendment in Action" by Michael A. Bellesiles; "The Second Amendment: The Highest Stage of Originalism" by Jack N. Rakove; "Disarmed by Time: The Second Amendment and the Failure of Originalism" by Daniel A. Farber; "'A Well Regulated Militia': The Second Amendment in Historical Perspective" by Paul Finkelman; "Natural Rights and the Second Amendment" by Steven J. Heyman; "What Does the Second Amendment Mean Today?" by Michael C. Dorf; "Lost and Found: Researching the Second Amendment" by Robert J. Spitzer; and "The Second Amendment in Context: The Case of the Vanishing Predicate," by H. Richard Uviller& William G. Merkel. This symposium almost entirely presents the "group rights" perspective, i.e., that the Second Amendment does not provide for an individual right to bear arms and should not be interpreted by the courts in that manner. A collection of Law Review articles from the opposing "individual rights" perspective in .html format may be found on the website of the National Rifle Association (NRA), along with a bibliography of other articles on the subject not presented on the website].

First Amendment

     Boat dealer failed to show that environmental police officer, (employed by the division of environmental law enforcement of the state Department of Fisheries, Wildlife and Environmental Law Enforcement, subsequently renamed the Department of Fish and Game), seized his dealer "certificate of number" and two number placards from vessels the dealer was operating in retaliation for his exercise of his First Amendment rights in expressing opposition to certain actions of the zoning board of appeals and harbormaster. The dealer appeared to be in violation of a licensing statute and the officer was unaware of the dealer's disputes with the zoning board and harbormaster. Baker v. Gray, 785 N.E.2d 395 (Mass. App. 2003).

Freedom of Information

     Documents in the FBI's Central Records System concerning the requester were exempt from disclosure under the Freedom of Information Act under an exemption for information compiled for law enforcement purpose, 5 U.S.C. Sec. 552(b)(7)(c). The disclosure of the information sought could cause harassment, or even bodily harm, to third parties, special agents, and local law enforcement personnel involved in the investigation and prosecution of the requester. Additionally, in instances where members of the public could draw an "adverse inference" from the mere fact that an individual is mentioned in a criminal law enforcement agency's investigative files, the agency may respond to a freedom of information request without confirming or denying the existence of the document sought. Taylor v. U.S. Department of Justice, 257 F. Supp. 2d 101 (D.D.C. 2003).

Governmental Liability: Policy/Custom

     Owner of food distribution business failed to present allegations sufficient to establish a claim that an allegedly unlawful warrantless search of the business was caused by a police department policy or custom, as required for municipal liability, when the complaint failed to point to anything other than the search at issue. Chin v. City of Baltimore, 241 F. Supp. 2d 546 (D. Md. 2003).

     Failure to show that alleged false arrest and excessive use of force by deputies was caused by policies or customs of sheriff's office amounting to inadequate training and supervision precluded claims for liability against the sheriff in his official capacity. The sheriff could also not be held liable personally when he played no personal role in the incidents at issue. Seegars v. Adcox, 258 F. Supp. 2d 1370 (S.D. Ga. 2002).

Malicious Prosecution

     City employee indicted and prosecuted for the theft of a ring from a crime scene failed to show that his indictment was obtained as the result of police conduct carried out in bad faith, and therefore failed to rebut a presumption of probable cause which arose from his indictment, defeating his malicious prosecution claim. There was no showing that supposedly exculpatory observations of the plaintiff by one officer at the crime scene were intentionally withheld from the prosecutor prior to the indictment. Savino v. City of New York, No. 02-7108, 331 F.3d 63 (2nd Cir. 2003). [PDF]

Negligence: Vehicle Related

     Court rejects motorist's claim that an officer's use of a police car to transport him to the police station after the alleged use of excessive force to apprehend him was a negligent act coming within an exception to sovereign immunity applicable to the operation of a motor vehicle in the control of a governmental agency, so that he could assert a claim against the municipality for negligent infliction of emotional distress. No moving part of the car, the court found, was involved in the complained of events and the officer's use of the car was, "at best," merely "incidental" to the officer's allegedly unlawful conduct. Lakits v. York, 258 F. Supp. 2d 401 (E.D. Pa. 2003).

Off-Duty/Color of Law

     Off-duty, but "on-call" police officer did not act within the scope of his employment in driving a city vehicle, allegedly under the influence of alcohol, and striking and killing a man doing yard work, and then leaving the scene without rendering assistance to the victim. The officer was engaged in doing personal errands and his actions were in no way for the benefit of the city. Russell v. City of Memphis, 106 S.W.3d 655 (Tenn. Ct. App. 2002). [PDF]

Police Plaintiff: Firearms Related

     Family of police detectives shot and killed by prisoner who obtained a weapon by stealing it from a police locker could not recover damages for wrongful death from the city on either the basis that the building was not adequately maintained or that the city provided the officers with an unsafe place of employment. The deaths were not caused by any physical condition in the locker room or defect in the facility itself, but rather by the practice of holding prisoners near the lockers where firearms were kept. Williams v. City of New York, 758 N.Y.S.2d 349 (A.D. 2nd Dept. 2003).

Police Plaintiff: Firefighters' Rule

     Firefighters' rule did not bar a police officers' negligence lawsuit against a truck driver for injuries suffered by the officer in a vehicle collision as he was driving to respond to a call reporting a domestic disturbance. The truck driver's alleged negligent driving was independent of the misconduct that resulted in the summoning of the officer. Terry v. Garcia, No. C040100, 134 Cal. Rptr. 2d 565 (Cal. App. 3d Dist. 2003). [PDF]

Privacy

     Defendants who are not videotape service providers, such as law enforcement officers and agencies or prosecutors, could not be held liable under the Video Tape Privacy Protection Act (VPPA), 18 U.S.C. Sec. 2710 or the Tennessee Video Consumer Privacy Act, T.C.A. Sec. 47-18-2201 through 2205, for the disclosure and use of information relating to an individual's rentals of videotapes. Both statutes, in attempting to protect the privacy of those who rent videotapes from commercial businesses, do not provide for remedies against any persons who are not video service providers. Daniel v. Cantrell, 241 F. Supp. 2d 867 (E.D. Tenn. 2003).

Procedural: Discovery

     Trial court abused its discretion in imposing a sanction of dismissal of his lawsuit accusing police officers of assaulting him on a plaintiff whose attorney failed to meet three separate deadlines to file his responses to interrogatories posed by the defendants. Appeals court noted that the defendant city's attorneys were "equally careless and negligent in complying with their discovery obligations," but they and the city were not sanctioned. In cases where an attorney, rather than a litigant, is "clearly at fault" for failing to comply with discovery deadlines, the appeals court suggested, a judge should "give serious consideration" to punishing the "lawyer through a fine, an award of costs and attorneys' fees to opposing counsel" (to be paid by the plaintiff's lawyer, not the plaintiff), a citation for contempt, and professional discipline, "rather than punishing the plaintiff through dismissal of the suit." Rice v. City of Chicago, #02-1604, 333 F.3d 780 (7th Cir. 2003). [PDF]

Search and Seizure: Home/Business

     Police officers could reasonably have believed that their search of a residence was proper based on a co-tenant supplying them with a key to the premises as well as signing a consent form, even if she did not accompany them to the home. The officers were therefore entitled to qualified immunity from claims for unreasonable search and seizure asserted by the other tenant, who they subsequently arrested. Crim v. King, No. 01-57106, 65 Fed. Appx. 591 (9th Cir. 2003).

Search and Seizure: Vehicle

     Officers providing security outside concert site had reasonable suspicion that there might be weapons inside a vehicle, which gave them an adequate basis for making an investigatory stop of the car. Officers' conduct did not amount to an arrest of the driver or the passengers. Alexander v. Haymon, 254 F. Supp. 2d 820 (S.D. Ohio 2003).

State Constitutional Claims

     Washington state homeowner was not entitled, under state constitutional provisions concerning the taking of property and eminent domain, to compensation for alleged damage to her residence as a result of the execution of a search warrant there by police. Eggleston v. Pierce County, No. 71296-4, 64 P.3d 618 (Wash. 2003).

Wiretapping

     Federal appeals court upholds summary judgment for federal and state law enforcement defendants in civil lawsuit brought by federal prisoner who claimed that his rights under the Federal Wiretap Act, 18 U.S.C. Sec. 2510 et seq. had been violated in the course of his arrest and prosecution by the illegal interception of his phone conversations. Claims against all defendants were barred by the Act's two-year statute of limitations and prosecutors were entitled to absolute immunity. Plaintiff's cause of action under the Wiretap Act accrued on the date that he was informed that his conversations had been recorded. Lanier v. Bryant, No. 00-6408, 332 F.3d 999 (6th Cir. 2003).

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

     Evidence: "Obtaining Admissible Evidence from Computers," by Stephen W. Cogan, 72 FBI Law Enforcement Bulletin, No. 7, pgs. 11-22 (July 2003)."Evolving investigative procedures and legislation impact the process of obtaining evidence from computers." Also available in .html format.

     Search & Seizure: Probationers and Parolees: "Probationers, Parolees, and the Fourth Amendment," by Thomas D. Colbridge, 72 FBI Law Enforcement Bulletin, No. 7, pgs. 11-22 (July 2003)."Probationers and parolees have limited Fourth Amendment protection because of their unique status." Also available in .html format.

     Statistics: Criminal Victimization, 2002 Presents national levels and rates of personal and property victimization for the year 2002. Rates and levels are provided for personal and property victimization by victim characteristics, type of crime, victim-offender relationship, use of weapons, and reporting to police. A special section is devoted to trends in victimization from 1993 to 2002. Estimates are from data collected using the National Crime Victimization Survey (NCVS), an ongoing survey of households that interviews about 76,000 persons in 42,000 households twice annually. Violent crimes included in the report are rape/sexual assault, robbery, aggravated assault and simple assault (from the NCVS), and homicide (from the FBI's UCR program). Property crimes examined are burglary, motor vehicle theft, and property theft. Highlights include the following: Overall violent victimization and property crime rates in 2002 are the lowest recorded since the inception of the NCVS in 1973. The rate of violent crime dropped 21% from the period 1999-2000 to the period 2001-02. Reporting to the police increased from 43% of all violent crimes in 1993 to 49% in 2002; reporting of property crimes increased from 34% to 40%. (August 2003) NCJ 199994 Acrobat file (277K - PDF) | ASCII file (26K) Spreadsheets (zip format 52K)

     Terrorism: Homeland Security Presidential Directive/Hspd-6 Subject: Integration and Use of Screening Information. (September 16, 2003). Directive of President Bush to the Attorney General to establish an organization to consolidate the U.S. government's approach to terrorism screening and provide for the "appropriate and lawful use of Terrorist Information in screening processes."

     Terrorism: Memorandum of Understanding on the Integration and Use of Screening Information to Protect Against Terrorism (September 16, 2003) Federal interagency agreement amongst the State Department, Department of Justice, Department of Homeland Security, and the CIA promising to coordinate and share information on potential terrorist threats with federal, state, local, and foreign authorities or governments. [PDF]  Issued in implementation of President Bush's September 16, 2003 Presidential Directive, listed above.

     Terrorism: The U.S. Department of Justice has established a new website, www.lifeandliberty.gov, to educate Americans about how the use of the USA PATRIOT Act helps to preserve life and liberty, and to attempt to respond to criticisms and misconceptions about the statute.

     Reference:

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

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