CONTENTS

Officer was not required to give advance warning of his use of pepper spray in his attempt to subdue a man, armed with a walking stick, who was suspected of having already used it to inflict serious injury on a woman in a laundromat who was observed bleeding profusely from her head at the scene. Further, his use of deadly force was also justified when the suspect appeared ready to attack him and refused orders to drop the stick.

     A Florida police officer received a radio call about a disturbance at a laundromat in which a black male with a walking stick was allegedly making racial slurs and pushing a woman. By the time he arrived on the scene, he received another radio call from dispatch that the situation was upgraded to an assault and that a white female victim required emergency medical services. The officer saw the victim of the alleged attack sitting in a chair bleeding profusely from her head and indicated that her assailant was inside the laundry.

     The officer entered and two men standing next to the alleged assailant pointed him out to the officer, who noticed that he had a blunt object, the walking stick, in his hand. The suspect later claimed that his back was to the door as the officer entered, and that he was conversing with another man when he heard someone shout. As he turned and faced the officer, he was surprised by a burst of pepper spray in his face. He claimed that he was never told that he was under arrest and was not asked to surrender before receiving the pepper spray in the face.

     The officer later testified that the suspect was "unaffected by" the pepper spray, and wiped his eyes, continuing to advance towards the officer, refusing to obey repeated orders to drop the stick. The officer delivered a second burst of pepper spray, which also allegedly had no effect. The officer called for backup, and attempted to use his baton and kicks to knock the stick out of the suspect's hand, ordering him to drop it. As the suspect advanced on the officer with the stick raised above his head, pumping or swinging it at the officer, the officer drew his weapon, and gave another command to drop it before he tripped and fell to the ground, firing a shot as he fell.

     A second officer arrived on the scene and administered more pepper spray with no effect. Both officers then struggled to subdue the suspect, who continued to resist and was only subdued after more officers arrived and used a stun gun on him.

     The arrestee sued the first officer and the city, claiming an excessive use of force and supervisory liability, as well as unlawful arrest.

     A federal appeals court upheld summary judgment for the defendants. It easily found that the officers had probable cause on which to base an arrest, relying on statements of witnesses to the plaintiff's alleged assault on the woman in the laundromat, who was clearly injured when the first officer arrived.

     It also found that the officer's "surprise use" of the pepper spray to subdue the arrestee was objectively reasonable and proportionate to the potential threat that the arrestee appeared to pose. The stick he carried could be considered a "deadly weapon," depending on how it was used, and at the time it clearly appeared that it had already been used to seriously injure at least one person. An officer in these circumstances is not required to give advance warning to a person suspected of a violent felony that pepper spray will be used if the suspect does not immediately submit to the officer or to give the suspect an opportunity to first surrender.

     Lastly, the officer was entitled to use deadly force when he did to prevent the suspect's escape and to defend himself against possible attack.

     McCormick v. City of Fort Lauderdale, No. 01-16567, 333 F.3d 1234 (11th Cir. 2003).

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Arrestee who was awarded $80,000 in jury verdict for city's prosecution of him for obstruction of justice without probable cause was properly awarded attorneys' fees, but trial court applied the wrong legal standard in reducing the award of attorneys' fees to $95,507 based on the hours attorneys spent on plaintiff's unsuccessful claims.

     A Nevada police officer pursued a suspect's car into a parking lot, and then continued the chase on foot after the suspect left his vehicle, but he lost track of the suspect. Other officers subsequently detained another man found lying on the ground behind a vehicle parked in an adjoining parking lot and held him for the first officer to possibly identify. The first officer noticed that the detainee's clothing did not match that of the man whom he had been chasing, but that he had a similar black bag. The man was arrested for various traffic offenses and for obstructing police officers, on the theory that he was the person the officer had been chasing.

     While the officer subsequently decided that the arrestee was not the man that he had been chasing, who had been driving the pursued car, and he advised the prosecutor of this, the arrestee was still kept in jail for 13 days, and the charges against him were not dropped. Instead, he was told that if he would plead guilty to the obstruction of justice charges, the traffic offenses would be dropped. He declined, and also later declined a deal to have the charges dropped in exchange for signing a release of civil liability. The arrestee was acquitted at trial when two officers involved in his arrest testified that he did not obstruct or delay them in performing their duties.

     He was subsequently awarded $80,000 in damages by a jury in a federal civil rights lawsuit against the city, which the jury found had a "custom, policy, or practice to falsely imprison individuals." The jury did return a verdict, however, in favor of a defendant officer involved in the arrest. The plaintiff's lawyers asked for an award of attorneys' fees of $188,115.66, but the trial court reduced the total award to $95,507.25, based on the fact that the plaintiff was unsuccessful in certain claims, such as those against the defendant officer.

     A federal appeals court upheld the award against the city, finding that the deputy district attorney who prosecuted the plaintiff was a final policymaker for the city regarding the decision to prosecute, under Nevada state law, so that the city could be found liable on the basis of the prosecutor's actions.

     It also ruled that the plaintiff, as a prevailing party, was entitled to an award of attorneys' fees, and that the trial court did have discretion to reduce the amount in order to reflect the limited success achieved by the plaintiff, but it found that the trial court applied the wrong legal standard in making the reduction.

     The trial court reduced the fee award for three reasons, the court noted:

     1) excluding the time spent on three motions that the plaintiff did not win--a motion to certify as frivolous the defendants' appeal of the court's qualified immunity decision, a motion for interim fees, and a motion for partial summary judgment;

     2) a reduction in the number of attorney hours by 25 percent to reflect the plaintiff's limited success; and

     3) a reduction of the number of hours on which the plaintiff's lawyers spent challenging the defendants' interlocutory appeal, which was found to be excessive.

     The appeals court found that the trial court applied the wrong legal standard in deciding what issues were "unrelated" to the successful claims. While the plaintiff asserted "numerous legal theories against several defendants," the court noted, all his claims arose out of a "common core of facts and a common course of conduct:" his arrest, detention, and prosecution. Accordingly, it could not be said that the claims that the trial court excluded were actually unrelated--"entirely distinct and separate"--from the successful claims.

     For example, the court noted, the motion the plaintiff pursued for summary judgment, although unsuccessful, was "not wholly unrelated to the claims on which he succeeded," since he sought summary judgment on his federal and state claims for false arrest, false imprisonment and malicious prosecution. He ultimately prevailed on his false imprisonment and malicious prosecution claims. Even though the motion itself failed, the work done to prepare the motion on these theories "could have contributed to the final result achieved. "In other words, the district court should not have excluded all work on the motion on the ground that it was 'unrelated.'"

     While the trial court could properly exercise its discretion to reduce the amount of attorneys' fees to reflect the fact that the plaintiff did not succeed on all claims, its application of the wrong standard for "relatedness" required the appeals court to reverse and remand for further proceedings on this issue.

     Webb v. Sloan, No. 01-16855, 330 F.3d 1158 (9th Cir. 2003).

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Federal appeals court holds that privately owned pet dogs are personal "effects" protected under the Fourth Amendment from unreasonable searches and seizures, but also finds that animal control officers' actions in shooting and killing the plaintiffs' dogs were objectively reasonable under circumstances where the dogs posed an actual or potential threat to the officers or others.

     A number of owners of pet dogs filed a lawsuit against a city and its animal control officers claiming that the officers, in shooting and killing their dogs, violated their Fourth Amendment rights.

     Finding that the issue of whether pet dogs were protected under the Fourth Amendment was a question of "first impression" previously undecided by the U.S. Court of Appeals for the Fourth Circuit, a panel of the court found that privately owned pet dogs do fall within one of the classes of property protected by the Fourth Amendment against unreasonable searches and seizures. In each complained of instance, however, the court found that the officers acted reasonably in shooting and killing the dogs.

     The text of the Fourth Amendment provides that:

[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...

     Dogs, the court stated, are plainly not a "person," "house," or "paper." The appeals court panel found that pet dogs are "effects," an issue it stated had never been addressed by the U.S. Supreme Court. The three other federal appeals courts which have considered the issue, the court noted, have "uniformly concluded, although based only on conclusory assertions, that dogs are indeed so protected." See Brown v. Muhlenberg Township, 269 F.3d 205 (3d Cir. 2001) (dogs are "effects"), Fuller v. Vines, 36 F.3d 65 (9th Cir. 1994) (same), and Lesher v. Reed, 12 F.3d 148 (8th Cir. 1994) (dogs are property subject to Fourth Amendment seizure requirements).

     The court noted that an earlier draft of the Fourth Amendment referred to "other property," which was subsequently replaced with "effects," indicating that the scope of the amendment was narrowed so that "all privately owned property, both personal and real" might not be covered. The appeals court engaged in an extended discussion of the history of the right to dogs as property, finding that the plaintiffs' privately owned dogs were "effects" subject to the protections of the Fourth Amendment, on the basis of the Constitution's text, of history, and of the limited precedent that there was.

     Turning to the four situations presented by the plaintiffs, however, the appeals court upheld the shootings and killings of the dogs as reasonable:

     * In one instance, the officer acted reasonably in shooting and killing a loose Rottweiler which was roaming the neighborhood and had already attacked one person at the time of the shooting.

     * In another instance, the officers acted reasonable in shooting and killing loose dogs when they encountered a "pack" of five dogs that had attacked people in the area as well as another officer. In that instance, one of the dogs attempted to leap into the officer's truck window, and he was attacked by the entire pack when he tried to leave his truck.

     * In yet another case, an officer was confronted by a dog which had attacked and wounded one person in the area, and which attacked him as he left his vehicle, making his decision to shoot and kill reasonable.

     * Finally, in the case of a dog which was shot and killed before it had actually attacked anyone, the dog was a "dangerous breed," a part pit bull, and the dog had acted in an aggressive manner towards a meter reader and was attempting to flee when the officer approached.

     Whatever the officers' subjective intent, the appeals court found, their actions were objectively reasonable under these circumstances, and it was a judgment call as to whether it was necessary to use deadly force in each of these instances. It was clear, however, that such use was permissible.

     The appeals court therefore reversed the trial court's denial of qualified immunity to the defendant officers. It also found no basis for municipal liability. In parting, responding to a strong dissent by one member of the panel, the majority of the court stated that if the defendant officers "have engaged in a practice of malicious and unnecessary killing of animals, such conduct is worthy of censure," yet "we would incur greater censure, and deservedly so, were we to allow our own personal views of the appropriateness of particular actions to color our interpretation of what the Constitution requires."

     Altman v. City of High Point, North Carolina, No. 02-1178, 330 F.3d 194 (4th Cir. 2003).

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Officers had probable cause to make a warrantless arrest of a woman on charges of leaving written bomb threats in her workplace, based on expert evidence that she was more probably than not the writer of the notes, her access to the places where the notes were found, and the lack of any other apparent suspect.

     Shortly after a woman began work at a large complex of seven buildings (with over 2,500 employees) belonging to one employer, bomb threat notes and other anonymous notes began to appear. Seven different anonymous bomb threat notes and fourteen anonymous notes expressing "spite or workplace dissatisfaction" appeared at the plant. Several of the notes were found by the woman, including one purportedly signed with her first name, and twenty-one of the twenty-four notes were in the building where she worked.

     After the first bomb threat note was found, local police began an investigation, which included the use of a handwriting analysis firm retained by the employer. The handwriting analysis firm determined, at one point, that for 14 of the notes, only the woman could not be ruled out as a suspect. More samples of her handwriting were obtained, and the handwriting experts concluded that it was "more probable than not" that she was the author of three bomb notes, including two found when she was on maternity leave, and eleven of the other notes.

     During questioning at the police department, the investigating detective deemed the suspect's "rather terse disclaimers" to be not what he expected from an innocent person. She merely said that she "knew nothing" about the notes, and he also observed that she was "very nervous, her skin reddening and breaking out in hives." At the close of the interview, the detective and his supervisor agreed that she should be arrested, and a warrantless arrest took place on three counts of creating a bomb scare, each of which carried a maximum punishment of 20 years imprisonment under Massachusetts law.

     Ultimately, no prosecution took place, with the criminal complaint dismissed after the prosecutor failed to meet a discovery deadline. Additionally, after the arrest, when she was not working at the plant, another note was found, and suspicion fell on another employee.

     The arrestee sued the detective, his supervisor, and the town for violation of her civil rights in arresting her without probable cause.

     A federal appeals court has upheld summary judgment in favor of the defendants, agreeing that the detective had probable cause for the arrest.

     Probable cause, the court noted, means more than "bare suspicion," but can certainly be less than what would be needed to justify a conviction. "A good deal of territory lies in between," the court commented.

     In this case, the appeals court found, there was sufficient evidence on which to base a reasonable belief that the arrestee had sent some of the notes. The court pointed to the conclusions of the handwriting expert, the fact that the notes began shortly after the plaintiff joined the company, and that most of the notes were found in the building where she worked, along with her behavior at the police station. Additionally, while there were some notes that appeared while she was off work on maternity leave, she could have visited the building, and officers found that this could not be ruled out. Further, at the time of the arrest, there was "apparently no other then-current suspect against whom a strong case existed."

     The appeals court concluded that "this, in our view, is probable cause for an arrest."

     It further rejected the plaintiff's argument that there was no probable cause because a psychological profile commissioned by the employer allegedly suggested that the culprit had "traits that differed" from hers.

However, while handwriting is an inexact science, psychological profiling appears to be even more inexact; handwriting experts have been routinely used in courts for a century now, while psychological profiling remains primarily a law enforcement device for narrowing the field of suspects and is rarely admissible in court. If the profile counts at all in the probable cause calculus, it does not alter the result in this case.

     Valente v. Wallace, No. 02-2549, 332 F.3d 30 (1st Cir. 2003).

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No reasonable officer could believe, federal appeals court finds, that a motorist's actions in tape recording a traffic stop without consent provided probable cause to arrest him for violating a Washington state privacy statute, since the plain language of the law prohibited only the recording of a "private" conversation.

     A Washington state motorist spent a night in jail for tape recording a traffic stop without consent. Since taping police officers during the performance of their public duties is "not illegal under the Washington Privacy Act," RCWA 9.73.030(1)(b), under which he was arrested, the charge was dismissed by a state trial court. During the incident, the motorist's car was also towed and impounded. The arrestee then filed a federal civil rights lawsuit for violation of his right to be free of unreasonable searches and seizures.

     The defendant officers argued that they were entitled to qualified immunity from liability and also that they had probable cause for the arrest. Despite the trial court's instruction to the jury that state law at the time of the incident did not bar the type of recording that the motorist did, the jury found for the defendants and the trial court denied the plaintiff's motion for a new trial.

     A federal appeals court reversed, ordering a new trial. It found that the plain language of the statute in question only prohibiting taping "private" conversations without consent, so that the "legal distinction" the officers were asked to make was not a difficult one: "taping private conversations is illegal, taping a traffic stop is not." Despite this, the officers arrested the plaintiff for alleged violation of the state Privacy Act.

     During the incident at issue, the motorist even showed the officers a copy of a state appeals court decision he kept in his glove compartment which held that the state Privacy Act does not apply to police officers performing their official duties, but the arresting officers declined to look at it and arrested him shortly thereafter.

The officers not only failed to read the clear language of the statute and incorrectly decided that the traffic stop on a public thoroughfare was a private conversation, they also declined to read the case the motorist offered and did not call it to the attention of the prosecuting attorney. Under these circumstances, the court found, no objectively reasonable officer could have concluded that arresting the motorist for taping the traffic stop was permissible, so that the defendants were not entitled to qualified immunity.

     Alford v. Haner, #01-35141, 333 F.3d 972 (9th Cir. 2003).

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Police chief did not use excessive force in personally shooting and killing a man "brandishing" an 18 to 20 inch sword who raised it towards officers at the scene of a disturbance.

     Police in a Texas city responded to reports of a disturbance between two intoxicated persons in a mobile home park. Once they arrived, they found a man inside a mobile home with the door open who was "yelling, cursing, brandishing an eighteen to twenty inch sword and breaking windows."

     He told the officers to stay away and threatened to kill himself, although it was disputed whether he also threatened to kill the officers. He also stated that he was a "martial arts expert," and made several "martial arts motions" with the sword to keep the officers away, and demanded to speak to the police chief.

     When the police chief arrived and tried to calm him down, the suspect allegedly remained agitated, cursing his father and his girlfriend, and continuing to brandish the sword. The police chief told him to drop the sword, and not to advance on the officers and offered to take him to see a doctor or psychologist. The suspect exited the mobile home holding the sword, turning and raising the sword toward the officers. The police chief shot him in his right arm, causing him to drop the sword.

     Even then, the suspect attempted to flee, and was only subdued through a combination of use of a police dog, pepper spray, and officers pulling him to the ground. The police chief instructed one of the officers to drive the injured man in an ambulance so that medical personnel could continue caring for him, and the suspect died at the hospital.

     Upholding summary judgment for the defendant police chief and city in a federal civil rights lawsuit filed by the decedent's estate, a federal appeals court found that the police chief's use of deadly force was not excessive under the circumstances, since there was reason to believe that the suspect posed a threat of serious harm to the officers and others, and he was less than ten feet away at the time of the shooting.

     The appeals court also rejected the argument that the police chief acted with deliberate indifference to the wounded suspect's serious medical needs by asking an officer to drive the ambulance, even if his action allegedly caused some delay in the departure of the ambulance to the hospital.

     Mace v. City of Palestine, No. 02-40335, 333 F.3d 621 (5th Cir. 2003).

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Town's failure to adopt a policy or procedure to make sure that exculpatory material concerning arrestees was transmitted from police officers to prosecutors could potentially be the basis for federal civil rights liability.

     While municipal liability for violation of federal civil rights has long been held to require the finding of an official policy, custom or practice, a federal trial court, in a recent case, found that a town's failure to adopt a policy or procedure could, in itself, form the basis for such liability.

     In this case, a suspect in a series of purse snatchings at first made a statement implicating another man as involved in the crimes with him. This second man actually lived in Florida, rather than Connecticut (the scene of the crimes) at the time, and was working a full time job or was on a three day cruise to the Bahamas on the dates that the purse robberies took place. Subsequently, the suspect made another statement, recanting his earlier accusations against the Florida resident.

     While this second statement was reduced to writing, it wound up initially not being made available to prosecutors or to the FBI, which subsequently arrested the second man in Florida, where he spent almost three months in custody before being extradited to Connecticut, where he spent additional months in custody, before the charges were dismissed on the basis of his lack of presence in the state at the times that the crimes were committed.

     He sued the town, among other defendants. The trial court ruled that the town could be liable for failing to adopt any policy or procedure for the transmitting of exculpatory evidence and material from police officials to prosecutors.

     The court further noted that, under state law in Connecticut, officers had a statutorily imposed duty to disclose exculpatory information or material to the prosecutor's office.

     The town argued that, in lieu of a policy or practice to accomplish this, it relied on the "good judgment of its police officers" to make sure that prosecutors are notified of any exculpatory evidence in a criminal investigation. A jury must decide, the court found, whether the procedure, or lack of procedure, constitutes conscious disregard or deliberate indifference to the constitutional and statutory rights of criminal suspects. There was also a factual issue as to whether the general training of the town's officers was sufficient to insure that they followed the requirements of the state statute or whether it was "sufficient to rely on their good judgment to insure that the rights of criminal suspects were protected."

     Murvin v. Jennings, 259 F. Supp. 2d 180 (D. Conn. 2003).

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UPDATE: $325,00 settlement reached in the first case brought under federal statute protecting the privacy of driver's license records. Trial court held that statute creates a private cause of action imposing vicarious liability on municipalities if employees or agents violate it with "apparent authority," and that possible plaintiffs include not only the driver, but also other family members sharing the same address who might be subjected to stalking or harassment.

     As previously reported in this publication, a federal trial court ruled that a federal statute protecting the privacy of driver's license records creates a private cause of action imposing vicarious liability on cities if their employees violate it with "apparent authority," and that possible plaintiffs may include not only the driver whose license information is revealed, but also other family members sharing the same address who might be subjected to stalking or harassment. In that case, just prior to trial, the city and a defendant former police officer have reached a $325,000 with plaintiffs, as reported in the National Law Journal on July 25, 2003.

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

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

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

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

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

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

     Margan v. Niles, 00-CV-1201, 250 F. Supp. 2d 63, 2003 U.S. Dist. Lexis 3971 (N.D.N.Y.).

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City and police personnel did not violate the rights of a suicidal individual during a siege of his home. Law enforcement actions did not create the danger to him, and were not responsible for his eventual action of taking his own life. Further, police acted reasonably in preventing his mother and wife from entering the home, in order to protect them from possible harm from him.

     The estate of a mentally disturbed man who took his own life while police surrounded his home claimed that the city, the police chief, other police personnel, and psychological services for the city's police and fire departments used excessive force against him, and violated his constitutional rights by preventing his mother and wife from entering the home to try to dissuade him from killing himself, as well as by cutting off phone communication so that he could no longer communication with a psychiatrist.

     A federal appeals court has rejected all of these claims, finding that the defendants did not create or enhance the danger of the decedent killing himself, and that their actions in attempting to get him to exit the home were reasonable. Additionally, actions taken to prevent his mother and wife from entering the home, the court stated, were proper, based on fears that they could be subjected to harm by the armed disturbed man inside.

     The incident began when the man's wife called 911 and reported that her husband, armed with a loaded .38 caliber pistol and AK47 had threatened to both kill her and commit suicide. She then left the apartment with their infant daughter. The man was twenty-three years old and had a history of psychiatric problems. He was currently being treated by a psychiatrist for Attention Deficit Hyperactivity and Oppositional Defiant Disorder, and had recently been experiencing problems with a new medication--Xanax--prescribed by his doctor, as well as drinking beer in the days prior to the incident.

     Officers arrived at the apartment and spoke to him by phone, and he repeated threats to "start shooting," stating that the police department had "just entered into a war." A perimeter was set up around the building and other apartments were evacuated. The police department then activated a Special Operations Team (SOT). A psychologist was called to assist in negotiations with the man inside the apartment.

     The man's psychiatrist was subsequently instructed not to contact him, based on a policy of controlling third-party communications during an armed standoff so as not to interfere with negotiations. The suspect kept repeating threats to kill himself and to shoot anyone attempting to enter the building. He did not respond to offers of access to medical care or to talk to his psychiatrist.

     The man could not be enticed out of the apartment with an offer of cigarettes, either, which the police denied his requests for as long as he stayed inside. Requests by his mother and wife to enter were denied by officers, and the man allegedly continued drinking, with his speech becoming slurred. Officers attempted to move the process along by launching a "flexible baton" made of rubber to breach a rear window in an unoccupied room. Shortly thereafter, a single gunshot was heard and officers entering the apartment found the man lying on his back with a self-inflicted gunshot wound in his left temple and a suicide note. He died the next day.

     A federal appeals court upheld the determination that these actions did not violate the decedent's substantive due process rights or constitute the excessive use of force. The court noted that the launching of the flexible baton caused no physical injury, and the court stated that it had never upheld an excessive force claim "without some evidence of physical injury." Further, the defendants did not act with improper motives or malice, and were concerned for the decedent's well being. Officers at no point, the court stated, acted for any purpose other than to attempt to protect the man's physical safety, although they did get frustrated with his apparent refusal to negotiate. Because the baton was fired at a vacant room, there was virtually no risk of physical harm from the action.

     The defendants also did not create or enhance the risk of danger to the decedent. For most of the standoff, he had access to a telephone line, and he was offered medical assistance, although he did not accept it. He was not in "custody" or restrained, but rather was repeatedly encouraged to leave the apartment, and was told that if he would do so he could speak to his mother and have cigarettes. The danger to the decedent was based on his own suicidal tendencies, not on anything that the defendants did, and they did not "create" his predicament.

     Rather, they sought to remove him from a dangerous situation that he himself had created. Even if the use of the flexible baton had been negligent, this was insufficient to show a violation of due process, which protects against “deliberately wrongful government decisions rather than merely negligent government conduct.”

     Christensen v. City of Tulsa, No. 02-5135, 332 F.3d 1270 (10th Cir. 2003).

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While there was no general duty to provide police protection or investigate a particular crime, an African-American man stated a claim for violation of the right to equal protection of the law by asserting that officers failed to conduct any substantial investigation of shots being fired at his car solely on the basis of his race.

     An African-American resident of a city in Pennsylvania was driving on the street at 1:30 a.m. when "a hail of bullets" struck his car. He sped away and turned onto a nearby street where he observed several police cars and police dogs engaged in a burglary investigation. When he approached a white officer to report the shooting, he was allegedly instructed to "wait outside," and that someone would be with him shortly. He claims that no officer came to speak with him while fifteen minutes passed as he waited by his car fifty feet away.

     He then twice telephoned 911 in a span of ten minutes, he contended, but no officers came to speak with him. He next contacted a friend and asked them to call 911, but no police came in response to her call either. Approximately 30 to 45 minutes later, he stated, an officer finally returned from the burglary investigation and listened to his story about the shooting. The officer told him that he was "lucky that he had not been killed," and that there "are a lot of shootings in that part of town." Another officer told him that the attackers were probably using his car for "target practice."

     While the officers briefly looked at his car, he claims, they took no evidence from it, and they concluded by giving him their card with an incident number. The resident, on the basis of this encounter, sued the city and its police department, arguing that these actions deprived him of his due process and equal protection rights under the Fourteenth Amendment.

     The federal trial court granted the defendants' motion to dismiss the due process claim. It noted that there is no general duty on the part of the state to protect an individual against private violence, and that the failure to do so, under most circumstances, simply does not violate the right to due process of law. The plaintiff had no right to a "warning" about entering a high crime area, or to police activity to discourage criminal activities in those areas by removing trees, installing brighter street lights, or taking action to prevent people from wandering into dangerous parts of town.

     At the same time, the court declined to dismiss the plaintiff's equal protection claim. He asserted that the police had a policy of "racial inequality" that was indifferent to his civil rights and that his race was a "deciding factor" in the officers' failure to respond to and investigate the shooting of his car. He believed that the officers assumed that he was "either a drug dealer or a pimp, and that there was no need for a formal investigation," and also claimed that if he had been a white man or woman, the police response and investigation would have "proceeded more aggressively."

     The court noted that the defendants' motion to dismiss the lawsuit "fails to address these allegations." Government may not, the court noted, selectively deny its protective services to certain disfavored minorities without violating the equal protection clause of the Fourteenth Amendment.

     The court also declined to dismiss the plaintiff's claim arising out of the right to travel, since the defendants had also not addressed that issue. It noted, in passing, that while the right to interstate travel is "well established" under U.S. Supreme Court precedent, see Saenz v. Roe, 526 U.S. 489 (1999), that the same is "not true of the right to intrastate travel, which is at issue here," although the U.S. Court of Appeals for the Third Circuit has recognized a constitutional right to intrastate travel. See Lutz v. City of York, 899 F.2d 255 (1990).

     Roman v. City of Reading, 257 F. Supp. 2d 799 (E.D. Pa. 2003).

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Two police officers were each properly assessed $10,000 in compensatory and $20,000 in punitive damages, appeals court rules, for unreasonable and "unnecessarily degrading" and prolonged detention of female resident of home who was not a subject of their investigation during the execution of a search warrant. Plaintiff was allegedly kept in handcuffs for several hours, marched barefoot through the rain, and unnecessarily questioned about her citizenship status.

     A number of officers from a SWAT team executed a valid search warrant before dawn at a home as part of their investigation of a gang-related drive-by shooting. The house allegedly housed "many unrelated residents." Officers found a female resident, not a subject of the investigation, in bed, and, pointing a submachine gun at her head, turned her over on her stomach and handcuffed her.

     After searching her person and her room, the officers allegedly led her, barefoot and still wearing her pajamas, outside through the rain to a cold garage. While she was "absolutely compliant," they detained her in handcuffs there for two to three hours, without explaining why she was being detained. During that time, an immigration officer who had joined the police on the search asked her questions concerning her citizenship status. On learning that her citizenship documentation was in her purse, an officer allegedly searched her purse without her consent. She was not released until after the search of the premises was completed.

     She sued the officers for unreasonable search and seizure. A jury found that the officers had violated her rights by detaining her with unreasonably excessive force and for a longer period than was reasonable. It found the two officers each liable for $10,000 in compensatory damages and $20,000 in punitive damages.

     A federal appeals court upheld this result. It found that the manner in which the plaintiff was seized and detained was "objectively unreasonable" and "unnecessarily degrading and prolonged."

     Further, the court noted that it was alleged that no person identified himself or herself as a police officer upon entering. The court found that the officers had secured the house "in minutes" and detained the plaintiff for several hours, despite her not posing any immediate threat to the safety of the officers or any other person.

     The court also found that the questioning of the plaintiff about her citizenship status simply because of her Hispanic/Latino appearance and name was unjustified and unnecessary, violating her rights against unreasonable search and seizure. The officers had no particularized reasonable suspicion to justify the questioning or the searching of her purse for immigration documentation without her consent.

     The appeals court also strongly rejected the argument that insufficient grounds existed for the award of punitive damages in the case. It found that "substantial evidence" existed to support the jury award of punitive damages, as the evidence showed that the officers exhibited "disdain" for the house and its residents, and "recklessly disregarded" the plaintiff's rights.

     Mena v. City of Simi Valley, #01-56673, 332 F.3d 1255 (9th Cir. 2003).

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

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Commissioner of public safety was not entitled to qualified immunity from liability for state trooper's alleged lewd and suggestive comments to female motorist while strip-searching her during a traffic stop. He was allegedly aware of trooper's propensities towards misconduct with female motorists, but backed down on a decision to fire him, returning him to duty on the highways instead.

     A female motorist in Massachusetts claimed that a state trooper, during a traffic stop, strip searched her and made lewd and suggestive comments to her. With his hand on his gun, she stated, he ordered her to take off all her clothes, and then to open her vagina, allegedly to "check for drugs." He then allegedly threatened her with physical harm if she told anyone about the incident. The state trooper faced criminal charges of open and gross lewdness and lascivious behavior, attempted extortion and violation of state civil rights, on which he was convicted.

     The motorist filed a federal civil rights lawsuit against the former commissioner of public safety, seeking to impose supervisory liability for the trooper's actions.

     A Massachusetts intermediate appeals court denied the defendant's motion for qualified immunity, finding that the plaintiff sufficiently alleged that the defendant knew of the trooper's propensities to engage in misconduct towards female motorists, and even threatened, at one point, to fire him over it, but then backed down in the face of a threat by the trooper, who was not white, to bring a racial discrimination lawsuit against his employer if he was fired, arguing that the state police department had never terminated a white officer for "conduct unbecoming an officer."

     The evidence in the record showed that there was a complaint about the trooper's "inappropriate conduct" towards a female motorist as long ago as 1987, at which time investigators discovered three prior incidents and "widespread rumors" of other incidents involving the trooper and female motorists. The complained of conduct ranged from asking female motorists to go out for drinks, to inappropriate touching, to detention of female motorists for up to an hour, and to threats against one such woman.

     It was in response to this investigation that the defendant initially threatened to fire the trooper if he did not resign, but after the threat of a racial discrimination lawsuit, he changed the discipline imposed to a six month suspension, and reporting to a state police stress unit for counseling.

     When the trooper returned to work, there were allegedly no restrictions on his duties, no further discipline, no evaluation of his treatment from the stress unit, and no measures instituted to monitor his behavior. It was four years later that the incident with the plaintiff occurred.

     The appeals court found that the defendant's actions could reasonably have played a "substantial part" in bringing about the plaintiff's injuries. The defendant had "exclusive authority" over discipline within the state police department, and was alleged to be aware of the trooper's "predilections toward female motorists," but allowed him to continue to perform duties as a highway patrol officer with "no evaluation of his condition, no assessment of his potential continuing threat to female motorists, no restrictions, and no measures to monitor his behavior."

     If this were all true, then the defendant could be found to have "tacitly or otherwise permitted" the trooper to "continue his illegal and improper conduct towards female motorists."

     Clancy v. McCabe, #01-P-806, 790 N.E.2d 1126 (Mass. App. 2003).

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Attorneys' Fees: For Plaintiff

     Prevailing plaintiffs in federal civil rights lawsuit over alleged illegal search and seizure were entitled to an award of the attorneys' fees they incurred in obtaining the dismissal of criminal charges against them arising out of the search, since the dismissal of those charges was necessary under Heck v. Humphrey, 512 U.S. 477 (1994), prior to pursuing a successful civil rights action which necessarily implied the invalidity of the criminal prosecution. A total of $86, 794.20 was awarded in attorneys' fees, which included some fees for legal services in defending against the criminal charges. Rosas v. County of San Bernardino, 2260 F. Supp. 2d 990 (C.D. Cal. 2003).

Defamation

     A county police department could not be liable to an arrestee for defamation for making published statements that he had been taken into custody for alleged theft of services in not paying a disputed bill. The fact that the statements were true barred liability for libel or slander, even if they did damage to the arrestee's reputation. Truth is an "absolute defense" to defamation claims. Carlton v. Nassau County Police Dept., 761 N.Y.S.2d 98 (A.D. 2nd Dept. 2003).

Defenses: Absolute Immunity

     Prosecutor who filed a misdemeanor criminal complaint against a man for adultery, based on his admission of an extra-marital affair in the course of his grand jury testimony, was entitled to absolute immunity for the decision to prosecute even though the prosecutor later acknowledged that he exceeded his authority in bringing the charge, and the charges were subsequently dismissed. A prosecutor who brings criminal charges is entitled to absolute immunity for doing so, unless he acts in the absence of all jurisdiction. Thomas v. County of Putnam, 257 F. Supp. 2d 711 (S.D.N.Y. 2003).

Defenses: Release Agreements

     While a release agreement signed by an alleged victim of sexual assault by a former city police officer was voluntarily entered into in exchange for a plea agreement on pending intoxicated driving charges, a federal trial court ruled that there were "relevant public interests" which barred enforcement of the release. The court noted the evidence supporting the sexual assault claim and ruled that enforcement of the release could adversely affect a public interest in deterring police misconduct. Oliver v. City of Berkley, 261 F. Supp. 2d 870 (E.D. Mich. 2003).

Defenses: Statute of Limitations

     In the absence of an express written waiver of the deadline to bring a case to trial within a California statutory five-year time limit, the deadline to do so would not be extended. In this case, the plaintiffs in a civil rights/wrongful death lawsuit over the shooting of their child, in stipulating to a continuation of the trial date to a date within the five year time period did not enter into an agreement with the defendants that extended the deadline beyond the five years. Court also rejects argument that the death of an attorney for a defendant police officer made bringing the plaintiff's case to trial within the five years "impracticable," extending the deadline. Lawsuit was properly dismissed, therefore, for failure to bring the case to trial in a timely manner. Sanchez v. City of Los Angeles, No. B157711, 135 Cal. Rptr. 2d 869 (Cal. App. 2nd Dist. 2003). [PDF]

Domestic Violence

    Police officer's alleged romantic involvement with victim did not alter a valid restraining order supported by probable cause into "one that was not," and he was entitled to qualified immunity for enforcing the order against the plaintiff after the woman who obtained the order called police about the plaintiff's alleged violation of it. Deen v. Corning City, No. 01-16705, 66 Fed. Appx. 675 (9th Cir. 2003).

False Arrest/Imprisonment: No Warrant

     There was probable cause for the arrest of the plaintiff on the basis of two person's statements that he fired shots at them, as well as statements by two neighbors that they saw him fire a gun into the air after running into the street. Price v. Cochran, No. 02-3213, 66 Fed. Appx. 781 (10th Cir. 2003).

     A police officer could have reasonably believed that he had probable cause to arrest a woman at a motel for use of a stolen credit card after the motel reported such use and, when he went to the room, the occupant refused to let him see the credit card that she had used to pay for the room. Federal appeals court reinstates jury's verdict for the defendant officer in the arrestee's false arrest lawsuit, overturning the trial judge's $4,000 judgment as a matter of law for the plaintiff. Passage v. DeLoach, No. 01-6123, 64 Fed. Appx. 504 (6th Cir. 2003).

     Police officer could not reasonably have believed that she had probable cause to arrest a woman for obstructing official business or assaulting an officer by pointing her finger at the officer in the course of an argument in the woman's kitchen about the officer's questioning of the woman's daughter. Officer was therefore not entitled to qualified immunity from liability. Lyons v. City of Xenia, Ohio, 258 F. Supp. 2d 761 (S.D. Ohio. 2003).

Family Relationships

     Federal appeals court rules that the law of the state of Georgia as to the standing of a parent of an adult child murdered to pursue wrongful death claims against those who caused the death is incorporated into federal law under 42 U.S.C. Sec. 1988, and that, pursuant to the Georgia Supreme Court's answer to the question the appeals court previously certified to it, the mother of a man murdered by his surviving spouse could pursue a federal civil rights claim for the death. Carringer v. Rodgers, #01-15258, 331 F.3d 844 (11th Cir. 2003). [PDF] [Editor's Note: As previously reported here, in this case, the Georgia Supreme Court held that, under state law, a parent of an adult child murdered by his surviving spouse can pursue a wrongful death claim against the alleged murderer or against "other parties" that proximately caused the death. In the case, the murdered son's mother asserted state wrongful death claims against the wife, a police chief, and the city. The claims against the city and police chief were based on the fact that the alleged murderer was a police captain who had previously attempted suicide. The police chief had ordered her to remove all weapons from her home, but did not relieve her of her duties, and she used her service revolver to shoot and kill her husband. Carringer v. Rodgers, No. SO2Q1483, 578 S.E.2d 841 (Ga. 2003).]

Firearms Related: Intentional Use

     Officers were entitled to qualified immunity for shooting a man who refused to drop his handgun after he was ordered to do so. Officers were responding to reports of shots fired in a high-crime area and could reasonably believe that the suspect presented a serious threat of personal harm to them once he disobeyed orders to drop the weapon, regardless of whether or not he was then pointing the weapon at the officers. Cunningham v. Hamilton, 259 F. Supp. 2d 457 (E.D. Va. 2003).

First Amendment

     Pro-statehood, pro-U.S. demonstrator in Puerto Rico did not adequately show that police violated his First Amendment rights by arresting him, thereby showing favoritism towards non-statehood supporters, "leftist groups," and "anti-American" sentiment expressed by opposing demonstrators there. The court noted that the plaintiff was the only person arrested in this single alleged incident, out of 500 pro-U.S. demonstrators present to oppose anti-U.S. demonstrators, which was insufficient to show a policy of making arrests on the basis of political affiliation. The plaintiff, who suffered from a chronic emotional condition and a schizophrenic disorder, was removed from the scene on the basis of his actions, in order to "avoid any serious altercations with protesters." Bonilla v. Vivoni, 259 F. Supp. 22d 135 (D. Puerto Rico 2003).

Governmental Liability: Policy/Custom

     City could not be held vicariously liable for its officers' alleged negligence in failing to get positive identification from persons who impersonated the plaintiff, even if this later resulted in his mistaken arrest and detention for the actions of these impersonators. There was no showing of an official municipal policy or custom which caused this to happen. Sanchez v. City of Albuquerque, No. 02-2107, 65 Fed. Appx. 2241 (10th Cir. 2003).

     City and supervisory personnel could not be held vicariously liable for officers' actions in allegedly improperly conducting a rape and assault investigation, resulting in the plaintiff's wrongful conviction when there was no evidence that the city and police chief actually had a policy or custom which caused the officers' actions. Alexander v. City of South Bend, 256 F. Supp. 2d 865 (N.D. Ind. 2003).

Off-Duty/Color of Law: Arrest Related

     Off-duty transit police officers acted completely in their own personal interests in pulling over a motorist after he allegedly damaged their personal car, so that their employer could not be held liable for their alleged false arrest and assault of the motorist, despite the fact that they displayed badges during the incident. They acted in order to make sure that the plaintiff paid for the damage to their car, not to enforce laws against erratic driving. Schilt v. New York City Transit Authority, 759 N.Y.S.2d 10 (A.D. 1st Dept. 2003).

Off-Duty/Color of Law: Firearms Related

     Summary judgment was not possible on the issue of whether an off-duty police officer was acting within the scope of employment in shooting a man he encountered on the street. The issue depended on whether a jury believed the officer's version of the incident, that the plaintiff had grabbed him from behind and attempted to rob him, or the plaintiff's version, that the officer engaged in a person quarrel with him after the plaintiff mistook him for a man who owed him a gambling debt, and shot him after he tried to walk away. Campos v. City of New York, 759 N.Y.S.2d 843 (Sup. 2003).

Police Plaintiff: Vehicle Related

   City which was self-insured was required under Connecticut law to provide only the statutory minimum in underinsured motorist coverage to an officer it employed, so that when the officer settled with the motorist for an amount equal to that minimum, the city was not liable to the officer as an underinsured motorist insurer for the officer's claimed injuries in excess of that amount.    Serra v. City of West Haven, No. 22992, 822 A.2d 1018 (Conn. App. 2003). [PDF]

Procedural: Class Action

     Neighborhood residents allegedly detained and searched by officers en masse following basketball tournament were properly certified as a class in a federal civil rights lawsuit challenging the actions as unlawful and seeking damages. The fact that individual plaintiffs might claim differing amounts of damage did not support the defendants' motion for decertification. Williams v. Brown, 214 F.R.D. 484 (N.D. Ill. 2003).

Procedural: Discovery

     Insurance claims adjuster's interviews of officers after incident where they allegedly tackled an individual and injured his shoulder following a disturbance in a parking lot were not protected by attorney-client privilege or work product privilege from discovery in federal civil rights lawsuit because they were not conducted in anticipation of litigation. Claims adjuster's interviews of witnesses to the incident, however, were protected under the work product privilege because they were conducted in anticipation of litigation. Garcia v. City of El Centro, 214 F.R.D. 587 (S.D. Cal. 2003).

Public Protection: Arrestees

     Deputies and sheriff were not liable for injuries suffered by a pedestrian on the side of the road when he was struck by a drunken driver while being detained by the deputies, who were searching for an escaped jail prisoner. The deputies activated their overhead lights and flashing headlights, and also pulled their vehicle as close as possible to the suspects they detained. The fault for the injuries rested with the drunk driver, who admitted that he "blanked out" or fell asleep after seeing the lights, and not with the deputies or the sheriff. Freeman v. Tate, 847 So. 2d 800 (La. App. 2003). [PDF]

Racial/National Origin Discrimination

     African-American motorist's complaint adequately alleged facts which, if true, could support a claim that a state trooper lacked any legitimate reason to stop him, but did so on the basis of his race. Motorist claimed that at the time of the "traffic stop," he was obeying all traffic laws and staying in his lane, which would not have been possible if he had been, as the trooper claimed, reclining in his seat to the extent that he could not see the road. Wilson v. Department of Public Safety, No. 02-6236, 66 Fed. Appx. 791 (10th Cir. 2003).

Search and Seizure: Home/Business

     While the "knock and announce" rule is clearly established law, a violation of which, without cause, could support a federal civil rights claim, in this instance the officers had exigent circumstances justifying their unannounced entry into the home to serve the search warrant. At the time of the search, there were three armed suspects "on the loose," with a "good chance" that they were hiding in the house being entered. Battiste v. Rojeski, 257 F. Supp. 2d 957 (E.D. Mich. 2003).

Search and Seizure: Vehicle

     Municipality could not be held liable for officers' alleged improper searching of the trunk of a motorist's car during a stop without his consent or any other sufficient legal reason to do so, in the absence of any evidence showing that official policies, customs, or practices of the village caused the actions. Warner v. Village of Goshen Police Dept., 256 F. Supp. 2d 171 (S.D.N.Y. 2003).

Sexual Assault and Harassment

     Police superintendent could be sued for liability for alleged sexual abuse of eighth grade female student by police officer assigned to school, based on alleged failure to properly select, train, evaluate and supervise the officer. Plaintiff was entitled to conduct discovery to see if the officer's record revealed a pattern of "aggressive behavior or sexual misconduct" sufficient to put the superintendent on notice that he was not an appropriate person to assign to the school. Perez v. Fajardo, 257 F. Supp. 2d 467 (D. Puerto Rico 2003).

Wiretapping & Video Surveillance

     Deputy sheriff's alleged dissemination to other law enforcement officials of audiotape of private conversation between a private investigator and another person did not violate Louisiana wiretapping statute. Audiotape, while obtained without a judicially authorized wiretap, was intercepted by a third party, not the deputy, and therefore did not subject the deputy to civil liability. Marinovich v. Illg, No. 2002-CA-1870, 847 So. 2d 659 (La. App. 2003).

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

     Article: "The Birth of the Federal Bureau of Investigation," by John F. Fox, Ph.D., Office of Public/Congressional Affairs (July 2003). An interesting historical article, illustrated with photographs, and with 21 footnotes containing sources. Also on the FBI's website for the first time is a selection of historical documents from the Bureau's founding. As part of the FBI's celebration of the 95th anniversary of its founding, it is also featuring links to FBI History, Significant dates in FBI History, and Famous Historical Cases involving the Bureau. See also Directors, Then and Now (photos of FBI directors from the beginning to the present day, with links to their on-line biographies).

     Publication: National Institute of Justice Journal (Issue No. 249) (NIJ) (July 2003) (Text or PDF) Feature articles highlight several scientific breakthroughs to solve crime and to protect the public and law enforcement personnel. Without a Trace? Advances in Detecting Trace Evidence details four cutting-edge methods of extracting information from microscopic particles at a crime scene. DNA Evidence: What Law Enforcement Officers Should Know explains the basics of DNA sample collection and notes some procedures that can enhance the usefulness of such evidence. CCTV: Constant Cameras Track Violators provides an overview of the use of closed circuit cameras to monitor public areas, and NIJ's Bullet-Resistant Vest Standard Reaches Milestone celebrates the success of a manufacturing protocol that has saved the lives of thousands of law enforcement personnel. The "Research At-A-Glance" section contains two articles about the relationship between alcohol and crime. Other articles discuss how mapping technology can help probation and parole officers and how perspectives on community policing have changed since the early 1990s.

     Publication: Principles for Promoting Police Integrity (PDF)-- examples of promising police practices and policies. U.S. Department of Justice, January 2001. Contains discussion of the use of force, complaints and misconduct investigations, promoting accountability and effective management, training, non-discriminatory policing and data collection, recruitment, hiring and retention.

     Statistics: Federal Law Enforcement Officers, 2002 (Bureau of Justice Statistics, August 2003, NCJ 199995). Acrobat file (335K) (PDF) | ASCII file (40K) Spreadsheets (zip format 63K). Provides national data on Federal officers with authority to make arrests and carry firearms as of June 2002, based on a census of Federal agencies. Using agency classifications, the report presents the number of officers working in the areas of criminal investigation and enforcement, police patrol and response, security and protection, court operations, and corrections, by agency and State. Data on gender and race of officers are also included. Highlights include the following: Duties for Federal officers included criminal investigation (40%), police response and patrol (22%), corrections (18%), non-criminal investigation and inspection (14%), court operations (4%), and security and protection. INS (1,447) had the largest increase in number of officers. Next was the Veterans Health Administration (1,263), which continued its program to expand firearm authority to its entire police force, followed by the Customs Service (1,112) and BOP (748). Women accounted for 14.8% of Federal officers in 2002. Minority representation was 32.4% in 2002, up from 30.5% in 1998. Hispanic or Latino officers comprised 16.8% of officers in 2002, and African American or black officers, 11.7%.

     Reference:

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